Court File and Parties

COURT FILE NO.: 7941/19 DATE: 2020-06-02 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN David Didiodato, Counsel for the Crown

• and -

LORNE CLIFFORD CLEMENT Wayne Chorney, Counsel for the Accused

HEARD: November 18, 20, 21, 22 and December 20, 2019

GAREAU J.

REASONS FOR JUDGMENT

[1] Mr. Clement is charged with the following offence as set out in the indictment, dated January 14, 2019:

Lorne Clifford Clement stands charged that he on or about the 27th day of March in the year 2018 at the Town of Wawa, Ontario, District of Algoma, in the said Region, did commit a sexual assault on A.R., contrary to section 271 of the Criminal Code of Canada.

[2] Lorne Clifford Clement entered a plea of not guilty to the aforementioned charge.

[3] This matter proceeded to trial in November 2019. The court heard submissions from counsel on December 20, 2019 and the matter was adjourned to January 22, 2020, and then to March 23, 2020, for decision. As a result of the COVID-19 pandemic this matter did not proceed on March 23, 2020 and was adjourned to today’s date, June 2, 2020, for decision.

BACKGROUND

[4] The complainant was 18 years of age at the time of the alleged incident. In the evening of March 27, 2018, the complainant ended up at the home of the accused, Mr. Clement. At his home was Rebecca Dolan, who he was dating at the time. The complainant was driven to Mr. Clement’s home by Eric Belanger. They arrived at the home at approximately 8:30 p.m. The complainant was looking for drugs and she knew that she would find some at Clement’s home. That is the sole reason she went to his home. Mr. Belanger stayed at the Clement home for approximately one to two hours and then left, leaving the complainant with the accused and Rebecca Dolan. The complainant stayed the night at the home of the accused.

[5] While at the Clement home, the complainant, the accused and Ms. Dolan consumed alcohol and drugs. Mr. Belanger did not. Prior to attending at the Belanger home, the complainant consumed less than a gram of marijuana, and while at the Clement home, she consumed more marijuana, a Smirnoff Ice Vodka cooler which she brought from Mr. Belanger’s truck, and approximately two beers given to her by the accused. Mr. Clement began to consume beer right after lunch that day and by his estimate consumed approximately 16 to 18 beer in a 12-hour period, as well as “magic mushrooms” and hash oil. Rebecca Dolan also consumed marijuana and beer throughout the day and while the complainant was at the Clement home, but the evidence is not as exact on the amount of alcohol and substances consumed by Ms. Dolan during the day and the evening in question.

[6] While Eric Belanger was at the Clement home the conversation was of a general nature between the complainant, Mr. Clement, Ms. Dolan and Mr. Belanger. After Mr. Belanger left the home the conversation between the complainant, Mr. Clement and Ms. Dolan became more suggestive, more sexual. At one point in the conversation the complainant indicated that her boyfriend suggested that they have a “threesome” which is something that the complainant did not rule out but indicated she would be more comfortable if the third person was a female rather than a male.

[7] At some point in the early morning hours, approximately 1:30 a.m., the complainant went to bed. There is one bedroom and one bed in the Clement home. The bed itself is a futon-type bed which is no larger than a double sized bed. Mr. Clement and Ms. Dolan took a shower together and then joined the complainant in the one bed. The complainant was positioned in the bed against the wall, Ms. Dolan was in the middle, and Mr. Clement was on the far side. The positioning of the parties in the bed was drawn on a sketch of the bedroom in the Clement home prepared by the complainant and entered as Exhibit 1.

[8] While in bed there is some activity of a sexual nature between Rebecca Dolan and the complainant. The accused described it as Ms. Dolan and the complainant “fooling around”. The complainant described Ms. Dolan touching her breasts underneath her top. After this had occurred, the complainant assumes that Ms. Dolan falls asleep as it is her evidence that the accused gets in the middle of the bed and touches her thigh and attempts to pull down her leggings and underwear to perform oral sex on her. The complainant rebuffs these advances and goes to sleep. It is the evidence of the complainant that she goes to sleep and awakens to find Mr. Clement having sexual intercourse with her from behind. It was the evidence of Mr. Clement that he rubbed the complainant’s thigh but once he was told by the complainant to go cuddle with Ms. Dolan, that he left the complainant alone and did not touch her further. The accused vehemently denies that he had sexual intercourse with the complainant.

THE EVIDENCE

[9] As part of its case, the Crown called four witnesses, namely, the complainant, Eric Belanger, Dr. Sonja Stadler, and Detective Shelley Neufeld. The accused, Lorne Clement, testified on behalf of the defence.

[10] It is fair to say that the outcome of the charges against Mr. Clement hinges on whether the court accepts his evidence or the evidence of the complainant. The evidence of Eric Belanger and Detective Neufeld does little to assist the court in making that assessment. Detective Neufeld indicated that she was involved in the matter by meeting with the complainant at the Lady Dunn Hospital in Wawa, Ontario and arranging for her to travel to the Sault Area Hospital in Sault Ste. Marie to complete a sexual assault kit. Constable Neufeld was also involved in the investigation by taking a video statement from the complainant and also from Lorne Clement, which was given on March 28, 2018. A search warrant was obtained with respect to items in the residence of Lorne Clement and that search warrant was executed on March 29, 2018 at 11:03 a.m.

[11] Eric Belanger testified that he and the complainant were close friends, who saw each other in Wawa, Ontario almost every day. Mr. Belanger was acquainted with Lorne Clement, through his father who worked with Mr. Clement. Mr. Belanger did not know Rebecca Dolan. It was the evidence of Mr. Belanger that after supper on the evening in question, he and the complainant were driving around Wawa and ended up at Mr. Clement’s home around 9:30 p.m. as the complainant wanted some marijuana and knew that Mr. Clement would have some. Mr. Belanger testified that while the complainant was with him in the evening prior to arriving at the Clement home she had smoked “pot”. Mr. Belanger indicated in his evidence that while he was in the home, the others had marijuana and alcoholic beverages, each having two drinks. Mr. Belanger left the residence at 10:30 p.m. as he had school the next day and his parents wanted him home by 10:30 p.m. Mr. Belanger testified that he offered the complainant a ride home, but she refused, indicating that she could find a ride home.

[12] It was the evidence of Mr. Belanger that the complainant contacted him the following morning by text message. The text messages between the complainant and Mr. Belanger that morning were entered as Exhibit 2. Although the text from the complainant to Mr. Belanger was sent at 5:58 a.m., Mr. Belanger testified that he did not see the text until 7:30 a.m., when he woke up to get ready for school. The text from the complainant to Eric Belanger reads as follows:

Can u come get me as soon as u wake up please. If I’m not awake wake me up I’ll be on the couch my phone is at 1% so it might be dead but I’m begging u please come get me.

[13] Mr. Belanger testified that he arrived at the Clement home at 7:45 a.m. and the complainant was on her way out of the home and hopped into his truck. Mr. Belanger testified that the complainant didn’t seem herself, that she “seemed worried” and when he asked her what was going on, she brushed him off, so he didn’t pursue it further. As Mr. Belanger indicated in his evidence, “I knew something was going on. Twice I asked and she brushed it off both times.” Mr. Belanger drove the complainant to her home as she requested. The evidence of Mr. Belanger at trial as to the conversation that he and the complainant had in the truck and the demeanour of the complainant was different than the evidence he gave at the preliminary hearing when he testified that he and the complainant did not talk in the truck and that the complainant “seemed normal in the truck”.

[14] It was the evidence of Mr. Belanger that later that day, on March 27, 2018, he went to Mr. Clement’s house to ask what happened, but he did not get a “full answer” from Mr. Clement so he left. Mr. Belanger disagreed with the suggestion put to him in cross-examination that he went to the Clement home later that day to collect the complainant’s “bong”, which she had left at the Clement home.

[15] Although Eric Belanger did not testify as to this in examination in-chief, in response to questions put to him in cross-examination, Mr. Belanger indicated that he spoke to the complainant later in the day on March 27, 2018 and she wanted a ride to the Sault Ste. Marie airport so she could travel to see her boyfriend, Dylan, who resided in London, Ontario. Mr. Belanger testified that the complainant did not say why she wanted to see her boyfriend, and that at that point in time “she seemed normal, like everything was fine”. Mr. Belanger testified that he did not bring the complainant to the Sault Ste. Marie airport as he had school the next day. He indicated in his evidence that “she begged me to bring her, but I said that I couldn’t.” It was the evidence of Eric Belanger that his impression from his conversation with the complainant was that she “had a strong desire to go to London to see Dylan and that she wanted to go quickly”.

[16] Dr. Sonja Stadler, a forensic scientist with the Centre of Forensic Sciences, was permitted to provide opinion evidence to the court and qualified as an expert in the collection, examination, analysis and interpretation of blood, semen, saliva and other bodily fluids, including the collection, analysis, transfer and persistence of DNA.

[17] With respect to the matter before the court, Dr. Stadler authored three reports. The first report, dated April 20, 2018, was entered as Exhibit 3. This report focused on the analysis of items collected as part of the sexual assault kit involving the complainant. As indicated in the report, there was no bodily fluid testing performed on the items submitted, being a rectal swab, external genitalia swabs and vaginal swab as there was insufficient male DNA detected to perform testing on these items submitted. In essence, male DNA was detected at a level below the reliable limit of the quantification system. Dr. Stadler testified that it is not surprising not to detect DNA following penile penetration taking into account such factors as the degree of penetration, whether there was ejaculation, and whether a condom was used.

[18] The second report prepared by Dr. Stadler is dated June 14, 2018 and was entered as Exhibit 4. As this report indicates, two pairs of underwear from the complainant, a green pair and a black pair, were examined to determine if there was semen present. On the green underwear, a trace amount of semen was detected. The amount was insufficient for analysis. On the black underwear, semen was detected. The DNA analysis of the black underwear revealed that DNA was present on that sample from two individuals. The conclusion reached in the report was that with respect to the black underwear sample, there was DNA mixtures from two individuals, including DNA attributable to the complainant. The DNA mixture obtained from the black underwear was suitable for comparison and to be uploaded to the National DNA Databank.

[19] The third report prepared by Dr. Stadler is dated September 11, 2018 and was entered as Exhibit 5. The purpose of that report and the testing performed for that report was to determine if the accused, Lorne Clement, could be excluded as a contributor to the DNA found as set out in the previous report (Exhibit 4). As set out in the September 11, 2018 report, the accused, Lorne Clement, cannot be excluded as a source of the DNA found on the black underwear. The conclusion reached is that Mr. Clement is more likely a contributor to the DNA mixture on the black underwear than he is not. As noted at point 3 on page 3 of the September 11, 2018 report,

Lorne Clement/P-001(13-1) cannot be excluded as a contributor to the mixture from the black underwear (12-2) from (the name of the complainant).

The DNA results from the black underwear (12-2) are estimated to be 24 million times more likely if they originate from (name of the complainant), Lorne Clement and one unknown individual than if they originate from the named complainant and two unknown individuals unrelated to Lorne Clement.

[20] Therefore, there are three contributors to the DNA found on the black underwear; the complainant herself and two others whose biological sex cannot be identified, as stated by Dr. Stadler in her evidence to the court.

[21] It was the evidence of the complainant that she was sexually assaulted by the accused, Lorne Clement. She testified that while she was in the bed with Mr. Clement and Rebecca Dolan that at one point she fell asleep and awoke to Mr. Clement’s penis in her vagina from behind. It was the evidence of the complainant that she had previously indicated to Mr. Clement that she was not interested in having sexual activity with him, told him to go cuddle with his girlfriend Ms. Dolan, and that she had made it clear to Mr. Clement by her statements and actions to Mr. Clement that she did not consent to any sexual relations with him.

[22] The complainant testified that she attended the home of the accused, Lorne Clement, on March 26, 2018 at approximately 8:30 p.m. Eric Belanger was with her. Prior to going to the Clement home, she had consumed marijuana, less than a gram. It was the evidence of the complainant that she smoked marijuana every day. The complainant testified that she took a cooler type drink from Eric Belanger’s vehicle and brought that into the Clement house. It was the belief that Mr. Clement had marijuana which prompted her to go to Mr. Clement’s home.

[23] Once inside the Clement home, the complainant believes that she consumed the Smirnoff Ice cooler she had taken from Mr. Belanger’s house and two beer, which were given to her by Mr. Clement. Ms. Dolan and Mr. Clement were drinking beer as well, although the complainant cannot recall how much either of them consumed. In addition to the alcohol, the three of them, Clement, Dolan and the complainant, consumed marijuana. As the complainant put it in her evidence, “we smoked all night, it wasn’t just the once”. It was the evidence of the complainant that Eric Belanger did not consume alcohol or drugs and that he left the home around 10:30 p.m. and that she stayed at the Clement home believing that eventually Mr. Clement or Ms. Dolan would driver her the five-minute distance to her home.

[24] The complainant testified that between 1:00 and 1:30 a.m. she eventually went to bed. Ms. Dolan’s things were all over the couch, so the complainant ended up in the bed in the bedroom. It was the evidence of the complainant that when she went to bed, she was waring grey yoga pants and a tank top given to her by Ms. Dolan, and her bra and underwear. Eventually, Mr. Clement and Ms. Dolan joined her in the bed in the bedroom.

[25] It was the evidence of the complainant that at the point that Mr. Clement and Ms. Dolan joined her in bed that she was on her side facing the wall, closest to the window, and that Ms. Dolan was in the middle next to her, and Mr. Clement was on the far side, next to Ms. Dolan. This was sketched out by the complainant on the drawing entered as Exhibit 1. The three of them were underneath the covers. The complainant testified that when the three of them were in bed together, Mr. Clement asked her if she wanted to cuddle with him or Rebecca, to which the complainant replied, “Rebecca”. At this point, Rebecca Dolan began to touch the complainant and in particular touched her breasts, both on top and underneath her top. The complainant testified that she did not object to this physical contact by Rebecca Dolan. It was the evidence of the complainant that eventually Ms. Dolan goes to sleep and Lorne Clement works his way to the middle position in the bed next to her. At this point, Mr. Clement tries to cuddle with her and begins touching her thighs and buttocks and attempts to pull her pants down. It was the evidence of the complainant that she told Mr. Clement to stop but he continued to try and touch her. The complainant testified that she was trying to sleep and told Mr. Clement that he was dating Rebecca so he should go and cuddle with Rebecca. The complainant testified that while he was next to her, Mr. Clement tried to pull her pants and underwear down and had them half-way to her thighs in an attempt to perform oral sex on her. The complainant testified that she said “Stop, I’m trying to sleep” and that she pushed the complainant off because she did not want to have sexual relations with him. It was the evidence of the complainant that after she rebuffed Mr. Clement he went and laid down beside Rebecca and started to cuddle with her. After this occurred, the complainant eventually went to sleep.

[26] The complainant testified that after she went to sleep, she woke up with her body positioned on the left side and her right leg bent in front of her with the penis of Lorne Clement inside her vagina. It was the evidence of the complainant that this was done without her knowledge and without her consent. The complaint testified that she pushed Lorne Clement off her and that at that point he ejaculated on her buttocks. The complaint testified that she took the ejaculate off her buttocks and placed it on Mr. Clement’s back.

[27] The complainant testified that after that occurred, she eventually went to sleep in the bed with Mr. Clement and Ms. Dolan in it, and that some point in the early morning she moved to the couch at which point she sent a text message to Eric Belanger, referred to earlier (Exhibit 2). After sending the text, the complainant went back to sleep, and Mr. Belanger eventually picks her up at 8:45 a.m. The complainant testified that when she went home, she spoke to her mother and then went to the police in Wawa, Ontario, and to the hospital in Sault Ste. Marie, Ontario to have a sexual assault examination and kit completed.

[28] In cross-examination the complainant admitted that some point in time during the evening at the Clement home that a conversation about a threesome was initiated by her. The complainant testified that she was open to a threesome with her boyfriend Dylan, but she had no interest in the third person being a male.

[29] It was the evidence of the complainant given in cross-examination, when she went to the couch, she was able to fall asleep and was woken up by Eric Belanger knocking at the window at which point she gathered her belongings and went with Mr. Belanger into his truck and left the Clement property. The complainant indicated in cross-examination that she had no recollection of asking Eric Belanger to drive her to the Sault Ste. Marie airport so she could travel to see her boyfriend in London, Ontario. In cross-examination, the complainant agreed that Lorne Clement did not touch her breasts or her vagina while he was in bed with her, and that he never threatened violence against her.

[30] Rebecca Dolan, the third person in the bed that morning in the Clement home, did not give evidence at the trial. The accused, Lorne Clement, did testify on his own behalf. Mr. Clement testified that Ms. Dolan was staying at his home with him for a week before the evening in question. It was the evidence of Lorne Clement that on the day in question he was doing spring cleanup around his yard at his home. He was not anticipating any visitors. During the day he started to drink around noon, and on his own evidence he had 16 beer in a 12-hour period, and in addition, consumed magic mushrooms and hash oil.

[31] It was the evidence of Mr. Clement that the complainant and Mr. Belanger showed up at his place between 8:00 p.m. and 9:00 p.m. Mr. Belanger did not consume any alcohol or drugs while he was at the Clement home. The complainant came into the home with a Smirnoff Ice cooler and had two beer at his home by the evidence of Mr. Clement. Mr. Belanger leaves the home at approximately 10:30 p.m., the complainant stays. It was the evidence of Mr. Clement that he never offered the complainant a ride home because “I was impaired. I had a few beers. I wouldn’t drive.” Mr. Clement testified that marijuana from a bong was being smoked by Ms. Dolan and the complainant, and that they talked at the kitchen table until roughly 1:00 a.m. The home was dark as there was a scheduled power outage through Algoma Power from 12:00 midnight to 1:00 a.m. Mr. Clement testified that during the evening the complainant started talking sexual about a threesome, and that she had a new boyfriend Dylan to satisfy her sexually. Mr. Clement testified that this type of sexual conversation went on for approximately 20 minutes.

[32] Mr. Clement testified that before the power went out, he and Rebecca Dolan had a shower together and that while in the shower they had sexual relations and that he ejaculated. It was the evidence of Mr. Clement that the complainant could have slept on the couch, but she insisted that she sleep in the bedroom.

[33] As part of the evidence that he gave to the court, Lorne Clement described the active sex life that he had with Rebecca Dolan. It was his evidence that during the week leading up to the complainant being at his home that he and Ms. Dolan had sexual relations over 20 times, sometimes as much as six times a day. He described sex occurring in the living room, the bedroom, in the kitchen, and in his truck. There was sex when Ms. Dolan was wearing underwear, although Mr. Clement could not remember any specific time where he might have ejaculated on Ms. Dolan’s underwear. It was his evidence that clothing used by him and Ms. Dolan were not often laundered and were all over the place in his home.

[34] Mr. Clement described the power being out and that there was no source of illumination in the bedroom or in the bed that he, Ms. Dolan and the complainant occupied. He described the complainant as lying against the wall, Ms. Dolan being in the middle, and him being on the far side of the bed. The positioning of the parties described by the accused was the same as the evidence given by the complainant on this point. Mr. Clement indicated that he could feel his girlfriend, Ms. Dolan, next to him “because the bed is super small”.

[35] The accused described being able to tell that Ms. Dolan and the complainant were “fooling around” in bed. He could not see because of the darkness but could tell by the activity in the bed. This interaction between Ms. Dolan and the complainant lasted about five minutes by the accused’s estimate at which point Ms. Dolan and he changed positions so he was next to the complainant. Mr. Clement acknowledged in his evidence that he touched the complainant on her right upper thigh and tried to spoon or cuddle with the complainant who he testified told him to go and cuddle with his girlfriend, Ms. Dolan, which he did. It was the evidence of Mr. Clement that when he was cuddling Ms. Dolan, he fell asleep and remained sleeping through the night until he heard the truck of Eric Belanger outside his home in the morning. Mr. Clement indicated in his evidence that at that point he went back to sleep and didn’t get up until 11:00 a.m.

[36] In examination in-chief, direct questions were put to Mr. Clement about what the complainant alleges was done to her by him and he emphatically denied each and every allegation. In his evidence, Lorne Clement denied trying to remove the pants and underwear of the complainant and denied that he attempted to perform oral sex on her. Lorne Clement denied that he had any sexual relations with the complainant, and specifically denied the suggestion that he penetrated her vagina with his penis or that he ever attempted to do anything like that. Mr. Clement did admit to rubbing the upper thigh of the complainant with his hand.

[37] It was the evidence of Mr. Clement that the complainant borrowed some of the clothing of Rebecca Dolan that evening. Mr. Clement testified that the complainant found it hot and borrowed some clothing from Ms. Dolan, although Mr. Clement does not know what specific clothing the complainant borrowed from Rebecca Dolan.

[38] As to Eric Belanger returning to his home later in the day, Mr. Clement indicated that he did so but not to talk about things with him but rather to pick up the complainant’s bong, grinder and kit which she had left at his home. It was the evidence of Mr. Clement that he specifically recalls seeing the kit and the bong in the kitchen sink of his home after the complainant was gone from his home, and that he specifically recalls seeing Eric Belanger leave his home with it.

DISCUSSION/ANALYSIS

[39] The case before the court is not a complicated one. The facts are relatively straightforward. There are no issues such as consent, capacity to consent or mistaken belief in consent raised on the facts of this case. The complainant is suggesting that certain things happened, and the accused is denying that this occurred. The outcome of the charge of sexual assault against Lorne Clement comes down to credibility; whether I accept the evidence of the accused or whether his evidence raises a reasonable doubt, or whether I accept the evidence of the complainant, considering the totality of the evidence presented at trial.

[40] The accused, Lorne Clement, testified at trial. This brings the principles of R. v. W.(D.), 1991 93 (SCC) , [1991] 1 S.C.R. 742, into play. The court must consider these principles when considering the evidence of the accused and whether the totality of the evidence convinces the court beyond a reasonable doubt of the guilt of the accused. In W.(D.) the Supreme Court of Canada stated at paragraph 28:

A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[41] This formula of the court reinforces the principle that the Crown must prove the guilt of the accused beyond a reasonable doubt, which is a cornerstone in the criminal justice system in Canada.

[42] The accused completely denied that there was any inappropriate or sexual contact between himself and the complainant. In examination in-chief the accused testified in a manner which led the court to believe that he had complete recollection of what happened on March 26 and 27, 2018 at his home when the complainant was there, and a crystal-clear recollection of his interaction with the complainant that evening and morning. What the accused wanted to portray to the court as to his recollection of events, was exposed as a complete fallacy in his responses to questions put to him in cross-examination. In examination in-chief, Mr. Clement indicated that he had 16 beer over a 12-hour period and some “magic mushrooms” on the day leading up to his interaction with the complainant. In cross-examination the evidence of the accused was that he had 18 beer over a 12-hour period, which he altered to 16 to 18 beer later in his evidence and magic mushrooms, all which he consumed after lunch on the day the complainant attended at his home. It is difficult to appreciate how a person’s recollection of events could be as clear as Mr. Clement says his is given the amount of alcohol that he consumed that day. The answer to this question is made clearer during the course of the accused’s cross-examination by the Crown. The accused provided a statement to the police on March 29, 2018, no more than days after that incident. In that statement to the police, the accused indicated that he was extremely intoxicated and that his memory of the evening was a blur. In that statement to police, when asked what he thought happened, the accused’s response was that he didn’t really remember because he was really hammered. In his statement to the police the accused indicated that he and Rebecca Dolan were intoxicated but that the complainant appeared sober to him, certainly far more sober than he or Rebecca Dolan were. As to what Mr. Clement recalls telling the police, he indicated in his evidence at trial that:

I think I just told them I was buzzed out. I had a buzz on, but I wasn’t severely intoxicated where I couldn’t walk, or, you know what I mean, or couldn’t remember. I had about 18 beer over a 12, 13-hour period.

[43] The defence conceded that the statements to the police by Lorne Clement were voluntary. These admissions to police leads the court to conclude that the evidence of the accused given in-chief is unreliable. The accused did his best to attempt to distance himself from the statement given to the police by suggesting that he was wakened from sleep and was tired when he gave his statement to the police. The accused suggested in his evidence that “I was pressured, and it was just – I was taken by surprise”. In this response the Crown asked, “And I’m going to suggest you told the police that you were really hammered and have a hard time remembering things that night. Do you agree with that?” The accused replied in his testimony, “I agree that I probably told them that. But I have a hard time remembering things regardless, but I’m not – I don’t pay attention that much to situations like that. I was probably thinking about working or something like that instead of paying attention to what is going on.” When the Crown asked the accused whether his memory now is better than it was two days after the incident, the accused provided this response:

Well, I’ve had a lot more time to think about what happened that night and stuff like that, yes. I got caught off guard; I don’t know anything about it. The police just came, picked me up and brought me to an interview, straight out of bed.

[44] When giving his statement to the police and asked whether he had sex with the complainant, the accused’s response was “I don’t think so”. The accused remembered having sex with Ms. Dolan in the shower just before he went into the bed with the complainant, but he indicated to the police that he does not remember whether or not he had sex with the complainant. During cross-examination the accused indicated that he knows he didn’t have sex with the complainant based on his belief, “that’s something I wouldn’t do without consent”. Interestingly, the accused did tell the police that he had “made out” with the complainant when he gave a statement to the police, although in cross-examination he indicated that he was incorrect about that.

[45] The statement given by the accused to the police no more than two days after the incident, portions of which were put to him by the Crown in cross-examination, contradicts much of what the accused said in examination in-chief and leads to the conclusion that in fact the accused’s actual recollection of what occurred during the evening of March 26 and morning of March 27, 2018 is “a blur” as he indicated to police. The statement given to the police by the accused concerning his level of intoxication calls into question the accused’s crystal-clear recollection of events. The evidence of Lorne Clement simply cannot be relied upon. The evidence given by the accused in examination in-chief is impeached significantly considering the statements he made to the police shortly after the incident and the questions put to him during cross-examination and the answers given by him. The reliability of the accused’s evidence is of concern to this court. The accused has a perfect recollection of events now but two days after the incident cannot recall much of what occurred. This leads to the inescapable conclusion that the accused has reconstructed his evidence in a way that is beneficial to him.

[46] The evidence of the accused given at trial cannot be relied upon. It was obviously a reconstruction of events to suit his own purposes and, in my view, was not an accurate account of what occurred in the evening and morning in question. This is not difficult to appreciate given how much alcohol the accused had consumed. The accused candidly admitted to the police that he was “lit”, “hammered”, and doesn’t recall what happened. I believe that this is an accurate account as opposed to the accused’s evidence of crystal clarity given at trial which, in my view, the accused reconstructed for his own benefit.

[47] In applying W. (D.), I do not believe the evidence of the accused nor does his evidence raise a reasonable doubt. It is therefore the third prong of the W.(D.) test that must now be considered by the court. Even if I am not left in a doubt by the evidence of the accused, I must go on to consider the evidence as a whole and must ask myself whether on the basis of the evidence I do accept if I am convinced beyond a reasonable doubt by the evidence of the guilt of the accused. I must consider whether the Crown has proven the guilt of the accused beyond a reasonable doubt.

[48] The aforementioned questions will be answered, in large part, by whether or not I accept the evidence of the complainant. The complainant was in the best position to recall with accuracy the events at the Clement home. By the accused’s own admission in his statement to police, she was more sober than the accused or Rebecca Dolan. I found the evidence of the complainant to be clear and consistent. She resisted the temptation to exaggerate or embellish her evidence, even when it was advantageous for her to do so. In her evidence, she was prepared to acknowledge facts that were disadvantageous to her case, or embarrassing, such as her daily use of marijuana. The complainant was not impeached in cross-examination. There were no inconsistent statements, either made to the police or at the preliminary hearing, that were put to her in cross-examination that led the court to be concerned about the accuracy or reliability of her evidence. Having said that the complainant’s evidence is inconsistent with the evidence given by Eric Belanger on some points such as her marijuana use before arriving at the Clement home, whether she was at the Clement property prior to the night in question, whether she left the Clement home in the morning or whether Mr. Belanger woke her up and whether or not she asked for a ride from Mr. Belanger to the Sault Ste. Marie airport. My view is that these inconsistencies relate to collateral issues. As to her evidence on the main material issues and, in particular, what occurred in the bed at the Clement home, the complainant remained clear and consistent in her evidence and this did not change even when she was subjected to vigorous cross-examination.

[49] The defence has raised the actions of the complainant after the alleged sexual assault to suggest that her actions were “bizarre” and not consistent with someone having been sexually assaulted. The defence referred to these as “big questions to be considered”, such as why she is able to fall back to sleep after struggling with Mr. Clement, and then after being sexually assaulted by him, why she remained in the same bed as Mr. Clement, why she did not flee the Clement home after being sexually assaulted, and why she did not call out to Rebecca Dolan who was in the same bed a short distance away.

[50] It is dangerous for the court to rely on stereotypical behaviour as to how an individual is or is not likely to behave after being sexually assaulted to make assessments about their evidence. In fact, reliance on such stereotypical behaviour to assess credibility is prohibited. Appellate authority has made it clear that courts should not rely on stereotypical views about how victims of sexual assault would or would not behave to assess credibility and to do so is a reviewable error of law (see: R. v. A.B.A., 2019 ONCA 124).

[51] In considering the totality of the evidence of the complainant, I accept her evidence and find it credible and compelling.

[52] The Crown takes the position that the evidence of Dr. Sonja Stadler contradicts the accused’s version of events and corroborates the complainant’s version of events. My view is that the DNA evidence neither serves to refute the evidence of the accused or reinforce the evidence of the complainant. The forensic evidence must be taken for what it is worth, namely, establishing that the accused’s DNA cannot be excluded as a contributor to the mixture from the black underwear of the complainant. I would have rejected the evidence of the accused and accepted the evidence of the complainant without the forensic evidence and to some extent it is a neutral factor in the assessment of credibility and the weighing of the evidence given by the accused and the complainant.

CONCLUSION

[53] For the reasons set out, the evidence of the accused is not believed by this court nor does it raise a reasonable doubt. I am satisfied beyond any reasonable doubt that the complainant’s version of events did occur, and I find as a fact that the accused inserted his penis into the complainant’s vagina without her consent and with the knowledge that she did not consent.

[54] Having reached this conclusion, the accused is convicted of the offence of sexual assault, contrary to section 271 of the Criminal Code of Canada, as set out in the indictment dated January 14, 2019.

Gareau J.

Released: June 2, 2020