COURT FILE NO.: CR-19-15260
DATE: 20201216
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDERSON ALLEYNE and
TRISTON RUSSELL
Defendants
Taran Boodoosingh, for the Crown
Sevag Yeghoyan, for Anderson Alleyne David Parry, for Triston Russell
HEARD: November 16, 18,19, 20, 23, 24 25, 2020
REASONS FOR JUDGMENT
LEIBOVICH J.
[1] Mr. Russell and Mr. Alleyne are charged with sexual assault causing bodily harm. The complainant is AF. The accused elected to be tried by myself without a jury. The trial was held over eight days, starting on November 16, 2020 and finishing November 25, 2020. At the conclusion of the trial, I reserved and adjourned to today, December 16th, for judgment.
OVERVIEW
[2] The complainant was at a birthday BBQ with a couple of her friends. At the party, she met Mr. Russell. At one point, they went to his van, which was parked across the street, for a cigarette. The complainant testified that she had been drinking. She was sitting in the van and then blacked out and awoke to find Mr. Russell having sexual intercourse with her. She asked what was happening, what was going on, but was told that it was okay. She passed out again and heard Mr. Russell outside hollering to someone else. The man entered the van and AF passed out again. She then awoke to find a second man, later identified as Mr. Alleyne, having sexual intercourse with her. She saw her friend, TB, outside the van and asked what was going on. When she saw her friend leaving, she asked why. The second man told her it was okay and to perform oral sex on him. She did. AF’s friend returned with her iPhone and used its flashlight on the van. She was let in and helped AF get dressed and then took her home. AF said that she did not consent to any of the sexual activity.
[3] It is the Crown’s position that AF did not consent to the sexual activity and that if she did, she was incapable of consenting due her level of intoxication. The Crown relies on the evidence of the complainant as supported by the testimony of her friend, TB.
[4] The defence called no evidence, but the video statements of both accused to the police were tendered by the Crown as part of its case. The defence relies on those statements, wherein both accused admit to having sexual intercourse with the complainant but state that the sexual activity was consensual. The defence state that I should accept their statements, or that they should at least raise a reasonable doubt. Even if the statements do not raise a reasonable doubt, the Crown’s case is not sufficiently strong to prove beyond a reasonable doubt that either accused sexually assaulted the complainant. The accused state that the complainant’s testimony that she blacked out is simply inconsistent with the evidence of her alcohol consumption. The defence also relies on the evidence of TB.
THE EVIDENCE
Arriving at the party
[5] On July 28, 2018, AF, her best friend, TB, and TB’s boyfriend, KW, arrived at TB’s father’s best friend’s house for a birthday BBQ. They arrived at approximately 7:30 p.m. TB drove, and they parked across the street. It was an older crowd with most of the guests being in their 40s.
AF’s consumption of alcohol
[6] The evidence regarding AF’s consumption of alcohol stemmed from AF, TB, and Mr. Russell’s statement to the police.
[7] AF testified that the plan was for TB and KW to drive AF to the party, but AF arrived a bit early at TB’s house, so she went across the street to another friend’s house. She had two tall boy Coors Light beers at her friend’s house. AF testified that she brought the remainder of the six-pack of tall boys Coors Light beer, a mickey of whiskey, and a smaller bottle of Sour Puss. The Sour Puss contained 17% alcohol.
[8] AF testified that she believed she opened a third beer while at the party and started it. She testified that she was taking swigs from the mickey of whiskey and from the Sour Puss bottle. She testified that she had a good eight to 10 swigs. She testified that she had poured an older man a drink in a red cup. In cross-examination she agreed that TB had a shot, as well as a third person. She did not recall at trial that the third person was Mr. Russell (TB testified that the third person was Mr. Russell).
[9] AF testified that she had not drank for a while, but she was feeling good, not anxious or uptight. She was more intoxicated as the party went on. She was drunk. On a drunkenness scale from 1-10, she would say she was a 7.5. She stumbled a few times, but nothing she had not experienced before. AF testified that at one point she, KW, and TB went to TB’s car for a smoke. KW smoked marijuana, not cigarettes, and AF may have taken two or three puffs because that is what she would normally do.
[10] AF said that she does not normally black out, only when she drinks excessively, and she did not think she had drunk excessively that night. On July 28, 2018, AF was 5’6” and weighed 230 pounds. She did not eat at the BBQ.
[11] TB testified that she had a vodka cooler and two shots at the party from AF. She testified that AF brought the whiskey. TB testified that AF was tipsy, that she was a little drunk (she had seen her a little drunk before) but not out of her mind drunk. TB testified that AF was affectionate and told TB that she loved her a lot. TB believed that AF may have had a little bit of marijuana when they went with KW earlier for a smoke. TB did not see the case of beer and she did not remember the bottle of Sour Puss. She would have noticed the beers. She testified that she was not keeping track of what AF was drinking.
[12] TB testified that when she saw AF in the van, AF was drunk – pretty intoxicated, but not overly intoxicated. A person that is overly intoxicated is someone who needed assistance to walk. In cross-examination, TB testified that she had seen AF very drunk before and she was not very drunk at the BBQ. She was not falling down drunk. TB testified that AF was 5/10 on a drunkenness scale, and that AF did not smell of marijuana. TB testified that she was not worried about AF when she went to the bathroom. TB believed that AF could take care of herself and she was not concerned about her.
[13] Mr. Russell stated that he met AF at the party. They were talking and they had a beer together. Mr. Russell smoked some marijuana with KW. He then had some whiskey with AF. AF told him that she had been drinking and her friend did not want her to drive, but she was good. AF was talking “quite plain”. Mr. Russell believed she was sober. AF was drinking bourbon and whiskey.
Arrival of the Van
[14] Mr. Russell arrived in a large van with a number of other males. The van was white on the upper half and blue/gray on the bottom half and it is depicted in exhibits 4ab and 5. The van was a work van and the males worked on a farm. Mr. Alleyne arrived at the party as well, but with another male and in a different car. The van was also parked across the street from the BBQ.
[15] There was no dispute that Mr. Russell and the van arrived after AF and her friends. AF believed it was 30-45 minutes later, but TB believed it was 30 minutes later. Mr. Russell introduced himself to AF, TB, and KW as Triston. Mr. Alleyne was the second man who had sexual activity with AF, and TB and AF testified that they never saw Mr. Alleyne before at the party. They did not recognize him. TB testified that she did not believe that Mr. Alleyne arrived in the van. Mr. Alleyne, in his statement, said that he might have said hi to AF and her friends.
Interactions with Triston Russell
[16] AF testified that Mr. Russell was hanging out with them, there was nothing bad. AF testified that she was not really talking with Mr. Russell. At one point she told TB and KW that she was not interested in Mr. Russell. She had trouble understanding him because of his accent and soft voice. She was not flirting with Mr. Russell. She did not find his accent interesting or ask him where he was from. She testified that if Mr. Russell talked to her, she would answer him back, she was not being rude. Mr. Russell was not talking a lot; he was just there. Mr. Russell was talking to the group of them. She disagreed that she was having a good conversation with Mr. Russell.
[17] AF testified that she felt tipsy at one point and almost stumbled and had to lean on the lawn chair that Mr. Russell was sitting in. She hit her elbow and scratched it, a little bit of a red mark that may have lasted a couple of days. She testified that she leaned on Mr. Russell’s lawn chair for 90 seconds. She agreed in cross-examination that sitting down on that curb even if sober was not that easy. She described it as a little fall and at one point, said it was not even a fall as she was able to catch herself. She did not feel any pain at the time.
[18] AF disagreed in cross-examination that she had her arm around Mr. Russell or that when she was walking towards the van, she had her arms around him. She did not kiss Mr. Russell or try and make out with him. She does not remember touching his thigh or asking him to have sex. She did not remember Mr. Russell telling her that he had lost interest about sex or telling her that her friend is looking for her. She did not remember telling Mr. Russell that she was not finished yet and she does not think she did.
[19] TB testified that she talked with AF, KW, and Mr. Russell throughout the night. She agreed that Mr. Russell had a bit of an accent and sometimes his pronunciation was not clear. TB testified that she was with AF the entire night except when she went to the washroom. TB agreed in cross-examination that it was possible that there were times when she was not near AF at the party.
[20] TB testified that she, AF, and Mr. Russell were sitting on the curb at the front of the house while KW was standing. TB testified that Mr. Russell and AF were talking and having a normal conversation. TB testified that Mr. Russell was not pushy or aggressive and he was not coming on to AF. TB testified that at one point he had his arm around AF, but it was not excessive, and at one point her head was on his shoulder. TB testified that while AF was not trying to avoid Mr. Russell, but at one point she stood behind TB. TB testified that AF did say that she was having difficulty understanding Mr. Russell, but they were still talking. At trial, TB said that AF told her that she was not interested in Mr. Russell. At the preliminary inquiry, she had no recollection of this comment.
[21] Mr. Russell stated that there was an attraction, a connection, between him and AF, and as the night wore on, they became more comfortable with each other. TB told him that KW was getting a little jealous. Mr. Russell said that he had some whiskey with AF. She started touching him at the side of the house. AF was sitting on the floor and Mr. Russell was sitting on the fold up chair. AF was touching him up and everything. She asked him if he had a car. He said no but he had a van, so AF suggested that they sit in the van. He got up from the folding chair and AF hugged him. As they walked to the van they were hugging and walking.
The Sexual Activity in the Van
[22] AF testified that TB went to the washroom. AF said, “we’re going for a smoke” and expected KW and Mr. Russell to come with her for a smoke. But AF noticed that KW did not come, just Mr. Russell. AF testified that it was still light outside but starting to get dark. It got dark at 9:00 p.m. in the summer. AF and Mr. Russell walked to the van, which was parked diagonally across the street. AF testified that she sat in the van, with her feet dangling out. She blacked out and when she woke up, Mr. Russell was having sexual intercourse with her. Her pants and underwear were down, one shoe was on, and one leg was over the bench seat in front of her. She was on the second bench, closer to the passenger side. Her underwear was wrapped around one ankle. Mr. Russell was facing the back and having sexual intercourse with her. She asked what was going on, what is happening. Mr. Russell said it was okay. AF testified in cross-examination that she remembered Mr. Russell kissing her as he was having sex with her. She realized what was going on, but she blacked out again. She awoke the second time and she heard Mr. Russell outside of the van hollering to someone at the BBQ. Mr. Russell was getting dressed, putting on his shirt.
[23] AF testified that she was out of it, trying to figure out what was happening. She tried to get her clothes on. A second man came in, perhaps 30-45 seconds after Mr. Russell was hollering. AF testified that she tried to regroup and put her clothes back on to leave the van, but she could not do it, she was not capable of getting dressed at the time. AF blacked out. She regained consciousness and was now placed closer to the driver’s side. The second man was having sexual intercourse with her. TB came and knocked on the door but then left. AF testified that she asked “where did TB go” a number of times, and asked out loud “what’s going on”. The second man said its fine, “just suck it, just suck it” and he had her perform oral sex on him. She testified in cross-examination that she did not pull the man into the van and she did not kiss him. She did not know who opened the door for the second man. She did not know how it went from sexual intercourse to her performing oral sex on the man.
[24] She was performing oral sex on the second man when TB returned. AF testified that TB returned and was banging on the window and was using a flashlight from her iPhone. The man opened the van. TB said, “oh my god” and told AF that she was covered in blood. AF noticed that there was blood on the seat next to her. AF testified that TB helped her get dressed and get out of the van, although she does not remember how she helped her get dressed and exited the van. They drove home and AF testified that she would go in and out of consciousness. She arrived home and TB put her in the shower. AF testified that she threw up in the sink, shower, and toilet. The next day she went to the hospital, a sexual assault kit was taken and then AF went to the police station.
[25] AF testified that she did not want to have sexual intercourse with Mr. Russell, nor did she want to have sexual intercourse or perform oral sex on the second man.
[26] AF testified that she used the terms blanked out and blacked out interchangeably. She agreed in cross-examination that she blanked/blacked out in the van three times during the sexual activity. She also agreed that since she did not remember going from the van to TB’s car that that period of time could be considered a fourth black out.
[27] In cross-examination, AF testified that she does not believe she pushed Mr. Russell away, she does not remember kicking him, or grabbing his penis, or removing his clothes. She did not believe she removed Mr. Russell’s clothes, but she did not remember. She did not remember persuading Mr. Russell to stay or asking him why he was leaving. With respect to the second man, she testified that she did not pull him inside the van and invite him to have sex with her. She testified that she did not know how his pants came undone, she did not touch his penis, she does not remember. She did not tell him to stop, she did not keep her mouth closed or move her head. She did not want anything to happen.
[28] TB testified that when she came back from the washroom, KW told her that Mr. Russell and AF went for a smoke. TB was not alarmed when she heard this. TB and KW got some food and went to TB’s car. TB then saw Mr. Russell outside of the van with his shirt off. TB went to the van. TB testified that she went to the van approximately 20 minutes after she had gone to the bathroom. Mr. Russell was in the middle of putting his shirt on. She asked him where AF was. He responded that she was inside “just cleaning herself up.” TB did not know what that meant. She looked in the van and saw a different man engaging in sexual activity with AF. AF was laying on her back with one leg over the front seat, the male was in between the second seat and the first and thrusting. His pants were pulled down towards his mid-thigh. TB tried to open the door, but it was locked. In the meantime, Mr. Russell had headed back towards the party. TB went back to her car to get her iPhone and KW. TB returned to the van and used the flashlight app from her iPhone and shined it through the van window to get their attention. It worked and the man opened the van.
[29] TB looked at AF and told her that she was covered in blood. The man laughed and walked back towards the party. AF had blood around her mouth, on her hands and forearms, pelvic area and stomach. TB testified that AF looked confused. TB agreed in cross-examination that AF said, “Two guys fucked me.” AF also said she was okay.
[30] TB did not go in the van, but she helped AF pull her pants up and collected AF’s cigarettes and iPhone.
[31] AF did not need any assistance walking to TB’s car. Once at the car, AF laid down in the back. TB did not notice AF going in and out of consciousness. She testified that she would have remembered and noticed if AF was out of it. Later, TB testified that AF did not fall asleep in the car. KW drove the car and they took AF home. They arrived at AF’s home. AF walked upstairs; TB walked behind her. AF took a shower. AF was off balance and intoxicated. TB helped her step over the bathtub ledge and then AF took a shower. TB walked her to her bedroom afterwards and put her in bed. TB went downstairs. She then heard AF on the phone. TB went upstairs and told her to get off the phone and go to sleep. TB then left. The next day AF called her and asked her to get the name of the second guy.
The bodily harm
[32] AF testified that since the incident, her back has been sore and it is rare that it is not sore. After the preliminary inquiry, she started seeing a chiropractor. At the end of a day, she can barely walk, and she finds it hard to even pick up a basket of laundry. Her vagina was sore and tender for three or four days afterwards. She did not tell the doctor about her vagina and she is unsure if she told the nurse, as it only started hurting the next day. She told the doctor about the back pain, but she was unsure if she told the nurse. She did not tell the nurse that she was on her period. She did not know if she told the first officer that she might have been on her period. She was not on her period at the time of the incident. She was bleeding for a few days afterwards.
[33] The incident has taken away her past two years. She cannot work, she cannot hang out with friends. It has affected her mental health and messed her up. She has tried to commit suicide a bunch of times. “I don’t know what else to say”.
Mr. Russell’s statement
[34] Mr. Russell said that he and AF went to the van, they were hugging as they walked. They arrived at the van. AF started kissing him and stuff. He asked her twice if she was sure. “I asked she if she sure again ‘cause that is me. If I’m not sure, I’m not going play.” She said she was. AF told Mr. Russell that she wanted him to feel special, so she performed oral sex on him and then they had sexual intercourse. AF was on her back on the second bench and Mr. Russell was kneeling with his shirt off and his pants and underwear down.
[35] Mr. Russell said that they had sex but that he then stopped because he was not in the mood. AF said that she was not finished yet, but he told her that he was not getting the feel. The police office asked him why he wanted to stop. He said, “this isn’t what I’m really about.”
[36] AF still wanted to finish so Mr. Russell said that he could get a friend of his from the party to help her out. She said yes. Mr. Russell asked her twice if she was sure. She said she was.
[37] Mr. Russell stated that he got out of the van. He was not feeling as sharp as usual. Mr. Russell called over Mr. Alleyne. He told her that he has a friend here, but she is too wild for him. “She wanted more than I can give her.” He opened the back door and introduced AF to his friend. Mr. Russell said that when he called Mr. Alleyne over Mr. Russell’s shirt was still off. Mr. Russell told AF that his friend was here. He got his shirt and stuff. AF said okay, just leave. Mr. Russell said that AF’s friend came to the van and asked where was AF. He told the friend that AF was in the van and he returned to the party.
[38] Mr. Russell said that earlier when he was having sexual intercourse with AF in the van, AF’s friend came looking for her. Mr. Russell told AF that her friend was looking for her, but AF did not think it was a problem. She said do not worry, she is good. Mr. Russell said that it bothered him that AF did not even want to let her friend know where she was at. He then decided that she was not the one for him now.
[39] Mr. Russell also said that after at most 15 minutes he stopped having sex with AF. AF was “being more freaky that I thought”.
[40] Mr. Russell said that he stopped because he had a bad feeling that this “ain’t the right way” but he told her that he had a friend that would help her if she was still in the mood and she said okay. He later said that he was very picky and if he was not enjoying something, he was not going to continue with it. He was asked again why he stopped having sex and he said that AF was too much of a sex partner for him and he was not into it anymore. He then added that he also felt bad because he was cheating on his girlfriend who was back home at university.
[41] Mr. Russell said that he regretted the entire incident, having sex with AF and calling Mr. Alleyne over.
[42] Mr. Russell was asked about the blood and when it was cleaned up. The following exchange ensued:
Officer: Okay, was that you, or was that, um Anderson?
Russell: I don’t even recall when, you know, when it was cleaned up.
Officer: So you didn’t clean it up?
Russell: No , sir.
Officer: No. Okay. Somebody did clean it up though?
Russell: Mm hmm.
Officer: Okay. Did you see somebody cleaning it up?
Russell: No, sir
Officer: Right. Okay. But you don’t know who cleaned it?
Russell: No, sir.
Officer: But it was cleaned?
Russell: Probably, probably, probably it was Anderson, you know.
[43] The officer took a break from the interview to speak to his partner. When he returned, Mr. Russell said that he now remembered that he cleaned up the blood with Clorox bleach.
Mr. Alleyne’s statement
[44] At the outset of the interview, Mr. Alleyne asked why he was arrested:
DP: You know the incident we're talking about first? Do you?
AA: Yeah. Actually, I want to know what's the issue that we talking about?
DP: lt...so it's a party at, ah, a house party in Oshawa you guys came to ...
AA: Yeah.
DP: . .. ah, about a week and a half ago.
AA: Yeah. I don't understand what. .. how, anyway. I mean, like, what was the real issue of me and of Triston getting arrested?
[45] He was told that AF reported to the police that he and Mr. Russell sexually assaulted her:
Mr. Alleyne: Ah, we had sexually assaulted her?
Officer: Yup.
Mr. Alleyne: [AF]say that?
Officer: [AF] said that, yeah.
Mr. Alleyne: And who’s [AF]?
Officer: [AF]’s the girl that was in the van. So why don’t you tell me, actually, why not make it easy, and you tell me what you remember happened.
[46] Mr. Alleyne said that he arrived at the party with another friend. He did not come in the van. He did not describe any interactions with AF prior to the van except for being introduced to her by Mr. Russell at the bar. He just said hi.
[47] He saw Mr. Russell and AF walk to the van and go inside. Later, Mr. Russell hollered for him to come over. Mr. Alleyne was at the front of the house. Mr. Alleyne said that Mr. Russell called him over to the van and told him that AF wanted “fucking”. Mr. Russell said that he and AF were having sex, but he had enough, but AF still wanted more. Mr. Alleyne thought Mr. Russell was joking. Mr. Alleyne went to the van and looked. AF grabbed him by the shirt and pulled him in to the van. She started kissing him. He was unsure if he wanted to have sex. She started pulling at his pants. He was not erect at the beginning, but she kept playing with his penis and he became hard. He then said to himself, “Fuck it, you hit it, just enjoy yourself.”
[48] AF did not seem drunk at the party and she did not seem drunk when she was walking to the van with Mr. Russell. She was not acting drunk. She was acting like she wanted to have sex. She told him that Mr. Russell did not want to cum inside her because he was not ready to have a baby. Mr. Alleyne told her that he was not ready for a baby either. Mr. Alleyne said that AF’s friend left and came back and was knocking on the van door. He stopped. AF asked why. He explained that he stopped because her friend was knocking on the door. AF said no. Mr. Alleyne opened the door and was flashed with an iPhone light. Her friend said to AF that she was bleeding. Mr. Alleyne was “like fuck,” and got out of the van. The friend told AF that she was intoxicated but AF said that she knew what she was doing. She was fine. She just needed five minutes. Mr. Alleyne saw the blood on AF’s hands, and he got blood on himself. Mr. Alleyne would say that AF was a 3/10 on a drunkenness scale.
[49] Mr. Alleyne did not ejaculate, probably because her friend knocked on the door.
[50] Mr. Alleyne said that he went to the bathroom to clean himself up because of the blood and he told Mr. Russell to do the same.
[51] Mr. Alleyne said that when he exited the van, he knew that AF’s friend had complained to the owner of the house. The owner was very upset; he was crying. Mr. Alleyne knew he was in trouble and he told Mr. Russell to look for trouble. Mr. Alleyne said that it was AF’s friend that caused the problem.
POSITIONS OF COUNSEL
[52] There is no dispute that the two accused engaged in sexual activity with the complainant. It is the Crown’s position that the complainant, as evidenced by her testimony, did not consent to the sexual activity with either accused. She did not want any of it to happen. The Crown submits that the complainant was drinking, was in and out of consciousness, and as a result, she did not consent or she was incapable of consenting. The defence rely on the accuseds’ statements to the police where both accused state that the sexual activity was consensual. The defence submit that the complainant’s testimony about her lack of sobriety is a purposeful lie for an unknown motive. The defence submit that I should accept the accuseds’ statements to the police as true or it should at least raise a reasonable doubt. Even if the statements do not raise a reasonable doubt, the defence submits that I cannot be satisfied beyond a reasonable doubt of their guilt given the inconsistencies in the complainant’s evidence and her described level of intoxication is inconsistent with the objective evidence. Finally, if I find that the complainant lacked the capacity to consent the defence relies on an honest mistaken belief with respect to their understanding of the complainant’s incapacity due to her intoxication.
GENERAL LEGAL PRINCIPLES
[53] The burden is on the Crown to prove both accused’s guilt beyond a reasonable doubt. Both accused come before the court with the presumption of innocence. In other words, they have a clean slate. The presumption is only discharged when, and if, the Crown proves an accused’s guilt beyond a reasonable doubt. The Crown at all times bears the onus of proving the case, with respect to each accused. Each accused is entitled to his own verdict. Neither accused has to prove anything. The Crown is required to prove the essential elements of the offence to the reasonable doubt standard. I must assess the case on the whole and decide whether, on the basis of all of the evidence, or lack thereof, the Crown has proven the guilt of each accused beyond a reasonable doubt; R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320.
[54] The Crown has led, as part of its case, the statements given to the police by both accused. The accused are entitled to rely on the contents of those statements where they assert that the sexual activity was consensual, and that AF was capable of consenting. If I believe that evidence, I must acquit. If I do not believe that evidence but it leaves me in reasonable doubt, I must acquit. Even if I am not left in doubt by the accuseds’ statements to the police, I must still consider, on the basis of the evidence that I do accept, if I am satisfied beyond a reasonable doubt of the guilt of each of the accused. If I cannot decide whether to believe both accused, or if I cannot decide who to believe, or I am unable to resolve conflicting evidence and therefore left in a state of reasonable doubt, I must acquit. A criminal trial is not a credibility contest. At the end of the day, the Crown has the onus of proving its case beyond a reasonable doubt.; R. v. W.(D.), 1991 93 (SCC), [1991] 1 SCR 742; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 66, 67. As stated by the Supreme Court of Canada in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21:
The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused: W.(D.), at p. 758. The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between the accused's evidence and the Crown's evidence: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8.
[55] In assessing the evidence led at trial, I must consider the credibility and reliability of the witnesses’ evidence. Credibility and reliability are not the same thing, as stated by Watt J.A. in R. v. C.(H.), 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41:
Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately:
i. observe;
ii. recall; and
iii. recount events in issue. 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.
Also see: R. v. Slatter, 2019 ONCA 807, 148 O.R. (3d) 81, at paras. 60 and 117.
[56] One of the most valuable ways to assess a witness’s credibility and reliability is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at para. 23, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390; R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536. The nature of the inconsistency is important. As stated in R. v. A.M., at para. 13:
Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: R. v. G. (M.), at p. 354.
ISSUES
[57] In this case, as mentioned, there is no dispute that there was sexual activity between the complainant and the two accused. In order for an accused to be convicted of sexual assault, the Crown must prove beyond a reasonable doubt that the sexual activity took place without the complainant’s consent and that the accused did so with the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”; R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at para. 42. The first part of the equation is the actus reus of the offence while the second part of the equation is the mens rea of the offence. The Crown must prove beyond a reasonable doubt that each accused committed the actus reus and had the necessary mens rea; R. v. Barton, 2019 SCC 33, 86 Alta L.R. (6th) 1, at para. 87. This case thus raises four issues:
Has the Crown proven beyond a reasonable doubt that the complainant did not consent to the sexual activity?
If the answer to issue number 1 is no, has the Crown proven beyond a reasonable doubt that the complainant did not have the capacity to consent?
If the answer to issues 1 or 2 is yes, has the Crown proven beyond a reasonable doubt that there is no mistaken belief in consent?
If the answer to issues 1 or 2 is yes and the answer to issue 3 is yes, has the Crown proven beyond a reasonable doubt that the sexual assault caused bodily harm?
Issue #1: Has the Crown proven beyond a reasonable doubt that the complainant did not consent to the sexual activity?
[58] One of the issues is the complainant’s level of intoxication and whether she consented or had the capacity to consent. When consent and capacity are issues a trial judge should first determine if the Crown has proven beyond a reasonable doubt that the complainant did not consent. Only if the Crown has not proven beyond a reasonable doubt that the complainant did not consent does the court then go on to consider whether the complainant had the capacity to consent. As stated by Pardu J.A. in R. v. G.F., 2019 ONCA 493, 378 C.C.C. (3d) 518, at para. 41:
How then should a trial judge approach the evidence when dealing with potential issues of both consent and capacity to consent? He or she should first consider whether the Crown has proven beyond a reasonable doubt that the complainant did not consent to sexual contact. If the complainant did not consent, then there is no ostensible consent which is vitiated by lack of capacity. This two-step process was described in R. v. Hutchinson, at para. 4:
The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1). If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant's ostensible consent or participation: Ewanchuk, at para. 36. Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s. 265(3)(a) and (b)), fraud (s. 265(3)(c)), or abuse of trust or authority (ss. 265(3)(d) and 273.1(2) (c)).
[59] The evidence of intoxication is relevant to both the issue of consent and capacity. As noted in R. v. G.F. at para. 49:
This is not to say that the factual circumstances of, for example, intoxication may not be relevant to both whether there was subjective consent and to incapacity to consent. In the present case, for example, the Crown argued that the complainant's profuse vomiting made it unlikely she would have consented to sexual contact. The same vomiting was relevant to the degree of consumption of alcohol and the effect it may have had on her capacity to consent.
What is consent?
[60] “Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”. It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter”[^1] and it must be freely given. This consent must exist at the time the sexual activity in question occurs. It can be revoked at any time and it must be linked to the “sexual activity in question”, the specific physical sexual act. The focus, at this stage, is squarely on the complainant’s state of mind and whether she wanted the sexual activity to take place at the specific time: R. v. Barton, at para. 88; R. v. J.A., at paras. 31, 34, 40, 43; R. v. Ewanchuk, at para. 26.
[61] During the cross-examination of the complainant, there were a few questions about whether the complainant touched Mr. Russell prior to the alleged sexual assault in the van. The purpose of those questions was to compare and contrast the complainant’s version of events that night with the other evidence. It was never suggested by counsel that if I accepted that the complainant touched the accused earlier, it meant that she automatically consented to the activities in the van. “To repeat, the absence of consent is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching at the time it occurred”: R. v. Ewanchuk, at paras. 25-26; R. v. G.F., at para. 43.
[62] There is no such thing as implied consent. Silence does not equate to consent. A complainant need not scream or say no or stop. A complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established: R. v. Barton, at para. 89; R. v. J.A., at para. 37. As stated by Moldaver J., speaking for the majority in R. v Barton at para. 89:
Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent -- plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete.
[63] In determining whether an accused had the requisite mens rea to commit the offence, the focus shifts to the accused’s mental state and “the question becomes whether the accused honestly believed “the complainant effectively said 'yes' through her words and/or actions”: R. v. Barton, at para. 90.
Analysis
[64] Both accused, in their video statements to the police, stated that the complainant consented to the sexual activity. Defence counsel submit that I should accept their statements, or they should at least raise a reasonable doubt. Counsel both argue that the accused gave free and voluntary statements, even though they were not required and without contacting a lawyer. Counsel for Mr. Russell submits that when looking at Mr. Russell’s demeanour it is evident that he is telling the truth and that his story is given at the outset, before receiving disclosure and is in pure genuine form and has the ring of truth to it. Counsel for Mr. Russell also states that Mr. Russell’s statement is corroborated by the objective evidence such as the DNA evidence and the testimony of TB.
Mr. Russell’s statement
[65] I do not accept the version of events proffered by Mr. Russell in his statement to the police, nor does it raise a reasonable doubt for the following reasons:
Mr. Russell lied to the police in his statement. He was asked questions about the blood in the van and he was specifically asked if he cleaned it up. He said no. He then offered that perhaps Mr. Alleyne cleaned it up. There was a break in the interview. When it recommenced, he then said that he now remembered that he in fact cleaned it up the next day with Clorox. The interview was 11 days after the events in question. The nature and circumstances of the questions on this point make it apparent that this was not a mistake by Mr. Russell or a lapse in memory. He lied when asked, realized that his lie was going to be discovered when Mr. Alleyne was questioned and then decided to be truthful;
Mr. Russell said that he was having consensual sexual intercourse with the complainant but then stopped prior to finishing because he no longer wanted to have sexual intercourse. He provided different reasons for why he wanted to stop:
a. He was no longer in the mood;
b. “this isn’t what I’m really about.”
c. he had a bad feeling that this “ain’t the right way”;
d. that he was very picky and if he wasn’t enjoying something he stops
e. AF was “being more freaky that I thought” and she was too much of a sex partner for him
f. Mr. Russell said that when AF didn’t care that her friend was looking for her and didn’t want to let her friend know where she was, it bothered him so he stopped because he realized that AF was not the person for him right now; and
g. Towards the end of the interview he said that he stopped because he was feeling guilty because he had a girlfriend back home.
Counsel for Mr. Russell submitted that the explanations are not different. I disagree. While some of them are similar, some are not. Stopping because he was upset because AF ignored her friend is not the same as stopping because Mr. Russell remembered that he had a girlfriend nor is it the same as stopping because AF was too wild for him.
- Mr. Russell’s assertion that he lost interest and was bothered because AF did not care that her friend was looking for her suffers from other difficulties. AF’s friend is TB. It was her testimony, which I accept, that she approached the van when she saw Mr. Russell outside of the van and when Mr. Alleyne was inside the van with AF. TB disagreed with the suggestion that she approached the van earlier. I do not agree with counsel for Mr. Russell’s submission that TB’s testimony that she might have stood at the front of Alvin’s house and looked for AF as being consistent with Mr. Russell’s statement on this point. Rather, Mr. Russell’s statement sounds like he is describing what Mr. Alleyne said occurred to him while he was inside the van with AF.
In addition, it does not make sense to me why Mr. Russell who was bothered because AF ignored her friend and believed that she was not the person for him would then volunteer to get a friend to satisfy AF. Why would Mr. Russell care about AF’s needs at this point?
If I use Mr. Russell’s explanation that he stopped having sex with AF because this was not what he was really about or that he had bad feeling that this “ain’t the right way”, which implies a concern, at the very least, with the seediness of the incident, why would he then go and get a friend to have sex with AF in the van?
I disagree with Counsel for Mr. Russell’s submission that TB’s evidence corroborates Mr. Russell’s statement. Her evidence contradicts Mr. Russell’s statement on a number of points. TB’s evidence is inconsistent with Mr. Russell’s statement as set out in point number 3 above. In addition, Mr. Russell said that when TB approached the van and Mr. Alleyne was inside with AF, Mr. Russell told her that AF was in the van. However, TB testified that Mr. Russell said that AF was in the van cleaning up, which was incorrect.
Mr. Russell said that beside the house, AF was touching him up. TB said that she did not see this. I appreciate that TB left open the possibility that there were times, apart from when she went to the washroom, when AF may not have been in her sight path. However, AF, TB and KW spent the evening hanging out together given the age difference with the other guests. Also, Mr. Russell said in his statement that TB would have been present when the touching took place. Mr. Russell said that AF put her arm around him. TB said the opposite that Mr. Russell put his arm around AF briefly.
[66] Counsel for Mr. Russell has, as mentioned above, referred to the circumstances of the interview as supporting the truthfulness of Mr. Russell’s statement and noting that it was made first before receiving disclosure and that he admitted critical facts, warts and all. However, it is also correct that this was not a spontaneous interview given the day of the incident, it was 11 days later. Furthermore, it was evident at the party that night that a complaint had been made and he knew he was seen outside of the van with his shirt off and that AF was then discovered moments later in the van with Mr. Alleyne. I do not use these circumstances against Mr. Russell in assessing the veracity of his statement but merely to counter Counsel’s assertion that the statement was given in its purest form.
[67] The DNA evidence revealed that Mr. Russell’s semen was found in the van in two spots. Mr. Russell said that he had sex with AF and while he did not ejaculate there was pre-cum. The DNA evidence was led by agreed statement of facts and it is consistent with Mr. Russell’s evidence but given that there was no dispute that Mr. Russell had sex with the complainant I do not see it being of any moment.
Mr. Alleyne’s statement
[68] I also do not accept Mr. Alleyne’s version of events as set out in his police interview nor does it raise a reasonable doubt for the following reasons:
Mr. Alleyne claimed at the outset of his police interview that he did not know what it was about. He also asked who was A(F). These claims are not believable given his other comments in the interview. Mr. Alleyne said that he knew that night after he opened the van door and saw that there was blood and after AF’s friend said that AF was drunk that there was trouble. This was reinforced later at the party when TB made a complaint to the owner of the house and the owner of the house was crying. Mr. Alleyne said that he told Mr. Russell to look for trouble. To be clear, I am not stating that these are admissions by Mr. Alleyne that he did anything wrong but, in my view, it was abundantly obvious to him when the police interview started that he knew it was about what happened in the van and that AF was the girl in the van;
Mr. Alleyne’s claim that he was pulled into the van by AF is not corroborated by Mr. Russell, even though Mr. Alleyne in his statement said that it would have been seen by people at the party;
Mr. Russell stated that he introduced the two of them in the van. Mr. Alleyne made no mention of any introductions and, according to him, there were none as AF immediately pulled him in and started touching him in a sexual manner; and
Mr. Alleyne said that he was not interested at the outset in having sex, but he gave in to AF’s sexual advances. Mr. Alleyne offered no explanation as to why he was not interested. I also note that both Mr. Alleyne and Mr. Russell’s version of the events have each of them playing the part, at different stages, of the reluctant sexual partner who ultimately, in different ways, succumbed to the sexual desires of AF. I do not find either of these assertions believable.
The Testimony of AF
[69] Even though I have rejected the version of events proffered by both accused and found that they do not raise a reasonable doubt, I must still look towards the evidence that I do accept to see if the Crown has proven beyond a reasonable doubt that AF did not consent to having sexual activity with the accused. The Crown relies on the evidence of AF and the evidence of TB.
[70] AF testified that she did not consent to any of the sexual activity with any of the accused. She testified that she went for a cigarette, blacked out and awoke to find Mr. Russell having sexual intercourse with her. She blacked out again and heard him hollering for a friend, the friend came in the van, she blacked out again and awoke to find the second man, who we now know is Mr. Alleyne, having sexual intercourse with her. He then had her perform oral sex on him. Her evidence is quite clear that in her mind she was not consenting to the sexual activity.
[71] The defence submit that AF is lying. She did not black out, and she consented to the sexual activity.
[72] A preliminary issue arose during submissions regarding what AF meant when she used the term “blacked out” and “blanked out”. She agreed that she used those terms interchangeably. Counsel for Mr. Russell submits that AF meant that she had no memory during those periods not that she lost consciousness. He relies heavily on a brief exchange in cross-examination where the complainant agreed that she does not have any memory of the pieces when she blacked out, she remembered pieces of what happened in the van, she does not remember what happened after she had a cigarette and between finding herself having sex with Mr. Russell. Similarly, she does not remember how she got from the van to TB’s car. Counsel for Mr. Russell never asked AF if she agreed with the suggestion that she never lost consciousness.
[73] I disagree with counsel’s submission on this point. In my view, it is evident when looking at AF’s testimony that she meant she lost consciousness when she was in the van and when she was in TB’s car on the way home. Counsel for Mr. Russell submits that if this is what she meant she would have used the term passed out. However, on one occasion, she did use the term passed out. More critically, she repeatedly said that she woke up to find Mr. Russell having sex with her and woke up again to find Mr. Alleyne having sex with her. She described waking up in the car on the way home, seeing where they were and passing out again. When Mr. Russell was hollering to his friend outside the van, AF said that she was in and out of it. All of these comments connote different states of consciousness. Her testimony, in my view is that at different times she remembered waking up and then passing out again. The complainant was not in an amnesic state as described in R. v. Garciacruz, 2015 ONCA 27, 320 C.C.C. (3d) 414. Also see R. v. Crespo, 2016 ONCA 454, 132 O.R. (3d) 287, at paras. 16-19.
[74] However, the critical question remains whether AF’s evidence is sufficiently credible and reliable for me to be satisfied beyond a reasonable doubt that she did not consent to the sexual activity.
[75] AF was not a combative witness. She was respectful of the court process and was not evasive in her evidence. She answered the questions posed to her by the Crown and defence counsel. I also find that she was careful in her evidence, especially when relaying to the court what she drank or smoked that night. I did not find that she was embellishing her evidence: R. v. Alisaleh, 2020 ONCA 597, at para. 16.
[76] There is nothing about her demeanour that would make one think she was trying to mislead the court. I am entitled to consider the witness’ demeanour in assessing the witness’ credibility. However, I must be cautious, as stated by the Ontario Court of Appeal in R. v. D.P., 2017 ONCA 263, at para. 26:
A witness's demeanour is an appropriate consideration when assessing credibility. Demeanour can, however, be misleading and should be factored into the credibility assessment with care. There is always a danger that demeanour can be overemphasized by a trial judge or a jury.
[77] In this case though, there is nothing about the demeanour of any of the witnesses that testified or the demeanour of the two accused in their video statements to the police that in itself made me question the witness’ veracity or reliability. I find AF’s demeanour in this case is a neutral factor.
[78] All agree that there is no motive for the complainant to lie. However, again this is a neutral factor. I am guided by Trotter J.A.’s comments in R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 354, at para. 23:
Therefore, in this context too, there is a “significant difference” between absence of proved motive and proved absence of motive: L.L., at para. 44, fn. 3. The reasons are clear. In R. v. B. (R.W.) (1993), 24 B.C.A.C. 1 (C.A.), Rowles J.A. explained, at para. 28: “it does not logically follow that because there is no apparent reason for a motive to lie, the witness must be telling the truth.” This point was made in L.L., in which Simmons J.A. said, at para. 44: “the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate” (emphasis added). See also R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5, at paras. 104-109; and R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 93.
Complaints about AF’s evidence
[79] The defence collectively made a number of attacks on the complainant’s credibility and reliability. Although I have considered all of them, I will only deal with the main concerns below.[^2]
Interactions with Mr. Russell
[80] The defence submit that AF minimized her interactions with Mr. Russell that evening to support her testimony that she did not want to have sex with him. I disagree.
[81] The defence rely on the testimony of TB. AF testified that Mr. Russell was hanging around with her and her group of friends. She said that she was not rude to him, but she was not actively engaging in conversation. She found it difficult to follow the conversation because he had a thick accent. She testified that Mr. Russell was quiet and that she told TB that she was not interested in Mr. Russell. TB recalls a slightly more engaged AF. She testified that AF and Mr. Russell were talking, and it appeared like a normal conversation. But she also recalled that at one point, AF stood behind her, as if to distance herself from Mr. Russell. Critically, TB said that she did not see AF touch Mr. Russell as Mr. Russell claimed in his video statement. Given that TB, AF, and KW spent their time at the party together, since it was an older crowd, if the touching occurred, one would expect TB to have seen this. TB did see Mr. Russell put his arm around AF and did see AF momentarily place her head on Mr. Russell. TB recalls that Mr. Russell took a shot of alcohol from AF while AF knew that there was a third person, apart from an older man, but could not recall who.
[82] While there are differences between AF and TB’s testimony in this regard, they are not significant and the differences are ones that you would expect people to have remembering an incident which, at the time, they had no reason to remember. Furthermore, at its core, both AF and TB describe AF and Mr. Russell as having a normal, regular interaction. There is very little daylight between their two observations.
[83] The defence point to the fact that AF said she told TB that she was not interested in Mr. Russell, but this was not confirmed by TB. TB, at trial, did confirm that AF did tell her that she was not interested in Mr. Russell, but TB then agreed with her preliminary inquiry evidence that she did not remember this comment. TB’s testimony on this point is not sufficiently reliable for me to use it to question AF’s testimony on this point.
[84] AF testified that when she said, “we’re going for a smoke,” it was an invitation to KW and Mr. Russell. The defence point to this as another example of minimization because clearly this could only have been an invitation to Mr. Russell and KW does not smoke. I disagree. KW had gone with TB and AF earlier for a smoke because, while he does not smoke cigarettes, he smokes marijuana. I also agree with Crown counsel’s submission that given the different ways people talk and use language AF’s choice of words could easily be an invitation for everyone to join.
Reason for the bleeding
[85] There is no dispute that AF was bleeding from her vagina during the sexual activity in the van. She testified that she was not menstruating. The nurse testified that AF told her that she was not menstruating at the time of the incident but was at the time the nurse examined her. AF told the court that she was not menstruating during the examination. AF told the officer the next day that she did not know if she was having her period or not. I agree with defence counsel that there are some inconsistencies on this issue but, in my view, it does not matter at all to the outcome of this case. I have no doubt that the slightly different explanations by AF of whether or not she was having her period reflected her difficulty in understanding why she was bleeding during the sexual activity. I do not see this as adversely affecting her credibility or reliability.
Oral Sex
[86] AF testified that the second man had her perform oral sex on him. AF testified that the oral sex continued until TB returned and was banging on the door with the flashlight. TB testified that she did not see any oral sex. The defence point to this as a critical inconsistency. I disagree.
[87] TB testified that when she returned, she shined her iPhone flashlight inside the van. The man then opened the van door. No one actually asked TB what she saw when she flashed the light inside. No one asked AF if she was performing oral sex on the second man as the flashlight was being shone into the van. My impression of AF’s evidence is that when TB returned, AF stopped performing oral sex. It is unclear based on how the evidence unfolded if TB would have been in a position to see any oral sex. In addition, the blood observed around AF’s mouth is completely consistent with Mr. Alleyne having had vaginal sex with AF while she was bleeding and then having her perform oral sex on him.
Injuries not confirmed
[88] AF testified that she scraped her arm when she fell slightly, and she injured her back during the incident. She also said that her pelvic region was tender for a number of days. The defence state that these injuries were not confirmed by the nurse the next day upon examination. I agree that the nurse did not notice any red marks on her arm, nor did she note any complaints about AF’s back or pelvic region and she did examine that region for tenderness. AF testified that she told the doctor about her back. She might not have told the nurse about her pelvic region being sore since she believed that it became sore afterwards. She was unsure. I do find that there is an inconsistency in this area that affects, to a slight degree, the complainant’s overall credibility and reliability.
The complainant’s level of intoxication
[89] The defence submit that the complainant’s lack of memory is a convenient lie. They state that the described effects of her alcohol consumption do not make sense given the evidence of what she consumed.
[90] The complainant’s testimony that she did not consent to the sexual activity is inextricably linked with her testimony that she blacked out numerous times in the van. She said was smoking a cigarette, blacked out, and when she awoke, Mr. Russell was having sexual intercourse with her. Later she awoke to find Mr. Alleyne having sexual intercourse with her. The complainant’s explanation for not leaving the van when Mr. Russell was outside of it and before the second man entered the van is because she was out of it, and although she did not use these words, because she was having trouble functioning. The only possible reason for the complainant to have blacked out and to have trouble functioning is due to her consumption of alcohol and her few puffs of marijuana. Therefore, an assessment of the credibility and reliability of the complainant’s evidence that she did not consent must entail an analysis of the evidence of intoxication. Put another way, does her testimony make sense, given the evidence regarding what she drank and her level of intoxication, that the complainant would have experienced such an extreme reaction and blacked out?
[91] The Crown has not led any expert evidence regarding what the complainant’s blood alcohol level was or would have been given the amount of alcohol she consumed and what effect that consumption could have had on her. I do not state this by way of criticism and given the nature of AFs testimony it is fair to say that it would be difficult for an expert to quantify how much is a swig of alcohol. In addition, there is no mandatory requirement for expert testimony. As noted by Pardu J.A. in R. v. G.F. at para 25:
The complainant's intermittent awareness, her waking from sleep to find sexual acts performed upon her, her saying no, and her own description of her condition could allow a reasonable trier to conclude beyond a reasonable doubt that she did not consent to the sexual activity or that she was incapable of consenting to the activity.
[92] The Crown therefore relies on the evidence of AF and TB. The defence also relies on TB’s evidence. TB was a good witness and I accept her evidence. She had a few drinks that night and, while she did not feel comfortable driving home, she was not intoxicated. While she has been friends with AF since they were very young, she made no attempt to tailor her evidence to assist her friend or hurt the accused, even though she was quite upset about what happened that night. As stated, all parties urge that I accept her evidence, and I do, with one exception. I accept the complainant’s evidence that she brought the six-pack of beer and the Sour Puss. TB testified that she did not notice either of these items, but I do not see why she would. She testified that she was not keeping track of what AF was drinking. This makes sense because, while important now, at the time, there would have been no reason for TB to pay close attention. Additionally, Mr. Russell, in his statement, said that he had a beer with AF and that she was drinking two other types of alcohol, whiskey and bourbon. AF’s testimony is consistent with his statement on this point.
[93] Therefore, I accept AF’s testimony regarding what she drank:
a. two tall boys of Coors Light before arriving at the party, and a sip of a third at the party; and
b. eight to 10 swigs from her mickey of whiskey and smaller bottle of Sour Puss.
[94] I accept TB’s evidence that AF had a few puffs of marijuana.
[95] However, I cannot be satisfied that AF blacked out as she described, having regard to her observed behaviour before going to the van and the inconsistencies between AF and TB’s evidence with respect to AF’s state after she exited the van.
[96] Prior to entering the van there was no observable behaviour by AF that was a concern to TB. AF was not falling down, slurring her words, or engaging in any odd behaviour. TB was not concerned about AF and believed AF could take care of herself. Except for some minor difficulty sitting on a curb, which AF agreed would be hard to navigate even without drinking, there were no warning signs to suggest that AF was about to lose control of her actions. Furthermore, it was AF who was able to suggest going for a smoke, and she was able to walk to the van, and sit inside the van without any problems.
[97] AF was not a first-time drinker and she had drunk to excess before. Critically, she said that she does not normally black out, only when she drinks excessively, and she did not drink excessively that night. AF’s self-assessment is consistent with TB’s assessment. TB testified that she had seen AF very drunk before and she was not very drunk at the BBQ. She was not a falling down drunk. TB testified that when she last observed AF before she went to the van, she thought she was a little drunk but not out of her mind drunk.
[98] TB testified that when the van door opened, she saw that AF was drunk. AF testified that she was drunk as well. I am not concerned that AF described herself as a 7.5/10 on the drunkenness scale, while TB described AF as a 5/10, given the inherently subjective nature of such a scale. However, AF testified that she had no idea how she got to TB’s car and that she passed out in TB’s car once or twice on the drive home. This is inconsistent with TB’s evidence, who testified that AF walked to the car on her own and that AF did not fall asleep or pass out in the car. TB testified that she would have noticed if AF had. TB was clearly concerned with her friend given the events in the van, and I am sure she was paying attention to her. This is a critical difference as this is the one part of her testimony with respect to her passing out that could be corroborated but it is not.
[99] There is no question that AF was feeling some effects from the alcohol. TB testified that AF did look confused when the van door opened, and she had to help her get dressed, and that AF was unsteady on her feet when she returned home. But while these observations are supportive of AF’s testimony, to a degree, they do not overcome the concerns set out above.
[100] Is it still possible that the complainant, who I note did not eat at the summer BBQ, felt, for her, an unexpected reaction from the alcohol, and without warning to her or anyone, did in fact black out as she testified? Yes, of course it is possible. But possible is not sufficient. I must be satisfied that the complainant’s testimony that she blacked out and did not consent is sufficiently credible and reliable to meet the reasonable doubt standard. I am not so satisfied. I find that the Crown has not proven beyond a reasonable doubt that the complainant did not consent to the sexual activity.
Issue 2: Has the Crown proven beyond a reasonable doubt that the complainant did not have the capacity to consent?
[101] It is clear that an unconscious or sleeping person is incapable of consenting to sexual activity. I have just explained that I am not satisfied that the complainant blacked out and awoke to find herself having sex first with Mr. Russell and then with Mr. Alleyne. However, there are other states short of unconsciousness that render a person incapable of consenting. A person lacks the requisite capacity to consent if the Crown establishes beyond a reasonable doubt that, for whatever reason, the complainant did not have an operating mind capable of:
appreciating the nature and quality of the sexual activity; or
knowing the identity of the person or persons wishing to engage in the sexual activity; or
understanding she could agree or decline to engage in, or to continue, the sexual activity.
R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237, at paras. 60-61, 66-67; R. v. G.F., at para. 37.
[102] In R. v. G.F., Pardu J.A. adopted the above summary but “subject to the caveat that, in light of the varieties of human conditions which may raise issues of incapacity, it may not describe all of the circumstances in which a complainant could be found to lack an operating mind.”
[103] In assessing a complainant’s capacity, the trial judge must consider all the relevant circumstances and evidence. As noted by Pardu J.A. in R. v. G.F., at para. 38:
Here, I agree with the submissions of the Crown on appeal that while mere proof of drunkenness, loss of inhibitions, regret for a bad decision or some memory loss do not of themselves negate capacity for consent, some physical actions such as walking a short distance, making a phone call, speaking, and some awareness of or resistance to sexual activity do not necessarily preclude a finding of incapacity. I also agree that some memory of the events is not necessarily inconsistent with incapacity. [cites omitted]
[104] In assessing whether the Crown has proven beyond a reasonable doubt that the complainant lacked the capacity to consent, it is of some assistance to review the factual matrixes in other cases where the issue has been raised:
In R. v. Cedeno, 2005 ONCJ 91, 195 C.C.C. (3d) 468, the victim drank a substantial amount of vodka and smoked marijuana and hashish. The sexual assault took place after she consumed so many intoxicants that she threw up in the washroom and then passed out. On all of the evidence the complainant was “out of it”.
In R. v. R. (J.) (2006), 2006 22658 (ON SC), 40 C.R. (6th) 97, the trial judge found that the complainant did not consent and lacked the capacity to consent. He found that she was quite intoxicated with a blood alcohol reading of 240 mg/100 ml, which is three times the driving legal limit, and found that she was slurring her words and had blacked out;
In R. v. Merritt, 2004 34353 (Ont. S.C.), Hill J. found the complainant lacked the minimal capacity to consent. She was described as out of control and extremely drunk, falling down, incapable of having a conversation, unable to walk on her own, passed out and vomiting repeatedly. Hill J. stated at para. 56 that:
Noting that the relevant inquiry is whether T.W. “lacked the minimal capacity to consent (or withhold her consent) to the sexual activity” (R. v. Jensen (1996), 1996 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.) at 437), the defence points to certain factual circumstances to argue that a reasonable doubt must exist on the capacity issue. Counsel for the appellant submitted that at “a basic level”, on arrival at the appellant's house, T.W. knew she was going to be sick, stayed on her own in the bathroom, was able to vomit on her own and walked unassisted to the appellant's bedroom. While capacity to consent to sexual activity may not amount to a very significant standard of cognitive awareness, equating relatively primitive actions such as walking a short distance, or unassisted vomiting, to capacity to consent to sex is entirely unpersuasive. This is particularly so in light of the evidence of the complainant's extreme intoxication including lack of consciousness after midnight.
In R. v. Meikle, 2011 ONSC 650, Trotter J., as he then was, had a reasonable doubt whether or not the complainant's level of intoxication had crossed the line to the point of incapacitation. The complainant was highly intoxicated at the time of the sexual interaction, she had blacked out. Witnesses testified she was intoxicated, but they were not overly concerned about her condition, and the complainant lost her phone but was able to return to the bar and look for it and was cognizant enough to provide her name and number to the concierge.
In R. v. Hinds, 2016 ONSC 95, Fairburn J, as she then was, was not satisfied beyond a reasonable doubt that the Crown had proven lack of consent or lack of capacity. Fairburn J. concluded that, based on the fact that a short time before the incident the complainant had been in control of her actions; she had not consumed additional alcohol; and she was able to comprehend one of her friend's comments, the Crown had failed to prove the complainant lacked the capacity to consent due to intoxication. According to a witness who saw the complainant shortly after the incident, she was unable to dress herself, she had a vacant expression and was zigzagging.
In R. v. Tariq, 2016 ONCJ 614, 343 C.C.C. (3d) 87, the trial judge concluded that the Crown had established that the complainant lacked the capacity to consent. The conclusion was based on the amount of alcohol the complainant had consumed, the indicia of impairment as seen in the videos, which included that fact that the complainant's walking appeared severely hampered on surveillance, her gross motor skills and balance were substantially impacted, she had a dazed and confused expression in the hotel lobby and elevator, the fact that she had an illogical conversation with one person and illogically attempted to call another person, the fact she made random telephone calls and she was falling asleep in the elevator.
In R v Niyongabo, 2020 ONSC 308, [2020] OJ No 280, Spies J. found that the complainant did not have the capacity to consent as she was in a case of extreme intoxication. Videos showed that the complainant was not only having difficulty walking and losing her balance, she did not seem to appreciate that she was walking on the street with cars trying to avoid hitting her. The videos showed her confused and disoriented. She thought she was somewhere else and did not where she was.
In R. v. Crespo, 2016 ONCA 454, the Court of Appeal affirmed the appellant’s conviction. The complainant and a group of friends after a night of heavy drinking and dancing, returned to the appellant’s apartment. The complainant was feeling unwell and went to lie down on the bed in the appellant's bedroom. She was awakened by the feeling of the appellant on top of her, engaging in sexual intercourse. She was still drunk and disoriented, and it took her a minute to realize that it was the appellant who was having sex with her. The trial judge found that the complainant was asleep when the appellant commenced intercourse, and thus lacked the capacity to consent at that time.
[105] I am able to make the following findings, which stem mostly from my acceptance of TB’s evidence:
AF was in control of her actions before the sexual activity in the van took place, having invited the others to go for a smoke, having walked to the van and sat down in the van to have the smoke;
AF was intoxicated, but not very intoxicated, at the time she engaged in the sexual activity in the van;
AF was confused when the van door was opened by TB, but she was aware that she just had sex with two men;
AF needed some assistance getting dressed but she was able to walk to the car afterwards;
AF lied down in the back of the car on the way home; and
AF was still unsteady on her feet when she arrived home and she was sick from drinking and vomited.
[106] In my view, while the evidence does show that AF was feeling the effects of the alcohol at the time of the sexual activity in the van, it does not show that AF lacked an operating mind at the time of the sexual activity. While each case must be considered on its own, the facts that I have found are far removed from the cases summarized above, that have determined that a complainant lacked capacity to consent. Again, mere proof of drunkenness does not equate with lack of capacity.
[107] The Crown has not proven beyond a reasonable doubt that the complainant lacked the capacity to consent.
[108] Given my answers to issues number one and number two, there is no need to answer issue three or four, as the Crown has not proven beyond a reasonable doubt that the actus reus has been committed.
[109] Both accused are found not guilty.
Justice H. Leibovich
Released: December 16, 2020
COURT FILE NO.: CR-19-15260
DATE: 20201216
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ANDERSON ALLEYNE and TRISTON RUSSELL
Defendants
REASONS FOR JUDGMENT
Justice H. Leibovich
Released: December 16, 2020
[^1]: S. 273.1 of the Criminal Code was amended effective December 13, 2018. It now expressly provides that no consent is obtained if, a.1) the complainant is unconscious, or the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1)
[^2]: For example, AF testified that the night of the incident when she returned home, she tried to call a friend but did not reach her. TB said that AF did speak to another friend. Yes, this is an inconsistency, but it is a minor one on an irrelevant point.