COURT FILE NO.: CR-20-10
DATE: 20211217
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
S.B.
Daniel Thorpe, for the Crown
Trevin David, for S.B.
HEARD: October 12, 13, 14, 15, 27, November 22, 2021
REASONS FOR DECISION
Justice V. christie
Overview
[1] Over portions of the August long weekend in 2018, the complainant, S.M. and the accused, S.B., were staying at neighbouring cottages on Lake Rosseau with their respective group of friends. Prior to August 5, 2018, they had not met each other. On this evening, everyone was consuming alcohol. S.M. and her friends went over to the cottage where S.B. and his friends were staying. There was a decision made for everyone to go to another neighbouring cottage to use the hot tub. The group of eight, four boys and four girls, went to this neighbouring cottage and everyone got into the hot tub, however, before long, the complainant and S.B. were left alone in the hot tub. It is at this time, in the hot tub, that the complainant alleged that sexual activity occurred to which she did not consent.
[2] As a result, in December 2018, S.B. was charged with sexual assault.
[3] There is no question that sexual activity occurred between S.M. and S.B. in that hot tub. The primary issue for this court to consider is whether the Crown has proven, beyond a reasonable doubt, lack of consent to that sexual activity, and the associated knowledge on the part of S.B.
Evidence
[4] Numerous witnesses were called at this trial. The evidence of those witnesses will be summarized below.
S.M., the complainant
[5] At the time of her testimony, S.M. was a 21-year-old student at the University of Ottawa completing her Bachelor of Political Science. At the time of these events in 2018, she was 18 years old, working at Killbear Provincial Park in Nobel, Ontario as a day park attendant. She had just graduated from high school that year and was about to move on to university that fall.
[6] On the weekend in question, S.M. was staying at a cottage on Lake Rosseau in Muskoka. This was the first time that S.M. had been to this cottage. Throughout the weekend, at times they stayed in the main cottage and at other times stayed in the bunkie. The cottage belonged to the family of K.M., who was described as not one of her closest friends, but a “good childhood friend” whom she met in kindergarten. She testified that, at the cottage, in addition to herself, was L.L., K.M., T.B., K.M.’s grandfather, K.M.’s mother (W), and maybe one of K.M.’s brothers. S.M. described her relationship to L.L and T.B. as similar to her relationship with K.M., in that she went to school with them, L.L. having joined their school in grade seven, although, S.M. stated that she and L.L. were inseparable in grade 9 and up until the beginning of grade 10, when L.L. left for Europe. At the time of these events in 2018, L.L. was not living in Canada, but had come to visit friends for a couple of weeks. Out of the three friends, L.L. was the person she was closest with.
[7] S.M. was asked about buying and bringing alcohol to the cottage. She testified that she remembered driving up to the cottage with alcohol, specifically Corona and Smirnoff Ice. She stated that they were not of age to purchase alcohol and she thought it was K.M.’s mother who purchased it for the group to drink for the weekend. S.M. claimed that she did not have the intention of drinking when she went up there, or getting intoxicated, but that the “girls…they were really excited to just have kind of a weekend up there with alcohol and what not”. S.M. agreed that she knew the other girls were going to be drinking, which was not a problem, but that it was not her intention going in, as she was on medication. She then said, “I don’t remember whether or not I actually went with the intention of drinking… I honestly can’t remember”. She did not think she would have told her friends that she did not intend to drink due to being on medication. It was then suggested to S.M. that in her statement to police she said that she told her friends that she did not intend to drink alcohol. She said that back then she had a better memory, so if she said that in her statement, it would be correct.
[8] The four girls arrived together at the cottage late at night on Friday, August 3, 2018. S.M. testified that, on that night, she unpacked, and they played some games in the room downstairs. There was a little bit of drinking, but “it didn’t really get too out of hand”. When they were down by the dock around 10:00 p.m., S.M. recalled seeing C.Z. and several people at the boathouse of the neighbouring cottage belonging to the family of C.Z. When asked specifically whether she interacted with C.Z. and his group that night, she said “yes”. S.M. explained that they went over and played drinking games. When asked how she felt that night at C.Z.’s cottage, S.M. stated, “Extremely anxious. I was uncomfortable. I am that way in most new situations.” She stated that she did not want to be there. She thought that this was going to be a “girls’ weekend” and things were already “going downhill”. When asked what specifically was making her anxious, she stated, “New people in general just… make me very uncomfortable. I am not good with socializing. I have… social anxiety. It makes it very hard to put myself out there in those situations… The girls I was with, they’re quite outgoing, whereas I am… more introverted into myself… This is not what I would have wanted to do.” S.M. stated that she was taking Lorazepam, 0.5 mgs as needed, but she could not remember if she took any Friday night. S.M. was aware that Lorazepam enhanced the symptoms of being intoxicated and was warned against mixing the two. In cross-examination, S.M. stated that she was not aware of any other medical name or brand name for Lorazepam. She stated that it was possible that she was taking other medications in the month prior to this as she took medication for migraines, although she was not sure if one was prescribed to her at that time or not. She also stated that it was possible she was on other medications for mental health at the time, but she could not remember.
[9] As for drinking, she agreed that most of the reason for her drinking was peer pressure, although there was no one specifically that suggested or pressured her to drink. She ultimately agreed it was a decision that she made on her own.
[10] On Saturday, August 4, 2018, S.M. stated that she woke up around 11 a.m. or noon. They spent the majority of the day at the dock and were drinking throughout a lot of the day. In the late afternoon / early evening, they went over to C.Z.’s boathouse. There were a lot of people over there, approximately 10-15 people.
[11] On Sunday, August 5, 2018, again, S.M. stated that she woke up around 11 a.m. or noon. When asked what they did that day, she stated, “I imagine we had breakfast and then we kinda started drinking again.” Some people came over to K.M.’s cottage that she knew from high school. S.M. testified that this created a “bit of an argument” but they came anyway. She stated that it was either only L.L or K.M. and L.L. that wanted them to come. The visitors were N.J. and R.B. S.M. stated that she did not want them to come over as she really just wanted “it to be the girls”. The reason she came that weekend was to visit with L.L. and hang out with a friend she had not seen in awhile. When asked about the tone of the argument, S.M. responded that it was quite intense and heated. She said that she was very upset, crying, and there may have been some yelling. She stated, “I remember just feeling like I was having a heart attack or something, like my chest really started getting tight, and I could feel my anxiety ramping up”. The argument started on the dock and then moved into the cottage, where she locked herself in the bathroom to calm down from the panic attack. L.L. came in to talk to her and she “ended up kinda caving”, stating to L.L. that it was her trip and if she wanted to have them over she could do it. The high school friends did come over. S.M. knew N.J. quite well, but with R.B, he was more of an acquaintance.
[12] S.M. also recalled that they went to C.Z.’s cottage throughout the day on Sunday where she believed some people played mini putt, bocce ball, or some other outdoor activities. There were at least 10 people at his cottage that day. S.M. was mainly with R.B. and T.B. just standing around talking while at C.Z.’s cottage and did not play any games. She did not recall being overly upset or uncomfortable at this time. S.M. stated that they were at C.Z.’s cottage for quite a few hours and then returned to K.M.’s cottage for dinner around 6:00 p.m. or 7:00 p.m. S.M. was not sure if N.J. and R.B. stayed there when she and her friends left, but they had definitely gone over to C.Z.’s cottage with them.
[13] As for how much she had to drink on Sunday prior to dinner, she stated that she could not remember exactly, but if she were to take a guess, she would say 5 to 6 drinks between noon and 6 or 7 p.m. As for the type of drinks, she thought they only had two kinds that weekend, Corona and Smirnoff Ice.
[14] S.M. stated that she also took Lorazepam on that Sunday but could not remember when she took it, or even whether it was before or after going to C.Z.’s cottage the first time that day.
[15] Back at K.M.’s cottage, they had dinner and then started playing some drinking games, such as Beer Pong and King’s Cup. At the cottage were S.M., T.B., L.L., K.M., K.M.’s mother, K.M.’s grandfather, and maybe one of K.M.’s brothers. Another person, A.C., joined them at around 9:00 or 10:00 p.m. for an hour or two. S.M. confirmed that she participated in at least a couple of rounds of Beer Pong. She did not recall what type of alcohol was used for the game, but did not remember buying anything other than Corona and Smirnoff Ice. She did not, however, know what type of alcohol was put in the cups. She did not remember how much she had to drink at this time. As for playing King’s Cup, she thought it involved Jägermeister, Corona and Smirnoff. S.M. did not remember picking up Jägermeister and thought it belonged to K.M.’s mother or grandfather. She indicated that she was not that intoxicated playing these games when A.C. was still there as she and A.C. were going around making sure the other girls were ok. However, they did continue playing after A.C. left. At that point, it was just the four girls playing drinking games on the dock. She could not gauge how much she had to drink after A.C. left but stated that she was “pretty intoxicated” and dancing around to music that was playing. As S.M. was dancing on her own, she believed that the other three girls were in one of the boats in the boathouse. S.M. stated that she felt happy, carefree, and glad to be there. S.M. agreed that she was not the most physically coordinated at that time, and that alcohol made her act differently and affects her judgment. She agreed that alcohol played a part in her decision to dance by herself, although she said she felt comfortable when it was just the four of them. S.M. agreed that she was more drunk than normal and, up to that point, this was the most alcohol she had consumed and the highest level of intoxication she had ever reached.
[16] S.M. also recalled taking a Lorazepam at some point prior to playing King’s Cup. She believed it was just one. She agreed that the Lorazepam and alcohol made her more “anxiety free” and outgoing, including around strangers to some extent.
[17] According to S.M., she did not have any further alcohol after playing King’s Cup.
[18] At some point after the dancing, L.L., K.M., and T.B. wanted to go over to C.Z.’s boathouse. They could see C.Z. and others over there. S.M. thought that this suggestion was made within and hour or two after A.C. left. When asked how she felt about going back to C.Z.’s boathouse, S.M. stated, “Not the most happy about it. It’s definitely not what I would have done with my night and if it was my choice I would have just wanted to stay there… continue just hanging out with the girls because that was really what I wanted from the entire weekend.” S.M. went up to the cottage and got some sweatshirts and towels. On the way up to the cottage, S.M. slipped on a rock and fell. She hit the right side of her face and scraped up some of her body. Her face was swollen and she had scratches and lots of bruises. In any event, she made it to K.M.’s cottage and got what she needed. On the way back from the cottage, she vomited.
[19] In cross-examination, S.M. agreed that prior to going to C.Z.’s cottage, she spoke with L.L. She agreed that she did not want to go over in her bathing suit, as she was not as confident in her body as other people. L.L. calmed her down and comforted her. She did end up going over to C.Z.’s in her bathing suit.
[20] S.M. returned to the other three girls and they walked along a path to C.Z.’s cottage. As to her level of intoxication at that time, she said that she was “kinda coming down” and that the fall and vomiting had sobered her up. She explained that she was not sober by any means, but was not close to as intoxicated as she was when dancing, which she stated was her highest level of intoxication. The cottages were right next door to each other, and the walk was a minute or less. When they arrived at the cottage, they went into the boathouse. There were a few people there, including, S.B., B, C.Z. and another person. Prior to this she had met C.Z. and she thought B was also there when they were there earlier. The fourth male she had not met. As for S.B., she did not remember seeing him before that Sunday night, and did not know if he was there earlier when they went over to the cottage. In cross-examination, she agreed it was possible that it was closer to midnight when they went over to C.Z.’s boathouse.
[21] Inside the boathouse, there were three boats. There was also an open area where there was a Beer Pong table and alcohol. Eventually, S.M. stated that she sat in one of the boats, in the front right driver’s seat. There were other people in the boat, but she was not specific as to who was there. S.B. was initially in the back of the boat but moved up to the passenger’s seat when someone else left that seat. At that point, it was just S.M. and S.B. in the boat. When asked whether she had anything to drink, S.M. stated that she remembered having a couple of sips from the mixed drink S.B. had made – nothing that significant – and did not recall having anything else to drink. It was a 2- litre Coke bottle and she saw him mix Bacardi rum into it. She said that she could taste the rum. S.B. did not pressure her to drink.
[22] As S.B. and S.M. were talking in the boat, S.M. testified that she started feeling strange. She said, “My gut kinda started telling me this feels off”. She stated that there was no sign he was going to do anything, but she felt strange. As for their conversation, they were talking about things such as background and school. It was not a “deep conversation” and she had no specific recollection of how the conversation unfolded. According to S.M., while she was in the boat with S.B., K.M. came by her side of the boat, at which point S.M. leaned toward her and whispered in her ear, “Please don’t leave me alone with him.”. S.M. testified that K.M. said loudly, “Oh, yeah, yeah, yeah.” Based on the response, S.M. was satisfied that K.M. heard her. S.B. did not seem to hear, at least he did not ask what she was talking about or intrude on the conversation. Around 5-10 minutes later, S.M. said that she found a spot in the conversation to say, “Everyone’s talking over there…let’s go see what they are doing.” She said she saw this as an opportunity not to be alone with him as she was trying to keep her distance. She had heard someone in the group mention a hot tub. She agreed this was her exit strategy as she otherwise felt uncomfortable just cutting off the conversation. It was not because she wanted to go to the hot tub, rather she just wanted to be with the group.
[23] As for S.B.’s level of intoxication, she said that his eyes were all over the place, his pupils were huge, his speech was completely slurred, and she could “definitely tell he was intoxicated.” She stated that she had never seen anyone that visibly drunk before and she thought that would have been obvious to anyone who had anything more than passing interaction. She felt that he was “on something” besides the alcohol, as a result of his mannerisms, body language, and speaking. She said, “It was clear as day”. He had been walking around with this Bacardi and coke mix and this was the only thing she saw him drink. S.M. agreed that in terms of walking, she saw him walk in the boathouse and he was able to get in and out of the boat. She did not agree that she was exaggerating his level of intoxication. As for the girls’ levels of intoxication, she believed they were all similar.
[24] S.M. did not agree that she stayed in the boat with S.B. because she enjoyed talking with S.B. or because S.B. was showing an interest in her. In cross-examination, S.M. agreed that S.B. was not forcing or pressuring her to stay in the boat with him. His voice was not aggressive in any way. She agreed that L.L. and her other friends were only a short walk away and she could have spent time with anyone she chose. She agreed that she could have left the boat at any time. It was also only a minute walk back to K.M.’s cottage and that she could have gone back there. When it was suggested to her that she could have spoken to her friends and suggested to do something else, she stated that she had tried to earlier, before going to C.Z.’s boathouse, and it was not listened to, so she assumed that they would not care if she did not want to be there anymore. She felt that if she did not go to C.Z.’s boathouse, she would have been left behind. She did not remember approaching her friends with the suggestion to leave.
[25] As S.M. and S.B. rejoined the others, the group was trying to decide what to do and were throwing around the idea of going to the hot tub located a couple of cottages over. S.M. estimated that she had been at the boathouse about half an hour to an hour at that point. A decision was ultimately made to go to the hot tub, however, S.M. did not remember whose idea it was. It was not her idea as she did not know the hot tub existed. She also did not hear S.B. mention it. S.M. did not remember K.M. mentioning being in the hot tub before. S.M. stated that she stayed by L.L.’s side during the conversation, although she agreed that it was not because of anything S.B. was doing at that point. She did not remember telling L.L. that S.B. was making her uncomfortable.
[26] The girls and boys paired off to walk to the hot tub. Some of the pairs were holding hands. S.M. testified that she was paired up with S.B. behind the others, but she was not comfortable holding hands, as she did not want to give him the wrong idea, therefore, she walked behind him on the path. S.B. did not ask her to hold hands. She did not remember any lights on the way to the hot tub. The walk was less than 5 minutes – she agreed maybe 2 minutes.
[27] S.M. agreed that even before the hot tub, over at C.Z.’s property, she had spent more time with S.B. than anyone else. She agreed that S.B. was not forcing her to spend time with him.
[28] S.M. stated that she was wearing a bathing suit. She was not sure if she was also wearing a sweatshirt. She was one of the last to reach the hot tub and was not sure if anyone had to remove a cover. People were already in the hot tub when she got there. Ultimately, all eight of them were in the square hot tub. She remembered them all being pretty packed in there and that the water was up quite high. The jets were on at some point. She could not remember if there was any music. She did remember hearing chattering from the cottage up the hill. She did not remember there being too much light in the area of the hot tub, or even along the dock. She thought that there were a few lights on in the hot tub. S.M. agreed that her and S.B. ended up sitting next to each other but she did not know if it was before people left or after. The eight of them were in the hot tub talking for ten or fifteen minutes and then people started talking about swimming back or walking back. People left the hot tub in pairs. The entire group was only in the hot tub for 15 to 20 minutes when people started leaving. She did not remember if anyone was drinking in the hot tub, but she was not. She agreed that no one checked in with her before they left or asked her if she wanted to come with them.
[29] Ultimately, everyone left the hot tub, except S.M. and S.B. When asked how she felt about being alone with him in the hot tub, she stated, “Not good. It was the very last thing that I would have wanted. Um…I…like…I hate being around new people. I don’t go hang out with new people by myself. It wasn’t going to be the night that I started to.” When asked why she did not leave, S.M. stated, “I felt like I couldn’t. Like I…I just felt, I don’t know, just strange, but at the same time I feel like I was telling myself, ‘you know, you’re anxious but it’s fine, it’s not that big of a deal, we’re just in the hot tub’, like nothing bad had really happened yet, so yeah.”. It was suggested to S.M. that despite her anxiousness, she never thought of just getting up and leaving, to which she responded, “I get more anxiety thinking that people are going to be mad at me, than I do around new people. So whether it’s people that are brand new to me or people that have been in my life since I was a baby, I don’t like making people feel bad, feel, even, sorry, or like guilty, even if they did do something wrong. I am not that type of person. So just in that moment….those few minutes were…everyone was starting to leave, I was anxious but I also, I wasn’t looking to go back to the boathouse and then have S.B. follow me there and then what...It was just going to be an awkward and angry encounter was what I felt”. She agreed that S.B. never said not to leave him alone in the hot tub and there was no indication that he would follow her, but eventually she believed that they would both end up at the boathouse. According to S.M., she did not feel that she could just walk over to K.M.’s house. She stated that she was not close with K.M.’s mother or grandfather and did not feel comfortable just walking back, although if someone came with her, she would have gone back. She agreed that she decided to stay in the hot tub with S.B. She strongly disagreed that T.B. asked if she wanted to come with them and she said no. She stated that if anyone had asked her to leave with them, she would have left, despite the social awkwardness.
[30] As for permission to be in the hot tub, S.M. stated that she knew they had to be “kinda quiet”. She also knew that it was not on C.Z.’s property. She did not know if someone said they were not allowed to be there, or she just interpreted this on her own because it was not on their property. She said she could hear noise from the cottage up the bank and thought it was reasonable that the people in the cottage could hear them. No one from the cottage came down. She agreed that she interpreted it that they were not allowed to be there, but not necessarily because anyone said so. She agreed that it would make sense to leave if she thought they were not permitted to be there, and stated, “looking at it now, yeah, I wish I did just pick up and leave. Every ounce of my body wishes that is exactly what I did”.
[31] After everyone left, S.B. and S.M. started kissing and she testified, “That was ok. It wasn’t something I wanted to do, but it also wasn’t something I had said no to or told him to stop. It was a kiss. It wasn’t that big of a deal to me at that time.” In cross-examination, she agreed that she was not suggesting lack of consent to kissing. She agreed that she had no romantic interest in him, did not enjoy the conversations with him, and was not interested in him being interested in her, yet she was ok with him kissing her.
[32] S.M. was wearing a one-piece bathing suit, which was black and made of bumpy material. It had 5-6 gold or silver buttons in the breast area which were able to be unbuttoned. S.M. explained that the bathing suit could also be taken off without unbuttoning those buttons. The suit was low and open in the back. There was not much of a shoulder cover, just a 2-inch strap on both shoulders, connected to the suit. S.M. stated that S.B. was wearing a bathing suit of some sort, she believed shorts, but she did not know the colour.
[33] S.M. testified that she was 5’4” tall and S.B. was taller.
[34] As to their body positions during the kissing, she stated, “I was on top of him…um… and we were kissing and [S] was just sitting in the hot tub… My knees were kinda on either side, sort of straddling him I guess.” As to how she got in that position, she said that she did not remember if S.B. helped her get on top or not or even whether he said anything to her. She agreed getting into that position was possibly something she did herself. She agreed that she was not moved on top of him without her using her own body. As to who initiated it, she stated that she could not remember but that she had never initiated with anyone and would not do that with someone she had just met. When asked how she felt, S.M. stated, “I didn’t want to but ….I didn’t say no. I didn’t say like stop it. It wasn’t that big of a deal to me. It was a kiss. It was fine. It wasn’t going to kill me or anything… That was ok.” When it was suggested to her that she was enthusiastically consenting to the kissing, she disagreed that it was “enthusiastically”, rather she was “just going with the moment…kinda doing what….was expected or….or what I thought… he would enjoy. But I was not enthusiastic about it. I wouldn’t have been kissing him if he wasn’t kissing me. I wouldn’t have done that.” She again agreed that it was consensual, and it did not bother her that much, until it escalated and then she felt violated.
[35] As the kissing continued, S.M. stated that things escalated to the point where S.B. was kissing her neck. S.B. then moved fully on top of her at which point she was sitting in the tub. She described that he was leaning up against her with his weight on her. They were continuing to kiss. As S.B. was kissing down her neck, he started pulling at the shoulders of her bathing suit. He continued kissing down her neck and on her chest. S.M. described that she was pushed right back in the seat, with her head on the edge of the hot tub, her “bum” fully back in the seat, and her feet could not fully touch the bottom of the tub. She recalled that the seat she was in was a little bit leaned back. S.B.’s body was on top of her in this position, with his legs in between her legs, and his upper body on top of her. He was continuing to kiss her neck. At this point, S.M. stated that she thought “Ok, I think this is going a little too far. A kiss is, you know, one thing but this almost seems like, I started thinking you know, like think he might think I want to have sex with him but I did not.” He continued kissing down her neck and she started squirming switching her head from side to side. S.B. then pulled her bathing suit down a little bit, was massaging her breasts and started rubbing her vagina.
[36] With respect to pulling her bathing suit down, she stated that S.B. was struggling a little bit with the straps, especially at the elbows. She was keeping her body tight and squirming. S.M. could not remember exactly when she first said “stop”, but she said, “I said it so many times throughout the whole thing but ...he would say ‘no, its ok’ …or wouldn’t say anything”. She then clarified that up to him kissing her neck, she did not say “stop”. It was later, when he was pulling her bathing suit down and massaging, that she said, “Ok, [S], enough”. She explained that S.B. was massaging her bare breasts, as he had pulled the suit down a little bit and her breasts were exposed. When asked how she felt about S.B. massaging her breasts, she stated, “I didn’t want it. Like I didn’t want to kiss in the first place, and that was kind of where I was like, ok that’s fine but my line…like, that’s where I kinda wanted to draw the line and so I did not want to be part of anything else. I didn’t want to kiss him in the first place. I wouldn’t have if he didn’t initiate it, um but yeah.” In cross-examination, S.M. agreed that when he started to remove her bathing suit, she thought back to an episode of 13 Reasons Why, specifically to a scene where in a party setting, two people were left alone in a hot tub and someone was being sexually assaulted. After reviewing her statement, she recalled that this flashback happened even before vaginal intercourse occurred. Later, she was referred to her preliminary hearing, wherein she stated that it came to her mind when she was speaking to the officer, although she stated that this came out wrong.
[37] S.B. started rubbing and massaging her vagina over her swimsuit and feeling her thighs. She did not recall him touching her vagina with his hand under her bathing suit, and specifically, she did not recall any digital penetration. He took her left hand and rubbed it over his erect penis on top of his bathing suit. She testified, “I didn’t want any of it. I was extremely upset. I didn’t know what to do. Like I just… I feel like I froze…. I did not want that.” She then stated that this was when she started saying, “[S], stop, [S] stop.”. He responded, “no, it’s ok” or he would say nothing. She said that she was not screaming or yelling but rather speaking in the same volume she was testifying. She further stated, “I just didn’t want I….I felt almost sick, like just panicked. I didn’t want it. I just wanted to be back with my friends doing what this whole weekend was supposed to be about. Like never did I ever or have I ever like intended to go in to a trip just to hook up with someone or come out with you know more sex or anything like….I’m not that type of person..”
[38] S.M. agreed that she was not yelling for him to stop. When it was suggested to her that she was not trying to get anyone’s attention, she said that there was no one there. She stated that she now knows she should have yelled but did not know if she was too panicked or frozen. She did realize that C.Z.’s cottage was nearby and the three girls and boys that had just left could be nearby. She agreed that she told the police that the reason she did not want to scream or yell was because they were not supposed to be in the hot tub, and that if the people who owned the hot tub came down, she did not know if they would help her or just send them back to C.Z.’s cottage. She again agreed that no one told her they were not allowed to be in the hot tub, rather she had just inferred this. She said that she did not know what kind of people these cottage owners were, how old or young they were, and she was not certain of anything in that moment. She assumed they would just kick them out of the hot tub, but would not do anything. She stated that she did not know C.Z.’s family, she barely knew K.M.’s mother and that she really was “an outcast on that trip”.
[39] After S.B. rubbed her hand on his penis, S.B. started lowering his bathing suit. He struggled a little bit with it, as he was leaning on S.M. S.M. did not recall his bathing suit coming off the whole way. S.B. then pulled her bathing suit down to her thighs and moved her body up a little more on the edge of the hot tub and started having vaginal intercourse with her. As to how he moved her body, she said that she felt like she was “just a noodle…a kitten…felt like I was being thrown around…like I was not actually a human being.” As to how he pulled her bathing suit down, she stated that he did it “one arm at a time” and that he was continuing to lean on her. She said that it was difficult for him to get her suit and his suit off and that he struggled with both. She stated that her bathing suit was then closer to her knees and that it eventually managed to come off from all the movement. She stated that her upper back, neck and head were on the edge of the tub, with her legs in the water, hovering above the seat a little bit. S.B. was standing in the tub between her legs having vaginal intercourse with her. He put his penis inside her vagina and she remembered the pain. She stated that it was very painful, sudden and like a shock. As for what she was thinking about the activity, S.M. stated, “I don’t even know what was… going through my head…. I was frozen almost. Like I just I didn’t know what to do. Like I was panicked”. S.M. confirmed that she did not want to have vaginal intercourse with S.B. In cross-examination, she stated that she could not remember whether the jets were on at that time, but agreed that she told the officer that the hot tub was bubbling, and agreed that, if that was in her statement, that was true.
[40] She agreed that at some point when vaginal intercourse was occurring, her bathing suit was around her thighs. It was suggested to her that her thighs were held close together by the bathing suit, to which she responded that she could still separate them as it was a very stretchy bathing suit. She did agree that the bathing suit in that location did restrict her movement but that S.B. was still able to have vaginal intercourse with her.
[41] S.M. did not recall making many movements herself and explained that S.B. continued to thrust his penis into her vagina and that his penis fell out once or twice. S.M. stated that she continued to say, “please stop, lets go back” and he would simply respond, “no, its ok”. S.M. stated that she was feeling pain in her vagina and was in shock, shaking, and panicking. She stated that she also felt “regret for…letting myself… let my friends tell me ‘it’s ok, its going to be fine, we are just going to hang out and have a good time’” She questioned “how did I end up here, how did I put myself in this situation”. As the vaginal intercourse was occurring, S.M. stated that she was looking around and remembered seeing a blonde person in the forest and that she “kinda called out” but no one said anything. S.M. believed that the person she saw was L.L. or K.M., and another man, and she was pretty sure that she called the girl’s name but no one turned around or said anything. S.M. felt that she said this loud enough for them to hear. These people were closer than C.Z.’s boathouse. She agreed that she was shouting to get their attention. She also agreed that S.B. did not react to this in any way.
[42] After some period of vaginal intercourse, S.B. turned S.M. over. Her knees were then on the seat and she was facing outside the hot tub. In this position, she could see K.M.’s cottage. S.M. stated that before she could gather her thoughts, S.B.’s penis was inside her anus and she was in excruciating pain. As to how S.B. moved her, she stated that he “flipped me… very quickly” by using her hips and waist. She stated, “He kinda just grabbed me, and again it was like I was not even human… like I was a puppet… I was flipped around”. She then stated that she thought that she may have tucked her knees and she was not sure how her knees got on the seat. Her arms were along the edge of the hot tub. S.M. agreed that, in her police statement, she had stated that S.B. took her left arm or hand and flipped her onto her stomach. She agreed that her recollection now was different as she now recalled that he used her waist and hips. When asked at trial whether he used her waist, she said, “I can’t remember 100% now…. I had some marks… on my left wrist. At that moment, I guess I did remember that it was my wrist, but now I do feel that he used my waist.”
[43] S.B. was behind her with his penis inside her anus. S.M. testified that she kept saying, “[S] stop” and he would say, “no its okay”. S.M. stated that, while this was happening, she was thinking, “I need to get out of here”. As to how she was feeling about this sexual activity with S.B., she stated, “It wasn’t an option in my head ever…it wouldn’t have ever been… I was completely against the vaginal sex, the anal sex, all of that. That was not at all what I wanted to do.”
[44] From this position, S.M. could see people on C.Z.’s dock, specifically, K.M. and one or two other men. She agreed she did not call out to K.M. S.B.’s penis kept slipping out of her anus and S.B. would put it back in. S.M. stated that she had no concept of time and did not know how long the anal intercourse went on for, but it was not as long as vaginal intercourse. At this point, S.B. suggested that they go to C.Z.’s bunkie to continue. S.M. stated that she had no intention of doing that, but she wanted to go back to C.Z.’s cottage get her friends and leave. S.M. stated that she turned around and agreed. At this point, her bathing suit was floating on the water. She put on her bathing suit. S.B. helped her out of the hot tub.
[45] In cross-examination, she stated that there was no oral sex performed by either of them that she recalled. Further, there was no digital penetration or “fingering” of her vagina or anus that she could recall.
[46] As they walked to C.Z.’s cottage on the path in the forest, C.Z. came running toward them screaming at them that the hot tub was making noises and they did not close it properly. C.Z. was quite upset and he ran back to the hot tub. S.M. agreed that she did not say anything to C.Z. about what had happened. S.B. and S.M. continued toward C.Z.’s cottage. S.M. could not remember if there was any conversation on the way. She also did not remember S.B. tripping during the walk. As they arrived at C.Z.’s cottage, S.M. stated that she was shaking and was feeling sick and distraught. She “broke down” when they got there. S.M. explained that, at C.Z.’s dock, she saw K.M. She could not recall if it was K.M. or she who asked S.B. and B, who was also there, to leave them alone for a minute. S.M. explained that they made an excuse and she said that her mother was a drunk and had called K.M. so that must have meant it was an emergency. She said that she just needed to talk to K.M. so badly and would have said anything. When she was alone with K.M. just behind the boathouse, S.M. broke down, started “balling my eyes out”, and told K.M. that “he raped me”. Other than that, she could not remember exactly what was said. K.M. got a little upset and was going to start yelling at S.B., but S.M. stated, “That is not at all what I wanted genuinely. All that I wanted at that point was to go back to the bunkie, like to the safety of [K]’s house, and just, I don’t even know what I …what I planned to do. All that I knew was I needed to get to [K]’s”. In cross-examination, S.M. stated that she said to K.M., “No, let’s just go back, I just want to go back”. S.M. disagreed that she said to K.M. that she might have said yes. She said there was nothing unclear about what she told K.M., and that she told K.M. it was non-consensual.
[47] S.M. stated that they made an excuse with the boys and were able to get out of the rest of the night with them. S.M. thought she said goodbye or waved, as B said it was rude to just leave. She did not recall anything S.B. said. S.M. and K.M. then went back to K.M.’s bunkie. In the bunkie were just K.M. and S.M. at first, but T.B. and L.L. came a little later. S.M. changed into a big t-shirt and a pair of underwear. At this time, she noticed some blood coming from her vagina and it was in her underwear. She was not menstruating at the time. K.M. and S.M. went over to the shower and she showered herself. They then returned to the bunkie. It was very late at night by this point. They went to bed and planned to wake up for sunrise. S.M. stated that she felt distraught, “out of body”, and did not feel like herself. She was feeling upset, sick, and guilty. She estimated that she went to bed at 2 or 3 a.m. All four girls slept in the bunkie that night.
[48] The next morning, she woke up for sunrise, which was quite early. She then stated that she could not remember if she went to sleep that night or not. When she stood up, there was another huge rush of blood from her vagina. S.M. stated that K.M. was awake to see that and she was pretty sure L.L. was awake to see that as well. She was not sure about T.B. She thought there was a discussion about the blood because they convinced her to shower again that morning. In cross-examination, she agreed that it was possible that she told her friends it may be from her period. K.M. and S.M. went down to the dock for sunrise and took a few pictures. S.M. stated that she felt “horrendous”, “empty and almost alone in a weird way”. In cross-examination, S.M. agreed that she spoke to her friends about what happened. She could not remember if she told them everything and was not sure if she went into detail with them, but she recalled telling them the “gist” of what happened. She recalled telling each of her friends, multiple times, that she was raped. She did not recall telling them that she might have consented and did not agree that she told them she might have said yes. She confirmed that she did not tell her friends that she did not remember what had happened, because she did in fact remember what had happened. They all discussed what they recalled from that night. K.M. tried to help S.M. find S.B.’s name on Instagram, as she did not know his last name. As to her state of mind that morning, S.M. remembered that she was “spaced out”, “felt disgusting and dirty” and had never felt that way before or since. She stated that she was kind of nervous speaking to her friends about this as she was scared of judgment, scared of people believing her, she was not sure what the response was going to be, and she felt “dumb” for “letting” herself be in that situation.
[49] S.M. did take another shower that morning. K.M. and possibly T.B. went tubing.
[50] S.M.’s mother was coming to pick her up in the afternoon, sometime before 4:00 p.m. Her plan was to go to work, as she had a late shift that night, however S.M. testified that she knew the right thing to do was to go to the hospital and get everything checked out. She said that the bleeding scared her. She also testified that she knew there were “rape kits” and if she wanted to pursue a “judicial matter” she should do that.
[51] S.M. stated that her shift was 7 p.m. to 2 a.m. at Killbear Provincial Park. S.M.’s family cottage was 15 minutes from the Park. K.M.’s cottage was about an hour and a half away from her cottage.
[52] S.M.’s mother did pick her up and they drove to their cottage an hour and a half away. She agreed in cross-examination that she did not give her mother any information. She stated that she did tell her mother that she had fallen on K.M.’s boat and that was how she hurt her face, but did not tell her anything that happened that weekend. Her mother observed the injuries to her face that had occurred when she slipped on a rock going to get sweatshirts and towels. She agreed that what she told her mother about how this injury occurred was not correct. She further agreed that she did not tell her mother anything else until later that night.
[53] S.M. described that she went to the Parry Sound Health Centre that day. She drove herself in her mother’s car. When she arrived there, she learned that they did not have “rape kits” and they suggested that she go to the Orillia hospital instead. At that point, it was too late to say she was not coming in for her shift, so she thought she would go into the hospital in the morning after working the shift. S.M. testified that she went to work her shift. She was then texting with her mother to see how she could get to Orillia without telling her mother what had happened as she wanted to protect her mother. At the same time, she understood that her mother was texting her sister who was at the park that night for social reasons. S.M. told her mother that her friend was sexually assaulted and that was why she needed to go to Orillia. Her sister then came to see her at the office of Killbear. Her sister was asking whether this happened to her. S.M. stated that she did not want to tell her 16-17-year-old sister, so she denied that it was her until their mother showed up.
[54] When her mother showed up, she said her mother knew it was her that this had happened to. S.M. then told them everything that the hospital had instructed her to do. Her sister offered to pick up the rest of the shift. They switched clothes. In the conversation with her mother, S.M. stated that she felt embarrassed and felt that her mother would be disappointed in her. Her mother knew that she was not supposed to drink. S.M. stated that they had a wonderful relationship but that her mother had always been “quite hard” on her, about following rules, and she had not done that and landed in a situation that her mother had warned her about.
[55] S.M. and her mother were deciding whether to go to Orillia that night or the next morning. They decided sooner was better than later. S.M. and her mother went to Soldiers’ Memorial Hospital in Orillia that night. In cross-examination, S.M. agreed that she told her mother what had happened before going to the hospital. She then explained that she told her what had happened but no details, similar to what she told L.L. and K.M. although she felt it was less detail. It was not the same level of detail that she gave to police. She agreed that when she told her mother, her mother asked questions and asked for details. When it was suggested to her that she told her mother the hot tub played a part, she responded that she did not know if she said that. She stated that she had never been close with her mother, had never spoken with her about those kinds of things, and was not “super comfortable” talking about it. She stated, “If anything, like it would have just been basic details”. It was suggested to S.M. that her mother asked if it happened in the hot tub, however, she did not remember. It was further suggested that she told her mother that the sexual activity occurred outside the hot tub and that she told him no, to which she stated, “I can’t remember that”. It was then specifically suggested to her that she told her mother that the sexual activity happened outside the hot tub, to which she said “no” and then said, “I don’t remember saying that to my mother” and that was not her present recollection.
[56] According to S.M., they arrived at the hospital in Orillia after midnight, which she stated was early Tuesday. At the hospital, they conducted the “rape kit”, asked her questions, and took samples of blood and urine. It was agreed that the blood taken from S.M. showed the presence of Gavapentin (Neurontin), Duloxetine (Cymbalta), and Quetiapine (Seroquel). Her urine tested positive for Neurontin. S.M. was not aware that her blood and urine tested positive for these drugs. She was not familiar with Neurontin, but recognized Gavapentin was a migraine medication, however, she was not sure when she started that medication or what the dose was. The other drugs sounded familiar to her. There was no presence of Lorazepam, although S.M. was sure that she took Lorazepam that weekend. She did not know if she brought other medications with her or when she last took those medications.
[57] S.M. recalled speaking with the nurse at the Orillia hospital but could not remember the conversation. She recalled that the nurse asked questions. S.M. was asked whether she told the nurse that there was penetration or attempted penetration of her mouth by S.B.’s penis, to which she responded, “no, not that I can recall, no”. She agreed that this would be different from what she told the court. She did not recall telling the nurse that oral sex or attempted oral sex occurred or specifically that S.B. attempted to perform oral sex on her. Again, she agreed that this would be different from what she was telling the court. She agreed that it was possible she told the nurse something about alcohol or drugs, but did not remember what she said. She did recall that the nurse was not going to take photographs of her injuries because it was difficult to determine what happened from the fall versus what occurred with S.B. She could not remember if the nurse did a full body scan.
[58] In cross-examination, it was suggested to S.M. that she was a full day off on her recollection of when she attended the hospital. She said this did not surprise her as, when she spoke to police, she was having difficulty figuring out what happened when. It was suggested to her that the examination was done on the early morning of the 8th, not the 7th. She said that was definitely possible that she mixed up the dates, but the same events happened. She accepted that if the kit said she arrived on the 8th, that was the correct date.
[59] S.M. ultimately spoke to the police on August 30, 2018.
[60] S.M. agreed in cross-examination that L.L. was the person in this group of friends that she was closest to. She also agreed that she had had some discussion with her friends throughout this process. She was then asked specifically whether she had ever asked L.L. her recollection of that night, to which she stated that she did not remember doing that after the detective told her not to. She said after that she stopped. After she gave her statement, she did not ask L.L. her recollection as this was a directive from the detective. However, leading up to the statement, she said she did not remember if she asked L.L. her recollection of that night. As for whether she ever asked K.M. or T.B. about their recollection, she stated, “No, not that I can remember”. She did agree that her friends kept her apprised of events, such as when they were contacted by police and when they gave a statement, but it was more L.L. than anyone else. When asked whether they told her what they said to the detective, she said, “No, not that I can remember”. L.L. and K.M. advised her when they were subpoenaed. In fact, prior to the preliminary hearing, K.M. texted her to say that she had been subpoenaed and did not remember anything and asked S.M. if she had any information that could help her, as she did not want to slip up and damage the case.
K.M. – friend whose family owned the cottage
[61] K.M. testified that S.M, T.B. and L.L. were at her cottage for the August long weekend in 2018. K.M.’s mother was also there. No one else was staying at her cottage that weekend.
[62] Similar to S.M.’s description, K.M. said that she and S.M. were friends, but not close friends. Given that L.L. was visiting from Europe for a few weeks, they picked a group of friends to come to the cottage to spend time with her.
[63] K.M. did not recall what they were doing Sunday during the day but did not recall leaving her cottage. That evening, she testified that the four girls were drinking and playing some drinking games down at the dock of her cottage.
[64] As for alcohol that was being consumed, K.M. remembered Corona and Smirnoff Ice, and she remembered attempting to make Jäger bombs. She remembered that alcohol from the weekend but could not say that was necessarily what they were drinking that night. K.M. did not know who purchased it. As for how much they were drinking, she said “a decent amount”. She did not know how many drinks she had that Sunday. When asked about her level of intoxication before going to the neighbours, she stated that she was able to walk and talk and make decisions, but probably was not at her most aware because she was drinking a bit. As for S.M., K.M recalled that, earlier in the evening, before going to the neighbours, she drank a lot and was very drunk. She drew this conclusion because S.M. was stumbling, could hardly walk by herself, and was hardly coherent when speaking. She also remembered that S.M. vomited at some point. They were in K.M.’s boat in her boathouse and S.M. was falling, could not sit on a chair without sliding, and when she would try to stand, she would “wipe out”. She recalled that S.M. walked up toward the cottage to get water at one point, and when she came back down, she said she had fallen and it looked like she hit her face on the ground.
[65] Later in the night, when her neighbour and friends came back from a party, the four girls went over to their boathouse, where the drinking and drinking games continued. The neighbour was C.Z., whose parents owned the cottage. At the time they went to C.Z.’s cottage, K.M. could not speak to whether S.M. was more or less intoxicated, but she remembered thinking that it was not as notable. They played games in the boathouse where there was a table set up between the three boat slips. She recalled that it was S.B., C.Z., B and T, but could not recall if there were more people.
[66] K.M. did not recall S.M. playing any games at C.Z’s boathouse. The only thing that K.M. remembered about S.M. in the boathouse was that she was in one of the three boats with S.B. on the back bench seat, sitting very close to S.B, and S.B. had a 26 oz or 750 ml bottle of hard alcohol which she believed was Bacardi or some type of rum. K.M. testified that S.M. and S.B. were definitely passing the bottle between each other, but she had no recollection of seeing either of them consume any of it. In cross-examination, it was suggested to K.M. that it was a 2-litre bottle of coke, to which she said, “I don’t recall... I remembered rum….I thought it was a bottle of Bacardi….but maybe my mind went there because it was coke mixed with rum.” She agreed that she saw them in the boat with what appeared to be a bottle of rum.
[67] K.M. did not recall S.M. getting her attention or even speaking to S.M. at any point in the boathouse.
[68] As to how the evening progressed, K.M. explained that they all went to a hot tub. She did not know who recommended it, but it was one of the boys because she never thought to go, as it was not their hot tub and she never thought to sneak into this hot tub. When one of the boys recommended it, K.M. asked if they had permission to go into the hot tub and they said, “Oh, we do this all the time, it’s all good.” K.M. stated that she did not know who was invited to go and that she remembered feeling that she had almost “crashed it”. Someone proposed it for themselves, in that one of the boys intended to go with the girl he was with, and then everyone went. K.M. did not remember who was there for the conversation or who was having the conversation. K.M. had never used that hot tub before and never suggested to anyone that she had used it. In cross-examination, K.M. agreed that she did not tell the police about the conversation questioning whether it was ok to use the hot tub.
[69] K.M. did not know if they walked or swam to the hot tub. She said that all eight of them went. As for what they were doing in the hot tub, she just remembered them talking. She did not know how long they were in the hot tub but remembered it not being a long time. She could not say whether it was over or under a half an hour. She could not say for certain that all eight of them got into the hot tub and said probably they did. As for drinking alcohol in the hot tub, she did not remember but could not say that it did not happen.
[70] As to when she left the hot tub, she stated that she did not remember but thought it was after L.L. and before S.B. and S.M. When she left the hot tub, her memory at one point was that T.B., C.Z, S.B. and S.M. were still in the tub. At trial, she was not sure if T.B. and C.Z. were still there or not. She did not think anyone left with her. She did not consult with anyone about leaving the hot tub, except B. After leaving the hot tub, she did not look back.
[71] K.M. went back to C.Z.’s boathouse either by walking or swimming. B was with K.M. back at C.Z.’s boathouse. She did not remember if anyone else was there but the two of them went to the upper level of the boathouse.
[72] K.M.’s next interaction with S.M. was when S.M. came walking back from the hot tub with S.B. As she was looking at them walking up, S.M. was on the left and S.B. was on the right. She did not know who was in front or behind. She described that the boathouse had a dock around the side nearest to the hot tub and she was sitting in a Muskoka chair near the water. When she saw S.B. and S.M., they were fairly close to the dock. She did not know what prompted her to go over to S.M. as they arrived, but that was what she did. K.M. remembered a few sentences of the conversation with S.M. at that time. She described S.M. as “upset”, “on the verge of tears”, “very, very unhappy”, “almost overwhelmed” and “rattled”. The general nature of the conversation was that S.M. said that she did not want to have sex with S.B. and K.M. was left unclear as to whether there was consent or not. As a result of the conversation, K.M. became upset. K.M. started raising her voice and started getting worked up. She did not know if B approached her or if she approached B. During the conversation with S.M., B was with S.B. where she had been sitting previously. As to her intention at that time, K.M. stated that it was not her intention to be yelling, but rather to get an answer or to understand what had happened. Because it was making her upset, her voice was raised a little bit. As a result of her raising her voice, it got the attention of S.B. and B and it led to S.M. really wanting to leave. At that point, S.M. started to “brush off everything” and said, “I just want to leave”.
[73] K.M. agreed that she thought about the events of that weekend before going in to give her statement to police and that she answered the questions asked of her. She knew the police were investigating an allegation of sexual assault involving S.M. and S.M. was a friend of hers.
[74] K.M. agreed that she told the police the following at page 4 of her statement:
K.M.: … And so, then [S.M.] – really like – I don’t remember too much about the conversation, and like, I (indiscernible) as well. Like, I was also – like, I wasn’t completely sober at the time, so like, don’t really know, but I do remember her saying like, she didn’t really want to and her just being, - yeah like, I didn’t want to, and then like, I got a little bit riled up. I was like, wait, what? Like, what happened? And like, I got like, a little – I was like – raised my voice a little bit, was like, kind of starting to walk over there. And she’s like, no, no, don’t. Like, wait. Can you like, tell me what happened – and I was like – and she’s like, oh (indiscernible) and I was like – like, did you say yes? And she was like, I think I might have at the time. That’s really all I remember at – at the conversation. She was like, I think I might have, I don’t really know, I just really want to go back.
K.M. agreed that this was one version she told the police and it was the first way she described it to police, however, she stated that at another point in her statement she phrased it differently. K.M. also stated that reading it without her voice provided it with a different context. She was not asked to and did not adopt this statement. A short time later, K.M. agreed that she said the following to the police at page 10:
K.M.: …Like, I – so like, specific words like, I wouldn’t quote – like, you know what I mean, I’m not really sure if I remember exactly, but I do remember like, I’m not sure if I had said yes, or like, I might have said yes at the time. I believe was something she did say.
K.M. agreed that she said this to police. The officer then asked what that meant. K.M. answered the officer that this was in reference to S.M. having sex with S.B. Again, she was not asked if she adopted this as part of her testimony. Further, K.M. was referred to a later portion on page 10 in which she told the police that she did not know how the topic of consent came up. K.M. agreed that she told the police that S.M. told her “I didn’t really want to, or like, I really didn’t want to, and then me getting upset, and then her being like, I don’t know, I might have said yes at the time…” K.M. then described the “spirit” in which she described these comments to the police. K.M. agreed that she told the police that based on the conversation with S.M. at that time, she was not sure if she had not consented or had consented and later regretted it. She agreed that she was telling the police the truth. K.M. stated that she interpreted this as S.M. not wanting to speak to her, not wanting to answer her questions, brushing her off, and saying things to get K.M. to stop asking her questions. K.M. pointed out that this was the second half of the conversation when she wanted to leave. K.M. agreed that before S.M. left, K.M. asked her if she said “yes” and she said that she “might have said yes.” She said that S.M. said this in the spirit of ending the conversation and wanting to leave. K.M. agreed that she did not tell the police that S.M. was being “wishy washy” and dismissive in response to her questions. K.M. stated that she did her best to deliver it the way it was told to her. It was suggested to K.M. that she never told the police that this was her interpretation of these comments, to which K.M. responded that the police never asked her. K.M. felt, however, that she portrayed that in her comments, that S.M. went from being initially unhappy saying she did not want to do that, then when K.M. got mad, she got “wishy washy” and dismissive. K.M. explained that she was trying to tell the police what occurred without giving her opinions. K.M. stated that she tried to deliver it to the police the way S.M. delivered it to her. K.M. agreed that S.M. told her that she did not want to have sex with S.B. and later, in the same conversation, S.M. said she might have said yes to S.B.
[75] K.M. then started talking to B. B asked her what was going on and K.M. said, “I don’t know, you tell me”. B had been talking to S.B. K.M. was mad and wanted B to tell her what he knew. B said, “…I know something’s going on.” At this point, K.M. pushed B in the lake. While K.M. had this interaction with B, S.M. was still in the location where they had the conversation. Then S.M. started walking away and B pointed it out. S.B. was still sitting on the dock. As to whether S.B. had any reaction to this, K.M. said she was not looking at him when she was talking to B. When she got rattled, K.M. looked at them, S.B. was looking back and K.M. said, “why are you looking at me”. K.M. said S.B. “was almost intently looking at us.”. K.M. then apologized to B and went after S.M.
[76] On the way back to K.M.’s cottage, K.M. did not remember the conversation totally but remembered that S.M. wanted to take a shower. S.M. and K.M. went to the main cottage, where S.M. took a shower, she thought they likely stopped at the cabin where S.M. put different clothes on, and then they went down to watch the sun rise. She did not remember S.M.’s demeanour. K.M. assumed that L.L. and T.B. were sleeping in the cabin.
[77] After watching the sunrise, K.M. went back to the cabin to sleep. Later in the morning, K.M. did not remember what they discussed but she remembered when S.M. was getting changed, she looked down and saw blood in her underwear. K.M. saw the blood. This occurred in the cabin. L.L. was also there at that time, but she was not sure about T.B. K.M. thought L.L. was awake but could not say for sure.
[78] In cross-examination, K.M. agreed that she made a statement to police on November 30, 2018. She agreed that part way into her statement she offered information about what had occurred that next morning. She agreed that she told police:
K.M.: …Sorry, I have something to say for the next morning. Like…
D/C Morrison: Okay.
K.M.: …next morning like, she like – the – like, next morning, like, the way – what she was telling us was that she didn’t remember really what had happened.
K.M. agreed that she offered this information to the police even though it was not related to the conversation with the officer immediately before. At the trial, K.M. stated that she did not remember her conversation with S.M. in the morning. She agreed that she was telling the truth when talking to the police.
[79] As for whether K.M. talked to S.M. about these events leading up to her statement, she said she did not recall. As to helping S.M. look through Instagram to find S.B.’s name, K.M. testified that she did not know if she necessarily helped S.M. She remembered looking through Instagram to find his name but did not know if it was with S.M. She did not remember if she passed information on to S.M.
L.L. – friend visiting from Europe
[80] L.L. testified by video from Rotterdam.
[81] L.L. was between the ages of 11 and 15 when she lived in Canada, between 2012-2016. As for her relationship with S.M., for the first two years, they were classmates, but for the last two years, they were close friends. L.L. agreed that S.M. was a little anxious and uncomfortable hanging out with strangers. L.L. agreed that she was a close friend of S.M. in 2018, and that out of all the people there that weekend, she was one of the closest friends to S.M.
[82] On the August long weekend in 2018, L.L. was in Canada for two weeks visiting friends and family. She testified that she and the three other girls drove from Oakville to K.M.’s cottage. The plan was to stay at the cottage for the weekend. K.M.’s mother and brother were also staying at the cottage that weekend. L.L. was not sure who organized the weekend, but since it was K.M.’s cottage, she surmised that K.M. invited them. She was not sure if she asked to go to the cottage.
[83] L.L. agreed that no one said they did not want to drink alcohol. L.L. was not sure if they bought the alcohol before going, as she thought the alcohol was already at the cottage. She knew they did not actually purchase it, as they were underage at the time.
[84] On Saturday, L.L. believed that the girls, and some others, all went to C.Z.’s property. They played some games, including drinking games, and were just generally hanging out. After being taken to her police statement, L.L. was assisted with her memory of the Saturday. L.L. believed that they started to play drinking games and S.M. joined them later. L.L. believed that S.M. was a little bit anxious but said she did not have a vivid memory of her being anxious that day. S.M. did join with the games, stayed with them, and seemed to enjoy it.
[85] As for the events on Sunday, L.L. stated that they were on K.M.’s boat, playing games and tanning. L.L. testified that during the day, they might have had a beer, but they were not heavily drinking. According to L.L., it was just the four of them during the day, as well as for a brief time, K.M.’s mother. During the evening, they had dinner together. She did not recall if there was alcohol with dinner. According to L.L., she saw the boys over at C.Z.’s property, but had not gone over that day, in fact they had not gone anywhere.
[86] After dinner, they played some Beer Pong on the dock next to K.M.’s boathouse. It was the four girls and for a brief time K.M.’s mother. She estimated the K.M’s mother was there for an hour or hour and a half. She said everyone was drinking, including S.M., and recalled they were drinking beer, and maybe some coolers. L.L. said there were no other drinking games at K.M.’s cottage.
[87] L.L. described her level of intoxication between dinner and going to the neighbour’s house as between 4 and 5. As for S.M.’s level of intoxication, she testified that S.M. was very intoxicated. When they were back in K.M.’s boathouse, they were singing and dancing and L.L. noticed that S.M. was “incontrollably dancing”.
[88] L.L. also recalled having a long discussion with S.M. in the cottage after dinner but before going to C.Z.’s. They were talking about going over to C.Z.’s cottage. L.L. stated that S.M. expressed concerns before going to the cottage. This was a general concern, nothing to do with S.B. The discussion was about S.M. feeling insecure. S.M. did not want to go over in her bathing suit. L.L. was trying to comfort her. S.M. said that people did not like her or did not think she was pretty. S.M. suggested that the other three girls were prettier than her. L.L. told S.M. that was all in her head and not true. This conversation was about an hour before going to C.Z.’s cottage. L.L. stated that the discussion and S.M. locking herself in the bathroom took an hour to an hour and a half.
[89] As to whether S.M. took her anxiety medication before going to the C.Z. cottage, L.L. said she did not know. L.L. stated that she did not physically see her take medication, although she was aware of her being on anxiety medication. She was then taken to her police statement where she referred to S.M. taking “another anxiety pill” before they went over. At trial, she said she did not see her take the medication and could not say what she did or did not take. L.L. stated that she could imagine she took one before they went because she was anxious.
[90] Later on, they went to C.Z.’s cottage. L.L. stated that her level of intoxication at this point was a bit more than when playing Beer Pong but not so much that she was not in control of her actions. They went into C.Z.’s boathouse. As to who was there, it was the four girls and the four boys. At the boathouse, they were playing drinking games, specifically she believed they played flip cup. She testified that they were drinking quite a bit more. L.L. was drinking in the boathouse. As for the alcohol being consumed, she said that there were coolers, beer, and strong liquor and coke there as well. According to L.L., S.M. appeared less intoxicated than she was at K.M.’s boathouse.
[91] L.L testified that, in the boathouse, at first they played a game together, and then slowly S.B. and S.M. went to one of the boats that was lifted out of the water in the boathouse. They sat there talking, sitting next to each other, while the rest of the group played drinking games. L.L. was not sure if there were two or four seats in the boat. S.B. was handing S.M. a bottle of strong liquor that she was drinking. S.B. was drinking from this bottle as well. L.L. agreed that she did not know how much they consumed from the bottle, but she saw multiple sips. L.L. did not see a change in S.M.’s intoxication or behaviour even though she was drinking strong liquor. L.L. believed it was Bacardi rum. L.L. clarified that she did not see S.M. get into the boat but saw her in the boat and S.B. was with her. Up to this point, L.L. had not met S.B. L.L. disagreed that they were drinking from a coke bottle and stated that they were drinking from a bottle of rum directly. L.L. did not recall speaking with S.B. and made no observations of him other than him handing S.M. the rum bottle.
[92] Throughout the time at C.Z.’s boathouse, L.L. stated that they were all there together playing drinking games, but she did not recall any conversations with S.M. Even after they left the boat, L.L. agreed that S.M. spent most of her time in the boathouse with S.B. S.M. never expressed any concerns to L.L. about S.B.
[93] L.L. disagreed that everyone in the boathouse was at a similar level of intoxication. She said that some people drank more than others. However, she later agreed that no one was acting far more intoxicated than the others.
[94] L.L. did not recall a long conversation about a hot tub. She said, “I think we just said… there was a hot tub at the neighbours and ….we were going there.” L.L. did not remember who said that.
[95] The eight of them walked to the hot tub through the forest. Everyone went into the hot tub. She estimated that she stayed in the hot tub for half an hour to an hour. She did not recall if there was any change in S.M.’s behaviour. After that, L.L. testified that each of the girls left with one of the boys. T went with her. Still in the hot tub were S.B. and S.M., and she could not say who else as she did not know if she was first or last to leave. L.L. did not remember having any conversation with anyone when she left the tub. L.L. did not notice anything particular about S.M.’s intoxication in the hot tub, although she stated that she was more occupied with T, the boy she was with, than with S.M.
[96] L.L. swam back to C.Z.’s cottage with T. They first went to the boathouse and then walked up to the guesthouse at K.M.’s cottage.
[97] Later, L.L. and T swam back to the hot tub and got out of the water. She saw S.M. alone in the hot tub with S.B., kissing him. L.L. agreed that she told the police S.M. was on top of S.B. but she did not recall this being the case while testifying at trial. L.L. did not recall if there were any lights around the hot tub but thought there was a light in the hot tub. She estimated that she was 2-3 metres from the hot tub when closest. L.L. and T agreed to leave S.M. and S.B. alone so as not to interrupt and walked away through the forest. L.L. did not hear anything that was said in the hot tub and did not hear anyone say anything to her. She was not wearing anything on her feet and she described the forest being hard to walk through in parts and not lit. L.L. and T then went to a forested area between K.M.’s cottage and C.Z.’s cottage. After that, L.L. went to sleep alone in the guesthouse of K.M.’s cottage.
[98] From the time they arrived at C.Z.’s boathouse, until L.L. went to bed, S.M had not expressed any concerns to her about S.B. that night.
[99] The next interaction that L.L. had with S.M. was the next morning. L.L. woke up and S.M. was standing in the cottage. L.L. described S.M. as very anxious and overwhelmed, and she came to this conclusion because S.M. was “chaotic in her speaking”. She said she was panicked and talking about what happened. She was not sure if S.M. was crying at any point, although after being taken to a portion of her police statement it refreshed her memory that S.M. was crying. S.M. pulled her pants down to show L.L. that she was bleeding through her underwear.
[100] In cross-examination, L.L. was asked about the information she received from S.M. on Monday morning. She agreed she received some information from S.M. about what she said happened to her. L.L. agreed that S.M. did not tell her exactly what happened, but rather gave some vague details. L.L. stated that S.M. did not know exactly what she said. L.L. explained that she asked S.M. if she said “no” and that S.M. said that she didn’t know, she knew that she did not want it, he insisted, and she did not remember explicitly saying “no”. In re-examination, S.M. was asked what she remembered telling the police about what S.M. told her. She responded that she reported to police that S.M. told her that S.B. insisted, that she did not clearly remember if she said “no”, and that it was hurting. She then asked to refresh her memory with her statement as she did not remember what else she told the police. L.L. then read a specific passage of her statement. She was again asked what she remembered telling the police about what S.M. told her. She responded, “So that she felt uncomfortable, that she wanted to get out, that he insisted. I’m sorry…..I find it hard to remember exactly….I just don’t remember the specific words of what she said to me but I just remember that she clearly said that she didn’t want it and that she didn’t know how to…how to say no and that she didn’t remember clearly if she said no, but that she didn’t want to and that she was hurting and that he…continued when she didn’t want to….that is what I remember but I don’t know the exact words.”
C.R. – the complainant’s mother
[101] C.R. explained that on Monday of the August long weekend, she drove to a cottage in Muskoka to pick up her daughter, S.M. It took an hour and a half to drive there from her own cottage in Nobel. She arrived to pick up S.M. around noon.
[102] As she arrived at the cottage, C.R. saw three of the girls standing in front of the cottage. S.M. approached with her bag. C.R. had a conversation with the girls about their university programs. C.R. felt there was a “strange vibe” amongst the girls.
[103] In cross-examination, C.R. agreed that before picking up S.M., she had received some information from S.M. Specifically, S.M. had warned her in advance that she had fallen on the boat and had some bruises.
[104] C.R. and S.M. left the cottage. C.R. was not sure if one or both of her younger daughters was also in the car, but she believed that someone was with them. They drove to their cottage in Nobel. On the drive, S.M. was very tired. C.R. did not recall if there was any conversation on the way. That night, S.M. attended for her shift at Killbear Provincial Park from 7 p.m. to 2 a.m.
[105] The next day, S.M. woke up around 11:00 a.m. or 12:00 p.m. S.M. asked if she could borrow the van to go to Parry Sound to pick up groceries for some friends at Killbear. This conversation was in the kitchen of the cottage. Nothing seemed unusual at that point in time, but C.R. did note that no one was accompanying her to get groceries, which was unusual. Also, it was a warm day and she was wearing a long-sleeved shirt, sweat pants and wool socks.
[106] C.R. borrowed the van.
[107] The next recollection that C.R. had was S.M. going to her next shift from 7 p.m. to 2 a.m. C.R. did not know how she got there but pointed out her sister was also a driver. Around 8 p.m., C.R. got a text from S.M. asking to borrow the van for the following day to go to Orillia with a friend. C.R. asked her why because C.R. had plans with her other daughters. S.M. stated that her friend wanted her to accompany her because she had been sexually assaulted at a cottage over the weekend and she wanted her to accompany her because of a special program at the hospital in Orillia. C.R. thought this was strange and called her husband to report all of the things she had noticed and to say that she felt like something was not right. C.R.’s husband suggested that C.R. call K.M.’s mother. C.R. called K.M.’s mother and based on that conversation her understanding was that nothing had happened at the cottage. She then called her second daughter who was visiting friends at Killbear to ask if S.M. had said anything to her as she was worried something had happened. Her daughter said S.M. had not said anything but asked if she wanted her to go to S.M. to see if she could find out anything, as she was only a couple minute walk away. The time of this conversation was around 9:30 or 10:00 p.m.
[108] Shortly after, her daughter contacted C.R. and told her that something had happened. C.R. ran out of her cottage and drove the ten minute drive, very quickly, to Killbear Park. As she drove up the main road where the control gate was, she saw her other daughter standing there. She pulled her vehicle close to the control hut. S.M. started walking toward the car, and immediately behind S.M. was her sister, eyes filled with tears, visibly upset. C.R. looked S.M. straight in the eye and said, “It’s ok”. S.M. said, “It’s fine…nothing….nothing” and her eyes started to well up with tears. C.R. grabbed her shoulders and pulled her in. The other daughter joined and they were all hugging and crying.
[109] C.R. and S.M. drove back to their cottage. S.M. shared some information. C.R. agreed that she was being supportive of S.M. when speaking to her and not being judgmental. C.R. did not recall if she asked S.M. for details or if she offered information. S.M. was upset and she explained some things to her mother.
[110] They then decided to drive to the hospital in Orillia. The drive from their cottage to Orillia was about 2 hours. There was some further discussion.
[111] They arrived at the Soldiers’ Memorial Hospital in Orillia at about 1:00 or 2:00 a.m.
[112] In cross-examination, C.R. agreed that either on the way to the hospital or on the way back from the hospital, there was a conversation with S.M. about what happened and that it was not an interrogation rather she let her answer at her own pace based on what she was comfortable telling. S.M. told her that she was left alone with this guy in the hot tub without her friends. C.R. agreed she asked S.M. whether it happened in the hot tub and S.M. said that it happened outside the hot tub and that she told him no. S.M. did not give any further details and she did not ask. In re-examination, C.R. stated that she understood that the sexual activity happened in the hot tub area. C.R. explained that she was trying hard to remain calm for her daughter. She did not know what this meant for her and her state of mind. She was not in the room with her in the hospital and did not know what the injuries were. C.R. said she was extremely upset, trying to focus on her driving in the middle of the night. She was exhausted and scared. Her other children were alone back at the cottage. She was upset, tired and shaken.
T.B. – other friend who was present on that weekend
[113] In August 2018, T.B. was 17 years old. T.B. testified that she had known S.M. since elementary school. She described them as more of acquaintances than friends, although she stated that they were “definitely friendly” and they had known each other since first grade. In cross-examination, T.B. agreed that back in August 2018, S.M. would not confide in her with personal issues, as their relationship was not at that level. She had not seen or spoken to S.M. since that time.
[114] As for S.B., T.B. had never met him before that August long weekend.
[115] According to T.B., her plans for that weekend were to hang out and relax with friends at K.M.’s cottage.
[116] They drove to the cottage on Friday night, arriving around 9:00 p.m. They went swimming late at night and then went to the neighbouring cottage belonging to C.Z. for half an hour to an hour before going to bed. She recalled having a glass of wine and estimated her level of intoxication as 2-3.
[117] Throughout the weekend, the group drank alcohol. No one in the group said that they would not be drinking alcohol and she did not recall anyone saying that they did not want to drink alcohol.
[118] During the day on Sunday, T.B. testified that just the girls spent time sitting on K.M.’s dock. She testified that she was drinking moderate amounts of alcohol. T.B. stated that they did not go over to C.Z.’s cottage during the day. In cross-examination, she was referred to a portion of her statement wherein she mentioned an earlier trip to C.Z.’s cottage, but in response to this, she said that she thought this was on Saturday and that in fact she said that later in her statement. Ultimately, she did not have a clear memory of whether this was on Saturday or Sunday. Later on, the four girls and K.M.’s mother had dinner. After dinner, the girls went back to the dock. They drank alcohol after dinner. They were playing drinking games, specifically Beer Pong, and chatting. They invited over another man, A.C., a friend from school, from another cottage down the road. He drove over and then left shortly after. T.B. recalled drinking beer but then said she could not be 100% certain, but believed it was Smirnoff Ice or some form of cooler. All four girls were playing the drinking games. T.B. stated that they were outside at the dock playing games and talking from 9:00 or 10:00 p.m. to 12:00 a.m.
[119] In cross-examination, T.B. was asked about a heated discussion that occurred between S.M. and the other girls. She remembered such a discussion, and that it was in the evening after dinner, but could not remember if it was on Saturday or Sunday. A little later on, T.B. was referred to her police statement. T.B. then recalled that L.L. wanted to invite another boy, N, over to K.M.’s cottage. She recalled this disagreement on Sunday. She was not sure if there was another argument but the one about inviting N over was on Sunday.
[120] At approximately 12:00 a.m., the four girls went to C.Z.’s cottage. Before going there, her observations of S.M. was that “she was…I think she was having fun” and stated that they were all having fun. T.B. described her own level of intoxication as 5-6, but not feeling out of control and not having difficulty remembering. She also stated that her intoxication had probably declined a bit by the time they went over to C.Z.’s cottage. As for K.M. and L.L., nothing stood out about their intoxication. She stated that S.M. was intoxicated but it was hard for her to say how intoxicated. She believed she was intoxicated as she saw her drinking alcohol and based on the way she was speaking and behaving, specifically the fact that she was dancing. She felt that S.M. was slightly more intoxicated than the others but admitted it was hard to tell as everyone behaves differently.
[121] Over at C.Z.’s boathouse, T.B. estimated that there were four to six people apart from the four girls. They were all standing around chatting and she thought some people were drinking more. Some were playing Beer Pong, but she did not know who. She did not continue drinking. T.B. recalled S.M. sitting in a boat drinking hard alcohol, perhaps rum, and talking with S.B. They were alone. She did not see them get in the boat. T.B. described the atmosphere in the boathouse as “more relaxed”. She did not remember speaking to S.B. in the boathouse. She did not recall seeing them get out of the boat, but they did get out at some point.
[122] They were in the boathouse for about 20 minutes when they all went to the hot tub at a neighbouring cottage. T.B. believed that it was either K.M. or L.L.’s idea but she was not completely sure. It was T.B.’s understanding that they had been to the hot tub in the past so they thought it would be a good idea to go again. In cross-examination, T.B. confirmed that she could not remember which one raised it, but it was either K.M. or L.L. who raised the topic first. She did not hear anyone say they had permission to use the hot tub. The eight of them walked through the forest to the hot tub. All eight of them got in and were sitting and talking.
[123] According to T.B., after about 10 minutes, L.L. and one of the men left the hot tub first and swam back. T.B. and C.Z. left together. She was not sure if K.M. left a bit ahead of them or with them, however, it was approximately the same time. They walked back to C.Z.’s. At that point, S.B. and S.M. were left alone in the hot tub. T.B. did not remember asking S.M. if she wanted to come and she did not remember anyone else asking her.
[124] T.B. and C.Z. went back to C.Z.’s boathouse, as did K.M. and the boy she was with. They stayed there for about half an hour and then T.B. then went back to K.M.’s cottage for the rest of the night. L.L. was there when she got there.
[125] As for S.M., T.B. saw her briefly later on at K.M.’s property, but did not talk to her.
[126] The next morning, T.B. woke up around 8:00 a.m. or 9:00 a.m. She was feeling tired as she had gone to bed late, just after 3:00 a.m. About half an hour after she woke up, there was a conversation with S.M. S.M. was speaking to the group, not directed at her. S.M. did not give her any specific details but she seemed distressed by her tone. She said something bad happened. T.B. did not remember the exact conversation. S.M. talked more to L.L. and to K.M. about it and she did not overhear any details. After refreshing her memory from her statement, she recalled that she told police that S.M. said that she did not completely remember what happened to her. Even after refreshing her memory, T.B. did not remember specific words, but recalled she looked fearful and was eager to go home. T.B. stated that S.M. did not say details of the nature of what happened. She remembered that S.M. mentioned that she believed something of a sexual nature had happened between her and S.B. once everyone left the hot tub. T.B. recalled her saying that she did not completely remember, and that she was in pain. T.B. agreed in cross-examination that there was more to the conversation, but she could not remember the specifics. She did not remember S.M. crying.
Christa Davidson – nurse at Soldiers’ Memorial Hospital
[127] Christa Davidson has been a registered nurse at Orillia Soldiers’ Memorial Hospital for 21 years. At the time of her testimony, she was assigned to the obstetrical unit, however, in August 2018, she was part of the Sexual and Domestic Assault Treatment Centre. She worked in that unit from 2012 to March 2019. She explained the training that she undertook to be a part of this team. Ms. Davidson was the nurse on duty when S.M. attended in August 2018. She had no memory of S.M.’s attendance at the hospital but she did explain the documents that were prepared in the course of the examination which were marked as Exhibit 2.
[128] As for the “Consent for Sexual Assault Evidence Collection”, Ms. Davidson confirmed her handwriting and that this document was part of the standard package of documents used for such examinations – a standardized document across the province. This document outlined all of the types of evidence collection that might be possible as well as the procedures that might be employed to collect the item. It was also a consent for photographs of bodily injuries and an all-over physical examination. Ms. Davidson explained that a person could consent to some things but not others, and that refusal was not held against them and was not a bar to medical treatment. She would help the patient understand that, if they decided not to involve the police, the items of evidence collected would be kept at the Centre of Forensic Sciences (“CFS”) for 6 months and then would be destroyed. Further, if the police were already involved, the kit would be kept until the police picked it up. Ms. Davidson explained that she would go through the consent form word for word and try to get a sense of the patient’s level of understanding, through facial expressions or something they would say. She would then try to reshape the concepts to their level of understanding until she was confident that they understood what she was speaking about, including sometimes using slang language to make it clear to the person being treated. This form was dated August 8, 2018, and included a signature of the patient, S.M., and of the nurse, Christa Davidson. This form was done before any testing would start.
[129] In relation to the “Consent to Release Sexual Assault Evidence Kit to Police”, this page was stroked out because, when the patient came to the hospital, police were not involved and when proceeding to collect evidence, the patient was unsure whether to report to police about the assault.
[130] The “Forensic Evidence Form” consisted of 5 pages. Ms. Davidson confirmed this was her handwriting and all completed by her. The information for the form was provided by the patient. Again, Ms. Davidson confirmed that she had no memory of doing this test with S.M. Ms. Davidson stated that her training for how to go through this document with the patient was that she would read the question, or item, word for word, and just like the consent, if she got any sense that the client did not understand wording or phrasing, she would try to rephrase to feel comfortable that the client understood what the item was asking. Ms. Davidson did not recall her interaction with S.M. but stated, “I know what is written is what happened”. Ms. Davidson explained that to make sure the answer on the form accurately reflected what the patient was telling her, she would double check with the patient. She would also be alert to facial and verbal expression. Ms. Davidson agreed that some people might not express doubt and she would only clarify if the person expressed doubt. She had no recollection at trial as to whether she had to clarify any questions with S.M. The following information was noted in these pages:
i. Date – 2018/08/08
ii. Admission time: ER – 0219; SACC – 0240; Physician / Nurse Examiner Arrival - 0240 - Ms. Davidson confirmed that she would have seen the patient at 2:40 a.m. There would generally be approximately 20 minutes of going through the examination and describing what to expect. This would have taken place in the sexual assault treatment room. However, Ms. Davidson could not say it took this period of time in this case.
iii. Date and time of assault – 2018/08/06 between 0200 + 0400
iv. Location – hot tub
v. Describe the body site(s) of any bleeding injuries: N/A
vi. Oral Samples - Was there penetration or attempted penetration of the patient’s mouth by the assailant’s penis (fellatio)? - yes
For this question, Ms. Davidson stated that if she felt uncertain or there was a lack of understanding, she would reword the question or use slang. She agreed that the question has a lot of medical terminology and she would use more common language.
vii. Oral Samples – Was there ejaculation – u/k
Ms. Davidson explained that indicating “yes” on the form meant that the patient said it clearly happened. Indicating “no” on the form meant that the patient was clear that it did not happen. Depending on the answers, this would illuminate what tests would be possible or helpful. The questions were asked because of direction from CFS about the viability of collecting evidence for testing. Ms. Davidson explained that this form would be filled out as the answers were given and would be sequential, except for the taking of blood and urine samples. She would try to get the blood sample taken before beginning the form so that no lab technicians were coming and contaminating the room, and also for client comfort. When blood was collected for the kit, she would also get blood work done for health reasons. Taking blood early on meant that the results could be obtained and necessary treatment determined, minimizing wait at the end of the examination. As for urine, this was collected when the patient felt a need to void. This was encouraged before vaginal swab collection for patient comfort. Ms. Davidson confirmed that there was nothing that seemed incorrect about the form.
[131] No oral samples were taken in this case as per the form. Ms. Davidson explained that there were guidelines from CFS to tell them when to collect and when not to based on answers given by the patient. She had no recollection in this case as to why she did not take an oral sample.
[132] In step 5 of the “Forensic Evidence Form”, the question to be answered was: Were alcohol or drugs used within 24 hours prior to the assault? If yes, describe type, amount and time period. The indication in the form was “yes” and then it was written, “Starting @ 1300 Aug 5 – 3 beer; 1 mixed rum drink, 5 or 6 vodka + gin coolers”. Ms. Davidson confirmed that this information was given to her by the patient. Ms. Davidson explained that this “impairment question” was typically used when people complained of drug facilitated assault. If the person had impairment that was unusual for the amount they had consensually consumed, this was where she would note that information. In cross-examination, Ms. Davidson agreed that this section was not meant to accurately record everything that was said, rather the rationale was that there was a blood sample being taken and they could expect to find the things reported in the blood sample. If something was detected in the blood that was not described by the client, it could raise concern that the patient had ingested something they were not aware of. The notation was just to capture a basic understanding of consumption. As for drugs, there was no clarification given to the patient of whether the question was meant to capture illegal or prescription drugs.
[133] In step 7 of the “Forensic Evidence Form”, the following questions and answers were noted:
a. Did the assailant attempt or perform cunnilingus / fellatio or vaginal / rectal penetration on the patient? The indication in the form was “u/k”, indicating the patient was unsure, therefore external genitalia swabs were taken.
Ms. Davidson had no memory of clarifying or defining cunnilingus or fellatio.
[134] In step 8 of the “Forensic Evidence Form”, “Vaginal Samples”, the questions and answers noted were:
a. At the time of the assault, was the patient menstruating or bleeding? The indication in the form was “no”. [This information was verbal from the patient.]
b. At the time of the examination, was the patient menstruating or bleeding? Yes
c. Was there penetration or attempted penetration of the patient’s vagina by:
i. The assailant’s penis – yes
Was there ejaculation by the assailant – u/k
Was a condom used – No
ii. The assailant’s mouth / tongue (cunnilingus) – u/k
iii. The assailant’s finger(s) – yes
iv. An object? Specify: - no
Vaginal swabs (blind swabs without the use of a speculum) were taken at 3:55 a.m. Further, based on the patient’s answer that there was penetration or attempted penetration of the patient’s anus by the assailant’s penis, rectal swabs were taken at 4:00 a.m. Ms. Davidson again had no specific recollection of defining cunnilingus or distinguishing between penetration and touching of the vagina.
[135] As for the “Physical Examination Form” (6 pages), Ms. Davidson stated that this was an opportunity she would give the patient to allow her to do a head to toe physical assessment to look for and document injuries. The indication of “no injuries” meant that the patient told her that she did not have any injuries she wanted the nurse to look at. As for the physical examination of the genitals, those observations would have been made when collecting swabs:
a. Labia Majora and Minora – No injuries notes
b. Posterior Fourchette (between the anus and opening of vagina) and Introitus (external opening of vaginal canal) – tender, reddened
c. Vagina – not visualized
d. Cervix – not visualized
e. Anus and Rectum – tender, reddened
f. Vaginal wall – not visualized
g. Discharge – menstruating
Ms. Davidson stated that these notations were made based on what she was told as well as on the physical examination.
[136] Ms. Davidson testified that she was trained that, in terms of health care and any assessment, it was standard practice to be certain the patient understood what the health professional was speaking of and what they were consenting to. She described these forms as a legal document and that it was very important to make notes accurately.
[137] According to the form, the test was finished at around 4:10 a.m., as the last item of collection was about 4:00 a.m. Ms. Davidson stated that this was standard length of time based on the items she was able to collect.
[138] In cross-examination, Ms. Davidson agreed that the primary purpose of the exam was for collection of evidence, not to accurately record the complainant’s version of what happened. Again, Ms. Davidson confirmed that she had no independent memory of conducting the examination or of this complainant more generally. She did not recall the state that she was in mentally. She did not recall how the complainant presented herself. She did not know her level of sophistication in relation to the terms being used. She did not recall the complainant’s age. She did not recall how busy the hospital was that night.
Agreement by the Parties
[139] At the end of the trial evidence, the parties advised the court that there was an agreement as to the results of S.M.’s blood and urine tests. The agreement was as follows:
A sample of S.M.’s blood seized on August 8, 2018 was subsequently tested by the CFS. The sample of blood tested positive for Gabapentin at a quantity of 7.3 mg per litre. Gabapentin (Neurontin) is a drug prescribed for the treatment of epilepsy and pain. The detected drug concentration was within a therapeutic range. Lorazepam was not detected in either a sample of S.M.’s blood or urine taken on August 8, 2018.
S.B., the accused
[140] At the time of his testimony, S.B. was 25 years old. He had no criminal record and had never been in trouble with police. He had also never previously been a witness in court. He was working in Toronto as a mechanical engineering consultant. He had previously attended Western University, where he obtained his Bachelor of Engineering Science. In August 2018, he had recently graduated from that program. At that time, he was 22 years old and living and working in Toronto.
[141] On that long weekend in August of 2018, specifically on the Friday and Saturday, S.B. was staying at his grandmother's cottage. On Saturday, he had attended his cousin's engagement party. He was consuming alcohol at the party, but did not remember how much. When asked if he was intoxicated or impaired, he responded that he could not drive. He went to bed after midnight.
[142] On Sunday August 5th, S.B. did not know what time he woke up. He went to C.Z.’s cottage in Muskoka which fronted on Lake Rosseau. He planned to stay the night there. This was about 30 minutes from his grandmother’s cottage. There was no specific plan, other than to hang out in the boat in the afternoon and around the cottage that night with some friends. C.Z. was a friend from university. He was pretty well familiar with everyone there, except B. He knew everyone from university or hanging out with C.Z. that summer or previous summers. He had been to C.Z.’s cottage many times and would go there once every couple of weeks in cottage season. S.B. testified that it was a fun place to go, his parents were very inviting, and it was a nice cottage with lots of toys and fun stuff to do. S.B. also stated that he would go to his grandmother’s cottage almost every weekend.
[143] He arrived at C.Z.’s cottage around noon on Sunday. At the cottage, besides himself, were C.Z., C.Z.’s parents, C.Z.’s little brother, A, N, T, and B. Everyone was intending to stay the night. After he got to the cottage, he chatted with the parents for a little bit. They then went out on C.Z.’s boat and went cliff jumping. They hung out on the water most of the afternoon. S.B. stated that he had one or two beer that afternoon – Rolling Rock, regular cans. They came back to C.Z.’s cottage around 5:00 p.m. According to S.B., no one visited them at C.Z.’s cottage in the afternoon as they were not there, rather they were out on the water.
[144] After coming back on the boat, but before dinner, S.B. went to the liquor store in Port Carling. C.Z.’s little brother drove. At the liquor store, he bought three flats of Sleeman tall boys, 72 beer in total. The beer was not intended to be all for him. C.Z. and his parents had indicated that they liked Sleeman as well. There were three flats of Sleeman at the store, so he bought what was there. He intended to leave whatever they did not drink as a gift for having him over for dinner. As for how much he intended to drink, he said he did not really put a lot of thought into it, he just saw three flats and decided to take them. S.B. agreed that it took him about an hour to get alcohol and he did not know what was occurring at the C.Z. cottage when he was not there.
[145] Back at the cottage, S.B. stated that he had a couple of beer before dinner and maybe another with dinner. In cross-examination, he agreed that he did not remember specifically how many beer he had upon his return but before dinner. At dinner, S.B. stated that he would have drank a Sleeman. He estimated that dinner was at 7:00 or 8:00 p.m. but could not remember specifically.
[146] They then went down to C.Z.’s boathouse. By this time, it would have been dusk into night. The plan was to hang out with the guys in the boathouse, play some drinking games, and maybe swim. He had been at the boathouse before. He described the boathouse as having three slips, two that faced outward toward the lake and one parallel to the shore. They had three boats: a sport boat to do activity was behind on the left; a cruiser boat on the right; a racing boat parallel to the shore. Where the racing and cruiser boat met, there was a little area with a countertop where C.Z. had a Beer Pong table set up. The boathouse was about 30 feet x 40 feet. There were not really any places to sit in the boathouse, so if a person wanted to sit down, they would sit in one of the boats, which would be quite common.
[147] As for drinking alcohol in the boathouse, S.B. stated that he switched to rum and coke. C.Z. had the coke and S.B. had left rum there from a previous weekend that summer. He took the two-litre coke bottle and poured rum into the coke. As for how much rum was involved, he said that it was a 26-ounce bottle of rum with approximately 10 ounces of rum left in it. He could not recall whether anyone else was drinking the rum and coke.
[148] S.B. agreed that in his statement to police he was having a hard time remembering whether they were in the boathouse or on the front lawn. He then added, “From the time that I gave this statement, to almost three years later, I have now thought about this event every single day. Ok. So…coming into this interview, I had not thought about it, heavily, and after it’s all I’ve thought about for three years.” He explained that, in order to get from the boathouse to the hot tub, one would have to cross the lawn.
[149] S.B. had not heard any plans for anyone to come over, but stated that it would not surprise him, as C.Z.’s parents were very kind and social and people just tended to show up. When they went to the boathouse, it was just the six boys, hanging out and playing drinking games. As for Beer Pong, S.B. agreed that it was being played with Sleeman. He agreed that all of the drinking games encourage the consumption of alcohol, and eventually agreed that it encourages people to drink quickly.
[150] About an hour or two after they went to the boathouse, four girls from the neighbouring cottage came over. By this time, it was dark. S.B. had never met any of them before. He knew they came from the neighbouring cottage because he thought it came up in small talk. He was not aware of them being invited but said, “It wasn’t an issue.”
[151] S.B. described the atmosphere in the boathouse as casual. They were engaging in small talk and everyone was just hanging out. S.B. testified that he participated in drinking games before and after the girls had arrived.
[152] S.B. recalled sitting in the back of the cruiser boat with S.M. for a period of time. The boat had two seats at the front and a bench at the back that would comfortably seat three people. He could not remember what they spoke about but believed it was casual small talk. There was music playing from a portable speaker, but they did not have to raise their voices to hear each other. S.B. recalled drinking rum and coke in that boat with S.M. out of a two-litre coke bottle. At that time, he believed that there were four boys and four girls in the boathouse. A and N had gone to bed. As for the types of drinking games played in the boathouse, he remembered Beer Pong, flip cup, and Shoulders. He said that they were probably in the boathouse for a couple of hours in total. He stated that this was just like all other times he had been to C.Z.’s cottage, just hanging out, playing drinking games, all very casual. In cross-examination, S.B. stated that he had no specific recollection of S.M. drinking alcohol, including the rum and coke mix.
[153] S.B. was asked to rate his intoxication level at that time – 0 being completely sober and 10 being falling over drunk. He rated himself at a “5 maybe at tops a 6”. He testified that he was not stumbling, slurring, or making a fool of himself. He was not sick. He said that he was having a good time. S.B. stated that he did not know if the rum coke mixture was gone at the end of the night, but he knew all of the rum was in the coke bottle. He agreed that his intoxication increased as the night progressed and at whatever point he stopped drinking the rum mixture, that was his peak intoxication. He did not remember how long this was before going to the hot tub. In cross-examination, he agreed that he did not have a specific memory of not slurring his words that night and agreed that he tripped on a tree root.
[154] S.B. agreed that in his police statement he did not remember speaking to S.M. before going to the hot tub, although he remembered this at trial. He explained that this statement was his first time ever being questioned by the police and he was doing his best to tell the detective what he remembered at the time. S.B. stated that while he was sure S.M.’s name would have come up in conversation that night, when speaking to police, he did not remember her name. Further, he had no specific recollection at trial of calling her by name and no memory of her introducing herself. In fact, he did not remember any of the girl’s names. In re-examination, S.B. explained that it was just casual conversation, small talk, like anytime a person meets someone. He was not saying that her name did not come up, but he simply could not recall these details.
[155] From the boathouse, they went to C.Z.’s neighbour’s hot tub, which was a 30 second walk away, on shore toward the back of the neighbour’s dock. S.B. did not know whose idea it was but it was not his idea. The conversation about going to the hot tub took place by the Beer Pong table and he was part of that conversation in that he was standing there. S.B. said they were all standing around there and someone said, “lets go to the hot tub”. S.B.’s belief was that C.Z. had an understanding with the neighbour that they were allowed to use the hot tub. S.B. had no specific memory of a discussion that night about it being ok to use the hot tub. He agreed in cross-examination that this might have been an assumption. S.B. had never been to this hot tub. The four boys and four girls went to the hot tub. S.B. was still wearing his dinner clothes – button down shirt and jeans. He did not specifically remember what the girls were wearing but knew they were wearing bathing suits. S.M. was wearing a one-piece bathing suit. When they arrived at the hot tub, he took off his shirt and pants and went in with just his boxer shorts. He did not recall if the jets were on when he arrived. S.B. testified that the mood in the hot tub was casual and everyone was chatting, however, he did not remember any specific topics. He did not remember where S.M. was in relation to him in the tub when everyone was there. The whole group was in the tub for about 15-20 minutes.
[156] S.B. agreed that in his statement to police he did not know who went to the hot tub and had stated it was three boys and three girls. He explained that he had only remembered the two guys that he was closest with, but he did agree he had spent time with B that day. S.B. stated that he remembered more now by hearing the evidence at trial and thinking about this everyday for the last three years. S.B. did not agree that he was just going along with this version because of what he had heard at the trial.
[157] The rest of the group started leaving the hot tub and it ended up to be S.B. and S.M in the tub alone. He did not recall the order of people leaving and did not remember any conversation when people were leaving. At that point, S.M. was sitting to the left of him. They started kissing. S.M. crawled onto his lap and was straddling him, facing him. She did this without any assistance. They were kissing for a bit in this position. In cross-examination, S.B. estimated 10 minutes of kissing. After a bit of kissing, S.B. said. “Do you want to have sex” and she said, “yes”. S.M. reached down and pulled his penis out of his boxers, pulled the crotch of her bathing suit to one side, and put his penis in her vagina. In cross-examination, S.B. agreed that this was under the water and he could not be sure how her vagina was exposed, but assumed this because her bottom was still on. They proceeded to have vaginal intercourse with S.M. on top of S.B, facing him, straddling him. They were kissing and having sex. She lowered her bathing suit, exposing her breasts, and the suit was bunched at her waist. In cross-examination, S.B. explained that he pulled the bathing suit off her shoulders while they were kissing. He thought the bathing suit went down by gravity once the straps were off, although he admitted that he was not focused on what forces brought the bathing suit down. S.B. estimated that vaginal intercourse was 5 minutes.
[158] At some point later, S.B. said to S.M., “Do you want to switch positions? Do you want to try doggie?” She said, “yes”. S.M. got off of S.B., rotated 180 degrees, pulled her bathing suit down around her thighs, and was kneeling over the side of the hot tub, with her “bum” facing him. She was looking away from him toward C.Z.’s boathouse and dock, toward the water. In cross-examination, S.B. clarified that maybe her hands were out of the tub but everything else was in the tub. S.B. stood up and pulled his boxers down. S.B. said, “Do you want to try anal?” She said, “yes”. He said, “Ok, you put it in”. S.B. confirmed that they did not have vaginal sex in that position. When asked why he asked about anal, he said that he did not have a condom on and did not want to risk pregnancy. As to whether they actually had anal sex, he said, “no, it was more like an attempt …like not successful”. When asked why he asked her to put it in, S.B. stated that it was dark, and he thought she would have better luck. S.M. grabbed his penis and tried to put it in. S.B. then said, “This isn’t working, let’s go to the bunkie”. S.M. said, “sure”. He agreed that when speaking to the police, he was not sure who suggested leaving the hot tub. At trial, he was sure it was his suggestion. He estimated that they attempted anal sex for 30 seconds. As for whether any part of his penis was inserted in her anus, he said, “maybe a little bit” and explained that he was not really thrusting, rather applying light pressure and that he could have pushed harder if he tried. In cross-examination, S.B. testified that he was not surprised by the fact that this girl he had just met agreed to have anal sex. He was asked in cross-examination whether he was worried about pregnancy during the 5 minutes of vaginal sex to which he responded that he was not close to finishing. He stated that he thought if they tried anal, he might finish. S.B. agreed that he never told police that they tried anal intercourse, but it failed.
[159] When asked about S.M.’s intoxication level, S.B. stated that it was “nothing out of the ordinary”.
[160] S.B. agreed in cross-examination that it was him who was suggesting the sexual activity, although she was going along with it and inserted his penis. It was suggested to S.B. that there was no indication that S.M. was enjoying this, to which he said, “yeah, we were having fun… she was straddling me, moving up and down, and like kissing and stuff… we were having sex.” S.B. agreed that he never said to the police in his statement that S.M. was moving up and down. In fact, he had not mentioned that in examination in chief. In re-examination, he explained that he told the police sex was happening with S.M. straddling him and that his understanding of sex in that position was that the male stays stationary and the female moves up and down. The officer never asked him to break down the act of vaginal sex. He also agreed that there was no suggestion in his description of the sex to the police that she was kissing him.
[161] In cross-examination, S.B. was asked whether he ever stopped and asked if she was ok with this, to which he said, “no”.
[162] After making the suggestion of the bunkie, S.B. got out of the hot tub, grabbed his shirt, helped her out of the tub, and they started walking back toward the bunkie at C.Z.’s property. S.B. estimated that they were alone in the hot tub for about 15 minutes in total and that the jets were on. When asked his plan in going to the bunkie, S.B. stated that his plan was to go to sleep for a while. He stated, “I knew I wasn’t going to finish that night. It was late. I was ready for bed.” By “finish” he meant ejaculate, and he agreed that the reason he knew he would not ejaculate was in part because of alcohol consumption.
[163] According to S.B., he never took S.M.’s hand and placed it on his penis, although he agreed that he told the police during his statement that he did not remember and at that time he, in fact, did not remember. At trial, he recalled specifically not doing this. S.B. testified that he never had vaginal sex with S.M. while she was on her back. Further, S.B. testified that S.M. never said “no” or “stop”. S.B. stated that he concluded she was consenting because he asked her. He never used physical force to flip her over. He never stopped her from leaving at any point. According to S.B., he never did anything without her consent.
[164] S. B. agreed that when he spoke to police, he had some difficulty describing S.M.’s bathing suit. He agreed that the darkness impacted his ability to see the colour and type of her bathing suit. S.B. agreed that he told the police he was pretty sure she was wearing a black bikini. S.B. stated that his clear memory now was that she was wearing a one-piece black bathing suit. S.B stated that he was not committed when he spoke to the officer and was not 100% sure.
[165] S.B. was asked whether the jets were still on in the tub when they left, to which he responded that they were because he did not turn them off.
[166] As they walked back to C.Z.’s dock, S.B. was still wearing his boxers and S.M. was wearing her bathing suit. On the walk, S.B. tripped on a tree root. S.M. helped him up and they then walked as a pair, navigating the forest back to C.Z.’s property. In cross-examination, S. B. disagreed that S.M. was carrying him, rather they just walked as a pair and he had his arm over her shoulder but not too much weight on her. He did not remember seeing anyone on the way, specifically he had no recollection of an interaction with C.Z. after leaving the hot tub. In cross-examination, S.B. agreed that he told police that S.M. “carried” him back, however, he stated this was a poor choice of words, and rather they navigated together. He agreed that they were leaning on each other. He agreed that at some points, she was supporting some of his weight. S.B. did not agree that he was heavily intoxicated.
[167] In cross-examination, S.B. stated that at the time of his police statement, he did not remember anything about S.B. prior to the hot tub. At trial, he did not remember asking how old she was, if she had been drinking, or if she was on any drugs.
[168] Back at C.Z.’s property, S.B. and S.M. split ways on the front lawn in front of the lake. S.M. went to talk to one of her friends. As to why they split ways, S.B. thought that S.M. said she was going to go see her friends, but he did not remember the specifics. In cross-examination, he agreed that S.B. said that she needed to go talk to her friend, but he did not remember if he saw the friend. He did not remember any follow up comment. S.B. stated that he never spoke to S.M. again. S.B. had no specific memory of an interaction with K.M. and B after the hot tub or whether K.M. was getting mad and pushed B into the water. S.B. did not remember if he went straight to the bunkie or whether he had interactions with people.
[169] S.B. went to C.Z.’s bunkie alone. He did not remember if anyone else was there when he arrived. He fell asleep.
[170] S.B. woke up on Monday around 11:00 a.m. or noon. He went back to the hot tub, grabbed his pants and shoes. He talked to C.Z. and the other guys for a little bit, just about casual stuff. Then he got in his car and drove home to Toronto. In cross-examination, he stated that he felt he had too much to drink as he woke up with a headache. He agreed that it was difficult to look back on a particular night and quantify a level of intoxication.
[171] He first learned that there was an investigation around Thanksgiving. C.Z. sent a text to all the guys that were there that weekend, saying that the OPP were investigating an incident that was alleged to have occurred on the August long weekend and that he had given everyone’s contact information to the police. C.Z. did not give any specifics. S.B. did not agree that he started to think back about these events when he received that message from C.Z., as he was only there one night. When again he was asked whether he thought back to those 24 hours, he said, “Yeah, I wondered what had happened” and then said he thought about events, “maybe briefly”. S.B. agreed in cross-examination that before the hot tub, there was nothing out of the ordinary. It was suggested, therefore, that he must have thought back to the sexual activity, to which he said, “No, because I had done nothing wrong”.
[172] Some people eventually said they had received a call from police. At this point, he agreed that he thought of the events briefly. When asked whether he thought back to the one event that stuck out in his mind, he said, “I didn’t remember anything specifically no”. The police had not contacted him, so he figured that they did not need to speak to him.
[173] On December 4, he was contacted by police. The detective said she had some questions to ask him, that she could not give him specifics but needed to talk to him. S.B. did not know what this was about. Two days later, on December 6, he gave a statement to police in person. The meeting was not originally supposed to be on December 6, rather some time later, but S.B. requested to bring it forward to the 6th because it worked better with his schedule. At this point, S.B. agreed that he knew the police thought he had information that was important to the investigation. He then thought back to the events on the long weekend. When it was suggested to him that he would be focussed on the events with S.M. as the significant portion that stuck out in his mind, he said he thought he was focusing on the entire time. However, he agreed that the entire time he did not remember because it was not out of the ordinary, therefore the focus was on the one piece that he really remembered. Again, it was suggested to him that he thought back to the sex with S.M. to which he responded that he could not remember what he was thinking on the 4th.
[174] On December 6, he knew his statement was being audio and video recorded. It was at the beginning of this statement that he became aware that he was the focus of the investigation and that it was an allegation of sexual assault on S.M. He agreed that he then knew that the crucial period was that 15 minutes in the hot tub.
[175] According to S.B., he was trying to remember something that happened four months previously and his memory had faded over that time. There were things that stood out more than others, like the time in the hot tub, as it was a significant event and something that had not happened before. However, when speaking with police he could not recall the conversation in the boathouse because it was the same as any conversation he had had before.
[176] S.B. agreed that there were large portions of the night that he did not specifically remember. He agreed that this was partly due to the fact that time had passed and memories fade over time. Another reason was that he had been to this cottage a number of times and it was hard to distinguish one night from another. He also agreed that alcohol consumption would make his memory worse.
Position of the Parties
[177] The defence submitted that the complainant did, in fact, consent, or that at least the Crown had failed to prove the lack of consent beyond a reasonable doubt. The defence submitted that the evidence pointing toward lack of consent should not be believed, as the complainant’s evidence suffered from both credibility and reliability issues. The complainant, the defence submitted, was contradicted by other Crown witnesses who would have been expected to be favourable to her position. Further, the defence submitted that S.B. gave truthful, straightforward testimony that was both credible and reliable and was corroborated in many respects by other witnesses, including Crown witnesses, who had no reason to assist his position. His evidence, therefore, raised a reasonable doubt in itself.
[178] The Crown submitted that S.M. provided a credible and reliable account of non-consensual sexual activity, demonstrated by her repeatedly asking S.B. to stop and demonstrated by her demeanour immediately after and in the following days. Her account was clear and believable, not overstating what had happened, and provided a great deal of detail in relation to the sexual activity. In the totality of the circumstances, the Crown argued that S.B. was either actually aware of the lack of consent or was aware that there was a risk that S.M. was not consenting but went ahead anyway, not caring whether she consented or not. Contrary to the credible and reliable accounts of the complainant, the Crown argued that S.B. was not capable of belief and his evidence should be discounted in its entirety, not even raising a reasonable doubt.
Analysis
General
[179] The obligation to prove guilt rests with the Crown. To prove guilt of an offence, Crown counsel must prove each and every essential element of the offence beyond a reasonable doubt.
[180] As for the offence of sexual assault, the Crown must prove beyond a reasonable doubt that:
a. S.B. intentionally applied force to S.M.;
b. S.M. did not consent to the force that S.B. intentionally applied;
c. S.B. knew that S.M. did not consent to the force that S.B. intentionally applied; and
d. The force that S.B. intentionally applied took place in circumstances of a sexual nature.
The critical issue in this case is consent.
[181] In R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33 the Supreme Court of Canada provided a concise summary of what is required to be proven in a sexual assault case on the issue of consent:
[87] A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault "if he touches another person in a sexual way without her consent" (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of 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 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 42).
[88] "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" (J.A., at para. 31), and it must be freely given (see Ewanchuk, at para. 36). This consent must exist at the time the sexual activity in question occurs (J.A., at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); J.A., at paras. 40 and 43). Further, as s. 273.1(1) makes clear, "consent" is not considered in the abstract. Rather, it must be linked to the "sexual activity in question", which encompasses "the specific physical sex act", "the sexual nature of the activity", and "the identity of the partner", though it does not include "conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases" (R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57 (emphasis deleted)).
[89] Consent is treated differently at each stage of the analysis. For purposes of the actus reus, "consent" means "that the complainant in her mind wanted the sexual touching to take place" (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant's state of mind, and the accused's perception of that state of mind is irrelevant. 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. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see J.A., at para. 37).
[90] For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent, "consent" means "that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused" (Ewanchuk, at para. 49). Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed "the complainant effectively said 'yes' through her words and/or actions" (ibid., at para. 47).
The court in Barton, at para. 98, made it clear that “a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence”.
Assessment of Credibility and Reliability of Witnesses - Generally
[182] As in most cases, the final determination in this case requires an assessment of the credibility and reliability of the witnesses.
[183] Inconsistencies in the evidence of a witness does not necessarily make that witness incredible. In R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, McLachlin J. for the majority stated:
[21] The important point is this. The complainant offered an explanation for each of the alleged inconsistencies. It was open to the jury to accept those explanations. If they did, the inconsistencies lost their power to raise a reasonable doubt with respect to the accused's guilt. The explanations provided a means of reasonably resolving such doubt as may have been created by the inconsistencies themselves. It was for the jury to weigh both the significance of the alleged contradictions and whether such significance as they might have, had been neutralized by explanations as to why they occurred. The jury might have concluded that the contradictions were significant and had not been neutralized by the proffered explanations. That result would have been reasonable. But it was equally open to the jury to conclude that the alleged contradictions had been neutralized by the explanations. That alternative too was "reasonable".
See also R. v. Lo, 2015 ONCA 394, [2015] O.J. No. 2956 (C.A.) and R. v. Perkins, 2015 ONCA 521, [2015] O.J. No. 3669 (C.A.) in which the court held that it is the entirety of the evidence that must be considered, and that consistency in the evidence of a witness, especially in key areas, may reduce the impact of inconsistency in the evidence of a witness.
[184] In assessing the credibility of witnesses in this case, the court must consider, among other things, their power of observation, memory, the passage of time, any bias, partiality, or interest in the outcome, and demeanour as they testified. With respect to demeanour, “triers of fact are entitled to consider demeanour, as long as it is not given undue consideration.” See: R. v. Ahmaddy, 2018 ONCA 496, para. 6. The court must consider the reasonableness of the evidence. Further, the court must consider inconsistencies within the evidence at trial, as well as inconsistencies between the evidence at trial, and previous statements to police or previous testimony. In R. v. Williams, 2018 ONCA 138, MacPherson J.A. for the court stated as follows:
[33]…In my view, a good summary of the relevant principles relating to the assessment of a witness’ credibility is contained in R. v. A.M., 2014 ONCA 769 at paras. 12-14:
… [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she said on other occasions, whether or not under oath: R. v. G.(M.) (1994), 93 C.C.C. (3d) (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
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: G. (M.), at p. 354.
[185] In R. v. R.C., 2021 ONCA 419, the Court of Appeal recently stated:
[37] Trial judges are not required to address every inconsistency in the evidence of a witness. They are however obliged to explain how they resolve major inconsistencies. Inconsistencies about which an honest witness is unlikely to be mistaken can demonstrate a “carelessness about the truth” while inconsistencies about peripheral issues are of less significance: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354; see also R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 30-31.
[186] Some inconsistencies are to be expected – exactness or perfection is not required. In fact, in cases where witnesses are extremely consistent, there is often the suggestion made that they have rehearsed their testimony, thereby leading to concern with their credibility. Some inconsistencies are more significant than others. Further some inconsistencies on their own might not cause any concern whatsoever. However, this court must consider the totality of the evidence, not pieces of evidence in isolation.
[187] Credibility is ultimately a question of fact to be determined by the trial judge having considered the totality of the evidence. In assessing the evidence of witnesses, this court must not use a higher degree of scrutiny in assessing the credibility or reliability of defence evidence than Crown evidence: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.); R. v. Owen (2001), 2001 CanLII 3367 (ON CA), 150 O.A.C. 378 (C.A.); R. v. Kiss, 2018 ONCA 184.
[188] In considering the reliability of the evidence, the court must consider the accuracy of perception and memory, and factors that may have affected that, such as ability to observe. Even the evidence of an honest witness may be of questionable reliability.
[189] Reasonable doubt applies to the issues of credibility and reliability. On any given point, this court may believe a witness, disbelieve a witness, or not be able to decide. This court need not fully believe or disbelieve one witness or a group of witnesses. The Court may accept some, none or all of what a witness says, and accord different weight to different parts of the evidence that it does accept: See: R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 72; R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44.
[190] A verdict of guilty may, in some cases, be properly rooted in the evidence of a single witness: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at pp. 819-820. Corroboration is not required in this case.
[191] When making assessments of credibility, the court must be mindful that people react differently. In R. v. A.R.J.D., 2018 SCC 6, the Supreme Court of Canada dismissed an appeal, substantially for the reasons of the majority of the Alberta Court of Appeal. In those reasons, the Court of Appeal had a great deal to say about avoiding stereotypical thinking. In R. v. A.R.J.D., 2017 ABCA 237, 2017 A.J. No. 746 (C.A.), the Court stated in part as follows:
[42] … it has long been recognized that there is "no inviolable rule on how people who are the victims of trauma like a sexual assault will behave": R v D(D) at para 65. Just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour "must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse" [emphasis in original]: R v D(D) at para 63.
[44] Stereotypicality is never a legitimate anchor on which to tie crucial credibility assessments in the context of sexual assaults. And, counter-stereotypicality must never translate to less credibility.
[45] Moreover, although it is trite that reasonable doubt leading to an acquittal can rest on an “absence of evidence”, the absence of evidence found here—no evidence of avoidance or change in behaviour—appears to be based solely on the trial judge’s impermissible reliance on his own unmet expectation, rather than on a clearly articulated and full assessment of the complainant’s police statement or trial testimony. In the result, the trial judge misdirected himself by basing his credibility assessment of the complainant not on a proper evidentiary foundation, but on inappropriate judicial stereotyping…
[57] “Assumptions about complainants and their behaviours in particular circumstances have plagued the law of sexual assault for generations . . . There was a time when it was often assumed that a complainant . . . would report the assault immediately, and would thereafter not associate with the perpetrator. In recent years many of the stereotypes . . . have been set aside”: R v Caesar, 2015 NWTCA 4 at para 6; see also R v Hajar, 2016 ABCA 222, R v Barton, 2017 ABCA 216. To the extent that such stereotypes or myths are relied upon in assessing a complainant’s credibility, an error of law will result, mandating a new trial: R v Wagar, 2015 ABCA 327.
[58] In other words, absence of avoidant behaviour or a change in behaviour as a generalization is logically irrelevant and as such, cannot form the basis of a credibility assessment leading to reasonable doubt—because we know that all sexual assault victims behave differently...
[60] “As has frequently been noted, speculative myths, stereotypes, and generalized assumptions about sexual assault victims . . . have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences. See Seaboyer, [infra], at p. 634”: R v Mills, [1999] 3 SCR 668 at para 119, 1999 CanLII 637 (SCC). The essence of this dicta is that judges must be hyper-vigilant against the incursion of stereotypical analyses or assumptions into their judicial reasoning, not any less so in cases of sexual assault that rest on the credibility of a child complainant. And to paraphrase one learned author, it would surely add judicial insult to criminal injury to tell a child complainant that their post-victimization behaviour is the sole reason for the abuser’s acquittal…
[70] The search for avoidant behaviour or a change of behaviour in a sexual assault complainant, particularly a child, is in its essence nothing more than a search for confirmatory evidence, without which a complainant becomes less worthy of belief. The problem with such a search is that there is no reliable support for the presumption that a sexual assault victim will invariably, more often than not, or even to a statistically meaningful degree, display any predictable behaviours following the abuse. Indeed, the converse may well be true: that a vast proportion of child sexual abuse victims are asymptomatic in the post-victimization period both before and after disclosure.
See also: R. v. Dadson, 2018 ONSC 4823 at para 71; R. v. M.H., 2018 ONSC 7366 at paras 73-75
[192] Delayed reporting or incremental reporting cannot and must not act to undermine the complainant’s credibility. It is the view of this court that this is completely irrelevant. S.M. expressed concern about reporting these events. People report events in their own time and in their own way. There is simply no typical timeline or typical approach when it comes to such matters. Some people report immediately, some later, and some never. Some people provide a vague account while others provide details. Some people are not truthful in their reporting due to feeling guilty or embarrassed. The fact that S.M. may have given different details to various people is logically irrelevant and does not affect the court’s assessment of her credibility. Further, the behaviour of S.M. during and following these events is of no consequence in determining whether in fact these events occurred. People behave and react differently. The fact that S.M. continued to stay with S.B. in the boat or in the hot tub, despite her stated lack of interest in him, is not indicative of anything, especially in light of the incontrovertible evidence that S.M. suffered from social anxiety.
[193] In R. v. Lacombe, 2019 ONCA 938, [2019] O.J. No. 6023 (C.A.), the court referred to a number of myths and stereotypes that are still plaguing judicial decisions, such as the complainant’s manner of dress and the absence of immediate reporting. The court stated:
[41] The myth that a sexual assault complainant is less credible if she does not immediately complain is one of the "more notorious examples of the speculation that in the past has passed for truth in this difficult area of human behaviour and the law": R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 (S.C.C.), at p. 741, per McLachlin and Iacobucci JJ. It is unacceptable to rely, as the trial judge did here, on the stereotypical view that victims of sexual aggression are likely to immediately report the acts, and conversely, to conclude that the lack of immediate reporting reflects either absence of assaultive or non-consensual behaviour. See also: R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275 (S.C.C.), at para. 63; R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 (S.C.C.), at p. 136.
[42] Delayed reporting, standing alone, does not assist in evaluating whether an account alleging a consensual encounter is true or raises a reasonable doubt.
[45] There is no rule as to how victims of sexual assault are apt to behave: R. v. Kiss, 2018 ONCA 184 (Ont. C.A.), at para. 101. The trial judge's reference to the fact that the complainant remained reflects that he was comparing her conduct to conduct he expected of a sexual assault complainant without giving any consideration to her evidence of fear.
[46] The trial judge engaged in reasoning that for the most part attached significance to factors that were insignificant. Importantly, the trial judge relied on substantially nothing else in assessing the complainant's credibility; the listed factors constituted the trial judge's analysis.
[47] Moreover, no explanation was given by the trial judge as to why the factors he enumerated and clearly relied upon were significant. Any significance to be attributed to these factors was anchored in assumptions that failed to reveal anything about the complainant's credibility and reliability. Nothing could be drawn from the trial judge's determination that it was significant that the complainant "presented herself" to the respondent "dressed in a loose fitting pyjama top with no bra and underwear", or that although she testified that she was terrified, the first incident was not reported at the time to friends, staff, or the police.
See also: R. v. A.B.A., 2019 ONCA 124 at paras 8-12 in which the Court of Appeal reminded trial judges that it is not enough to state these legal principles, but that the principles must be applied.
Assessment of the Evidence of the Accused
[194] Given that S.B. has testified, this court has considered and followed the principles established in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, which are as follows:
First, if this court believes the evidence of the accused, there must be an acquittal;
Second, if this court does not believe the testimony of the accused but is left in reasonable doubt by it, there must be an acquittal; and
Third, even if this court is not left in doubt by the evidence of the accused, the court must ask itself whether, on the basis of the evidence which it does accept, the court is convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[195] It must be noted, however, that in certain circumstances, such as in this case, the W.D. instruction has some limitations and must be modified. In relation to the offence of sexual assault, it is not S.B.’s view that this was consensual that is determinative. As to the actus reus of the offence, consent lives in the subjective mind of the complainant. The Court must determine whether the Crown has proven beyond a reasonable doubt that there was no consent. If this is demonstrated, the court then shifts its focus to the mens rea of the offence, being whether there was an intention to touch and knowing of, or being reckless of or willfully blind to, a lack of consent on the part of the person touched. The court may then consider whether the accused had an honest but mistaken belief in communicated consent. In order to successfully advance this position, the accused must have taken steps, that are both subjectively and objectively reasonable, to ensure that the complainant was consenting. See: R. v. Barton, paras. 93-104
[196] This court must not, and does not, decide this case by choosing between competing versions of events. As recently stated in R. v. MacKenzie, 2020 ONCA 646 at para 22:
[22] A jury cannot determine guilt simply by deciding which of two competing versions of the relevant events it believes. An accused must be acquitted if the jury has a reasonable doubt on any of the essential elements of the offence, even if the jury does not believe the accused’s version of events: R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397; R. v.O.M., 2014 ONCA 503, at para. 42.
[197] However, it is entirely appropriate and necessary for this court to assess S.B.’s testimony in light of the whole of the evidence, including the testimony of the complainant. See: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (C.A.) at paras 5-6.
[198] Further, in assessing S.B.’s testimony, there can be no suggestion that he improperly tailored his evidence to disclosure or to evidence heard at the trial. S.B. had a constitutional right to obtain, review and consider disclosure. He was entitled to, and required to, be present at his trial. Any suggestion made by the Crown that S.B. prepared his answers in response to the disclosure or trial evidence has been ignored by this court. Such a suggestion is improper and inappropriate. See R. v. M.D., 2020 ONCA 290, [2020] O.J. No. 2184 at paras. 21-30 (C.A.)
Assessment of the Evidence of S.B.
[199] There was no question that S.B. had some admitted difficulties recalling the details of the August 2018 long weekend. He acknowledged that he had not really turned his mind to these events until four months later when being interviewed by the police. He admitted that he was having difficulty distinguishing this weekend from other times he had gone to C.Z.’s cottage which had happened many times in the past. Alcohol also played a factor. Having said that, however, this court found that S.B. fairly and readily acknowledged the things that he could not clearly remember, such as whether S.M. drank any of the rum / coke mixture, the details of their conversation in the boat, and precisely how much he had to drink at various times. It is the view of this court that such details would be easily forgotten and were not critical to undermining his reliability as a whole.
[200] As for S.B.’s credibility, there were some inconsistencies between his evidence at trial and things he had said in his statement to police. The following areas were of note:
a. S.B. agreed that he was participating in drinking games. He agreed that the drinking games would encourage the consumption of alcohol, but would not initially agree that such games would encourage someone to consume alcohol more quickly, explaining that it would depend on the circumstances. Ultimately, S.B. agreed with the Crown’s suggestion. Frankly, it is the view of this court that this is something about which reasonable people might differ in their opinions. This was not significant.
b. S.B. agreed that in his statement to police he was having a hard time remembering whether they were in the boathouse or on the front lawn. He explained that, in order to get from the boathouse to the hot tub, one would have to cross the lawn. While perhaps true, this court did find this explanation a bit unusual.
c. S.B. did not remember speaking to S.M. in the boathouse in his police statement, in fact, he had not remembered speaking to S.M. at all before going to the hot tub. At trial, he remembered speaking to S.M. in the boat but did not recall the details of the conversation. With some variation, all witnesses testified that S.M. and S.B. were seated in the boat together.
d. In his statement to police, S.B. recalled that three boys and three girls went to the hot tub. At trial, he recalled four boys and four girls went to the hot tub. S.B. explained that when he spoke to police, he remembered the two guys that he was closest with, and at that time did not remember B, even though they had spent time together that day. It is the view of this court that this explanation makes sense. Further, there would be absolutely nothing to gain by deliberately misleading the police into believing there were six people as opposed to eight. It would appear that S.B. was simply mistaken when he spoke to police. Having now thought about this matter often, he was confident that there were eight people. All witnesses at trial were consistent that there were eight people in the hot tub.
e. S. B. agreed that when he spoke to police, he stated that S.M. was wearing a black bikini, but at trial recalled it was a one-piece bathing suit. He agreed that the darkness impacted his ability to see the colour and type of her bathing suit. S.B. testified that when he spoke to the police, he was not 100% certain that it was a bikini, and this was obvious in his comments as he stated that he was “pretty sure”. It is clear to this court that S.B. was not committed to the type of bathing suit when he spoke to police and has now had further time to consider this fact. The Crown submitted that the type of bathing suit S.M. was wearing was a significant detail because of the movement of this bathing suit throughout the sexual activity. This court does not agree. Whether this was a one-piece bathing suit or a bikini, the garment had to be moved in a similar fashion to expose various body parts. For example, in order to expose the breasts of S.M., either a bathing suit or a bikini could be removed from the shoulders and pushed down to the waist. In order to expose the vagina or anus of S.M., a bathing suit or a bikini could be pushed to the side or pulled down around the thighs.
f. S.B. originally stated that S.M. pulled her bathing suit down to expose her breasts and that it was bunched up at her waist. In cross-examination, S.B. stated that he removed the straps from her shoulders and that the bathing suit then just came down in some fashion. This was an inconsistency.
g. It was suggested to S.B. that there was no indication that S.M. was enjoying this, to which he said, “yeah, we were having fun… she was straddling me, moving up and down, and like kissing and stuff… we were having sex.” S.B. agreed that he never said to the police in his statement that S.M. was moving up and down. In fact, he had not mentioned that in examination in chief. In re-examination, he explained that he told the police sex was happening with S.M. straddling him and that his understanding of sex in that position was that the male stays stationary and the female moves up and down. The officer never asked him to break down the act of vaginal sex. He also agreed that there was no suggestion in his description of the sex to the police that she was kissing him. The Crown submitted that it was not a given that the person on top would be moving up and down and the person on the bottom would be stationary and, given that the main issue was consent, it was non-sensical to leave out this detail which was an indication of willingness to engage in sex. This court does not agree that this is a critical omission. S.B. explained both to the police and to the court that S.M. was on top of him, straddling him, and that they were having sexual intercourse. The police never asked for further details about the mechanics of the sexual intercourse. It was fair for S.B. to assume the mechanics were obvious.
h. As for the anal intercourse, in his statement, S.B. stated that S.M. inserted his penis both times, suggesting in her vagina and in her anus. In examination in chief, he explained that this was more like an attempt that was not successful. In cross-examination, he stated that his penis was maybe inserted a little bit. S.B. agreed that he never told police that they tried anal intercourse, but it failed. This court does not find this to be an inconsistency. It would appear in his statement that S.B. was suggesting that S.M. guided his penis on both occasions. This remained consistent. As to how “successful” this anal intercourse was, the police did not go into this kind of detail. This is not a material inconsistency or omission.
i. The Crown suggested that S.B. was inconsistent about the reason for suggesting engaging in anal intercourse, in that he suggested this because of a concern for pregnancy, as he was having unprotected sex, which was inconsistent with the rationale that he was not going to be able to finish (ejaculate) in the other position. This court does not see these as inconsistent. S.B. stated that he was unlikely to “finish” when S.M. was on top. He, therefore, suggested switching to “doggie”. Before vaginal intercourse occurred in this position, S.B. suggested anal intercourse because of a concern for pregnancy, believing that it was most likely for him to finish in this position. There was no inconsistency.
j. S.B. acknowledged that he would not be able to definitively estimate how many drinks he had in total on Sunday or early Monday. He did rate his intoxication on a scale between 1 and 10 at a 5-6, but stated that he was not slurring, stumbling or sick. However, later, he did acknowledge tripping on the way back from the hot tub. It was not clear to this court, however, that this was as a result of alcohol, rather than something else such as the darkness or the nature of the path. The Crown pointed to the fact that he admitted to doing two things wrong that night, one being that he drank too much, which resulted in a morning headache. The Crown suggested that these inconsistencies were as a result of S.B. attempting to downplay his intoxication. This court does not accept that he was downplaying his intoxication. Firstly, while using this 1-10 scale in court proceedings is quite common, it really does not offer much as the perception of people differ. It is relative to the person being asked. S.B. admitted that alcohol affected him that night and that he drank too much.
k. When speaking to police, S.B. stated that on the way back from the hot tub, he tripped and that S.M. “carried” him back. At trial, S.B. testified that “carried” was a bad choice of words and stated that they were “navigating” the forest together, in that they walked as a pair and he had his arm over her shoulder with not too much weight on her. This court does not view this as a significant inconsistency. Given the size difference, it would seem unlikely that S.M. would be able to literally “carry” S.B. This court accepts that S.B. was not suggesting that S.M. literally carried him back.
[201] S.B. explained some of the differences between his police statement and his trial testimony were as a result of him being confronted with having to think about these events for the first time four months later upon being faced with this criminal allegation. The Crown submitted that it defies belief that S.B. did not think about the events of that weekend upon being advised on Thanksgiving weekend that the police were conducting an investigation. The Crown pointed to the fact that S.B. acknowledged that the most significant event that occurred was the 15 minutes in the hot tub, therefore, if he thought about that weekend, that would be the focus of his thoughts. S.B. was only at the cottage for 24 hours, some of which was spent sleeping. Further, the Crown submitted that, at the very least, S.B. was aware on December 4 that the police believed that he had something relevant to offer and, therefore, would have certainly turned his mind to the events at that time, being two days before he actually made his statement.
[202] The fact is that S.B. acknowledged in his testimony that he briefly turned his mind to the events of that weekend when he was contacted around Thanksgiving. Even though the circumstances surrounding the hot tub were the most significant to him, this does not lead to the conclusion that if he were to think back to that weekend, he would necessarily focus on the hot tub. Further by Thanksgiving, two months had passed. Given that S.B. was not contacted by police, it would be reasonable for him to believe that he had nothing relevant to offer. By December 4, when he did get contacted, four months had passed and still S.B. was not told that this had anything to do with his interaction with S.M. Again, even though this was the most significant part of the evening for him, this does not mean that he would necessarily focus his attention on those events. The fact is that S.B. had no idea that this police investigation involved his interactions with S.M. until he had commenced his statement. The fact that S.B. had no criminal record and had never been in trouble with police must also be considered. Having just been faced with this criminal accusation, S.B. was then asked to recall details of something that occurred four months earlier.
[203] The Crown also pointed to the fact that S.B. said that at the point when anal or attempted anal intercourse began, S.M.’s bathing suit was around her thighs, and that he did not explain how the bathing suit came off. Frankly, neither S.M. nor S.B. were able to state how the bathing suit came completely off. Both S.M. and S.B. talked about the bathing suit being around the thighs during anal intercourse. Both were unaware of exactly when and how the bathing suit came off in order to later be found floating on the water.
Assessment of the Evidence of S.M.
Admitted Lies
[204] The defence submitted that there were three examples of the complainant telling an admitted lie and that this should cause this court great concern. Those so called admitted lies were as follows:
a. The explanation that she gave about her mother being a drunk in order to leave S.B. at C.Z.’s dock;
b. The injuries that she received from falling on her way to the cottage, yet she told her mother it was from falling on the boat; and
c. The explanation that she gave to her mother about needing to borrow the vehicle to go to Orillia Soldiers’ Memorial Hospital as a friend had been sexually assaulted.
[205] The defence admitted that these are not core details, rather peripheral, however pointed out that the lies are multiple and multifaceted. In other words, the defence submitted, these are big, complicated lies. The defence also pointed out that she admitted to lying on all of these occasions, therefore, it is incontrovertible evidence of her ability and willingness to mislead.
[206] This court accepts that the complainant was, admittedly, not telling the truth on all of these occasions. However, two of these areas, the explanation at the dock and the explanation about needing the vehicle, go directly to improper speculation and reasoning as to how someone would or should react after being sexually assaulted. As previously stated, reporting falsehoods to others following such victimization can occur for a variety of reasons and is irrelevant to a determination of credibility as to whether the sexual assault occurred.
[207] As for the lie about falling on the boat versus the true story about falling on her way to the cottage after having consumed alcohol, it makes sense that the complainant would not want to share this fact with her mother.
[208] At the end of the day, this court is not particularly troubled by any of these areas. It may also support the complainant’s credibility that she willingly accepted that she told these lies, something not favourable to her position. It is of note that the complainant acknowledged other things that were unfavourable to her position, such as the fact that she was dancing in a less than coordinated fashion and tripped and fell at another point.
Downplayed her interest in S.B. at any point in time.
[209] The defence submitted that S.M. downplayed her interest in S.B. at any point in time, in any manner, even just an interest in speaking with him. According to the complainant, she did not want to spend time with S.B. and went out of her way not to spend time with him. She suggested that being alone with S.B., either in the boat or the hot tub, was the last thing she wanted to do. However, it is clear that S.M. did spend the majority of her time in the boathouse with S.B. and then also stayed in the hot tub alone with him.
[210] It is the view of this court that this professed lack of interest in spending any time with S.B. must be considered in the context of the complainant’s concerns with socially awkward situations and her concern about offending anyone. While it may be true that S.B. did not do anything overtly to cause the complainant to feel pressured to stay in the boat or the hot tub, and that the atmosphere was otherwise a relaxed one, it is still reasonable that the complainant had this feeling. She was 18 years old. She did not seem to go out that much. She did not drink that much. She was in a place drinking far from family. She was really only close with one person there, L.L. She suffered from social anxiety. She was uncomfortable around new people. She tried to avoid awkwardness, either feeling awkward or causing others to feel awkward. She may well have been experiencing these feelings on her own, internally. This court must be very cautious in judging a person’s reaction according to some assumed norm. The fact is there is no norm. People react differently.
Reliability
[211] It was submitted that this court should have some concerns about S.M.’s reliability for the following reasons:
a. She was admittedly taking medication, Lorazepam, while drinking substantial amounts of alcohol. According to the complainant’s own evidence, these are not to be mixed. However, this court was not provided with any evidence about the effect this mixture would have on her ability to recall events accurately. On the topic of medication, the defence submitted that S.M. was wrong about what she took that night given the blood and urine test results. While this court accepts that the medications found in the test results were not the Lorazepam the complainant mentioned, these tests were done 48 hours later. There was no evidence before this court as to how long Lorazepam would be detectable in the body. There was also no evidence of what the complainant took, if anything, after leaving the cottage.
b. In cross-examination, the complainant admitted that she was a full day off in her narrative of when she went to the hospital. She said that this did not surprise her as, when she spoke to police, she was having difficulty figuring out what happened when. The complainant did, however, reemphasize that the events as described did occur, just simply a day later.
Inconsistencies
[212] There were a number of inconsistencies within the complainant’s evidence at trial and between her evidence at trial and her police statement. The following were of notes:
a. Whether she asked L.L. about her recollection of that night – When first asked about this, she said that after the detective told her not to speak to anyone about this, she stopped. Only a few minutes later, when asked whether she remembered asking L.L. about her recollection of that night, she did not remember.
b. Whether she went to the cottage with the intention of drinking alcohol – Initially, S.M. claimed that she did not have the intention of drinking when she went up to the cottage, or getting intoxicated, but that the “girls…they were really excited to just have kind of a weekend up there with alcohol and what not”. S.M. agreed that she knew the other girls were going to be drinking, which was not a problem, but that it was not her intention going in, as she was on medication. A short time later, she said, “I don’t remember whether or not I actually went with the intention of drinking… I honestly can’t remember”.
c. Whether she told her friends about this intention of not drinking – She testified that she did not think she would have told her friends that she did not intend to drink due to being on medication. It was then suggested to S.M. that in her statement to police she said that she told her friends that she did not intend to drink alcohol. She said that back then she had a better memory, so if she said that in her statement, it would be correct.
d. How she was flipped over in the hot tub – As to how S.B. moved her, she stated that he “flipped me… very quickly” by using her hips and waist. She stated, “He kinda just grabbed me, and again it was like I was not even human… like I was a puppet… I was flipped around”. She then stated that she thought that she may have tucked her knees and she was not sure how her knees got on the seat. Her arms were along the edge of the hot tub. S.M. agreed that, in her police statement, she had stated that S.B. took her left arm or hand and flipped her onto her stomach. She agreed that her recollection now was different as she now recalled that he used her waist and hips. When asked at trial whether he used her waist, she said, “I can’t remember 100% now…. I had some marks… on my left wrist. At that moment, I guess I did remember that it was my wrist, but now I do feel that he used my waist.”
[213] There were also a number of inconsistencies between the evidence of S.M. and other witnesses who testified about the same events. The following were of note:
a. Who was at K.M.’s cottage that weekend – S.M. said that it was her and her three friends, as well as K.M.’s mother, grandfather, and possibly one of her brothers. K.M. testified that it was just her, her three friends, and her mother. L.L. testified that it was the four girls, K.M.’s mother and brother.
b. Whether she told her friends about an intention not to drink – S.M. did not think she would have told her friends that she did not intend to drink due to being on medication. It was then suggested to S.M. that in her statement to police she said that she told her friends that she did not intend to drink alcohol. She said that if she said that in her statement, it would be true. T.B. testified that no one said they would not be drinking alcohol and she did not remember anyone saying they did not want to drink alcohol. L.L. testified that no one said they did not want to drink alcohol.
c. Whether the girls went to C.Z.’s cottage earlier in the day on Sunday – S.M. recalled that they went to C.Z.’s cottage throughout the day on Sunday where she believed some people played mini putt, bocce ball, or some other outdoor activities. There were at least 10 people at his cottage that day. S.M. testified that she was mainly with R.B. and T.B. just standing around talking and did not play any games. She did not recall being overly upset or uncomfortable at this time. S.M. stated that they were at C.Z.’s cottage for quite a few hours and then returned to K.M.’s cottage for dinner around 6:00 p.m. or 7:00 p.m. S.M. was not sure if N.J. and R.B. stayed there when she and her friends left, but they had definitely gone over to C.Z.’s cottage with them. K.M. did not recall them leaving her cottage during the day on Sunday at all. L.L. testified that she saw the boys over at C.Z.’s property, but had not gone over that day, in fact they had not gone anywhere. T.B. expressed some uncertainty. S.B. testified that he and the other boys were out on the water all day.
d. Whether she was in the boat with other people – S.M. said she was in the boat with other people and that when others left, S.B. came and sat in the front passenger seat. All three other girls testified that it was just S.M. and S.B. in the boat. They never mentioned anyone else being in the boat with them.
e. Where S.M. and S.B were seated in the boat – S.M. testified that she sat in the driver’s seat and that S.B. eventually moved into the passenger’s seat. K.M. remembered S.M. and S.B. on the back bench seat, sitting very close together.
f. Bottle of rum vs. coke bottle. – S.M. said that S.B. had a 2-litre coke bottle with rum mixed in it. K.M. and L.L. both testified that it was a rum bottle. S.B. testified that it was a 2-litre coke bottle.
g. S.M. said that she got K.M.’s attention while she was in the boat with S.B. As K.M. was passing by, she said to K.M., in a voice just loud enough for K.M. to hear but not so loud for S.B. to hear, “Please don’t leave me alone with him”. She believed that K.M. heard as K.M. said, “Oh, yeah, yeah, yeah” in a loud voice. K.M. testified that S.B. never got her attention and she had no recollection of any conversation with S.B. at C.Z.’s boathouse. This is a significant inconsistency between the two witnesses as one would think that K.M. would remember such a conversation, especially in light of what she said she was told at C.Z.’s dock only a short time later. It would also seem unlikely that K.M. would not check in with S.M. before leaving her alone in the hot tub if this conversation had occurred earlier. The defence also pointed out that it would make sense for S.M. to say something to her closest friend, L.L. if she really had a concern, given that a short time later, she claimed to be next to L.L. in the boathouse to get away from S.B. While this court is troubled by the inconsistency between S.M. and K.M., this court is not concerned by the fact that S.M. did not say anything to L.L. minutes later. Again, as to how one person would or should act in an awkward or disturbing situation is as varied as people themselves. It is not for this court to say how S.M. should have attempted to remove herself from this awkward or unwanted interaction.
h. S.B.’s level of drunkenness – S.M. stated that S.B. was the most intoxicated she had ever seen anyone by that point, referred to his eyes and his slurred speech, and said it was “clear as day”. No one else in the boathouse made these observations. One would think that others would have noted that, especially given that they noted S.M.’s level of intoxication. However, not all witnesses were expressly asked about S.B.’s level of intoxication.
i. Whether S.M. called out to L.L. in the forest – S.M. testified that she saw L.L. or K.M. in the forest and called out at a time where she was on her back with S.B. performing vaginal intercourse on her. Clearly, this would have been at a time when, according to her evidence, she was saying “stop”. K.M. testified that she never returned to the hot tub area. L.L. testified that she and T swam back to the hot tub and got out of the water in the area of the hot tub. She saw S.M. alone in the hot tub with S.B. and they were kissing. She estimated that she was 2-3 metres from the hot tub when closest. L.L. and T agreed to leave S.M. and S.B. alone and walked away through the forest. L.L. did not hear anything that was said in the hot tub and did not hear anyone say anything to her. If S.M. was on her back looking around, it does not make sense that she would not see L.L. within 2-3 metres away or that she would yell without L.L. hearing it. It also does not make sense that S.B. would not react to S.M. yelling out.
j. S.M. reporting to her friends what happened to her – The fact that S.M. told people different things at different times does not play into this court’s analysis of her credibility. As stated earlier, a person may delay reporting, a person may give incremental disclosure, a person may give different facts or versions to different people depending on the relationship with the person being told. Not all people report at the same time or with the same level of details. Also, the court must be cautious in the sense that what is reported to be said by S.M. by K.M., L.L., T.B. or C.R. is not recorded in any way. These are versions of the events as told by other people who are subject to being inaccurate in their retelling of events. Having said that, there are some inconsistencies between what S.M. said she told people and what those people reported that she said:
i. After walking back from the hot tub, S.M. made certain comments to K.M.:
According to S.M., when she was alone with K.M. just behind the boathouse, she broke down and told K.M. that “he raped me”. Other than that, she could not remember exactly what was said. K.M. got a little upset and was going to start yelling at S.B., but S.M. stated to K.M., “No, let’s just go back, I just want to go back”. S.M. disagreed that she said to K.M. that she might have said “yes”. She said there was nothing unclear about what she told K.M., and that she told K.M. it was non-consensual.
K.M. remembered a few sentences of the conversation with S.M. at that time. She described S.M. as “upset”, “on the verge of tears”, “very, very unhappy”, “almost overwhelmed” and “rattled”. The general nature of the conversation was that S.M. said that she did not want to have sex with S.B. and K.M. was left unclear as to whether there was consent or not. As a result of the conversation, K.M. became upset and started raising her voice. As a result of her raising her voice, it got the attention of S.B. and B and it led to S.M. really wanting to leave. At that point, S.M. started to “brush off everything” and said, “I just want to leave”. K.M. agreed that before S.M. left, K.M. asked her if she said “yes” and she said that she “might have said yes.” She said that S.M. said this in the spirit of ending the conversation and wanting to leave. K.M. agreed that S.M. told her that she did not want to have sex with S.B. and later, in the same conversation, S.M. said she might have said “yes” to S.B.
ii. The next morning:
S.M. testified that she spoke to her friends the next morning about what happened. She could not remember if she told them everything and was not sure if she went into detail with them, but she recalled telling them the “gist” of what happened. She recalled telling each of her friends, multiple times, that she was raped. She did not recall telling them that she might have consented and did not agree that she told them she might have said yes. She confirmed that she did not tell her friends that she did not remember what had happened, because she did in fact remember what had happened.
K.M. agreed that she had made certain comments to the police about this discussion, but at trial, could not recall the details of this discussion.
L.L. agreed that she received some information from S.M. about what she said happened to her. L.L. agreed that S.M. did not tell her exactly what happened, but rather gave some vague details. L.L. stated that S.M. did not know exactly what she had said. L.L. explained that she asked S.M. if she said “no” and that S.M. said that she didn’t know, she knew that she did not want it, he insisted, and she did not remember explicitly saying “no”.
T.B. testified that S.M. was speaking to the group, not directed at her. S.M. did not give her any specific details, but she seemed distressed by her tone. She said something bad happened. T.B. did not remember the exact conversation. S.M. talked more to L.L. and to K.M. about it and she did not overhear any details. She remembered that S.M. mentioned that she believed something of a sexual nature had happened between her and S.B. once everyone left the hot tub. T.B. recalled her saying that she did not completely remember, and that she was in pain. T.B. agreed that there was more to the conversation, but she could not remember the specifics.
k. S.M. reporting to her mother what happened to her – C.R. agreed that either on the way to the hospital or on the way back from the hospital, there was a conversation with S.M. about what happened. S.M. told her that she was left alone with this guy in the hot tub without her friends. C.R. agreed she asked S.M. whether it happened in the hot tub and S.M. said that it happened outside the hot tub and that she told him no. S.M. did not give any further details and she did not ask. In re-examination, C.R. stated that she understood that the sexual activity happened in the hot tub area. C.R. explained that she was extremely upset and trying to focus on her driving in the middle of the night. When it was suggested to S.M. that she told her mother that the sexual activity occurred outside the hot tub and that she told him no, she stated, “I can’t remember that”. It was then specifically suggested to her that she told her mother that the sexual activity happened outside the hot tub, to which she said “no” and then said, “I don’t remember saying that to my mother” and that was not her present recollection.
l. S.M. reporting to the nurse what happened to her – While the nurse, Christa Davidson, could not recall her interactions with S.M., the forensic examination forms were admitted into evidence as past recollection recorded. Ms. Davidson testified about her training and the importance of making accurate recordings. The form indicated:
i. Oral Samples - Was there penetration or attempted penetration of the patient’s mouth by the assailant’s penis (fellatio)? - yes
Oral Samples – Was there ejaculation – u/k
S.M. recalled speaking with the nurse at the Orillia hospital but could not remember the conversation. She recalled that the nurse asked questions. S.M. was asked whether she told the nurse that there was penetration or attempted penetration of her mouth by S.B.’s penis, to which she responded, “No, not that I can recall, no”. She agreed that this would be different from what she told the court.
ii. In step 8 of the “Forensic Evidence Form”, “Vaginal Samples”, the questions and answers noted were:
Was there penetration or attempted penetration of the patient’s vagina by:
The assailant’s penis – yes
Was there ejaculation by the assailant – u/k
Was a condom used – No
The assailant’s mouth / tongue (cunnilingus) – u/k
The assailant’s finger(s) – yes
An object? Specify: - no
S.M. did not recall telling the nurse that oral sex or attempted oral sex occurred or specifically that S.B. attempted to perform oral sex on her. Again, she agreed that this would be different from what she was telling the court.
This court agrees that the purpose of recording this information is to decide what tests are applicable and not necessarily to take a detailed recording of the event. This court also agrees that Ms. Davidson could not remember anything from the interaction. However, Ms. Davidson was clear that she knew the importance of recording information accurately as this would become a legal document. She also explained her process of reading the question / item to the patient and if there was any level of uncertainty, she would explain the item in a different manner. This court is confident that the forms accurately record the information that Ms. Davidson was provided by S.M.
Conclusion
[214] It is the view of this court that S.B.’s evidence, when considered in the context of the whole of the evidence, was credible, straightforward, and believable. He acknowledged the weaknesses in his evidence, such as the impact of alcohol and his difficulty with remembering some of the events due to the passage of time. While S.B. was aware of some police investigation into the events of that long weekend, he was not aware of what was being investigated. S.B. was not at C.Z.’s cottage for the whole weekend but rather only 24 hours. It is unreasonable to expect that S.B. would have turned his mind to the events in the hot tub when first advised of police involvement at Thanksgiving. After not being contacted by police, he reasonably believed that his information was not needed. On December 4, the police finally contacted him and asked to speak to him. Obviously, at this point, he would have known that the police felt he had something relevant to add. However, it was still not known that he was the target of the investigation and that it related to an allegation of sexual assault on SM. There would still be no reason for S.B. to come to that conclusion and to start ruminating about these events. Even if he had this thought, however, it was four months later. It is only at the beginning of the police interview that S.B. became aware that he was the target of a sexual assault investigation.
[215] This court accepts that S.B.’s evidence was not perfect. For example, S.B. told police that he was “pretty sure” that S.M. was wearing a bikini rather than a bathing suit. S.B. stated that S.M. “carried” him after he fell on the way back from the hot tub, rather than just saying he was leaning on her for support. Various other issues with his evidence were outlined above. While S.B. did tell police that S.M. was on top of him during vaginal intercourse, he did not mention that she was moving up and down. It is the view of this court that this type of detailed criticism of S.B.’s evidence would be holding him to a level of perfection not expected or required of any witness. It is the view of this court that any discrepancies in his evidence were minor and must be considered in the context in which he was initially confronted with these allegations.
[216] The Crown submitted that S.B. did not have a great recollection of the events in the hot tub and, specifically, the sexual activity with S.M., and that the events he did remember were scant. This court does not agree with this characterization. In fact, this court found S.B.’s description fairly detailed, including questions and answers that were asked, activities that took place, positions the parties were in, approximate length of time, and how it came to an end. The Crown also suggested that the conversation about anal intercourse does not ring true, as it was unlikely that after only one question and one answer, with people who had just met, that this would lead to consensual anal intercourse. This would require an extreme level of speculation on the part of this court as to how people who have just met engage in sexual activity. The Crown also suggested that it did not ring true that there was seamless movement during the sexual activity, as opposed to awkwardness or difficulty, given that these were two intoxicated people, engaging in intercourse for the first time together, in a poorly lit hot tub. Again, this would require this court to speculate about the typical level of skill and comfort with which people engage in such activities. Such speculation would be completely inappropriate. The highest court in this country has repeatedly told trial judges that they have a duty to dispel biases, prejudices, stereotypes, and assumptions that may arise in sexual assault prosecutions. The court must be vigilant in carrying out this duty. Biases, prejudices, stereotypes, and assumptions can arise in theories advanced by the Crown as easily as those advanced by the defence and, in either case, must be recognized and avoided.
[217] Further, the Crown claims that S.B.’s evidence about the sexual activity runs contrary to the physical examination form indicating redness and tenderness in the genital area and anal area of S.M. Again, this court was not provided with any evidence that would suggest that redness and tenderness would be more indicative of non-consensual sexual activity and, therefore, must not speculate to reach such a conclusion.
[218] S.B. was clear that he asked S.M. if she wanted to have sex, wanted to participate in “doggie” and whether she wanted to participate in anal intercourse. S.B. was clear that on each occasion S.M. said “yes”. Further, S.M. was actively moving her body in such a way as to support her verbally expressed consent, such as changing positions and guiding or inserting his penis inside of her. Nothing more can be expected of S.B. in these circumstances. Ongoing consent was present and communicated both in words and actions. This court accepts that S.M. was upset when she returned to C.Z.’s dock shortly after and remained upset and distraught throughout those next few days. This court is unable to determine the reason for this reaction. However, S.B. is not responsible for S.M.’s behaviour or reaction after the fact. The actus reus of not consenting is something that must be assessed at the time of the sexual activity, not after.
[219] This court accepts and believes S.B.’s evidence. On this basis alone, S.B. must be found not guilty. At the very least, his evidence would raise a reasonable doubt in the context of the evidence as a whole. Further, this court has been left with significant doubt given the credibility and reliability concerns that apply to the complainant’s evidence. In the final analysis, it was impossible for this court to accept the narrative put forward by the complainant in the face of material inconsistencies in her evidence and conflicts between her evidence and that of other witnesses. Given the significant frailties in her evidence, this court cannot conclude a lack of consent beyond a reasonable doubt.
[220] For all of the foregoing reasons, and having carefully considered the totality of the evidence and circumstances, S.B. is found not guilty.
NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.
Released: December 17, 2021