R. v. Vansnick, 2021 ONSC 8518

CITATION: R. v. Vansnick, 2021 ONSC 8518

File No. CR-20-00003125-0000

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v. MITCHELL VANSNICK

R E A S O N S F O R J U D G M E N T

REMOTELY BEFORE THE HONOURABLE JUSTICE G. VERBEEM

On November 16, 2021, for a Chatham, Ontario proceeding

APPEARANCES:

K. Thomas Counsel for the Provincial Crown

G. McGivern Counsel for Mitchell Vansnick

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

REASONS FOR JUDGMENT Page 4

Transcript Ordered: November 18, 2021

Transcript Completed: December 24, 2021

Ordering Party Notified: December 24, 2021

TUESDAY, NOVEMBER 16, 2021

U P O N C O M M E N C I N G: 10:03 a.m.

...PROCEEDINGS TAKE PLACE VIA ZOOM

...PARTIES ATTEND REMOTELY FROM UNKNOWN LOCATIONS

THE COURT: Good morning, everyone.

MR. MCGIVERN: Morning, Your Honour.

MS. THOMAS: Good morning, Your Honour.

THE COURT: There is Ms. Thomas. So, the only thing that you might have missed while you were logging in was just the opening of court. Okay. So, if you would go ahead Madam Clerk with the prohibition.

CLERK REGISTAR: Yes, Your Honour. In the matter of Her Majesty the Queen and Vansnick. Court file number 3125/20. Under Section 136 of the Courts of Justice Act it is an offence for anyone to copy, record, publish, broadcast or disseminate a court hearing or any portion of it including a hearing conducted over a video conference or teleconference without leave of the court. This prohibition includes screenshots. [Indiscernible] members of the public and all other persons in the courtroom must comply with the terms of the courts protocol on the use of electronic devices in the courtroom which is available on the Superior Court of Justice website. And as well we do ask, um, if everyone besides counsel could just turn off their cameras and their mics.

THE COURT: Okay. Someone else is joining us. We’ll have to just....

CLERK REGISTRAR: And Your Honour, I’m not sure if this was intentional or not, but when I logged in, I got a message that this session is being recorded. So, I don’t know if that was intended.

THE COURT: It is for my purposes.

CLERK REGISTRAR: Okay, thank you.

THE COURT: Because we are doing it remotely just for redundancy purposes, I have instructed the clerk to record the ZOOM session. We have a reporter. The reporter has confirmed with me prior to court starting that from an audio perspective she can hear me fine. The reporter will let me know at any point if she cannot hear me and we’ll address any audio glitches or the level of my voice in real-time, but if there’s any, because we are remote, if there’s any problems, we just wanted a back up. So, that’s why it’s being recorded.

CLERK REGISTRAR: Okay.

THE COURT: So, it’s at my request. It’s a recording for the court’s benefit only. It won’t be disseminated. It won’t even be, I’m not going to review it at any point, it’s just there as a redundant record. Okay?

CLERK REGISTRAR: Thank you, Your Honour.

THE COURT: Thank you. So, a few little housekeeping matters before we start. I’m estimating this is going to be about three hours, with a break, okay. It’s not my practice to distribute hard copies of my criminal decisions. What I say is the decision. If there is a transcript that’s ordered, I reserve the right to review and correct any errors related to spelling, grammar, syntax, or mis-transcribed words, but nothing will ever be changed in terms of the actual structure, sentence, format, etcetera. I plan to break at least once about half-way through. Having said that, if at any time counsel or Mr. Vansnick require a break for any reason, just let me know. You can interrupt me. It’s okay if people need a break and we’ll deal with it because we’re not, I can’t read the judgment and sort of monitor everybody on the ZOOM screen to see if anybody’s got a hand up or is indicating they need my attention. So, it’s okay to break in audibly and we’ll take a break. And if you can’t hear me anyone, let me know immediately again audibly, okay. It could be technological, or it could just be my voice trailing off. I’m starting, I think I’ve got a flu. Not that that’s your concern but so if my voice is trailing off, you let me know and I’ll address that right away, okay. Any other issues before we start?

MR. MCGIVERN: No thanks.

THE COURT: Mr. McGivern, Ms. Thomas.

MS. THOMAS: No thank you, Your Honour. No.

THE COURT: Okay, and just for the purpose of the record Mr. McGivern, I see over, I guess it would be your right shoulder, but the left side of my screen Mr. Vansnick is sitting behind, behind you or beside you?

MR. MCGIVERN: Yes, that is Mr. Vansnick.

THE COURT: Okay, thank you.

CLERK REGISTRAR: I will say as well, Your Honour, I believe that, um, the complainant is watching as well. I think she’s with Rob Barnes.

THE COURT: Okay. Thank you. Good morning to Mr. Vansnick and the other members of the public that are attending. Okay, so with that I’m going to start. These are my Reasons for Judgment.

R E A S O N S F O R J U D G M E N T

VERBEEM, J. (Orally)

Mitchell Vansnick is charged on a single count indictment alleging that on or between the second and third day of September 2018 in the Municipality of Chatham-Kent he sexually assaulted AT contrary to Section 271 of the Criminal Code.

Mr. Vansnick has pled not guilty to that charge. He enjoys the presumption of innocence unless and until the Crown discharges its burden to prove beyond a reasonable doubt that he committed the alleged offence. In order to do so the Crown must prove each of the essential elements of the offence beyond a reasonable doubt, specifically that,

1. Mr. Vansnick intentionally applied force to AT.

2. AT did not consent to the force that Mr. Vansnick applied.

3. Mr. Vansnick knew that AT did not consent to the force he applied.

4. The force that Mr. Vansnick applied took place in circumstances of a sexual nature.

If the Crown is unable to prove each of these essential elements beyond a reasonable doubt the accused is entitled to be found not guilty.

If the Crown proves each of these essential elements beyond a reasonable doubt, the accused must be found guilty of sexual assault.

The onus remains on the Crown to prove the offence beyond a reasonable doubt. Mr. Vansnick does not have a legal onus to prove anything in this proceeding. With that said, I will now turn to the evidence adduced by the parties.

Eight witnesses testified at trial. The Crown called viva voce evidence from: AT; her sister KE; KE’s husband ME; Ashley Coll; Lisa Bisschop, a sexual assault nurse that examined AT after the alleged assault; and two members of the Ontario Centre of Forensic Sciences, who were each qualified to give expert opinion evidence. Specifically, Ms. Karryn Wall, was qualified to give opinion evidence in the area of pharmacology and toxicology of alcohol and Dr. James Morrow was qualified to give opinion evidence in the area of bodily fluid identification and DNA analysis and interpretation.

The defence called evidence from Mr. Vansnick.

Prior to reviewing the material aspects of the evidence, I generally observe that it is common ground in the evidence of both AT and Mr. Vansnick that Mr. Vansnick applied force to AT in circumstances of a sexual nature during the time period specified in the indictment. Their respective evidence differs on the nature and extent of the force that he applied and whether it was consensual or not.

AT testifies that none of the sexual activity was consensual, and she consistently expressed her lack of her consent to the accused. Mr. Vansnick testifies to a narrative consistent with consensual sexual activity.

In that context I remind myself at the outset that the assessment of the evidence of the accused and the evidence of the complainant is not to be approached on a comparison basis wherein I must decide whose evidence I prefer or who gave a relatively better account of what transpired. Instead, when determining whether the Crown has met its onus to prove guilt beyond a reasonable doubt I must apply the principles set out in the R. v. W.(D.) [1991] S.C.R. 742.

In the context of the evidence in this case that means that:

1. If I accept Mr. Vansnick’s evidence, then he is entitled to be found not guilty;

2. If I do not accept Mr. Vansnick’s evidence but after considering his evidence in the context of the evidence as a whole, I am left with a reasonable doubt as to his guilt, he must be found not guilty;

3. Even if I do not accept Mr. Vansnick’s evidence and it does not leave me with a reasonable doubt as to his guilt, he may only be found guilty if the remainder of the evidence that I do accept proves his guilt beyond a reasonable doubt.

With those principles in mind, I will now review the evidence before me.

Admissions

In addition to the viva voce evidence the parties filed 22 enumerated admissions pursuant to 655 of the Criminal Code most of which relate to:

1. The continuity and authenticity of certain photographs taken in the course of the police investigation;

2. The authenticity and truth of the content of medical records related to AT;

3. The authenticity of a sexual assault examination kit and photographs related to a September 3rd, 2018, hospital attendance by AT;

4. The expertise of Dr. Morrow and Ms. Wall in the areas in which they were ultimately qualified by the court to provide expert evidence;

5. The authenticity and truth of content of a toxicology report prepared by Ms. Wall dated October 12th, 2018;

6. The authenticity and truth of the content of three biology reports that were varyingly prepared by Dr. Morrow or reviewed and adopted by him in his trial evidence;

7. The continuity of video surveillance footage taken from cameras located at 103 Highbury Crescent in Wallaceburg, Ontario on September 2nd and September 3rd, 2018, and the accuracy of the timestamps displayed on the recordings;

8. The fact that on September 3rd, 2018, at approximately 4:00 a.m. police located the following items in an area between residences located at 83 Highbury Crescent and 87 Highbury Crescent,

a. A Bud light beer can.

b. Two Q tips.

c. A white straw.

d. An empty glass.

e. An iPhone in a grey protective case that belonged to AT;

9. The fact that on September 3rd, 2018, at approximately 4:35 a.m. police located a blood smear on the floor in front of the toilet in a bathroom in the residence of Ryan and Ashley Coll, located at 79 Highbury Crescent; and

10. The legal voluntariness of a video statement given by Mr. Vansnick to police on September 3rd, 2018.

AT’s Evidence

I will now turn to the viva voce evidence beginning with AT.

At the time of the alleged offence AT, who was then 21 years old, had a longstanding albeit distant familiarity with Mr. Vansnick. They were classmates in grade school, and they attended the same high school, but they never socialized during that time. Indeed, prior to the events at issue they had not spoken since grade school. By chance, on September 2nd, 2018, they both attended a social gathering at 79 Highbury Crescent in Wallaceburg, which was the home of Ashley and Ryan Coll, who were longstanding friends of AT’s family.

The Coll’s invited AT and her family over earlier in the afternoon while both families were boating on Mitchell’s Bay, together with other family friends Shelley and Chad Murphy and Jeff and Rob Barnes and their parents. Between 3:00 p.m. and 6:30 p.m., while at Mitchell’s Bay, AT consumed three or four vodka mixed drinks which she free poured herself. She did not feel intoxicated during that time.

She describes her general alcohol consumption in the summer of 2018 as drinking about two out of every four weekends and on average consuming six drinks when she did so. Generally, she did not consume alcohol rapidly.

AT arrived at the Coll residence somewhere between 9:30 and 10:00 p.m. accompanied by her sister KE, and Rob Barnes who had driven them there from AT’s family house on a four-wheeler. Although Mr. Barnes is now AT’s fiancé their relationship was platonic in September 2018.

When they arrived, the three of them joined Ryan and Ashley Coll and Chad and Shelley Murphy in the kitchen. They were all positioned around a large island. AT and others consumed alcohol.

AT recalls consuming a total of three-quarters of one mixed drink during the entire time she was at the gathering. She believes it contained a shot and a half of vodka free poured by Ryan Coll from a liquor bottle that she brought. During the evening AT felt some effects from the alcohol. She was happy, bubbly and more sociable but she did not feel intoxicated. She does not recall having any difficulty speaking or walking.

As the night progressed other people arrived at the gathering, including her sister’s fiancé KE, as well as Chad and Shelley Murphy’s son Kayle Murphy and a group of his friends that included Mitchell Vansnick. Kayle and Mr. Vansnick joined the group in the kitchen.

Mr. Vansnick eventually engaged in small talk with AT during which he repeatedly asked her if she wanted to go for a smoke with him and his friends. She initially declined but he persisted, and she finally agreed. Even so, she asked Rob Barnes to go with them because she felt uncomfortable. Mr. Barnes did so.

Originally, AT testified that a group of people that included herself, Mr. Vansnick, Mr. Barnes and others walked to an area of the road that was roughly in front of 103 Highbury, about five or six houses south of the Coll residence. While there, some of the people, including the accused, smoked marijuana. Afterwards they all returned to the Coll residence without incident.

She further testified that some time after that walk, Kayle Murphy invited her to go with him and some of his friends, including the accused, to get something from his house which was located about three houses south of the Coll residence on the opposite side of the street. She went with them, however, she did not enter the Murphy residence because she didn’t want to interact with Kayle’s sister who was a former friend.

AT confirms that video surveillance taken from 103 Highbury captures portions of both walks. She explains that between timestamps 11:57 and 11:59 p.m. the surveillance footage marked as Exhibit 2 shows, among other things: a group of people walking south on Highbury to the Murphy house; some people entering the house; and one person, whom she believes is her, walking back towards the Coll residence. She identifies this as the walk she and others took to the Murphy house.

She also confirms that another portion of the 103 Highbury surveillance which begins at timestamp 12:44 a.m. on September 3rd, 2018, shows a group of people walking southbound on Highbury on what was described as the smoke walk in AT’s evidence and which I will refer to as the marijuana walk later in these reasons.

AT identified herself in that portion of the surveillance.

She recalls that she had her phone in one hand and her vodka drink in the other, at that time. Other people, including the accused and Rob Barnes, were also present on the smoke walk. The surveillance demonstrates that the group eventually stopped on the road almost directly in front of 103 Highbury. Some of the participants stood in a circle and appeared to pass around and smoke an object.

AT believes that this portion of the surveillance demonstrates that she was standing and walking differently than she normally does and that she stumbled on discrete occasions. Specifically, AT testifies that the footage at both timestamps 12:45 and 24 seconds and 12:49 a.m. display her staggering.

In cross-examination AT agrees that the purpose of this walk was to smoke marijuana. Mr. Vansnick did so. AT agrees that on two different occasions she took possession of the marijuana cigarette. She testifies that she pretended to smoke it and passed it off.

Between timestamps 12:49 and 40 seconds and 12:50 a.m., the surveillance displays several people walking back in the direction of the Coll house with AT in the lead. AT walks out of the view of the 103 cameras at timestamp 12:50 and 11 seconds a.m. At that point she was about four houses south of the Coll residence and there were people walking closely behind her. All of the people on the walk are out of view of the 103 cameras by 12:50 and 47 seconds a.m.

AT testifies that she was eventually assaulted by the accused a short time after she left the view of the cameras.

AT concedes that contrary to the sequence of walks established by the surveillance, she remembers the smoke walk happening before the walk to the Murphy house. She also remembers that the incident with the accused happened immediately after the walk to the Murphy home, as she was returning to the Coll residence. She agrees that the surveillance video establishes that her memory in that regard is not accurate. She clarifies that, she recalls that the incident with the accused happened after the second walk, whichever it may have been.

AT also agrees that her trial evidence that Mr. Vansnick assaulted her as they returned from the smoke walk is inconsistent with a statement she gave to police on September 3rd, 2018, as well as her evidence at the preliminary hearing. In both, she stated that Mr. Vansnick sexually assaulted her while she was returning from the walk to the Murphy’s house. Further, she did not mention the smoke walk at all in her September 3rd police statement.

She gave a second statement to police on September 13, 2018, during which police showed her the surveillance of the smoke walk. It was only then that she told them about that walk. AT denies that she spoke about the events of September 2nd, 2018, with anyone before she gave her second statement to police. She allows that prior to that statement, she told her mother that she was scared but she did not go over any details of the incident with her mother.

Turning to AT’s evidence about the assault. She initially testifies that as she was returning to the Coll house, about four houses away, Mr. Vansnick came up from behind, placed his hand firmly on her back and guided her to an area between 83 Highbury, which is next door and immediately south of the Coll residence and 87 Highbury. He did not say anything. She was confused. She looked behind her and she did not see anyone else from the smoke walk.

In cross-examination AT agreed that at the preliminary hearing she testified that while she was walking back to the Coll residence, Mr. Vansnick grabbed her by the arm. After being questioned on that issue, she recalled in her trial evidence that Mr. Vansnick had strongly tugged on her arm, and he did not place a hand on her back. AT was startled and confused by the tug, but she did not scream.

As Mr. Vansnick led her between the houses, she asked him what he was doing and where he was going. The area where Mr. Vansnick led her was dark and grassy. They stopped. AT and Mr. Vansnick were the only people there. She believes that she was still carrying her phone and her drink. Based on the direction she was facing, the side of a house was directly in front of her and a house was behind her. She recalls a fence to her left and the roadway to her right, although it was some distance away. She and Mr. Vansnick were facing each other. She asked him what they were doing there. He put his hands on her shoulders and pushed her down. She fell to the ground and onto her back.

Mr. Vansnick got on top of her. He held her hands down by her wrists above her head. He moved both her wrists into one of his hands and pushed up her sweater and bra with the other. He kissed her neck down to her breasts. She said, “No,” “What are you doing?” “You need to stop”, and “You will get caught.” He said, “It’s okay, you want it.” She cried and kept saying, “No, no, no.” He did not stop.

She was terrified. She did not know what to do. She tried to fight by pushing up and rolling away. He was stepping on her feet while she did so. She brought her legs up to her chest. Mr. Vansnick got on top of her legs. He was prying her shins apart with his feet while he had her hands pinned down. He used his free hand to pull down her shorts. He was able to do so despite being on top of her and using his weight to pin her down. When he pulled her shorts down, her knees were almost to her chest and she was almost in a ball. She was not wearing underwear.

She kept telling him to stop. He kept telling her, “It’s okay, you want this.” He used one of his hands to fumble around with his pants. He inserted his fingers into her vagina. She was still in a ball position when he digitally penetrated her. Eventually he pulled his pants down and inserted his penis into her vagina. He was not wearing a condom. As he did this, AT was crying hysterically. She asked him to stop. His face held a look of pure pleasure, and she was terrified.

She is not sure how long the assault lasted. It felt like forever. She does not know if it stopped because Mr. Vansnick ejaculated or because he paused, but at one point she felt a little bit of his weight come off her. She was able to get free and she ran to the Coll house. She tried to pull her shorts up as she ran. She does not know if Mr. Vansnick followed her.

She did not consent to engaging in any sexual activity with Mr. Vansnick and he never asked to have sexual intercourse with her.

When she arrived at the Coll house she was in shock and crying hysterically. She does not recall if she had pulled her shorts up all the way. Her bra was askew, and her sweater was jumbled. Everything that happened at the Coll’s after the assault felt like it happened in seconds.

She ran into the house and went to the kitchen. People asked her, “What’s wrong? What happened?” And “What did he do?” Although she is not aware of anyone witnessing the incident, she believes it was clear to most people that someone had sexually assaulted her. AT did not verbally respond. She kept crying.

Ashley Coll brought her to the bathroom and asked her what happened. She did not respond.

AT’s legs were scratched and bleeding as a result of the assault. Ashley wiped away the blood. AT does not know how long she was in the bathroom. When she finally exited, she went outside and asked Rob Barnes to take her home. He did so on the four-wheeler. They took the same route home. She does not know where her sister was at that point. She did not consume any alcohol after she left the Coll house.

When she got home her father was waiting for her. He told her to get in the car and he took her to the hospital, first in Wallaceburg, which did not have a sexual assault examination kit, and then in Chatham, where she was ultimately examined.

AT does not believe that she felt any effects from alcohol when she arrived at hospital in Chatham, but she was distraught, and everything was mixed up. She felt like she was watching her life through a movie where everyone else was talking but she did not know what to say. She was embarrassed. She just wanted to go home.

While at hospital: AT underwent a sexual assault examination; blood and urine samples were collected; external and internal vaginal swabs were taken; injury photographs were taken; and AT was given plan B medication and medication to guard against sexually transmitted diseases.

In cross-examination AT was confronted with the narrative version of the alleged assault that was reported in hospital records by the examining sexual assault nurse. AT agrees that on the nurse’s inquiry, she disclosed what happened. In a resulting hospital record the nurse recorded that: “A group of guys was being possessive of her. They tried to touch her. She said no and they touched her vaginal area with their hands and fingers and one of them sexually assaulted her but she did not know who.”

AT does not recall saying that but concedes that it is possible that she did. She clarifies that if she did so, her statement about multiple boys being involved was inaccurate but her statement that she was sexually assaulted was correct.

Photographs taken at hospital on September 3rd, 2018, evidenced some intermittent scrapes and scratches on AT’s lower extremities including:

1. A two-centimetre by two-centimetre abrasion to AT’s left knee with what appears to be dirt around it’s inner edge;

2. A scraped laceration to AT’s mid right front shin approximately four centimetres long that is surrounded by scrapes in a three-centimetre-wide area;

3. Multiple scratches in a two and a half by three and a half centimetre area on the outer side of her right knee; and

4. Reddish bruising around both her knees.

The foregoing injuries were also documented in the hospital records that have been filed as an exhibit, with both their authenticity and the truth of their content admitted. AT testifies that she sustained the documented injuries when Mr. Vansnick was attempting to pry her shins apart with his feet. She was cross-examined about the implausibility that Mr. Vansnick could use his legs to pry her shins apart if she was in a ball and her knees were under his torso. She concedes that she does not remember how it all happened, but she recalls that at some point he had his feet on her legs in order to pry them open.

Following her hospital attendance AT arrived home between 8:00 a.m. and 9:00 a.m. on September 3rd. She slept for a few hours before being interviewed by police. When she gave her statement on September 3rd, she was exhausted, as well as, nauseated from the STD medication. Emotionally, she felt numb. At the time the incident with Mr. Vansnick was blurry, but she could recall certain details like feeling blades of grass underneath her buttocks.

In cross-examination AT agrees that during her September 3rd, 2018, statement she advised police that she thought Mr. Vansnick had digitally penetrated her and she wasn’t sure if he penetrated her with his penis. She acknowledges her statement differs from her trial evidence in that regard. She also concedes that she advised police that Mr. Vansnick had dragged her to an area that was immediately next to the Coll’s residence, not an area between a house that neighboured the Coll’s house and another house on the other side of it.

Further, in her original statement she told police that after the incident she was with her sister until she left for hospital with her father. At trial, she testifies that she was not with her sister, at all, after the incident. Finally, she concedes that in her first statement to police she did not specify that she left the gathering on an ATV, although she did so in her second statement.

She explains that by the time of her second statement a lot more had come back to her.

Police took additional photographs of AT’s physical injuries on September 4, 2018, which also show the previously documented scratches, abrasions and lacerations, as well as: bruising on her knees; bruising on the outer aspect of her right thigh; two large areas of bruising on her outer mid-back and hip area, which AT describes as a hand print pattern; and an area of bruising on the upper part of her right inner forearm.

When AT returned to hospital on September 6th, 2018, for additional medication, additional photographs were taken that show: abrasions and scratches, as well as: visible bruising to her upper thighs; a two by two centimeter bruise on her buttocks area; and bruising to her right inner shin; the back of her calves; the front of her left shin and her outer back hip area.

AT did not have any of the injuries displayed in any of the photographs referred to above before the incident with Mr. Vansnick.

In cross-examination the core elements of Mr. Vansnick’s eventual evidence about the location and particulars of consensual sexual activity between them were put to AT and denied by her. AT also denies the suggestion that at the time of the alleged assault Rob Barnes was her boyfriend and the reason she started to cry was because she could not explain her prolonged absence to him when she returned to the Coll residence. She denies that she didn’t immediately tell anyone what happened with Mr. Vansnick because she hadn’t made up a story yet.

While she was at the Coll residence AT was not aware that Mr. Vansnick was physically assaulted after the alleged sexual assault. She denies that she consumed alcohol after the alleged sexual assault. She also denies that she suffered the injuries depicted in the photographs as a result of falling off the four-wheeler on the way home.

Finally, AT has not colluded with any other people in order to “come up with a story” about the alleged sexual assault.

Evidence of KE

On the afternoon of September 2nd, 2018, KE boated with her family, including AT and family friends at Mitchell’s Bay. During that time, AT consumed some alcohol but she did not appear to be intoxicated. The Coll’s invited KE and her family to their home that evening. After returning home with her parents, KE and AT got ready and went with Rob Barnes on an ATV to the Coll residence.

When they arrived between 8:00 p.m. and 8:30 p.m. Ryan and Ashley Coll and Shelley and Chad Murphy were already there. They all socialized in the Coll kitchen. KE saw AT with a drink and assumed it was alcohol, but she did not think that AT was intoxicated. AT did not appear to have any difficulty walking or interacting with people at the gathering.

KE’s fiancé at the time, ME, who was a police officer, joined the gathering at approximately 10:00 p.m. Sometime after that Kayle Murphy and a group of his friends, which included Mitchell Vansnick, arrived at the Coll’s residence. They briefly came into the kitchen and then settled at a patio table on the porch. KE remained inside and continued to visit with Ryan and Ashley Coll.

At some point Rob Barnes came into the kitchen and asked where AT was. KE didn’t know, nor did she know why or even when AT left the kitchen. In her direct examination KE testifies that both she and Rob Barnes went outside to look for AT. They were not successful. They came back inside and found AT standing in the kitchen with Ashley Coll.

In cross-examination KE states that she was concerned that AT was missing. She went outside to look for her and Mr. Barnes followed. ME, who was on the front porch, and Ryan and Ashley Coll, all looked for AT. KE was then confronted with a statement she made to police that she looked for AT by herself. She explained that she was the only person who left the porch to look for AT. To do so she walked down the Coll driveway onto the street. Then she looked down the crescent and came back to the Coll house. She did not see AT during that time.

As KE approached the house, she saw a group of people walking inside. She followed and saw AT and ME. AT was crying, hysterical and close to hyperventilating. Initially KE testified that AT’s clothes were disheveled and dirty. There were mud patches on her shirt and grass stains on her clothes. The zipper on her sweater was pulled down and her shorts were turned to the side.

Initially, KE also testified that AT had bruises, marks and cuts on her legs which were bleeding. ME kept asking AT what happened. KE did not hear a response from AT.

In cross-examination KE agrees that in her statement to police she said that she did not notice dirt on AT’s sweater. She explains that apparent inconsistency with her trial evidence by observing that the events took place three years ago. She also told police that the only injury that she saw was the gash on AT’s leg. In her trial evidence, she explains that she saw more injuries on AT later and that is what she must have remembered when she initially testified about immediately observing bruising and marks.

Returning to KE’s trial evidence, she recalls that after ME spoke to AT, he went out to the porch. KE followed. Mr. Vansnick was sitting on a chair at the patio table with his hands folded behind his head. ME got in Mr. Vansnick’s face and screamed, “What did you do?” Ryan Coll pulled ME back. Up to that point KE had not personally heard anything about Mr. Vansnick being involved in AT’s distress, but she believes it was obvious that ME had heard something to that effect.

KE then confronted the accused because ME had already confronted him, and AT was upset. She yelled, “What did you do to my sister?” He stated, “You don’t want to know, she’s your sister.” She continued to yell, “What did you do to her?” And he finally said, “I fucked her.” She is clear that Mr. Vansnick was not physically assaulted on the porch.

Next, KE went inside to check on AT, but she could not find her. She heard more yelling outside. She went out and saw Rob Barnes, ME and Ryan Coll yelling at Mr. Vansnick, who was walking away from the Coll residence heading south. A group that included ME, Rob Barnes and Ryan Coll, among others, followed Mr. Vansnick as he walked south down Highbury. KE ran up and got to the front of the group to make sure that ME did not do something he would regret later.

At some point, she told ME to leave and pick up her parents at their house and he did.

Mr. Vansnick and the group pursuing him ultimately stopped at a point south of 103 Highbury. KE told the accused not to go anywhere and he sat down on a curb. She waited with him until the police arrived.

Originally, KE testified that while he was sitting on the curb, Mr. Vansnick had his head down between his knees and she asked him “why he would do that”. He said, “It’s your sister. I don’t want to tell you. I fucked her.” KE asked, “Did she want that?” Mr. Vansnick replied, “No, she didn’t want that. She said no.” KE testifies that no one else was present when this conversation occurred.

When the Crown revisited this part of her narrative later in her direct examination, KE testified that the accused sat on the curb with his head between his legs and his elbows on his knees, while almost sobbing. He appeared remorseful and seemed to regret what he had done. He kept saying, “I’m sorry.” And he added, “I can’t go to prison”, after he admitted what he had done.

She explains that she kept asking the accused, “What did you do?” “What did she say?” And the accused kept saying that AT was saying no and telling him to stop but he continued anyway.

Eventually, ME returned to the Highbury area with AT’s parents who stayed with Mr. Vansnick while KE returned to the Coll house to find AT. Once there, someone told her AT had already left and she did not see AT again until the following day when she returned from hospital. At that point, AT looked pale, tired and upset. KE observed scratches on her legs at that time.

In cross-examination KE:

(a) denies seeing any injuries to Mr. Vansnick while they were at his location south of 103 Highbury, explaining that he had his head down and she didn’t look at him;

(b) asserts that Mr. Vansnick told her verbatim, “She [AT] said no and I continued to have sex with her”;

(c) explains that she did not originally testify that the accused told her, “I can’t go to prison” because she didn’t think it was important;

(d) asserts that on the night of September 2nd to 3rd, 2018 she was not aware that the accused was physically assaulted at any time after the alleged sexual assault, but she later learned that he had been;

(e) acknowledges that Ryan Coll and her mother, AGT, were ultimately criminally charged with assaulting Mr. Vansnick on the night at issue;

(f) denies that she fabricated her evidence about Mr. Vansnick’s inculpatory statements to her; and

(g) denies that she and others present at the gathering have colluded prior to giving evidence in this proceeding. She does acknowledge that she has spoken to her sister and her parents about the case, but not in any detail.

KE was also confronted with the post-alleged sexual assault video surveillance from the 103 Highbury cameras, specifically for the period of time between timestamps 1:24 a.m. and 1:55 a.m. on September 3rd, 2018.

As an aside, I have had the benefit, both in court and in chambers, of viewing all of the video surveillance that was tendered as numbered exhibits in this proceeding and I have carefully examined it. I do not intend to provide a play-by-play recitation of the entire content of the videos. I do observe the following: The video appears to be in black and white. The camera views are fixed. The primary source of lighting is provided by overhead streetlights, so some of the areas depicted in the footage appear very dim and some are relatively well lit. The Coll residence is situated in an area that lies to the north of the area captured in the video, i.e. beyond the right side edge of the viewing screen.

The video depicts a single individual, who I am satisfied is Mr. Vansnick, walking south down Highbury and stopping in an area that is south of 103 Highbury on the same side of the street and still within the view of the surveillance cameras. This area is displayed in the lower left side of the viewing screen. However, individuals generally appear as shadowy figures in that area of the screen. Further, the view of the curb area where KE says that Mr. Vansnick sat is partially obstructed by a tree.

The quality of the video is such that I can identify individuals by gender, clothing and gait to such an extent that I am able to distinguish between individuals in the footage and I can identify when the same individual appears at different times during the footage. However, the quality of the video is not sufficient to permit me to independently visually identify the individuals who testified in this proceeding as being any specific person that appears in the footage.

In cross-examination KE gave evidence with respect to the following aspects of the post-alleged sexual assault surveillance footage, (all time notations refer to timestamps displayed on the footage):

(a) At 1:24 and 26 seconds a.m. a man walks south past 103 Highbury. KE was unable to confirm that the man was the accused. However, in his evidence the accused identifies himself as that person and I accept that portion of his evidence;

(b) At 1:24 and 44 seconds a.m. a male and female are seen following Mr. Vansnick. KE initially denied that the individuals were herself and ME. Mr. Vansnick turns towards the individuals, as he keeps walking south;

(c) At 1:24 and 49 seconds a.m. two other male individuals walk south on Highbury. They briefly interact with one another and one of them turns and proceeds back northbound while the other continues south. KE could not identify either of them;

(d) At 1:25 and 26 seconds a.m. Mr. Vansnick and the three individuals that followed him are visible in an area on the lower left side of the viewing screen. They are stopped and standing;

(e) At 1:25 and 58 seconds a.m. another male individual proceeds south towards the group;

(f) At 1:26 and 20 seconds a.m. defence counsel suggests and KE initially denied that the video depicts Mr. Vansnick being physically attacked. After watching a second play through of the video KE testifies that she was able to discern a body falling to the ground but she did not see an attack on the video. The footage also displays several more people running south towards the group almost immediately after the body falls. In my view, the video confirms that the happenings on Highbury Crescent became relatively chaotic at this point. Even after watching the surveillance, KE testifies that she does not recall any of this happening. She just recalls Mr. Vansnick sitting on the curb. She cannot confirm that Mr. Vansnick was assaulted in her presence;

(g) At 1:27 a.m., more male individuals proceed south towards the group and one of them takes his shirt off. He puts it back on at 1:28 a.m.;

(h) At 1:28 and 14 seconds a.m. two men walk from the group’s location, north past 103 Highbury. The female in the group has not walked back towards the Coll residence yet;

(i) At 1:29 and 36 seconds a.m., a man in white shorts runs south. Shortly thereafter, he is restrained by several other male individuals on the road immediately in front of 103 Highbury;

(j) At 1:30 a.m. two men return north past 103 Highbury;

(k) At 1:32 and 42 seconds a.m. several individuals proceed south towards the group, including a female in the lead. KE states that the female individual is not her and she cannot confirm if it is Ashley Coll;

(l) At 1:34 a.m. the female who had just walked to the group returns north in the direction of the Coll residence. Mr. Vansnick and another individual are near the curb area;

(m) At 1:43 and 50 seconds a.m. another male walks south towards Mr. Vansnick’s general location;

(n) At 1:48 and 50 seconds a.m., a northbound car stops next to Mr. Vansnick’s location. It remains there until 1:51 and 50 seconds a.m. KE does not know if that is when her parents arrived at the scene, but she confirms that the vehicle appears to be a Honda Civic, similar to the one driven by ME at the time;

(o) 1:54 and 24 seconds a.m. the female who is reported walking southbound at 1:32 a.m. again walks south past 103 Highbury to Mr. Vansnick’s location. She’s accompanied by a male individual; and

(p) At 1:55 and 52 seconds a.m. the female who initially walks south past 103 Highbury at 1:24 a.m., now walks north from Mr. Vansnick’s location past 103 Highbury in the direction of the Coll residence. KE does not concede that that individual is her.

Finally, KE does not acknowledge that the video depicts an assault on Mr. Vansnick. She did not see him with any injuries, and she did not witness or participate in an assault against him.

Evidence of Ashley Coll

Ms. Coll hosted the September 2nd, 2018, gathering. She knew both AT and the accused beforehand. AT is her friend’s daughter.

Mr. Vansnick lives down the street from her.

Prior to the gathering, she spent the day boating with friends and family. During that time some people consumed alcohol, but no one was overly intoxicated. She and her husband Ryan invited friends over that evening, including AT and her sister KE, whose parents couldn’t come, to see their house, which had been recently renovated following a fire.

She believes that everyone at the gathering was consuming alcohol. Ms. Coll, herself, was not intoxicated. She does not know how much alcohol AT consumed, but she was giddy. Ms. Coll concluded that AT was drunk, but she did not have any problem walking and she was still speaking clearly. At some point the Murphy’s son, Kayle, and some of his friends came over and socialized and drank on the Coll’s large covered porch. They sat around a patio set and a utility table. Ms. Coll went outside to smoke a cigarette and noticed that one of the boys tried to roll a marijuana joint on the table. Her husband went outside and told Kayle’s friends to leave. She doesn’t know if they did.

She recalls that at some point Kayle came into the house and his father Chad asked him to go back to their house, which was a few houses to the south, to get him a bottle of rum. Kayle did so. Ms. Coll believes that Mr. Vansnick, who did not come into the Coll residence, and AT went with Kayle to get the rum. AT went because she wanted to say hi to Kayle’s sister. It takes about a minute to walk to the Murphy’s house from the Coll residence.

Kayle came back with a bottle of rum and shortly after that, while Ms. Coll was talking to the Murphy’s in the kitchen, AT came into the house crying and hysterical. Ms. Coll hadn’t noticed that AT was missing. Ryan approached AT and then Ms. Coll, Ms. Murphy and KE took her to the washroom.

AT had blood on her legs and her hoodie was loose around her neck. AT continued to cry very hard while they were in the bathroom. Ms. Coll kept asking her, “What happened?” And finally, AT said, “Mitch”. Ms. Coll asked her if he did something or said something to her and AT said, “Yes.” Then AT went to her knees and vomited in the toilet. Ms. Coll identified photographs of her bathroom and a smear of blood in front of the toilet into which AT had vomited, that were taken by police early on September 3rd, 2018.

Some time after AT vomited, Ms. Coll heard Kayle Murphy calling out. She and Ms. Murphy went to the kitchen where Kayle was crying. He claimed that Ryan Coll had assaulted him. Ms. Murphy was upset. Ms. Coll suggested they go outside and talk to their respective husbands. KE remained in the bathroom with AT.

When she went out to her front yard Ms. Coll saw Mr. Vansnick stopped and standing at the side of Highbury in an area about five to six houses down the road. Ryan Coll and AT’s mother AGT were with him. She walked to Mr. Vansnick’s location and Shelley and Chad Murphy walked back to their own house. As she approached Mr. Vansnick’s location she heard Ryan Coll and AGT yelling at him.

During her cross-examination, Ms. Coll was confronted with the suggestion that only three people would have been in a position to hear AT say, “Mitch” in the bathroom: her; Ms. Murphy; and KE. In that context she was asked why Mr. Coll would have had a reason to yell at Mr. Vansnick, at all. Ms. Coll explained that at the time of AT’s utterance Mr. Coll was standing outside the bathroom door trying to find out what happened.

Mr. Vansnick was standing when Ms. Coll arrived at his location. Eventually, he sat down on the curb. During the time she was with Mr. Vansnick, she witnessed both AGT and Ryan Coll physically assault him. Specifically, she saw AGT punch Mr. Vansnick in the back while he was sitting on the curb and AGT punch him in the face while he was standing up. She also saw her husband punch Mr. Vansnick both when he was sitting and when he was standing. Mr. Vansnick had blood on his face and his nose was bleeding.

Ms. Coll spoke to Mr. Vansnick during the time she was at his location. He kept saying, “I’m sorry. I’m sorry. I’m sorry.” Ms. Coll, who is a nurse, said, “I want to know why you are sorry.” He replied, “She said no.” Mr. Vansnick apologized both before and after the assaults that Ms. Coll witnessed. Ms. Coll asked, “Where did this happen?” Mr. Vansnick replied, “Between the house you rented and Glenn’s house.” Contextually that would be 83 Highbury, which was the house that the Coll’s rented while their house was being renovated, and 87 Highbury the house immediately south of 83.

Mr. Vansnick kept repeating that he was sorry and that she said no. While she talked to Mr. Vansnick he was crying, and he appeared sad. Ryan Coll and AGT were present during their conversation. AGT kept yelling, “What did you do to my daughter?”

Mr. Vansnick kept saying, “I’m sorry. She said no. I’m sorry.”

Eventually Ms. Coll and AGT walked Mr. Vansnick back to the Coll residence. A short time later police arrived, and Mr. Vansnick immediately lied down on his stomach and put his hands behind his back. Ms. Coll advised police that she knew where the incident had happened and led them to an area between 83 and 87 Highbury, which is a small grassy area adjacent to some rock gardens. She did not attend this location before police arrived. When she did attend the location in the presence of police, she saw AT’s cell phone, the glass AT had been drinking from and a beer can all scattered about the scene. She denies that she planted those items at that location.

Ms. Coll was shown video surveillance from 103 Highbury during her cross-examination. She identifies herself and Ryan Coll as the people walking towards Mr. Vansnick’s location at the timestamp 1:54 a.m. She is not the female walking north at 1:55 a.m., which I am satisfied is KE. She believes that the man walking north away from Mr. Vansnick’s location at timestamp 2:10 a.m. is Ryan Coll. He was present for 15 minutes while Mr. Vansnick apologized.

She agrees that the surveillance shows that, beginning at timestamp 2:12 a.m., Chad Murphy’s truck stops at Mr. Vansnick’s location for seven minutes. She does not recall talking to Mr. Murphy during that time. She confirms that at timestamp 2:37 a.m., the surveillance shows her, AGT and Mr. Vansnick walking north from Mr. Vansnick’s location toward the Coll residence.

Ms. Coll also identifies herself as the female on the surveillance walking south towards Mr. Vansnick’s location at timestamp 1:32 and 37 seconds a.m. and then walking back towards the Coll residence at timestamp 1:34 a.m. Despite the surveillance evidencing that she walked to Mr. Vansnick’s location twice, she only recalls going there once.

Finally, Ms. Coll agrees that she has had conversations with people about some of the things that she told police, including AGT, but she did not have any of those conversations before she talked to police. Ms. Coll also concedes that she discussed the events of September 2nd, 2018, with her husband and did so before she talked to police. She denies that her evidence with respect to Mr. Vansnick’s inculpatory statements is fabricated or the product of collusion.

Evidence of ME

ME is married to AT’s sister, KE. He is, and was in 2018, a police constable. He attended the September 2nd gathering. When he arrived between 10:30 and 10:45 p.m., there were a lot of people standing around the island in the kitchen including the Murphy’s, AT, KE and Jeff and Rob Barnes.

People were consuming alcohol. He could tell that AT was intoxicated based on: her mannerisms; the way she was moving; and her pale face. She was perspiring more than usual. In his view she was drunk but not to a level that caused him concern.

Approximately an hour after he arrived a group of young people showed up and he was introduced to the Murphys’ son Kayle and his friend Mitch Vansnick both of whom had come into the kitchen. The other young people remained outside on the porch. Mr. Vansnick was drinking beer but ME does not believe that he was intoxicated. Kayle and Mitch remained in the kitchen.

ME noticed Mr. Vansnick talking to AT. He overheard him ask AT to go for a smoke at least four times and every time she said no.

Sometime later a group of people that were in the kitchen moved to the front porch. ME joined them and KE stayed inside.

A short time later KE came outside and asked the entire group where AT was. No one answered her. KE appeared concerned and she, Ashley Coll and Rob Barnes went to look for AT. ME observed all three of them walk a short distance southbound on Highbury. They did not go far from the Coll house. While the three of them were still on the street, ME observed AT emerge from the garden area of a gap between the Coll house and the house immediately to its south.

ME marked AT’s location when he first saw her on an overhead photograph of Highbury Crescent marked as Exhibit 3 and fixed the point almost exactly at the actual northwest corner of the house at 83 Highbury. She appeared to come out of the darkness because only the front of the neighbouring house was illuminated by a streetlight. The area where she was before he first saw her is not visible from the Coll’s porch.

When he first saw her AT had her head in her hands and she was crying. She was walking quickly towards the Coll residence the entire time that he observed her. He also saw Mitch Vansnick walking out of the same area trailing AT by about ten feet or ten steps.

AT walked up the porch and past ME. She was sobbing uncontrollably. The accused also walked onto the porch. AT was wearing a hoody and shorts. She walked quickly into the house, and he followed her in. He did not notice any physical injuries to her, and he did not see blood. He was focused on her face.

He repeatedly asked her, “What’s wrong?” And “What happened?” Eventually she very quickly said the word, “Boys” twice. Based on her emotional state, when she said that he thought that the boy that she had just been with had done something to her. Very soon after that KE and Ashley Coll attended on them.

ME left AT with KE and went back to the porch. He was upset because he thought that Mr. Vansnick had done something to AT. He observed Mr. Vansnick seated at the far end of the patio table with other young people. He was leaning back in his chair with his arms behind his head. KE came outside about two to three minutes after ME did. Kayle Murphy, Rob Barnes, Ryan Coll and Jeff Barnes were also on the porch. ME stood three feet from Mr. Vansnick and repeatedly yelled, “What did you do to [AT]?” Mr. Vansnick did not respond. Ryan Coll eventually put his arm around ME and pulled him back.

KE then approached Mr. Vansnick yelling, “What did you do to my sister?” Mr. Vansnick twice said, “You don’t want to know.” KE asked again and he said, “I fucked her.” KE screamed, said, “You fucked my sister?” and started to cry.

At this point ME suspected that a sexual assault had occurred, but he did not call 911. He agrees that as a police officer it would have been sensible to report a potential crime, but he did not do so. He reasons that he was acting in a role of a future brother-in-law to AT and not as a police officer as the events of the night unfolded.

After KE confronted Mr. Vansnick, Rob Barnes approached the table and told Mr. Vansnick to leave. Mr. Vansnick got up and began to walk southbound. ME followed him. He thought that the police would be called, and he wanted to ensure that the accused was still around when they arrived. He got close to Mr. Vansnick and struck the underside of his baseball hat, which was backwards, and flipped it off his head. He denies that he was yelling and chasing Mr. Vansnick. Ryan Coll then grabbed ME and told him that based on his career he shouldn’t be involved and further directed him to check on AT. ME returned to the Coll residence. Other people including Ryan Coll and Rob Barnes, who were both angry, continued to follow Mr. Vansnick.

When ME returned to the Coll house someone told him that AT was in the bathroom with Ashley Coll and KE. He did not personally observe them there.

He left the residence and walked southbound on Highbury. He saw some people gathered about five to six houses away from the Coll residence and walked down to them. The only people he recalls specifically seeing at this location are Mr. Vansnick, who was sitting on the curb, and KE who was with him. He assumes that KE left the Coll residence after he went outside and got to the location before he did. KE and Mr. Vansnick stopped talking to each other when he arrived. He saw Mr. Vansnick sitting with his elbows on his knees and his hands on his head. He did not see blood or injuries about Mr. Vansnick’s face. KE had her phone out. She said she couldn’t reach her father and told ME he should go to her parents’ house and pick them up.

As ME walked to his car, which was parked near the Coll residence, he tried to call AT’s father. He confidently testifies that he made the calls at 1:23 a.m. and 1:24 a.m. because he checked his cell phone log. In cross-examination ME was referred to the 103 Highbury surveillance. He identified himself and Ryan Coll as the two people walking south towards Mr. Vansnick’s location at timestamp 1:24 and 49 seconds a.m. He believes this part of the footage captures Mr. Coll advising him to return to the Coll residence. The video does show ME turning back and heading north out of the cameras view.

ME attempted to reconcile the timing of these events with his assertion that he tried to call AT’s father at 1:23 and 1:24 a.m. by suggesting that the timestamps on the video footage are inaccurate and he was sure he made the calls at the times he asserts. He was shown additional surveillance footage which shows him walking back southbound towards Mr. Vansnick’s location at timestamp 1:26 and 49 seconds a.m. He further identifies himself at timestamp 1:29 and 18 seconds a.m. jogging north to his car while he was on his cell phone.

At timestamp 1:30 and 30 seconds a.m. he identifies his vehicle proceeding south on Highbury past Mr. Vansnick’s location. He testifies that Ryan Coll was in the car with him. They drove to AT’s house, retrieved her parents and returned to Highbury Crescent. The entire transaction took about 15 to 20 minutes.

On the way back to Highbury ME told AT’s parents that AT had been sexually assaulted. Once there he stopped at Mr. Vansnick’s location. AT’s mother started yelling at Mr. Vansnick. Within a minute of their arrival, KE advised them that AT had left the area. AT’s father asked ME to drive him home so he could get his own car and look for AT. ME did so. AT’s mother remained at Highbury. Almost immediately after they arrived at AT’s house, Rob Barnes and AT arrived on a four-wheeler. AT was still crying and did not answer her father’s questions. AT and her father quickly left for hospital.

Mitchell Vansnick’s Evidence

At the time of the September 2nd, 2018, gathering Mr. Vansnick was approximately 21 years old and was residing at 99 Highbury Crescent, which is a few houses south of the Coll residence and immediately north of 103 Highbury.

Mr. Vansnick was in the company of his friend and neighbour Kayle Murphy for most of that day. The two of them met up around noon at Kayle’s house, where Mr. Vansnick consumed two beers. Around 2:00 p.m. they went swimming for approximately two hours at a friend’s house, where Mr. Vansnick consumed approximately two more beers. Mr. Vansnick then attended a family dinner until 7:00 p.m. Afterward he met up with Kayle again and they went to a mutual friend’s house for about three hours, where Mr. Vansnick consumed three more beers. He was not intoxicated at any time.

Around 10:00 p.m. Kayle learned about the gathering from his parents, and they decided to attend. Mr. Vansnick and Kayle drove back to Kayle’s house where Mr. Vansnick got another beer and they walked to the Coll residence arriving between 10:15 and 10:30 p.m. They let themselves in and went to the kitchen area where everyone was gathered including AT.

Mr. Vansnick eventually started talking to AT whom he had known from school. They had never socialized outside of school, and he had last seen her several years before the gathering. While he was talking to AT, he noticed that Kayle Murphy had a vodka mixed drink and he asked him to make him one. Kayle said they had to go back to his house to make it. Kayle invited AT to go with them. The three of them walked to and entered the Murphy residence. Mr. Vansnick told AT that her old buddy, referring to Kayle’s sister was home, and she should say hi. AT said they weren’t friends anymore and left. Kayle gave Mr. Vansnick a mixed drink and they returned to the Coll residence where they resumed socializing.

A short time later, three of Kayle’s other friends arrived at the Coll residence and settled around a patio table outside on the front porch. After that, Mr. Vansnick and Kayle were going back and forth between the porch and the kitchen areas. While Mr. Vansnick was outside someone rolled a joint and invited him and others to go for a walk to smoke it. Mr. Vansnick went inside and asked AT if she wanted to go smoke a joint. She agreed and she invited Rob Barnes to accompany them.

A total of six people, including Mr. Vansnick, AT and Rob Barnes walked several houses away from the Coll house and smoked the joint. By this time Mr. Vansnick had finished his mixed drink and he did not consume any more alcohol that night.

Eventually, the group started to walk back to the Coll residence with AT in the lead. Mr. Vansnick, Kayle and another male caught up with AT and they were all talking amongst themselves. When they were about three houses away from the Coll residence, AT and Mr. Vansnick broke off into their own conversation and started flirting. The two of them then drifted off to the side of the Coll residence. Mr. Vansnick was walking backwards, and he put his hand on AT’s back. When he turned around, they were about two feet from the Coll front porch.

They walked to the side of the Coll residence and started to kiss and touch each other. Mr. Vansnick’s back was to the road and AT’s back faced towards a fence that separated the front and rear portions of the yard at the south side of the Coll residence. The front portion of the Coll’s south side yard was also separated from the neighbouring yard by a fence that ran towards the road. Mr. Vansnick drew the approximate location of that fence on an overhead photograph of the Coll residence marked at Exhibit 18, but he was not sure how far it extended towards the road. Nonetheless, he places himself and AT in a location between that fence and the south side of the Coll house when the sexual activity between them occurred. He confirms that they were very close to the Coll house and that the front porch was visible from their location.

As they kissed, AT grabbed his penis and he touched her buttocks. Approximately one minute after they arrived at the side of the house AT got on her knees and Mr. Vansnick pulled his shorts to his ankles. AT then performed oral sex on him.

Next AT lied down on the grass and Mr. Vansnick got on top of her. They continued to kiss and touch. He stood up and pulled his shorts off and away from his ankles and AT pulled her own shorts completely off. He lied back down on top her, and they kissed and touched. He unsuccessfully tried to get an erection by rubbing his penis on her vagina. He asked AT to get on top of him and he rolled onto his back. She got on top of him. He again unsuccessfully tried to get an erection by rubbing his flaccid penis on her vagina.

In cross-examination, Mr. Vansnick testifies that he does not believe that his fingers went inside AT’s vagina, and he does not believe that his penis penetrated her vagina, since he was not erect. He says that he was trying to get it in, but he does not believe it went in. Later in cross-examination, he stated that it’s possible that his penis could have penetrated AT’s vagina a little bit, but he does not think that it went in.

He believed that AT consented to all of the sexual activity in which they engaged.

Within seconds of AT getting on top of him, a car came around the crescent going west to east, and they were almost illuminated by its headlights. AT hid behind an air conditioning unit and Mr. Vansnick remained flat on the ground. When the car passed, AT got back on top of Mr. Vansnick but he told her, “This isn’t going to work.” He dressed himself and assumes AT dressed herself.

They walked back to the porch area which was only steps away. AT was ahead of him. He did not notice anything unusual about her demeanour and he thought she was fine. He did not see her crying and he doesn’t think that she was.

When they got to the porch AT went inside the house and he sat at the far end of the patio table, together with Kayle Murphy and two of his friends. Ryan Coll may have been outside, as well. About 30 seconds later, ME came out of the house yelling, “Who the fuck is Mitchell Vansnick?” At the time he did not know ME, and he was not aware that he was a police officer. Mr. Vansnick identified himself and ME began to yell in Mr. Vansnick’s words, “A bunch of crazy stuff,” which was not further specified in his evidence. Mr. Vansnick could tell ME was angry, so he left the porch. He denies that he said he fucked AT.

ME followed him, knocked his hat off his head and punched him in the face. Someone else yelled, “Get the fuck out of here.” Mr. Vansnick started to walk south towards his own house. As he was walking, he heard more people yelling. He turned around and saw KE and Rob Barnes leading a mob of people towards him. He does not recall, specifically, what anyone was yelling. Mr. Vansnick became so scared that he walked right past his own house and continued south down Highbury.

When he was a few houses south of his own house both KE and Rob Barnes punched him. He recalls that he was punched and kicked a lot after that. Over the course of the night, he was assaulted by ME, KE, Rob Barnes, Ryan Coll, Ashley Coll and AT’s mother AGT, who was dropped off at the scene some time later. He was beaten before and after AGT arrived. At some point during the beatings Kayle Murphy’s parents pulled up in a pick-up truck and told everyone that what they were doing was wrong and they should let the police handle the matter. Ryan and Ashley Coll and AGT continued to beat him after the Murphy’s pulled away. Mr. Vansnick was not asked to reconcile that assertion with the video surveillance that shows Ryan Coll leaving the location two minutes before the Murphy truck arrived and nine minutes before it left.

Instead, he says that after the Murphy truck left, Ryan Coll eventually walked away, then Ashley Coll and AGT picked him up from the curb and walked him back to the Coll residence.

The police arrived moments later. In order to escape from his attackers, Mr. Vansnick lied down and put his hands behind his back. He was not handcuffed. He was taken to hospital by police. As a result of the beatings Mr. Vansnick suffered: a concussion; a broken nose; two black eyes; multiple bruises; and blurred vision.

Mr. Vansnick reviewed some of the 103 Highbury surveillance and identified himself walking south at timestamp 1:24 a.m., followed by individuals that he identifies as KE and Rob Barnes. He also identifies an area in the bottom left of the screen as the location where he was repeatedly beaten, beginning at timestamp 1:25 a.m.

Mr. Vansnick testifies that he was not drunk at all during the relevant times on September 2nd and 3rd, 2018. He reasons that he only had a couple of drinks, and he was not stumbling or slurring his words. Similarly, AT did not appear intoxicated. She was fine and he did not notice anything about her that was out of the ordinary. In cross-examination, Mr. Vansnick admits that on September 3rd, 2018, he gave a statement to police in which he was asked whether AT was drunk and he replied, “Everybody was drunk. Everybody.” He also concedes that later, in the same interview, he appeared to answer affirmatively when asked whether he and AT were both drunk. Nonetheless, his trial evidence remains that neither of them were in fact drunk. He explains that when he told the officer that everyone was drunk, he simply meant that everyone was drinking.

In cross-examination, Mr. Vansnick agreed that a drunk person would typically stumble but denied that AT did so during the marijuana walk. He was then shown surveillance video of that walk and identified AT. He agrees at certain points in the footage she appears to be swaying backwards and forwards and, at one point, she steps backwards then forwards. He continued to deny that she stumbled. Ultimately, however, he concedes that at one point in the surveillance video at timestamp 12:47 and 43 seconds a.m. to 12:47 and 55 seconds a.m. AT stumbled backwards while she was standing directly in front of him.

Finally, Mr. Vansnick denies the details and elements of the alleged sexual assault that AT testified to. He also denies apologizing and confessing to KE and Ashley Coll or stating that sexual activity between him and AT occurred at the location described by Ashley Coll in her evidence.

With the evidence summarized I will briefly turn to the party’s respective submissions.

The Defence Position

The defence submits that the accused is entitled to be acquitted through an application of W.(D.) First, the defence submits that Mr. Vansnick’s evidence of purely consensual sexual activity is credible, reliable and ought to be accepted. His evidence was not meaningfully undermined through prior inconsistent statements nor cross-examination. He is believable and his evidence, when accepted, entitles him to an acquittal.

At the very least, given the number of inconsistencies within and between the evidence of all of the Crown’s non-expert witnesses on matters that are material to the elements of the offence and/or material to the issues of credibility and reliability, Mr. Vansnick’s evidence ought to leave the court with a reasonable doubt, when it is considered in the context of the evidence as a whole.

Finally, even if Mr. Vansnick’s evidence is not accepted and it does not leave the court with a reasonable doubt, the balance of the evidence is neither credible nor reliable and it should not persuade the court that the Crown has met its onus.

Defence counsel has filed detailed written submissions highlighting numerous asserted inconsistencies: within AT’s evidence; between her evidence and the evidence of other witnesses; and between her trial evidence and her prior statements to the sexual assault nurse and police, as well as, the evidence she gave at the preliminary hearing. I will address the majority of the asserted inconsistencies in the dispository portion of my reasons and, as a result, I will not list them all at this time.

Importantly, the defence submits that some of the inconsistencies go to the very material issues of what transpired between AT and Mr. Vansnick immediately before and during the alleged sexual assault.

Counsel effectively submits that the cumulative effect of the inconsistencies renders AT incredible and her evidence unreliable or at the very least there are reasonable doubts in that regard. As a result, AT’s evidence ought not to be accepted.

Defence counsel also identifies inconsistencies exposed in the evidence of each of KE, ME and Ms. Coll, which are said to similarly raise doubts about credibility and reliability in terms of their testimony. He invites the court to reject the evidence of the inculpatory statements that Mr. Vansnick is said to have made to KE and Ms. Coll and the evidence about his utterance of “location of the sexual activity”, to Ms. Coll.

While under no obligation to prove anything the accused effectively submits that he is the innocent target of false allegations of sexual assault, in circumstances where witnesses have colluded to offer a narrative framework supportive of guilt and Ms. Coll has planted items at a location other than the actual location of the sexual activity.

The accused theorizes that: AT was upset after her consensual sexual activity because she was embarrassed to have engaged in it; and she did not disclose what happened when she was initially asked because she was ashamed, and she had not yet made up details about an alleged sexual assault.

Finally, the accused submits that he did not cause injuries to AT. He theorizes that the injuries depicted in the photographs are much more consistent with AT falling off the four-wheeler on the way home than the mechanism of the alleged sexual assault described by her in her evidence.

For all of these reasons, the defence submits that Mr. Vansnick must be found not guilty of sexual assault.

The Crown’s Position

The Crown submits that the evidence proves all of the essential elements of the offence beyond a reasonable doubt. The evidence establishes that the accused applied force to AT that violated her sexual integrity and to which she did not consent. AT is a credible witness, and her evidence is corroborated by other evidence. Any inconsistencies in her evidence relate to peripheral matters and not the elements of the offence.

Specifically, AT gave a very detailed account of the actual assault. Despite the presence of inconsistencies in some of the other aspects of her evidence, her evidence with respect to what took place during the actual assault did not change within her trial evidence. AT was candid in acknowledging that her recollection of the order of the walks is inaccurate, but she is clear that the assault happened after the second walk.

AT’s evidence finds confirmatory support in other evidence, for instance:

1. Several witnesses confirm her post alleged assault emotional demeanour and her disheveled clothing;

2. The location where ME first saw AT after the alleged assault is consistent with AT’s evidence about the assault occurring between 83 and 87 Highbury. It is inconsistent with Mr. Vansnick’s evidence that the activity took place in close proximity to, and in view of, the Coll front porch;

3. Her evidence that she was injured during the encounter with Mr. Vansnick is confirmed by the observations of injury made by KE and Ms. Coll. There is no evidence that AT fell off an ATV.

In addressing some of the asserted inconsistencies in AT’s account over time, the Crown observes that according to Ms. Wall, AT’s blood/alcohol concentration at the time of the alleged incident, which is somewhere between 12:50 a.m. and 1:24 a.m., was projected to be 236 to 315 milligrams of alcohol per 100 millilitres of blood, which is very high. AT was feeling the effects of alcohol at the time of the assault. At the time she gave her statement to police at 3:00 p.m. on September 3rd, 2018, her projected blood/alcohol concentration was 29 to 119 milligrams per 100 millilitres and its possible that she was still experiencing the effects of alcohol, which include confusion and memory loss, at that time. Moreover, AT was tired, nauseated from STD medication and she had endured a traumatic experience at the time she gave the statement. The event was blurry, and she testifies that she felt her brain was trying to protect her at that time.

In that context, AT did not recall certain details about the assault such as the extent of penetration. But she also testifies that her memory improved over time and much more came back to her.

The Crown further submits the DNA results from the internal swab confirm Mr. Vansnick penetrated AT, as she testifies. Conversely, the results are generally inconsistent with Mr. Vansnick’s initial evidence that he did not penetrate her and his eventual equivocal evidence that he might have penetrated her a little bit, but he wasn’t sure.

Moreover, Mr. Vansnick’s entire narrative does not carry a ring of truth. For instance:

1. At times he claims not to know if there was penetration, but that would have been an important event had it occurred, that he would be reasonably be expected to remember, especially in the context of a sexual assault charge;

2. It is unbelievable that AT would go for a short walk with someone she had not seen in years and then perform oral sex on him two feet away from an open porch where people, including her sister and brother-in-law, were socializing during the course of the gathering;

3. On his own evidence Mr. Vansnick consumed nine to ten beers, a vodka drink and marijuana during the course of the day, but denied being “buzzed” in any way at the time of the sexual activity;

4. Mr. Vansnick denied thinking AT was drunk but admits that she staggered and stumbled in front of him, and he told police everyone was drunk;

5. Mr. Vansnick initially denied that AT was crying after the sexual activity.

Further, Mr. Vansnick made inculpatory utterances to KE and Ms. Coll. On the porch he told KE he had fucked AT, which was an acknowledgement of penetration in circumstances where the accused, generally, denies penetration in his trial evidence. Subsequently, he made utterances to KE and Ms. Coll consistent with admissions that: AT had continuously expressed that she did not consent to sexual activity with him; he heard what she said; and he persisted with sexual activity, in any event. KE and Ms. Coll’s respective evidence in that regard is credible.

Mr. Vansnick also disclosed a location of the sexual activity to Ms. Coll which was consistent with AT’s trial evidence. Ms. Coll advised police of the location and the search of the area located items associated with AT. Ms. Coll denies staging that scene. There is no evidence that she did so, and no common sense reason why she would do so.

The Crown submits that ME, KE and Ms. Coll were all credible witnesses. None of them consumed much alcohol at the gathering. The inconsistencies within and between their respective evidence, about where each of them were at specific times that night is natural in the context that they were testifying to events surrounding an emotionally charged issue, in somewhat chaotic circumstances, that took place three years earlier. Indeed, the Crown reasons that the presence of the inconsistencies within and between their evidence militates against the suggestion that their evidence was the product of collusion and coordination.

Further, they all deny any collusion and there is no identified motive for all these people to have fabricated a narrative about a sexual assault that did not happen. Further in that regard, the suggestion that AT may have fabricated a story about sexual assault, in order to protect her reputation or because she was embarrassed, is simply rape-myth reasoning.

Finally, the evidence overwhelmingly supports that AT did not consent to any sexual activity with Mr. Vansnick.

As a result, the Crown has met its onus and Mr. Vansnick must be found guilty.

Principles Applicable to the Assessment of Evidence

In the context of the parties’ submissions, I will briefly address the principles applicable to the assessment of the evidence before me. I have previously observed that the disposition of the charge is not to be approached as a binary choice between the competing evidence of the accused and the evidence of the complainant. Instead, the appropriate analysis involves the determination of whether the Crown has proved the essential elements of the offence, beyond a reasonable doubt, which is a very heavy onus.

In determining whether the Crown has done so, I must determine which witnesses, if any, I find credible and which aspects of their evidence I find reliable. I will have more to say about the concepts of credibility and reliability later in these reasons. I may accept some, all or none of a witness’s evidence. I may afford different weight to different parts of the evidence that I do accept. A witness’s demeanour is a factor I may consider in determining his or her credibility and reliability, however, I must take care not to overly rely on a witness’s demeanour in so doing.

This case cannot be decided on the basis of myth, stereotype or assumptions that lack evidentiary support. The case must be decided on the evidence adduced at trial. For instance, this case cannot be decided on reasoning that is premised on a stereotypical view or assumption about how a victim of sexual assault would be expected to act after the incident. The credibility of a complainant in a sexual assault trial cannot be determined by measuring his or her conduct, as disclosed by the evidence, against a normative standard conjured up by the trier of fact about what a person would likely do or not do or the manner in which the person would or would not emote after being sexually assaulted.

Finally, as both counsel submit, the disposition of this case requires the application of the principles set out in W.(D.) which I have previously summarized.

All right, this is a good point to take our break. We’ll come back at 11:45 and I’ll deal with the disposition and the reasons for disposition at that time.

MR. MCGIVERN: Thank you.

THE COURT: Thanks. Could you just stand court down please.

COURT CLERK: Yes, Your Honour. This court is recess until 11:45.

THE COURT: Thank you.

R E C E S S 11:28 a.m.

C O U R T R E S U M E S: 11:46 a.m.

THE COURT: Any issues at all counsel on anything so far?

MS. THOMAS: No thank you, Your Honour.

THE COURT: Okay, good thank you.

DISPOSITION

Before identifying and explaining my factual findings, I generally observe the obvious - there are several inconsistencies between the evidence of the various non-expert witnesses called by the Crown. In some instances, there are also inconsistencies between the evidence that witnesses gave at trial and/or prior statements they made to police and/or their prior evidence at the preliminary hearing. I must determine whether, despite those inconsistencies, the Crown has established the essential elements of the offence when the evidence as a whole, including the evidence adduced by the defence, is considered.

However, unlike the lay witnesses that testified there are no inconsistencies in the expert evidence called by the Crown from Dr. Morrow and Ms. Wall. Their respective evidence was largely unchallenged and effectively uncontradicted.

Similarly, the evidence of Nurse Lisa Bisschop was effectively uncontradicted. Ms. Bisschop examined AT at the Chatham-Kent hospital on September 3rd, 2018, during which: she took a history from her; completed a sexual assault examination kit; collected swabs from her external and internal vaginal area, which were later used for DNA analysis; collected blood and urine samples, later used for blood alcohol concentration analysis; documented AT’s visible injuries; and administered certain medications.

Given the non-contentious nature of the majority of the evidence from these witnesses, that is Ms. Wall, Dr. Morrow and Ms. Bisschop, I have not summarized the entirety of that evidence in these reasons. Instead, I will refer to the respective aspects of their evidence that are material to the determination of the count before me, as I explain my dispositive reasoning.

In that context, I turn to the principles set out in W.(D.).

In this case, if I accept Mr. Vansnick’s evidence he is entitled to be acquitted. That statement is not meant or intended to suggest that Mr. Vansnick is under an obligation to prove anything in this proceeding. He is not. He is presumed innocent.

On his evidence concerning the nature and circumstances of the sexual activity between himself and AT, if it is accepted, the Crown would be unable to establish the essential elements of the offence beyond a reasonable doubt, specifically, the absence of consent or, alternatively, that Mr. Vansnick knew that AT did not consent to the force that he applied.

In that regard, I observe that consent is a state of mind, specifically, in this case, AT’s state of mind towards Mr. Vansnick’s conduct at the time and in the circumstances in which the sexual activity took place. Only AT’s actual state of mind matters.

For the purpose of the offence of sexual assault, consent means AT’s voluntary agreement to engage in the sexual activity in question. To establish an absence of consent, the Crown must prove, beyond a reasonable doubt, that AT did not voluntarily agree to: the touching at issue; its sexual nature; and the identity of Mr. Vansnick as her sexual partner.

In this case, Mr. Vansnick offers an evidentiary narrative in which:

(a) He and AT were flirting;

(b) He guided her to a dimly lit area of the Coll side yard, immediately adjacent to their house;

(c) They engaged in mutual kissing and fondling;

(d) She grabbed his penis over his clothes;

(e) She lowered herself to her knees and performed oral sex on him, once he exposed his penis;

(f) She laid on the ground on her back on her own;

(g) She removed her own shorts;

(h) He rubbed his unerect penis on her vaginal area while they engaged in further kissing and touching;

(i) They reversed positions and she got on top of him, and he continued rubbing his unerect penis on her external vaginal area; and

(j) She hid from a passing car, then she returned to him and attempted to get back on top of him until he halted the activity owing to his inability to become erect.

Standing alone Mr. Vansnick’s evidence, if accepted, attributes positive actions on AT’s part that are consistent with a willingness and intention to participate in the sexual activity that he describes and that extend well beyond silence passivity or ambiguous conduct.

Of course, consistent with Section 273.1 of the Code, if Mr. Vansnick’s evidence concerning the nature and circumstances of the sexual activity was accepted, the analysis of the “absence of consent issue”, would not end with a finding that the Crown has not met its onus because there was a reasonable doubt that AT did not consent. The next step would be to consider whether any of the circumstances set out in Section 273.1(2) of the Code existed thereby rendering AT’s voluntary agreement invalid. Assuming Mr. Vansnick’s evidence was accepted, the only potential circumstance disclosed by the evidence that might have been an issue in that regard is set out in Section 273.1(2)(b) of the Code, which provides that no consent is obtained if the complainant is incapable of consenting to that activity for any reason other than unconsciousness, which is addressed in a different subsection.

Indeed, defence counsel anticipated that the Crown might posit that AT was incapable of consenting to the activity by reason of a significant level of intoxication at the time the activity occurred.

Although the Crown did not ultimately adopt that position this is a convenient time to examine the evidence concerning: AT’s alcohol consumption at the gathering; the visible signs of intoxication that she exhibited, if any; her projected blood/alcohol concentration at the approximate time of the alleged sexual activity; and the expected effect it would have had on her.

AT maintains that she was not extremely intoxicated at the time of the alleged assault. She allows that she had consumed a modest amount of alcohol earlier in the day, but she had only consumed three-quarters of one alcoholic beverage, admittedly free poured by someone other than herself, during the entirety of the gathering. She denies consuming any alcohol after the alleged assault. She says that she felt some effects of alcohol, in the sense that she was happy and more sociable. She denied any slurring of words or gross difficulty with walking, although she identifies herself as stumbling a couple of times in the surveillance footage of the marijuana walk that immediately preceded the alleged assault. There is no evidence that she experienced persistent gross deficits in her ability to walk or speak, prior to the alleged assault.

KE did not believe that ME was intoxicated at the Coll residence. From her perspective, AT was not falling down, and she did not experience difficulty interacting with people.

Ashley Coll does not know how much alcohol AT consumed before the alleged assault, but she believed she was drunk. She was giddy but walked and spoke without difficulty.

Based on his observations, ME believed that AT was intoxicated. He felt she was drunk but not to the point he was concerned.

Mr. Vansnick says AT did not appear intoxicated. She was fine. He concedes that previously, he told police that everybody at the gathering was drunk, but explains in his evidence that he really meant that everyone was drinking.

However, CFS forensic scientist, toxicology, Karryn Wall testifies that analysis of a blood sample taken from AT at hospital at 6:07 a.m. on September 3rd, 2018, detected a blood/alcohol concentration of 209 milligrams of alcohol in 100 millilitres of blood. That is a significant concentration, in my view, and notably, it was several hours post alleged assault. Ms. Wall was also asked to conduct an analysis to determine AT’s projected BAC at or between 12:00 a.m. and 1:30 a.m. on September 3rd, 2018, which she determined to be 235 to 331 milligrams of alcohol per 100 millilitres of blood. The calculated range is independent of AT’s gender, height, weight and age but it is dependent on the following factors:

1. A rate of elimination of 10 to 20 milligrams per 100 millilitres per hour;

2. An allowance for a plateau of up to two hours;

3. No consumption of large quantities of alcohol within approximately 15 minutes before the incident;

4. No consumption of alcohol after the incident, but before the blood sample was taken.

The projected BAC range is very significant. Its lower end is roughly three times the legal limit to operate a motor vehicle. Its higher end approaches a concentration where fatality is a concern.

As Ms. Wall testifies, the effects of alcohol on an individual are dependent on both BAC and the individuals previous experience with alcohol. Based on Ms. Wall’s evidence, in my view, AT’s evidence with respect to her general alcohol consumption in 2018, would place her in the category of a light to moderate drinker, if that evidence was accurate.

As Ms. Wall explains, repeated consumption of alcohol can result in an individual gathering a tolerance to its intoxicating effects. Individuals who frequently consume large quantities of alcohol may demonstrate few, if any, signs of intoxication over the BAC range projected by Ms. Wall.

Ms. Wall further explains, and I accept, that alcohol is a central nervous system depressant that slows down brain function. As BAC increases, the magnitude of the effects produced by alcohol increases.

At the projected BAC range that Ms. Wall arrived at, a light to moderate drinker would be expected to experience severe intoxication with associated effects potentially including: slurred speech; loss of balance; confusion; memory loss; nausea and vomiting; and significant sedation. The expected memory loss would typically not be consistent with a complete absence of memory for the entire time period in which the individual was intoxicated but rather discrete losses of memory of events within that time period.

It is very difficult to reconcile all of the evidence with respect to AT’s level of intoxication and asserted alcohol consumption over the course of the gathering. On AT’s own evidence the maximum amount of alcohol consumed during the entire day before the alleged assault was four and three-quarter vodka drinks, free poured, with four of those drinks consumed between 2:30 p.m. and 6:00 p.m., roughly a range of 7 to 10 hours before the alleged assault and 12 to 15½ before the blood samples were taken at hospital. Further, she denies that she consumed any alcohol after the alleged incident and none of the witnesses who were said to be with her after the alleged incident contradict her on that point.

It is inconceivable that AT’s evidence with respect to the quantity of alcohol that she consumed on the night of the gathering is accurate. It is clear from the evidence, that KE and Ashley Coll were not monitoring the amount of alcohol AT consumed. AT brought her own bottle of vodka to the gathering. Ryan Coll poured her a drink. He was not called to give evidence to the amount of alcohol he used. Based on AT’s blood/alcohol concentration at 6:00 a.m. on September 3rd, I am satisfied that she consumed much more than three-quarters of one alcoholic drink before the alleged assault, while she was at and around the Coll residence.

I am further satisfied that she was intoxicated when she went on the marijuana walk. By that point she was exhibiting some of the expected indicia of intoxication identified in Ms. Wall’s evidence. Although she was not consistently stumbling or slurring her words, the evidence, including the video surveillance, persuades me that she was periodically stumbling and staggering. She was not walking as she normally did. She was speaking in an atypical manner according to ME and she experienced confusion when she was interacting with Mr. Vansnick immediately before the alleged assault. On the evidence that I accept, I further find that AT vomited shortly after the alleged assault in the Coll bathroom, which is another sign of intoxication.

I am also satisfied that AT did not consume alcohol after the alleged assault. AT denies that she did so and there is no direct evidence that contradicts her in that regard. The evidence also establishes that AT was in the presence of other people for much of the time that she was at the Coll residence after the alleged assault, none of whom testified that she consumed alcohol in their presence. Once AT arrived home her father immediately took her to hospital. There is no evidence that she consumed additional alcohol before he did so.

Based on my findings above, I am satisfied that AT’s blood/alcohol concentration was at or near the range projected by Ms. Wall at the time of the alleged assault. I am mindful that AT did not present with extreme observable indicia of impairment at that time, but the presence of such indicia is a function of both blood/alcohol concentration and individual tolerance. AT’s subjective tolerance seems relatively high based on the evidence before me. For instance, she testified that she did not feel the affects of alcohol, at all, when she was at hospital on September 3rd, however, her blood/alcohol concentration was over .2 milligrams per 100 millilitres, at that time.

It is for all of these reasons that I conclude that AT was intoxicated with an extremely high blood/alcohol concentration at the time of the alleged assault.

I now return to Mr. Vansnick’s evidence.

When it is considered in the context of the evidence as a whole, I am compelled to reject Mr. Vansnick’s evidence concerning both the extent of his sexual activity with AT and its consensual nature. His evidence on those points is contradicted by AT’s evidence. I appreciate that the trial is not a credibility contest or a proceeding in which I must choose one of the competing versions of events offered by Mr. Vansnick and AT. Instead, the issue is whether the Crown has proven the elements of the offence beyond a reasonable doubt.

In this case, as I will explain later, I have found that the Crown has discharged its onus to do so, in part, because I ultimately accept AT’s evidence with respect to: the nature and extent of the force of a sexual nature that Mr. Vansnick applied to her; her lack of consent to the application of that force; and her repeated expressed communication, through her words and conduct, that she did not consent, which were specifically directed to Mr. Vansnick during his application of force and to which he responded. As I will explain later in these reasons, after a careful consideration and reasoning, I accept those aspects of AT’s evidence beyond a reasonable doubt, when they are considered in the context of all of the evidence, including Mr. Vansnick’s testimony.

Although not an “either-or choice”, the acceptance of AT’s evidence warrants rejection of Mr. Vansnick’s evidence on those points, since it is completely inconsistent with her accepted evidence.

Moreover, there is other evidence that I accept, for reasons which I will explain, that contradicts or, at the very least, is exceptionally difficult to reconcile with Mr. Vansnick’s testimony particularly with respect to:

1. Whether he made inculpatory statements to KE and Ashley Coll after the alleged sexual assault, in which he acknowledged that AT repeatedly said “no”, while he applied force, in circumstances of a sexual nature, to her and that he persisted nonetheless. I accept the evidence that he did make such statements and find accordingly.

Although, for reasons I will set out later, I do not place much weight on that evidence;

2. The location of the sexual activity between Mr. Vansnick and AT. Mr. Vansnick places this in the Coll side yard in extremely close proximity to the front porch of the Coll house. I find that evidence to be inconsistent with the evidence of ME, who first saw AT emerge at an area almost at the northeast corner of the house neighbouring the Coll’s residence to its southeast, which is evidence I accept. I will explain.

In his evidence Mr. Vansnick identified an overhead photograph of the Coll property and its southeast neighbouring home, which is Exhibit 18. There is a relatively tall privacy fence that separates the rear yards of both homes that is perpendicular to a shorter fence that bisects the front and back portions of the north side yard of the Coll’s neighbouring house, which is 87 Highbury. The exhibit shows that the taller fence ends close to the point that it intersects with the smaller fence. At its end point, the taller fence intersects another tall fence running perpendicular to it that separates the front and back of the Coll’s south side-yard. In his evidence, Mr. Vansnick indicates that at the time of the alleged sexual assault, the longer fence separating the yards of the two residences extended farther towards the road than is depicted in Exhibit 18, although he was unsure exactly how much farther it went.

He also marked Exhibit 18 with an X, to identify the area he says he and AT engaged in consensual sexual activity, which was very close to the point where the fence dividing the two properties meets the fence dividing the Coll front and back yard on its south side.

The result is that the area where Mr. Vansnick identifies the sexual activity as occurring would necessarily be within the area of the Coll side yard that was enclosed to the south by the extended fence that Mr. Vansnick testifies to.

From Mr. Vansnick’s identified location of sexual activity, and with reference to Exhibits 18 and 3, it is clear that to arrive at the point that ME first saw AT after the alleged assault: AT would have had to have walked along the Coll side yard towards the street, at least to the point the extended fence ended, as well as, potentially walking next to the open Coll residence porch, depending on the length of the fence; next, she would have had to have walked away from the Coll’s house, travelling south across the Coll side yard, the side yard of the neighbouring house and the neighbouring house’s driveway; then, she would have had to have turned north and began to go back to the Coll house from the position that ME first saw her.

There is no evidence, including from Mr. Vansnick, that AT took a circuitous or extended route to the Coll porch after the sexually activity concluded. To the contrary Mr. Vansnick...

UNIDENTIFIED FEMALE VOICE: Um, oh....

THE COURT: Sorry. Okay. Please stay on mute, okay? Thank you.

To the contrary, Mr. Vansnick states that after he and AT dressed themselves, they walked to the porch, which was only steps away.

In my view, Mr. Vansnick’s evidence about the location of the sexual activity cannot be reconciled with ME’s evidence about AT’s location when he first saw her after the alleged assault, which is evidence the defence did not take issue with in submissions.

I also accept Ashley Coll’s evidence that Mr. Vansnick advised her that the sexual activity between he and AT occurred between the house the Coll’s rented, which is the house southeast of the Coll’s permanent residence, and Glenn’s house, which is south of the rented house. Subsequently police recovered items associated with AT, including her cell phone from that location.

Other irreconcilable aspects of Mr. Vansnick’s evidence include:

3. Whether he penetrated AT’s vagina; and

4. AT’s emotional state after Mr. Vansnick applied force to her.

I will deal with both of those briefly.

First, with respect to the issue of whether Mr. Vansnick penetrated AT’s vagina, he denied that he did so with his finger and initially, denied that he did so with his penis. Eventually, in cross-examination, he indicated his unerect penis could have penetrated AT’s vagina a little bit when he was rubbing it on her. He wasn’t sure. He tried to penetrate her, but he does not believe it went in. In my view, that evidence does not mesh well with two other aspects of the evidence that I accept.

First, both KE and ME testified and I accept that when KE confronted Mr. Vansnick while he was still on the Coll porch, Mr. Vansnick eventually acknowledged that he had “fucked” AT, which I accept is an acknowledgement that he penetrated AT’s vagina with his penis.

Second, the forensic evidence supports a finding that Mr. Vansnick penetrated AT’s vagina with some part of his body. I will explain.

I previously described the internal and external vaginal swabs obtained by Nurse Bisschop. In order to obtain the internal swab sample she used a speculum and swabbed high up on AT’s vaginal wall. The swabs were submitted to the Center of Forensic Sciences for analysis. In his evidence Dr. Morrow explains that the CFS determined that the external genitalia swab collected a mixture of DNA from AT and a male contributor, and an associated DNA profile was suitable for comparison testing. The vaginal swab collected a sample with enough male DNA for Y-STR testing only.

Using a DNA sample obtained from Mr. Vansnick, an analysis was conducted to determine whether he could be excluded as a contributor to the DNA profile developed from the external genitalia swab. The STR DNA results were estimated to be 3.9 billion times more likely if they originated from AT and Mr. Vansnick, than AT and an unknown male unrelated to Mr. Vansnick. As a result, Mr. Vansnick could not be excluded as a contributor to the external sample.

In all the circumstances, I find that Mr. Vansnick was the male contributor to that sample.

Dr. Morrow also explains that male specific Y-STR testing was performed on AT’s vaginal swab to determine whether a male DNA profile could be developed and if so, whether Mr. Vansnick could be excluded as the source. A profile was developed and the Y-STR DNA results are estimated to be 2,070 times more likely if they originate from Mr. Vansnick, than if they originate from an unknown male unrelated to him. As a result, Mr. Vansnick cannot be excluded as the source of the male specific DNA profile developed from AT’s vaginal swab.

In all the circumstances, I am satisfied that Mr. Vansnick was the source of the male DNA collected from the internal vaginal swab.

Dr. Morrow explained that in order for Mr. Vansnick’s DNA to be recovered from AT’s... effectively, I should say, Dr. Morrow explained that in order for male DNA to be recovered from AT’s internal vaginal area it would be required to be deposited through a delivery mechanism. Dr. Morrow did not specifically refer to Mr. Vansnick’s DNA. It wouldn’t have migrated from the external vaginal area to the internal area on its own.

Accepting that evidence as I do in all the circumstances, I’m satisfied that Mr. Vansnick’s DNA was present on AT’s vaginal wall because he did penetrate her vagina at least to the high up level that the swab sample was taken from.

In my view, that evidence is not easily reconciled with Mr. Vansnick’s general denial of any digital or penile penetration, subject to the caveat that it was possible that his unerect penis may have unknowingly penetrated her a little bit.

On the issue of AT’s emotional demeanour, it is difficult to reconcile Mr. Vansnick’s evidence that AT seemed fine after the sexual conduct and he did not see her crying and did not think that she was, with the evidence of every other witness who was present when AT returned to the Coll home.

Each of AT, KE, ME and Ashley Coll describe AT in an extreme state of emotional turmoil, crying profusely, nearly hyperventilating and unable to speak.

While I am mindful of the numerous inconsistencies between the evidence of these witnesses on other points that defence counsel identifies and the impact he submits that those inconsistencies should have on the assessment of their credibility and reliability, I accept their evidence on this point. They all gave a detailed cogent account of AT’s demeanour when she returned to the Coll residence, which was not meaningfully shaken in their respective cross-examinations. That evidence does not accord with Mr. Vansnick’s testimony on the point.

It is for all of these reasons that I reject Mr. Vansnick’s evidence, and it does not leave me with a reasonable doubt.

The final step in the W.(D.) analysis is to determine whether the remaining accepted evidence adequately discharges the Crown’s heavy onus to establish guilt beyond a reasonable doubt.

To address that issue, I now turn to the non-expert evidence adduced by the Crown.

AT’s testimony concerning the force that Mr. Vansnick applied to her, it’s non-consensual nature and her repeated express communications that she did not consent is capable of satisfying the essential elements of the offence provided that, that after a careful and reasoned consideration of that evidence, in the context of the totality of the evidence, I am persuaded beyond a reasonable doubt with respect to the essential elements of the offence.

Mr. McGivern has made detailed submissions in support of his position that AT’s evidence should be rejected based on credibility and reliability concerns arising out of:

1. Conflicts within her trial evidence;

2. Conflicts between her trial evidence and her prior evidence at the preliminary hearing and prior statements to police;

3. Conflicts between her evidence and the evidence of other witnesses at trial; and

4. Evidence that between her first and second police statements, she discussed certain matters related to the charge before the court with her mother, with an implicit assertion that her second statement to police and subsequent testimony may have been influenced by her mother’s input.

I will address those submissions now.

As Mr. McGivern observes, credibility and reliability are different concepts. Credibility relates to sincerity and honesty and whether the witness testified to what they believe. Reliability relates to the accuracy of the witness’s evidence. It is often assessed based on the witness’s ability to observe, recall and recount events, as they occurred.

It is generally recognized that one of the most effective means of assessing credibility is to consider the nature and extent of any inconsistencies between a witness’s trial evidence and what the witness has said on other occasions. Inconsistencies in a witness’s evidence will vary in their nature and importance. For example, some may relate to material issues and others to peripheral issues. Where an inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with respect to the truth. Then, the trier of fact must determine whether it can rely on the testimony of a witness who has demonstrated a carelessness for the truth.

I have applied the foregoing principles to my assessment of the evidence of all the witnesses, including AT and Mr. Vansnick, in arriving at my factual findings. I have already indicated that I accept AT’s evidence with respect to the nature and extent of the force of a sexual nature that Mr. Vansnick applied to her without her consent. I will explain why I have done so, despite the presence of inconsistencies in her evidence.

Consistent with the defence submissions and the aspects of AT’s evidence that I have previously reviewed, the following inconsistencies are alleged to have arisen in AT’s evidence:

Despite acknowledging that the video surveillance contradicts her stated memory on the point, AT testifies that she recalls that the marijuana walk occurred before the walk to the Murphy residence and the assault happened immediately after the latter. She concedes the surveillance shows the walks in reverse order, but she still recalled that the marijuana walk happened first. She agrees that she also placed the marijuana walk first in her preliminary hearing evidence and that she did not even mention the walk to police until her second statement, when she was shown the surveillance. She acknowledges that in her second statement and her preliminary hearing evidence she placed the sexual assault immediately after the walk to the Murphy house.

In my view, the inconsistencies with respect to the sequence of walks both in AT’s past accounts and in the context of the surveillance evidence do not impair AT’s credibility. To the contrary, despite the opposite being conclusively established by the surveillance, she candidly acknowledges that she recalls the walks in the opposite order. Her frank admission in that regard, knowing that her actual recollection on the point is not accurate, demonstrates a willingness to be open and honest with the court. Undoubtedly, her recollection on the sequence of walks is unreliable and, based on surveillance, demonstrably wrong, but in my view the critical evidence in the disposition of the charge is what happened when Mr. Vansnick and AT were alone after the second walk. In that sense, I view the sequence of walks issue to be a peripheral one rather than a material one.

Further, I find AT’s inaccurate recollection of the sequence of the walks to be consistent with Ms. Wall’s evidence that memory loss with respect to discrete events during a period of intoxication, as well as, confusion are potential effects of severe intoxication, which I am satisfied was the state AT was in at and immediately before the alleged assault.

AT’s evidence, which was not contradicted or meaningfully challenged on this point, establishes that her recollection of aspects of the events of September 2nd and 3rd have consistently been marked by confusion and an inability to recall certain events with exacting detail. For example, she testifies that when she arrived at hospital in Chatham on September 3rd: everything was mixed up; she did not know what to say; and she felt like she was watching her life through a movie. When she provided a statement to police later that day, she felt numb and the incident with the accused was blurry. She thought her brain was trying to protect her.

While her first statement to police contained assertions that AT now concedes were inaccurate, including her uncertainty over whether the accused penetrated her with his penis, the location of the assault and whether she was continuously with KE before her father took her to hospital, she also explains that a lot more came back to her after she gave her first statement.

Similarly, AT concedes that there are elements of her trial narrative that she did not disclose during her initial police statement including the fact of the marijuana walk and that she left the Coll residence with Mr. Barnes on an ATV. Again, in my view, she credibly explained that, over the course of time, more details came back to her. Based on AT’s level of intoxication at the time the events occurred, I am not persuaded that the foregoing inconsistencies or omissions between her September 3rd statement and her trial evidence undermine AT’s credibility, nor do they undermine the reliability of her evidence at trial that goes to the essential elements of the offence, namely: the nature and extent of the force applied by the accused; the sexual nature of the circumstances; and her consistent communicated lack of consent throughout.

Next, defence counsel highlights AT’s inconsistent evidence that Mr. Vansnick guided her to the area of the alleged assault with a hand on her back offered in direct examination and her evidence that he grabbed her arm and pulled or dragged her to the location of the assault, in her cross-examination.

AT testifies that she experienced confusion when Mr. Vansnick directed her to the area of the alleged assault. Even so, she did give relatively conflicting evidence about the manner in which she was directed to that area. The conflict developed in cross-examination when she was confronted with her evidence at the preliminary hearing, which appeared to refresh her memory because she adopted it as her trial evidence. Despite that, when considering the totality of the evidence I am not sure that AT was forcibly pulled to the area of the alleged assault, although I am sure that Mr. Vansnick exercised some force to guide her there.

Further, after consideration, I am not persuaded that the inconsistency in AT’s evidence about how she arrived at the area meaningfully undermines her credibility or the reliability of her evidence about what happened once there, which I find to be very compelling.

Next, defence counsel raises the inconsistency between AT’s evidence with respect to the location of the assault and her September 3rd police statement, in which she concedes that the assault may have occurred between the Coll house and its neighbouring residence.

This asserted inconsistency does not cause me concern with respect to AT’s credibility nor the reliability of her evidence that goes to the essential elements of the offence. I have previously reviewed the evidence of AT’s state of mind at the time she gave her original police statement and her evidence about developing a greater recall of events after she gave that statement, together with the evidence of the anticipated effects of her level of intoxication, at the time of the alleged assault. I have also explained why I do not accept that the location of sexual activity between AT and Mr. Vansnick occurred between the Coll residence and an adjacent home. That location is inconsistent with the location I find Mr. Vansnick disclosed to Ashley Coll shortly after the alleged assault, where items associated with AT were recovered from. That latter location is also consistent with ME’s observations of AT’s location immediately after the alleged assault.

All the foregoing factors tend to corroborate AT’s trial evidence about the location of the alleged assault.

Next, defence counsel refers to AT’s evidence concerning the specifics of the alleged assault and resulting injuries and he points out three asserted inconsistencies:

(a) AT says her leg injuries were caused by Mr. Vansnick trying to pry her legs open with his feet but she also said she pulled her legs up so that her knees would have been at the accused’s chest level when he was on top of her and her shins at his torso level. I do not find this to be a significant inconsistency or an inconsistency at all. I will explain.

First, AT’s description is not impossible from a physical perspective. There was nothing identified in the evidence that would have necessarily precluded Mr. Vansnick from drawing up his leg and attempting to pry open AT’s legs.

Second, on the totality of AT’s evidence she did not maintain a fixed static position throughout the assault that she describes. She was attempting to extricate herself from Mr. Vansnick’s physical restraint. She was moving about. Given the dynamic nature of the events, I find no meaningful inconsistency arising from this aspect of her evidence. Moreover, AT also testifies at trial, that she does not recall how it all happened, but she was certain that at some point he used his feet to pry open her legs.

Third, based on AT’s state of mind during the assault, even if there was some lack of consistency between AT’s evidence of correlation between her injuries and a specific aspect of the force Mr. Vansnick is said to have applied, I would not find it to be one which undermined the overall reliability of her evidence about the alleged assault. She was intoxicated and she testified she was confused and terrified. She was trying to escape. In that context I would attach little significance to a discord between the presence of post-incident visible injuries and her evidence about the specific mechanism of such injuries during a dynamic assault.

(b) The second asserted inconsistency is that AT testified that she could not specifically recall Mr. Vansnick’s clothes because it was dark, but she could recall a look of pleasure on his face during the alleged assault.

I do not view this as an inconsistency. AT did not testify that she was completely blinded by darkness. She obviously could see some things. At the point she says she observed Mr. Vansnick’s face he was on top of her, while she was prone on the ground. In my view, she was well positioned to make the observation she describes which held particular significance to her because it emotionally resonated with her. It terrified her.

(c) Finally, the defence observes that AT did not testify to the source of her asserted hip bruising until she was questioned about it during cross-examination, when she then gave details about her attempts to drag herself away from the accused.

I do not view this aspect of her evidence as one that impeaches her credibility or undermines the reliability of her evidence going to the offence’s essential elements. Rather it was evidence that developed as a result of AT’s attention being specifically focused on the mechanical source of her hip bruises, during cross-examination. That evidence remains consistent with AT’s evidence in direct examination that all of the injuries displayed in the various hospital and police photos resulted from the alleged assault.

Next, defence counsel highlights the inconsistency between AT’s trial evidence that Mr. Vansnick penetrated her vagina with his finger and penis and her first police statement, where she said that she thought he digitally penetrated her and that she wasn’t sure if he had penetrated her with his penis, but she couldn’t really remember.

As I indicated previously, I’m not persuaded, in the context of the evidence as a whole, that this asserted inconsistency significantly undermines AT’s trial evidence. AT indicates that the events with Mr. Vansnick were blurry at the time of her original police statement and over the course of time she was able to recall much more. In her actual statement, she qualified her comment about whether she was penetrated by Mr. Vansnick’s penis with the caveat that she couldn’t really remember. Over the course of time, she did remember and she gave a vivid and believable account of same in her evidence.

Next, Mr. McGivern points out asserted inconsistencies between AT’s trial evidence that Mr. Vansnick pulled her shorts to her knees and her September 3rd statement that she did not know how far he got when he tried to remove her shorts.

This does not meaningfully undermine AG’s evidence concerning the assault.

First, AT remained consistent in her assertion that Mr. Vansnick attempted to remove her shorts. I pause to note that such consistency does not serve to bolster her credibility. Second, AT explains that she developed a better recall of events after September 3rd, 2018. Third, in the totality of her evidence concerning a forceful non-consensual sexual encounter, in which she was terrified, her ability to recall how far down her shorts were pulled is, in my view, a rather peripheral issue rather than one of material substance.

Similarly, I find that the asserted inconsistencies in AT’s accounts of whether she saw Mr. Vansnick undo his pants, do not appreciably undermine the material aspects of her evidence. At trial AT states that Mr. Vansnick undid his pants with his hand. At the preliminary hearing she said she did not see him do that. In her September 3rd, 2018, statement she said she was not sure if he removed his pants. In my view, AT’s ability to recall observing Mr. Vansnick undo his own pants is a peripheral detail rather than an issue of material substance.

Next, defence counsel identifies an apparent inconsistency between AT’s asserted report to the sexual assault nurse on September 3rd, 2018, and her trial evidence concerning the nature of the alleged assault. The hospital records ostensibly reflect that AT asserted that more than one individual touched her vaginal area, but only one person sexually assaulted her, and she did not know who it was. At trial AT does not recall saying that but concedes it’s possible she did.

In her trial evidence she denies that more than one person touched her, and she is certain she was sexually assaulted by the accused.

However, I am not necessarily satisfied that AT specifically made the statement as it appears in the hospital records. I will explain.

Nurse Bisschop testifies that if she was recording a verbatim statement from a patient, it would be set out in quotation marks, which the impugned statement is not. Second, when she was a hospital AT’s blood/alcohol concentration was in excess of .2 milligrams per 100 millilitres and she testifies to being distraught, mixed up and embarrassed. She is clear that her memory of the events has improved since that time. In that context I’m not persuaded that her statement in hospital, whatever it may have been, serves to appreciably undermine her trial evidence.

Next, defence counsel correctly points out that there are inconsistencies in the evidence as a whole, with respect to who exactly was in the Coll bathroom with AT after the alleged assault. AT says she was in the bathroom with Ashley Coll and Shelley Murphy. She does not testify that KE was there at all. KE’s evidence confirms AT’s evidence. KE does not say she was in the bathroom. However, Ashley Coll testifies KE was in the bathroom with her, AT and Ms. Murphy and that she and Ms. Murphy left AT there with KE when conflict developed between Kayle Murphy, and Ryan Coll. ME testifies that he thought KE had gone to the bathroom to check AT after they confronted Mr. Vansnick on the front porch. He is clear that he did not see KE in the bathroom or see her leave the bathroom.

I have no hesitation in finding that KE did not attend with AT in the bathroom. Instead, I am satisfied that she was in the front of the staggered group of people that followed Mr. Vansnick down Highbury and that she remained at that location, at the location where Mr. Vansnick stopped walking, for a relatively lengthy period of time, thereafter.

I make no adverse finding with respect to ME’s credibility or reliability based on his mistaken belief that KE was in the bathroom with AT, which I find to be understandable in the chaos that unfolded on Highbury Crescent after the alleged sexual assault.

I accept that there was likely some period of time when AT was not in the presence of Ms. Coll and Ms. Murphy before AT found Mr. Barnes and asked him to take her home.

I do not find that any of this evidence impairs AT’s credibility or the reliability of her evidence going to the essential elements of the offence. I do find that Ms. Coll was inaccurate in her evidence with respect to the persons in the bathroom, but ultimately, I do not conclude that her inaccuracy in that regard undermines her evidence with respect to the utterances she received from Mr. Vansnick or her evidence that she was not involved in what is, effectively, asserted to be a staged crime scene and collusion with other witnesses to fabricate evidence prior to trial.

The defence also submits that there are inconsistencies between the evidence of AT and other witnesses concerning the extent to which AT disclosed anything about the alleged assault while she was at the Coll residence.

Specifically, AT deposes that immediately after the incident she was extremely upset, crying and in shock. She did not tell anyone what happened.

The defence submits her evidence is inconsistent with ME’s evidence that when he interacted with her, she was sobbing uncontrollably. He repeatedly asked her what was wrong and eventually she said “boys” twice. Further KE testifies that she was present with ME, and she did not hear AT respond to his questions.

The defence also submits that AT’s evidence about non-disclosure is inconsistent with Ashley Coll’s evidence that she repeatedly asked AT what happened and AT eventually said “Mitch”.

I do not find these asserted inconsistencies are significant, but I also do not rely on either utterance noted above as evidence of guilt.

I am mindful that the defence posits that AT’s assertion that she was sexually assaulted is not true and the reason that she did not disclose details of the incident immediately afterwards was because: she was embarrassed that she’d engaged in consensual sexual activity with Mr. Vansnick; she did not want to disclose that she had done so; and she had not yet made up the details of her eventual sexual assault allegation. The defence is not under an obligation to prove its theory. The onus to prove the offence remains on the Crown.

Having said that, I reject the proposition that AT had a motive to fabricate allegations of sexual assault in order to conceal that she had engaged in consensual sexual activity and/or out of shame and embarrassment. There is no evidence that supports that proposition. Moreover, there is no cogent evidence of any motive to fabricate on the part of AT in this instance. Having said that, I appreciate that the absence of a motive to fabricate does not equate necessarily to an absence of such motive. Further, the absence of evidence of a motive to fabricate does not enhance AT’s credibility. It is merely absence of evidence that may have detrimentally impacted the assessment of her credibility had it been adduced at trial and accepted.

Returning to the asserted inconsistencies regarding disclosure, it is important to consider the context in which the inconsistencies are said to arise. AT was in emotional turmoil at the time of the asserted brief words allegedly spoken to ME and Ms. Coll. Each of KE, ME and Ms. Coll confirmed she was crying and hysterical and generally non-verbal. She was also intoxicated.

I accept ME and Ms. Coll’s evidence regarding the limited disclosure that they say AT made to them respectively. They both impressed me as credible witnesses and their evidence is generally reliable. ME says that AT said “boys” twice quickly and quietly. I accept that in the context of AT’s extreme emotional presentation KE did not hear her do so. I also accept that AT eventually said, “Mitch” to Ashley Coll and that she said “Yes” when asked if he did something or said something. I further accept that given her emotional state and her level of intoxication AT credibly does not recall saying those words. She says that from her perspective everything at the Coll residence felt like it happened in seconds. There is no evidence that she expressly told anyone at the Coll house that she was sexually assaulted by Mr. Vansnick. There is no material inconsistency between the evidence of any witness on that point.

On a different issue, the defence asserts that AT was impeached, during cross-examination, concerning whether she spoke to anyone about her allegations before her second statement to police on September 13th, 2018. She denied that she had. However, she subsequently acknowledged in her evidence that she had advised the police that she had spoken to her mother and more detail had come back to her.

In my view, AT was not impeached. AT explained that she talked to her mother about how she felt, not the specifics of the incident. Further, she gave uncontradicted evidence that she did not collude with anyone in order to come up with a story about the alleged sexual assault.

I do not find any material inconsistency with her evidence that she did not speak with anyone about the allegations before her second police interview. There is no evidence that she did.

Finally, the defence raises issues with respect to the evidence concerning AT leaving the Coll residence with Mr. Barnes and requests that the Court reject the evidence that the documented injuries to AT were caused by Mr. Vansnick and instead find that they were caused by a fall from Mr. Barnes ATV.

The defence posits that that AT’s evidence that once she left the Coll bathroom, she found Mr. Barnes and he took her home cannot be reconciled with evidence that Mr. Barnes was part of the chaotic scene unfolding on Highbury, which is partially captured in the 103 surveillance. I do not find that evidence to be irreconcilable.

I have no difficulty finding that Mr. Barnes brought AT home on his ATV. ME’s evidence confirms that happening. There is no specific evidence as to when AT left the bathroom. I accept KE was not in the bathroom and Ms. Coll and Ms. Murphy left that room to deal with Kayle’s conflict, before AT left. There is no evidence that anyone made observations of AT outside the bathroom before she left with Mr. Barnes. AT herself did not have an accurate sense of time after the alleged assault, as the post alleged assault events at the Coll residence felt like they passed in a matter of seconds to her. In short, there is no evidence that contradicts AT’s evidence that she found and left with Mr. Barnes, as soon as she left the bathroom, whenever that may have been. Based on ME’s evidence I find that AT had left the area before ME returned with her parents around 1:45 to 1:50 a.m.

On the issue of injury causation, I do not accept the defence assertion that AT’s visible injuries occurred as a result of a fall from the ATV on the way home. There is no evidence that she fell. To the contrary the only evidence on the point, which comes from AT, is that she did not fall, at all.

More importantly, I accept KE’s evidence that she observed a gash on AT’s leg when AT returned to the Coll residence after the alleged assault and Ashley Coll’s evidence that she observed blood on AT’s legs and the documented blood smear on her bathroom floor was located where AT was kneeling when she vomited. Their evidence persuasively corroborates AT’s evidence that her documented injuries were caused during her interaction with Mr. Vansnick, and I accept her evidence in that regard.

I, therefore, reject the proposition that the injuries were caused in an ATV mishap after AT left the Coll residence. In reaching my finding in that regard I am mindful that ME, a trained police officer, did not see injuries or blood on AT’s legs. However, he explains he was focused on her emotional presentation and her face at the time.

In arriving at my disposition, I have lent strong consideration to the defence’s asserted inconsistencies and their cumulative effect in determining whether I accept AT as a credible witness and whether I find her evidence about the alleged sexual assault to be reliable. Ultimately, I am satisfied that AT’s evidence is worthy of belief and her evidence going to the essential elements of the offence is reliable.

I will explain.

Although AT’s evidence, as a whole, is not without flaws, I found her evidence about the actual sexual assault to be compelling and cogent. AT provided a relatively vivid account of the nature of the force that Mr. Vansnick applied to her: pinning her hands down; moving her clothes up; kissing her; prying her legs open; and ultimately, penetrating her with his finger and penis. She described her struggles to get away and she vividly described her express reaction to Mr. Vansnick’s conduct: repeatedly telling him no and to stop and similar phrases; and his response that it was okay because she wanted it.

Importantly, she also testified to the way she felt. Initially, confused and then terrified, particularly, when she saw the look on his face. She cried hysterically. I find these aspects of her evidence to be particularly compelling and persuasive.

Although her evidence is contradicted by Mr. Vansnick, I do not find that any material inconsistencies in AT’s account of the sexual assault itself were developed in her trial evidence. I am mindful that her trial evidence is not entirely consistent with her initial statement to police, but for the reasons I have already expressed, I do not find those inconsistencies to be a reason to reject AT’s evidence nor do they leave me with a reasonable doubt about her credibility or the reliability of her evidence concerning the assault itself.

Ultimately, I believe and accept AT’s evidence about the sexual assault, beyond a reasonable doubt, when I consider it in the context of the totality of the evidence, including Mr. Vansnick’s evidence.

In addition, important aspects of AT’s evidence about the assault are confirmed by other evidence. Specifically:

1. AT’s evidence that she sustained injuries as a result of her interaction with Mr. Vansnick is confirmed by the evidence of KE and Ms. Coll, both of whom observed the injuries to her legs when AT returned to the Coll residence. It is further confirmed by the presence of blood where she knelt in the Coll bathroom;

2. AT testifies that she was terrified and crying hysterically during the alleged assault and that she continued to be extremely distraught when she fled and returned to the Coll residence. Each of KE, ME and Ashley Coll confirmed that AT was in extreme emotional turmoil when she returned to the Coll residence;

3. In my view, the DNA analysis and the corresponding evidence of the extreme statistical improbability of anyone other than Mr. Vansnick being a contributor to the male DNA from the internal swab sample confirms AT’s evidence that Mr. Vansnick penetrated her vagina;

4. AT’s evidence that Mr. Vansnick pushed up her shirt and bra and that she was struggling to get away finds some confirmatory support in the evidence of ME, KE and Ashley Coll concerning the disheveled nature of AT’s clothing when she returned to the Coll residence;

5. AT’s evidence about the location of the sexual assault is, for reasons that I have explained earlier, consistent with the location that ME testifies he first saw her after the alleged assault. Moreover, AT’s evidence about the location of the sexual assault finds confirmatory support in Ms. Coll’s evidence concerning Mr. Vansnick’s post incident disclosure to her, as well as, the police recovery of items from that area that had been in AT’s possession immediately before the assault.

As I stated previously, I accept Ms. Coll’s evidence concerning Mr. Vansnick’s post incident utterances. I find Ms. Coll to be an honest witness. In that regard, without hesitation, she candidly testified to witnessing her husband and her friend, AGT, assault Mr. Vansnick. She told the truth.

The defence correctly observes that although she did not recall walking to the area of Highbury where Mr. Vansnick stopped, on two discrete occasions, with the first lasting about two minutes, the video surveillance evidences that she did so. I do not find that to be detrimental to her credibility or the overall reliability of her evidence. She testifies that she did not recall why she walked down there the first time, about 20 minutes before the second time. She does not testify to receiving any information from Mr. Vansnick on her first attendance.

Given the prevailing circumstances that evening, her inability to recall a two minute or less attendance at Mr. Vansnick’s location is in my view understandable. She acknowledges Mr. Vansnick had blood on his face when she attended on the second occasion, and he was further assaulted by Ryan Coll and AGT in her presence. She says she received inculpatory statements from Mr. Vansnick before and after there was an assault.

Based on the evidence that Mr. Vansnick had been subjected to physical violence, which obviously is totally and wholly inappropriate, repugnant and deserving of condemnation, I had concerns over the ultimate reliability of any inculpatory statements he may have made in such circumstances. To be clear, defence counsel agreed that a voluntariness voir dire was not required to determine the threshold admissibility of evidence that Mr. Vansnick made the inculpatory statements because the persons who are said to have received them are not persons in authority. Further, since Mr. Vansnick did not know ME was a police officer, his status in that regard was not a relevant consideration in determining if they were.

Moreover, Mr. Vansnick does not testify, or even posit, that he was coerced to make inculpatory statements as a result of violence inflicted on him or the threat of further violence. His position is simple, he never made the statements that are attributed to him.

Despite Mr. Vansnick’s evidence to the contrary, I accept Ms. Coll’s evidence that he repeatedly said he was sorry and, on further inquiry, he disclosed that AT had said “No” and he persisted and that the location of the sexual activity was between 83 and 87 Highbury. Ms. Coll’s evidence in that regard is particularly compelling as she indicates Mr. Vansnick identified the location by specifically referring to the house the Coll’s had rented and Glenn’s house, which were only a few houses away from Mr. Vansnick’s own residence.

The recovery of the items associated with AT from the location that Mr. Vansnick identified alleviates my concerns over the reliability of his statement with respect to location. The presence of those items corroborates the accuracy of his “location utterance” to Ms. Coll. Therefore, while I approach this aspect of the evidence with extreme caution, I ultimately accept Mr. Vansnick’s “location utterance” for its truth.

I reach the foregoing conclusions notwithstanding the defence position that Ms. Coll likely staged the alleged area of the assault with items she collected, including AT’s cell phone. That is a position that invites a corollary inference that those items would have been damaged if the scene was not staged. On the evidence before me, I am unable to reach that conclusion. I have evidence of AT being pushed to the ground by a downward force on her shoulders. From that I cannot reach the inescapable conclusion that any items that she was holding would necessarily break or crack as they or she impacted the ground. Very little questioning was focused on that issue.

Further, there is no direct evidence of “Evidence tampering”, by Ms. Coll before police arrived and express evidence to the contrary from Ms. Coll. She denies it.

Moreover, there is no evidence of any motive on Ms. Coll’s part to plant or stage evidence of a fabricated location of the sexual activity and such a motive is not discernible, as a matter of reason or logic, from the evidence I do have. Of course, the absence of evidence of such a motive does not necessarily equate to the absence of motive itself. In the end, however, in the absence of direct evidence of a staged scene and the presence of evidence from Ms. Coll that she did not do so, the defence theory that she planted evidence to fabricate a location of the impugned sexual activity seems much more consistent with an attempt to explain away facts that are inconvenient to the accused, rather than one that carries an air of reality to it. To be clear, my comments are directed at the state of the evidence before me and ought not to be construed as suggesting the accused carries a legal onus to prove anything.

Finally, the evidence does not disclose, or sorry, backtrack a second. I also appreciate and have considered the defence theory that several people have colluded and conspired to manufacture a false narrative that the accused sexually assaulted AT, but I am unable to appreciate on the evidence, how sprinkling items almost two houses away from the Coll residence and then leading police to that false location would advance that objective in any meaningful way. As I said, there is no air of reality to the theory that Ms. Coll staged a crime scene in a false location prior to police arriving.

Ultimately, in the result, several important aspects of AT’s evidence have confirmatory support. I appreciate that elements of that confirmation come from the evidence of ME and KE.

As I stated above, I find ME to be credible and generally reliable. I appreciate that ME’s evidence about the timing of his calls to AT’s father conflicted with the time stamps of the video surveillance, which were admitted as accurate. However, this was a minor discrepancy. A matter of minutes. In my view it does not undermine the balance of his evidence.

I had some concerns over aspects of KE’s evidence, particularly where it conflicted with her statement to police on issues of: whether anyone was with her when she looked for AT; whether Ms. Coll was outside when AT returned; whether AT’s clothes were muddy; and the extent of her initial observations of AT’s injuries. KE satisfactorily explained the initial difference between her trial evidence and her statement as it relates to the latter and the balance of the inconsistencies were ultimately, on points that I viewed as relatively peripheral issues. I found her evidence with respect to AT’s demeanour when she returned to the Coll house to be credible and consistent with other witnesses. Similarly, I found her evidence about her interactions with Mr. Vansnick on the front porch to be credible and fully corroborated by ME’s evidence.

I found KE’s reluctance to identify herself on the surveillance video to be somewhat evasive, although in fairness to her the quality of the video was mediocre. I also found her evidence that she did not see any injuries or assault of Mr. Vansnick during the approximate half hour that she was with him at the location where he stopped, to be dubious.

She concedes that the video shows a body falling from a standing position to a prone position at Mr. Vansnick’s location at 1:26 a.m. She was at the location at that time, but she does not recall the event happening. All she recalls is Mr. Vansnick sitting on a curb. In my view, that portion of the video depicts, at the very least, Mr. Vansnick being pushed to the ground. I could not discern any other physical violence on the video during the period KE was at the location, which I find to be from timestamp 1:25 a.m. to 1:55 a.m., but much of the camera’s line of sight to the relevant area is obstructed by trees.

The point is, KE was at the location at a time when Mr. Vansnick was driven to the ground by force. KE maintains that after that time, Mr. Vansnick confessed to her when they were alone at the curb. In reviewing the surveillance, I find there is almost a ten minute period of time from 1:34 a.m. to 1:44 a.m. where it appears KE and Mr. Vansnick are, generally, alone in the area, which is consistent with the circumstances surrounding the confession that KE describes. However, given that I find that the alleged confession was preceded by at least one act of violence which took place in, objectively and from Mr. Vansnick’s evidence subjectively intimidating circumstances of being surrounded by a mob, I approach the issue of whether to accept the confession evidence with great caution.

Ultimately, I do accept KE’s evidence with respect to the utterances Mr. Vansnick made to her. I have accepted evidence of similar inculpatory statements being made to Ms. Coll. Nonetheless, given the circumstances of violence and intimidation that preceded the making of those statements, I put little weight on them. Said another way, even with no reliance on the inculpatory statements of KE and Ms. Coll, I am satisfied beyond a reasonable doubt that the accused is guilty.

To be clear, I do not find that any of ME, KE or Ms. Coll committed or threatened to commit violence against Mr. Vansnick, but it remains that other people did. Ultimately, the disposition of the count does not turn on the weight, if any, afforded to the accused’s inculpatory statements because AT’s evidence when considered in the context of the evidence as a whole, including the evidence of the accused and the other confirmatory evidence satisfies me beyond a reasonable doubt that the Crown has met its onus to prove guilt.

Specifically, I find the following facts beyond a reasonable doubt:

1. The accused led AT to an area between 83 and 87 Highbury, where he pushed her to the ground onto her back, at the time period specified in the indictment;

2. The accused got on top of AT, pinned her hands down, pushed up her sweater and bra and kissed her neck down to her breasts;

3. AT repeatedly and expressly told the accused “no” and to “stop”, among other things. The accused heard her say these things and responded, “It’s okay. You want this.”;

4. AT unsuccessfully struggled to escape;

5. The accused removed AT’s shorts, pried her legs open, digitally penetrated her vagina and penetrated her vagina with his penis;

6. AT continued to express her lack of consent;

7. Subjectively, AT did not consent to any of the force that Mr. Vansnick applied;

8. Clearly, the force Mr. Vansnick applied took place in circumstances of a sexual nature.

The elements of the offence are satisfied.

Mr. Vansnick is therefore found guilty on Count one and I will endorse the indictment, accordingly.

Okay, so next steps, sentencing hearing.

MR. MCGIVERN: Yes, Your Honour, Greg McGivern speaking. I’m going to ask for the sentencing hearing to be adjourned to file the appropriate case law and I’m also asking that the court order a pre-sentence report today for Mr. Vansnick.

THE COURT: Thank you. So, I’m going to get you some potential dates for a sentencing hearing. From what I’m told, I’m scheduled for two weeks in Chatham, January 10th and January 17th. I’m also told that I might be reassigned because, well, it doesn’t really matter. I just might be reassigned. I still would like to target that time. I think that’s an appropriate time period to have a PSR generated for the parties to develop what other evidence they may wish to lead on the sentencing hearing. What are your thoughts on that counsel?

MS. THOMAS: Yes, Your Honour, I am obviously not from Chatham so I’m not sure how long the PSR’s are taking at this point, but I am available both of those weeks.

THE COURT: Mr. McGivern.

MR. MCGIVERN: Yes, I can advise that they’re generally taking, I would say, that six-to-eight-week period that we expect. I would be available; I do have days during both of those weeks that I could be available.

THE COURT: Okay. Yeah, it’s, there will be holidays intervening so it may be wiser to try and target the week of the 17th just to allow for the PSR to make sure we have that. Okay, all right so let’s adjourn for about ten minutes so I can just confirm, confirm a court availability for a sentencing hearing the week of January 17th.

MR. MCGIVERN: Yes.

MS. THOMAS: Thank Your Honour.

THE COURT: Grace, if you can just stand court down, please.

CLERK REGISTRAR: Yes, Your Honour. This court is in recess until 1:00 p.m.

THE COURT: Thanks.

R E C E S S 12:53 p.m.

C O U R T R E S U M E S: 1:00 p.m.

CLERK REGISTRAR: Court is back in session.

THE COURT: Okay, so we’re going to just do something the week of the 17th of January for the sentencing hearing whether I’m still assigned to Chatham or not that’s just the time we’re going to do it. So, what works in that week for the two of you?

MS. THOMAS: I’m available every day at this point, Your Honour.

THE COURT: Okay.

MR. MCGIVERN: The 18th would be the date that I have absolutely free right now. If we could perhaps choose that.

THE COURT: Would you prefer a.m. or p.m.?

MR. MCGIVERN: A.M. would be fine.

THE COURT: All right. Are we anticipating a half day, just to book half day to be safe?

MR. MCGIVERN: I would think so.

MR. THOMAS: Yes.

CLERK REGISTRAR: Sorry, Your Honour, would this be in person or by ZOOM?

THE COURT: Well, that’s the next question because I don’t, I don’t know if you plan to call, and maybe nobody has directed their mind to it right now whether you plan to call viva voce evidence. It’s not typical, but if anybody has that intent then I would suggest it be in person. If that’s not the plan, then as long as I get copies of the relevant documentation and things that need to be filed as exhibits and they’re filed with the court so that they can be admitted in the course of the hearing, we could do it by ZOOM. Whichever you prefer.

MS. THOMAS: I’m fine coming to Chatham if that’s what the preference is. I don’t think that I would call any viva voce evidence. The victim might want to read her statement in person.

THE COURT: Yeah.

MS. THOMAS: Or into the record.

THE COURT: Okay, so let’s, we’ll do it in person then and we’ll do it Jan. 17 at 10:00 a.m. or sorry, Jan. 18 at 10:00 a.m. Sorry Mr. McGivern.

MR. MCGIVERN: Thank you.

THE COURT: Presumptively a half day. Does that, does that sound about right?

MS. THOMAS: I think so, Your Honour.

MR. MCGIVERN: I think so.

THE COURT: PSR is ordered. Current JIR terms to continue in effect until at least January 18th.

MS. THOMAS: Yes please, thank you.

THE COURT: Okay, just so everybody is content with their expectations, based on the, just based on both of your professionalism and again I echo this, or I said this when you finished the trial that you both did an excellent job and I suspect you’ll both give me things to think about so I don’t anticipate imposing sentence on the 18th. You know and I think in fairness Mr. Vansnick needs to know that so, so that he can, can plan things accordingly. I am back in Chatham February 28th and March 1st on a ROTA swing so what I would probably plan to do is impose the sentence on one of those two days. All right, and I’ve already asked Suzie to find a half day block on one of those two days to book it for the reasons on sentencing. I don’t know which of those days yet. I just, we just literally had this conversation five minutes ago. Okay. So, I’ll endorse the, I’ll endorse the indictment, finding of guilt made with respect to Count 1. Sentencing hearing scheduled for January 18 at 10:00 a.m. Half day or 2022, half day required. PSR ordered. Current JIR terms to remain in effect.

MS. THOMAS: Thank you, Your Honour.

MR. MCGIVERN: Thank you.

THE COURT: Anything else that we need?

MS. THOMAS: No thank you.

THE COURT: Mr. McGivern.

MR. MCGIVERN: No, thank you.

THE COURT: Thank you both very much.

MS. THOMAS: Thank you Your Honour.

THE COURT: See you in January.

MS. THOMAS: Yes, take care.

THE COURT: Okay, thanks, bye-bye.

C O U R T A D J O U R N E D 1:05 p.m.

form 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I,

Annette Duquette

(Name of Authorized Person)

certify that this document is a true and accurate transcript of the recording of

R. v. Mitchell Vansnick

in the

Superior Court of Justice

(Name of Case)

(Name of Court)

held at

425 Grand Avenue West, Chatham, Ontario

(Court Address)

taken from Recording

CD#1611_CR201_20211116_093047__10_VERBEEGR.dcr

, which has been certified in Form 1.

February 17, 2022

“Annette Duquette”

(Date)

(Signature of Authorized Person(s))