Court File and Parties

COURT FILE NO. CR-20-538 DATE: 20220422

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN I. Bulmer and R. De Filippis, for the Crown

- and -

L.R. P. Brauti & M. Ahumada, for the Defendant

HEARD: March 28-31, April 1 & 5, 2022

REASONS FOR JUDGMENT (Given Orally)

Note: This proceeding is subject to publications restrictions under s. 486.4 of the Criminal Code.

Baltman J.

INTRODUCTION

[1] The Defendant faces two charges of sexual assault. On the first count, it is undisputed he had sexual intercourse with the Complainant. The question is whether she consented, or, alternatively, whether he had a mistaken belief in her consent. On the second count, the Defendant denies any sexual contact.

[2] The parties met when the Defendant rented out his basement apartment to the Complainant. They quickly developed a friendship. On the night before she was to move in, the Complainant and the Defendant had sexual intercourse in his upstairs bedroom. She now alleges that she was so intoxicated that she blacked out and has no memory of most of the event, and therefore could not have consented. The Defendant asserts she was lucid and enthusiastic throughout.

[3] The next morning, the parties drove to McDonald’s and purchased takeout breakfast. The Complainant alleges that while they were eating in the Defendant’s car, he tried to force her to perform oral sex on him. The Defendant denies any such behaviour.

FACTUAL OVERVIEW

(a) The Relationship Between the Parties

[4] The Complainant is now 24 years old, and the Defendant is 35. When these events occurred, they were both employed with Peel Regional Police (PRP), the Defendant as a police officer in the Regional Breath Unit (RBU) and the Complainant as a civilian 911 operator.

[5] The Complainant and the Defendant met through the PRP’s internal, electronic bulletin board when she was looking for an apartment to rent. The Defendant and his mother resided in a house with a main floor, upper floor and basement. In order to gain some extra income, he renovated the basement to be a self-contained one-bedroom apartment, and then placed an ad on the bulletin board to rent out the unit. The Complainant had previously been living with her parents and was temporarily staying with a girlfriend while she looked for an apartment.

[6] After seeing the ad, the Complainant along with her girlfriend visited the apartment on March 14, 2020. The Defendant showed them through the apartment. On March 19, the Complainant signed a lease to rent the unit for $1,300 per month, beginning April 1, 2020. However, she and the Defendant very quickly developed a relationship that went well beyond landlord and tenant. This was made clear by the volume and nature of messaging between them over the 16 days between March 14 and March 30. Within that timeframe, the parties exchanged hundreds of text messages, containing discussions about:

• Work issues, including relationships within the workplace;
• What the parties liked to eat and drink, including frequent references to alcohol consumption; and
• Past relationships and family issues.

[7] Significantly, the parties also discussed getting to know each other better. Within their messages, they flirted with each other. She told him she “mostly” dated “brown guys”; having already met him, she knew he was brown. They talked about doing day trips together or even an overnight trip to Niagara. Although the Complainant testified that she was just keeping the conversation going because the Defendant was a co-worker and her new landlord, she agreed he could reasonably conclude from their conversations that she was interested in him and that the friendship could turn romantic.

[8] Within their text messages, both parties joked about how their workplace was replete with gossip about employees’ personal relationships. As the Complainant remarked, “People treat [P]eel like it’s match.com”

[9] In fact, the parties got together in person to socialize on two occasions before the Complainant was scheduled to move in. On March 22, they spent approximately one hour together. On their second meeting, on March 28, they spent close to three hours together.

(b) The Events in Question

[10] Although the Complainant was not scheduled to move in before April 1, the parties had arranged that she could pick up the keys and begin moving in her belongings on the evening of March 30. She arrived shortly before 10:30 p.m. on that evening. After the Defendant helped her unload her car and install her belongings into the basement apartment, he and the Complainant came upstairs to the main floor.

[11] Portions of the events that occurred on the main floor are captured on video. After the Defendant and his mother purchased this house, and well before this incident, he had motion activated security cameras installed to protect the exterior and interior of the house, in case of a break-in. Of particular relevance to this case is the interior camera in the front foyer. It captures most of the foyer, including the entrance to the living room and the first set of stairs leading up to the second floor. Neither Crown nor Defence dispute the authenticity of the video footage. As I explain below, I find that evidence to be a compelling factor in this case.

[12] After the parties came upstairs, the Defendant offered the Complainant a beverage; she asked for gin. The closest he had was a bottle of pineapple flavoured “Ciroc” vodka, 35% proof.

[13] It is undisputed that over the next 70 minutes – between 10:44 p.m. and 11:54 p.m. - the parties each consumed several shots of the vodka. Each shot was approximately one ounce. The parties disagree on the total amount of alcohol consumed; the Defence asserts they each had no more than five shots, whereas the Crown argues it must have been significantly more. As I explain below, I agree with the Defence that each party consumed roughly five shots.

[14] At 11:44 p.m., the Complainant is seen on video walking, talking and smiling in the Defendant’s foyer as he showed her where the bathroom was. She recalls then having a fifth shot of vodka, with the Defendant, in the living room. The Complainant testified that after the fifth shot, she was feeling “tipsy but in control”.

[15] What happened next is both pivotal to this case and hotly contested. The Complainant testified her last memory is the Defendant grabbing and kissing her in the living room. He did not ask for permission, and she felt she was “in a dream”. She asserts that around that point she began to lose memory and/or consciousness. Her only recall is a “flash” of the Defendant carrying her down a set of stairs. She woke up at approximately 7:30 a.m. the next morning in the basement apartment, on a deflated mattress. She texted the Defendant, asking “Wth [what the heck] happened last night”. He responded “I was pretty hammered myself. We had sex from what I remembered and then I blew up that air mattress for you. Since someone squirted everywhere and my mattress is soaked lol”.

[16] The Defendant brought a towel and soap down to the basement. The Complainant asked him to elaborate on what had happened. He told her she had initiated the sex, and performed oral sex on him, and that they had sexual intercourse – including anal sex – in his bedroom. She told him she had no memory of that. However, at that point she accepted his version of what had occurred and did not suspect she had been sexually assaulted.

[17] After she showered and dressed, they went to McDonalds for breakfast. While they were in the front seat of his car, eating breakfast, he put his hand on the back of her neck and pushed her head down toward his lap. She interpreted that as him seeking oral sex, which she declined. They then drove to Costco, filled up the car with gas, and returned to the house. Shortly after, she headed to work.

[18] The Defendant’s version parallels that only in the initial phase, i.e. he agreed that between 10:44 p.m. and 11:54 p.m. he and the Complainant each consumed five shots of vodka. During this time, they were mostly in the living room, playing video games and chatting.

[19] Beyond that, the Defendant described a very different event. After the 4th shot, the Complainant approached his seat and stood close to him, while they continued playing video games. After the fifth shot, she sat on his lap and began kissing him. They then began to stroke each other, first over their clothing, then underneath. Concerned that his mother might come downstairs and see them in that state, he asked the Complainant if she wanted to go upstairs, where the bedrooms were. She said yes.

[20] At that point, he felt “a little bit buzzed”, but lucid and in control of his movements. Based on his police training and experience, he believed the Complainant was also fairly sober. Her balance and gait were largely steady, and she was communicating in a coherent manner. He was also confident she was consenting, as throughout their engagement she was enthusiastic, proactive and persistent.

[21] Once they decided to go upstairs, they engaged in another long kiss while backing out of the living room toward the staircase. When they paused for a few moments in the foyer, the Defendant lifted the Complainant, placed her over his shoulder, and carried her upstairs. The Defendant explained that he did this in the spur of the moment, as a “romantic gesture”. They were both giggling as he carried her upstairs but when they reached his bedroom, he urged her to be quiet, because his mother’s bedroom was just down the hall.

[22] Once there, they each undressed, and then had vaginal intercourse, during which he ejaculated. After a pause, they engaged in oral sex, followed by vaginal intercourse “from behind”, during which, in part due to the abundant fluids produced, he accidentally inserted his penis part way into her anus. He apologized and they resumed vaginal sex, after which he ejaculated again.

[23] After a pause, the Defendant considered that if his mother woke during the night and discovered the Complainant was upstairs, she would find that disrespectful, for cultural reasons. He therefore explained to the Complainant that he would go into the basement apartment, set up an air mattress for her to sleep on, and then return upstairs to get her. She agreed, but when he returned she was extremely drowsy and complained that she felt dizzy. He asked her if she wanted to be carried downstairs and she said “yes”, so he did. That occurred at 1:42 a.m.

[24] When they reached the basement, he set her up on the mattress with a blanket and a bottle of water, and then returned to his bedroom. By this point it was just before 2:00 a.m. Before he went to sleep, he texted her “Call me when you wake up breakfast on me…I’ll set my alarm for 12.”

[25] In the morning, after she texted him that she was awake, he returned to the basement and she asked him what he remembered about the night before. When he recounted the sexual acts, she seemed embarrassed but not surprised, and told him that “when I drink I get so horny”. She then told him she was hungry, so they went to a nearby McDonald’s for breakfast.

[26] While they were out for breakfast, she expressed concerns about what her co-workers might say when they learned about this. She appeared embarrassed and regretful. They both agreed that going forward the relationship would be strictly platonic and neither of them would discuss what had occurred with their co-workers. At no point did he suggest, either by words or gesture, that she perform oral sex on him. After they returned home, they hugged each other goodbye and parted on good terms. He headed upstairs and she went to the basement.

(c) The Aftermath

[27] Almost immediately after they parted that day (March 31), the Complainant continued to express concerns to the Defendant, via text messages, about what her co-workers might say about their sexual liaison: “I have to go home and shower and not go into work like a hot mess again tomorrow”; “Can’t wait for all the comments”; “And got a hickey on my neck because I slipped?”.

[28] These concerns persisted after she began her shift that afternoon. Her text exchanges with her friend Noah Clarke on March 31, 2020, include several messages consistent with regret, embarrassment, and taking responsibility for her bad decisions. At trial she testified that during these exchanges, she did not believe that she had been sexually assaulted, but rather that she had made a bad decision while intoxicated.

[29] The Complainant also speculated that maybe the Defendant had “drugged” her. To verify that, she underwent testing at McKenzie Health shortly after midnight, but was told that it would take a few days for the results. (They were negative.)

[30] The following day, April 1, 2020, she expressed similar concerns to her friend Jonathan Mele, and then later to a co-worker, who alerted the supervisor. Pursuant to her mandatory reporting obligation, the supervisor filed a report regarding the Complainant’s allegations, effectively taking the decision whether to move forward out of the Complainant’s hands.

[31] Shortly after, the Defendant was notified that the Complainant had filed a complaint against him at work. He was subsequently suspended from all police service duties pending the outcome of this case.

(d) The Complainant’s Alcohol Consumption Habits

[32] In the days and weeks before this event, the parties exchanged numerous messages about alcohol consumption which demonstrate that as of March 2020 the Complainant was a frequent, enthusiastic and prolific drinker. She told the Defendant she liked to drink beer, gin, tequila, whiskey, and also mentioned drinking wine.

[33] At trial, the Complainant acknowledged that at the time of these events she drank alcohol “almost” daily. In particular, and on average, at that stage in her life she drank:

• 3-4 drinks, 4-5 days a week in a sitting of 3 to 4 hours
• 5 or more drinks once or twice a week (usually on a Friday and Saturday)
• 15–20 drinks, on occasion

[34] Significantly, on those occasions when the Complainant had between five to ten drinks in a night, she generally remembered “pretty much everything” the next day, including where she was, whom she was with, how much she drank, what conversations took place, whether she had an argument or a romantic encounter, and how she got home. Further, after five to ten drinks, she was fairly mobile and lucid. She could walk the length of an average courtroom or up or down stairs. She would be able to socialize, play video games, and carry on and understand conversations.

[35] Further still, and vitally for this case, with five to ten drinks in her she had no difficulty making important decisions, including whether to drive or whether to accept a ride with a certain person, or whether to go home or to someone’s house for a romantic evening. Nor would she have much difficulty walking or talking. She testified that based on her own experience, she would not expect to black out or even have significant memory loss after five shots of Ciroc.

[36] In sum, at the time of these events, she was a seasoned, strong and frequent drinker, who, while not a large person (height 5’4”, weight 105 lbs), easily managed large amounts of alcohol without any negative impact on her ability to make, execute or recall important decisions.

[37] She was also aware that as an officer within the RBU of Peel Police, the Defendant was trained to assess people’s sobriety on a regular basis and was part of the police enforcement around alcohol consumption.

(e) The Complainant’s Sleeping Disorder

[38] Long before these events the Complainant was diagnosed with “idiopathic hypersomnia”, a serious sleep disorder that causes the person affected to be extremely sleepy even after prolonged sleep. It also often causes difficulty waking up after the person has been asleep.

[39] The Complainant testified that this disorder was continuing to plague her at the time of these events. She could fall into a sleep so deep that “a bomb could go off and not wake me up”, nor be woken by people shaking or moving her. On occasion, she has fallen asleep for nearly 24 hours in a row. Although when these events occurred she was taking a drug called Adderall to alleviate the effects of this disorder, she nonetheless still experienced long periods of sleep, might not be woken with loud noise or when shaken, or, even if woken, remained extremely drowsy.

(f) The Toxicologist’s Evidence

[40] Ms. Betty Chow, the toxicologist retained by the Crown, testified about the likely effects of alcohol consumption on the Complainant. In cross-examination, she was asked to make various projections based on evidence from the Complainant regarding her drinking habits at that time, in particular that she consumed on average three drinks per day, four to five days per week, in a sitting of approximately three hours, and that on occasion she drank far more than that.

[41] Based on those assumptions, and factoring in the Complainant’s weight and height, Ms. Chow testified that assuming the Complainant began drinking at 10:44 p.m. and consumed five one-ounce shots of 35% alcohol in roughly 10–20 minute intervals, at 11:54 p.m. her blood alcohol concentration (BAC) was between 135 to 145 mg/100 mL of blood, and, at 1:42 a.m., was between 95 to 125 mg/100 mL of blood.

[42] In particular, Ms. Chow opined that by 11:55 p.m. the Complainant would have been in a “low intoxicated state”, and she would not expect her to have much trouble walking or talking. The Complainant’s inhibitions might be lowered but she would not expect her to suffer memory loss for several hours.

[43] Further, by 1:42 a.m., when the Complainant’s BAC would have been between 95 to 125 mg/100 mL, Ms. Chow would not expect alcohol to be the cause of her passing out, or being unable to wake up or move. If the Complainant was not then rousable it is “highly unlikely” that alcohol was the cause. She agreed the Complainant’s sleep disorder might be the explanation for her being in that state at that time.

THE LEGAL FRAMEWORK

[44] As in any criminal prosecution, the Crown bears the burden of proving guilt beyond a reasonable doubt. In particular, the Crown must prove that the Complainant did not consent to the sexual activity with the Defendant. The consent must be voluntary and must be to each and every act that occurred. For consent to be valid, the Complainant must be conscious and capable of consent throughout the activity: R. v. J.A., 2011 SCC 28, at paras. 23-31; R. v. G.F., 2021 SCC 20, at paras. 56-58.

[45] Importantly, the issue of consent is to be determined from the perspective of the Complainant. The actus reus focuses squarely on her state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the Complainant testifies that she did not consent, or was incapable of consenting, and the trier of fact accepts that, then there was no consent and the actus reus is established: R. v. Barton, 2019 SCC 33, at para. 89.

[46] Moreover, the Complainant must be capable of understanding that she has the choice to refuse to participate in the sexual activity. Whether she later recalls the events or not does not determine what her capacity was at the time. What matters is that the Complainant understood the sexual activity in question and that she could refuse to participate: G.F., at para. 65.

[47] Only a high level of intoxication that deprives the Complainant of an operating mind is sufficient to remove the capacity to consent to sexual activity. Drunkenness, alcohol-induced memory loss, disinhibition or loss of self control are not the equivalent of incapacity; a drunken consent is still a valid consent: R. v. Tahan, 2022 ONSC 1103, at para. 130; R. v. Parcasio, 2018 ONSC 889, at para. 138; R. v. Cedeno, 2005 ONCJ 91, at para. 18; R. v. J.W.M., [2004] O.J. No. 1295, at para. 55.

[48] Further, absent expert evidence, a loss of memory or a “blackout” is merely evidence that the witness cannot testify as to what happened during a particular period. On its own, it cannot be taken as proof of lack of consent or lack of capacity: R. v. J.R. (2006), 40 C.R. (6th) 97 (Ont. S.C.), at paras. 17-20, 43-45, aff’d 2008 ONCA 200; R. v. Garciacruz, 2015 ONCA 27, at paras. 78-81.

[49] In this case, the Complainant and the Defendant provided very different accounts as to whether the sexual intercourse was consensual. Because the Defendant testified, the important principles set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 apply. If I believe the evidence of the Defendant, I must acquit. If I do not believe the evidence of the Defendant, but am left with a reasonable doubt, I must acquit. Even if I am not left with a reasonable doubt by the evidence of the Defendant, I must ask whether, on the basis of the evidence that I do accept, I am satisfied that all of the elements of the offence have been proven beyond a reasonable doubt: W.(D.), at p. 758.

ANALYSIS

Count #1

[50] The three issues in play on this count are a) whether the Complainant had the capacity to consent; b) whether she did in fact consent to the sexual activity; and c) if she did not consent, whether the Defendant had an honest but mistaken belief in her consent. For several reasons, I found the Complainant’s evidence on these issues to be highly unreliable.

A. The Complainant had the capacity to consent

(i) The Complainant’s alcohol consumption was well within her limits

[51] First, I reject the Crown’s position that the Complainant was too intoxicated to provide informed consent. As I’ve noted above, the undisputed evidence is that at that point in her life, the Complainant regularly consumed five to ten drinks without any serious impairment to her judgment and decision-making ability. And on the evidence in this case, I find that on the night in question the Complainant consumed five ounces of alcohol, which was well within her tolerance at that time. In particular:

1. The Complainant testified that she remembers consuming five shots of alcohol within this period. That is also what she told the police within a few days of this incident.
2. The Defendant testified he got the bottle from a friend who bought it for him at duty free. This is corroborated by the fact that the bottle is 1000 ml (approximately 34 oz.), which is not available from LCBOs in Ontario. When the friend came to drop the bottle off, he and the Defendant had between four to six shots from the bottle, each approximately one ounce. The Defendant’s evidence on this point was not seriously shaken.
3. The Defendant testified that while he was pouring the shots for himself and the Complainant, he knocked over the bottle, spilling approximately four to five ounces. This is corroborated by the WhatsApp messages sent by the Defendant the following day. The Complainant could not recall whether or not he spilled the bottle.

[52] Accepting, as I do, the Defendant’s account of how the missing alcohol was consumed, the following breakdown would apply:

Consumption	Amount
Shots by accused & friend who purchased the bottle	4 oz.
Accused’s spill while pouring shots	4 oz.
Shots by accused & Complainant	10 oz.
Total Consumed as of March 31, 2020	18 oz.
Total Remaining	16 oz.

[53] This estimate is corroborated by the forensic photograph of the bottle taken by police, which suggests that almost half of the bottle was left after the parties drank from it on March 30, 2020.

[54] To dispute this, the Crown points to a text message sent by the Defendant to the Complainant shortly after she woke up the next day. In response to her apparent grogginess, he wrote “We drank ¾ of the bottle…I drank 5 shots u drank the rest.” I accept the Defendant’s evidence that he was then teasing or joking with her and made this comment in that vein. Many of the text messages that immediately follow that exchange are in a similar vein. Importantly, at this point the parties were still on good terms and there was no indication that the Complainant was concerned about their sexual activity the night before.

(ii) The Toxicologist’s evidence supports a finding that the Complainant was capable of consenting to the sexual activity

[55] On its face, five shots of vodka within 70 minutes, in a woman as slight as the Complainant, sounds like a lot. However, vital to this case is the Complainant’s particular tolerance for alcohol, given her admitted regular, heavy drinking habits at that time.

[56] As noted above, Ms. Chow’s uncontradicted evidence was that based on the Complainant’s habitual alcohol consumption at that time in her life, she had a large tolerance for five drinks, and would not be significantly intoxicated with that amount in her system.

[57] The Complainant herself acknowledged this in her message to Mr. Mele the next day: “I’ve drank way more than that before and have never ever blacked out before.”

(iii) The Video Evidence demonstrates that the Complainant was capable of consenting to the sexual activity

[58] I refer here to the video evidence recovered from the foyer camera. At 11:44 p.m. – shortly after the fifth shot had been consumed - the Defendant showed the Complainant where the bathroom was. They are seen walking through the foyer toward the bathroom area. On her return, she touched the wall very briefly. The Crown argues this demonstrates incapacity.

[59] I disagree. On both her approach and return from the bathroom, the Complainant walked assuredly and in a straight line. She was not stumbling or weaving at any point. The wall touch was a glancing gesture of little moment.

[60] Ten minutes later – at 11:54 p.m. – the couple is seen emerging from the living room, into the foyer, locked in a long and enthusiastic kiss. This video is particularly significant, as it immediately precedes them going upstairs for sex. The Complainant has both her arms wrapped snuggly around the Defendant’s neck, and her head and body movement display clear, vigorous engagement. She certainly does not appear to be in a “dream” like or “unconscious” state, as she suggested in her testimony. Her evidence that she became unconscious within ten minutes of being seen walking, smiling and talking in the Defendant’s foyer defies belief.

(iv) The Complainant’s “memory loss” is consistent with her sleep disorder

[61] Given my conclusion that the Complainant had no more than five ounces of vodka, and the toxicologist’s evidence that that was well within her capacity at that time, I find her claim of memory loss preceding sex to be highly suspect.

[62] I turn to her obvious sleepiness afterwards. As noted above, the Defendant is seen on the video carrying the Complainant down to the basement apartment at 1:42 a.m. The Crown suggests this is consistent with her claim to having “blacked out” from alcohol consumption, proving she never consented to sex.

[63] Not only is that theory, as noted above, refuted by the toxicologist, it also ignores the more obvious explanation, namely the Complainant’s sleep disorder. The Defendant testified that after he returned from setting up the basement for her to sleep that night, the Complainant was too groggy to walk on her own and agreed to be carried. This is consistent with her sleep disorder; in particular, and as she acknowledged, it can be extremely difficult, if not impossible, to fully arouse her once she has drifted off.

B. The Complainant consented to the sexual activity

(i) The video shows an enthusiastic and willing sexual partner

[64] I refer again to the foyer video at 11:54 p.m., where the parties are in a prolonged embrace immediately before heading upstairs. In this video, both the Defendant and the Complainant are fully engaged in kissing each other. The Complainant appears to be an active and enthusiastic participant in this embrace.

[65] Moments later, when the Defendant picks her up and carries her upstairs, there is no evidence on the video of resistance or reluctance. On the contrary, at the outset she leans forward, and then wraps her arms around him as he is climbing the stairs. The Complainant appears content and willing.

(ii) I accept the Defendant’s evidence that the sexual activity was consensual

[66] The Defendant’s account of how the sexual activity unfolded was consistent with the text messages between the parties, the video evidence, and human behaviour. He described, convincingly in my view, how the relationship evolved from landlord and tenant, first to a flirtatious friendship, and then on the evening in question to a mutual seduction.

[67] Significantly, the Defendant knew there was a camera in the foyer recording any activity there. He himself had installed it. As a police officer, he would understand the potential evidentiary value of anything captured on that video. It therefore seems peculiar that he would begin a sexual assault in plain view of the camera. At the very least, it suggests that in his mind there was nothing untoward in his actions.

[68] It is also undisputed that the Defendant’s mother’s bedroom was a mere 10-15 feet away from his bedroom. The Complainant admitted she knew the Defendant’s mother was upstairs that evening, within easy hearing distance of any loud noise or unusual interruption. In those circumstances, with his mother sleeping just down the hallway from his bedroom, it would have been incredibly brazen for the Defendant to risk carrying an unwilling partner upstairs, much less to proceed to commit a sexual assault within his bedroom.

[69] Further, the Defendant’s subsequent actions are inconsistent with someone who deliberately or knowingly got a woman drunk and then sexually assaulted her. It is undisputed he carefully set her up in the basement with a mattress, blanket and water. Before going to sleep himself, he texted her to “call me when you wake up breakfast on me”. In the morning, he brought her a towel and soap, discussed with her what had happened the night before, and then proceeded, as promised, to take her out for breakfast.

[70] Finally, the video camera from the outside of the house, which captures the driveway area, shows the Complainant walking toward and getting into the Defendant’s car the following morning as they head off for breakfast. The parties appear at ease with each other. There is certainly no sense that the Complainant is anxious or reluctant to be in his company, which is consistent with the Defendant’s evidence.

[71] While there is no set way that a victim of sexual assault might behave, her actions suggest that at that point she did not believe she had been assaulted. In fact, it was not until her subsequent text exchanges with friends that she considered this to be anything other than a consensual event. What’s important here is not any delay in reporting this to the police. Rather, it’s that in the immediate aftermath she did not herself perceive this to be a sexual assault. She only altered her take on what happened after suggestions from Mr. Clarke and Mr. Mele that this might be something sinister.

[72] For all these reasons, I find the Complainant both had the capacity to consent and did in fact consent to have sex with the Defendant on the night of March 30, 2020. It is therefore unnecessary for me to deal with the Defendant’s alternative position of honest but mistaken belief in consent.

Count # 2

[73] As for the remaining allegation regarding sexual assault the following morning during breakfast, I find that highly improbable, for several reasons.

[74] First, it is unlikely that the Defendant would have sought oral sex in the front seat of his car in broad daylight in a parking lot adjacent to McDonalds, within easy view of anyone who might be walking nearby.

[75] Second, it is inconsistent with the attentive and considerate behaviour that the Defendant displayed to the Complainant from the time she woke up that morning.

[76] Third, I find it conspicuous that the Complainant made no mention of this alleged assault until the very end of her police interview, and even then, only after being prompted by the interviewer whether there was “anything else”. In particular, she said nothing about it during either of the detailed conversations she had with Mr. Clarke and Mr. Mele about the Defendant’s sexual behaviour.

[77] I therefore conclude that the Complainant was not sexually assaulted by the Defendant on the morning of March 31, 2020.

Conclusion

[78] The charges are dismissed.

Baltman J. Released: April 22, 2022