Superior Court of Justice
Court file no. CR-18-00000697
DATE: 20220718
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Randy Fraser
S. Herbert, for the Crown
S. Proudlove, for the Accused
HEARD: February 28 and June 6, 2022
RESTRICTION ON PUBLICATION
There is an order banning publication of any information identifying the complainant in this proceeding.
REASONS FOR DECISION AT TRIAL
OVERVIEW
[1] The accused Randy Fraser stands charged with sexual assault against the complainant, PS. The offence is alleged to have occurred between April 20, 2017, and May 6, 2017.
[2] The accused also stands charged with breach of probation due to the sexual assault charge.
[3] The sexual assault charge relates to allegations that the accused groped the complainant without her consent and sexually assaulted her while she was sleeping causing her to awake.
[4] There were two witnesses who testified at trial. PS is the complainant and the sole Crown witness in this case. Mr. Fraser is the accused and the sole Defence witness in this case.
The Evidence of PS
[5] PS presented as a confident witness who was eager to testify. She claimed to have a clear recollection of the events and did not hesitate in her testimony.
[6] PS testified that she had been living with her husband and her four children in a home located approximately four doors down from the accused’s apartment. PS further testified that sometime earlier to the incident that she had allowed her goddaughter M and her goddaughter’s boyfriend D to move into her home with her family.
[7] PS testified that she had known the accused for 20 years and that he was a good friend. She said that she would see the accused five or six times a year and it was a “good relationship”, she “trusted” the accused “a lot”, and they had “lots of fun together”. PS also testified that she had never “stayed a night near him before” and had “total trust in him” as she “didn’t think he would harm me in any way”.
[8] PS testified that at the time of the alleged offence, she had an active addiction to crack cocaine and that her goddaughter’s boyfriend D was her drug dealer and that she bought drugs from him while he lived in her family’s home.
[9] PS testified that her husband did not use crack cocaine and did not approve of her drug use. PS further testified that at the time, neither her goddaughter M, nor her goddaughter’s boyfriend D were using drugs, although D was her drug dealer.
[10] PS testified her children were apprehended by CAS because D had a “seizure” (not an overdose) while living at her home and an ambulance was called. PS repeatedly stated that her children were apprehended due to D’s seizure and not due to her addiction to crack cocaine.
[11] PS testified that the day that her children were apprehended by CAS, her husband returned home (after the apprehension) and threw her out. PS testified that both M and D (her goddaughter boyfriend/drug dealer) joined her when she left.
[12] PS testified that after she was evicted, she was walking down the street carrying two bags full of her belongings and the accused saw her and came over to “see what was going on”. PS testified that she explained her situation and Mr. Fraser offered that they (PS, M, and D) could stay with him at his two-bedroom apartment until they could find something “more suitable”.
[13] PS said that they walked straight to Mr. Fraser’s apartment and that M and D were given Mr. Fraser’s daughter’s bedroom (who stayed every other weekend). PS testified that Mr. Fraser “offered me to have his bedroom and he would stay on the couch”. PS said that this was Mr. Fraser’s idea, and they didn’t have any other conversations around the arrangement.
[14] When PS arrived at Mr. Fraser’s apartment, PS testified that they began “smoking crack cocaine” (PS and Mr. Fraser) and then she had a visitor come to the apartment who joined her “for the night partying and doing drugs”.
[15] PS testified that while her visitor was at the apartment, Mr. Fraser remained in the living-room, and she remained in the bedroom with the door closed.
[16] PS testified that her visitor left in the morning and Mr. Fraser came into the bedroom and they “started partying”. PS testified that she and Mr. Fraser were doing “just crack cocaine” and stayed awake for “three to four days partying”. PS stated that she did not sleep during this period and has “no idea” whether Mr. Fraser slept.
[17] PS testified that while in the bedroom with Mr. Fraser she was wearing “tight jeans and a t-shirt”. She stated that she did not change or shower and was wearing the same clothes while partying for three to four days with Mr. Fraser in his bedroom.
[18] PS testified that Mr. Fraser was wearing a pair of shorts and nothing else.
[19] PS testified that on or about day three of her partying with Mr. Fraser, the following incident occurred:
“At some point I started to doze off and he started to grope me and grab at my boobs and my, my ass and that – at that point I had stated to him straight out I was not interested in, in him that way. I did not want to have sex with him. Please don’t touch me like that again. I passed out. I woke up to my head banging off the wall and my legs being lifted up and him full naked inserting his penis in me.”
[20] PS expounded on the narrative as follows: “…I leaned back and then I started to doze off and that’s when he started grabbing at me and that’s when I told him that I just was not interested in him any way, shape or form in that manner”. PS stated that Mr. Fraser responded, “I know, and you’re so beautiful”.
[21] PS testified that she “fell asleep and then I woke up to my head banging off the wall and my head’s hurting and Mr. Fraser doing what he was doing. He had taken off my pants in my sleep and my underwear.”
[22] PS stated that she woke up due to the pain of him trying to lift her. She stated that she was laying on her back and when she woke up Mr. Fraser had her legs up on his chest. PS stated that Mr. Fraser was trying to lift her body by her waist and her head was hitting the wall.
[23] PS stated that she did not take her clothes off at any point and was not awake when her clothing came off. She testified that when she went to sleep - she had on jeans, underwear, bra and a t-shirt and when she woke up - she only had on her shirt and bra.
[24] PS claimed that Mr. Fraser was already having sex with her when she woke up. She stated that she remembers “smoking a toke and then waking up to Randy doing that”. She said she “looked at him and said I told you no. I said no. And he just said oh I’m sorry, I’m sorry, I’m sorry and climbed off me and then I passed right back out again”.
[25] PS testified that Mr. Fraser left the room at that point and she “passed right back out”. She said that she had been awake for four or five days and woke up for only two or three minutes” at that time. PS said that she slept for two further days until she finally woke up (noting that her goddaughter told her how long she slept as she (PS) didn’t know).
[26] PS stated that she woke up to her phone ringing – her best friend called and PS “told her to come and get me”. PS stated that her friend came about 10 minutes later. PS’ friend took her to her brother’s house where her family was staging “an intervention” for her.
[27] PS claimed that she took a bag of clothing when she left. Mr. Fraser was offering her breakfast and she “just said no”.
[28] After PS was taken to her brother’s house for the intervention - she returned to pick up her second bag of clothes and then moved to a friend’s home where she stayed until she got an apartment at Red Pines in June/July of 2017.
[29] PS testified that around Christmas of 2017 that Mr. Fraser showed up at her apartment at Red Pines to purchase drugs from “whatever dealer it was that was selling out of my house at that time”. She stated that she was standing in the kitchen where she and her goddaughter M were cooking. She said that Mr. Fraser began rubbing the small of her back and asking her how she was doing. At that point PS claims that she turned around and told Mr. Fraser: “the last time I seen you, you straight out raped me, get the hell out of my house”.
[30] PS testified that when she moved into Red Pines her addiction got worse and worse. PS stated that she got into needles and heroin. About one year later PS entered several treatment centers and was prescribed methadone and continues to work on her recovery.
[31] PS stated that she advised a friend of the alleged incident and her CAS worker and that in 2018 she went to the police to make a statement about the incident, following which Mr. Fraser was charged.
[32] During cross-examination, PS could not advise as to the age of her goddaughter M at the time with any accuracy but believed that she was 17 (not 15 as suggested to her). In response to the questioning of M’s age, PS stated, “There’s no real bearing on that. Anyways go on”. PS further testified “I was doing a lot of drugs at that point in time and her age was not a thing that I thought about”.
[33] PS denied the suggestion that she went around with her goddaughter because she was her source for drugs. PS testified: “…I was trying to get her to move in with me and go back to school and straighten her life out”.
[34] PS denied the suggestion that she took a cab to Mr. Fraser’s home and insisted that she ran into him in the street, and Mr. Fraser invited her to come to stay with him.
[35] PS insisted that her children were apprehended by CAS not because of her drug use but because her goddaughter’s boyfriend (D) who was also her drug dealer, had a seizure in her house and “ten people called CAS that day”. When pressed PS stated “I don’t know what people said. The CAS didn’t tell me exactly what they said. They just came in and told me that I wasn’t capable of having the kids anymore. They didn’t feel that the kids were safe with me”. PS advised “I was pretty much kicked out that day…the day the kids were taken”.
[36] PS insisted that Mr. Fraser said that she could “rent his room”. She stated, “I pay my way” with “welfare” but corrected her answer to state that she didn’t pay “because she was only there for three, four, days max”. PS then testified that she did not discuss payment to Mr. Fraser “at that moment” and the issue didn’t come up.
[37] PS denied that Mr. Fraser did not give up his room to her during her stay.
[38] PS denied that she initiated sexual contact with Mr. Fraser and stated: “I was never attracted to Randy…I would not offer myself to somebody that I don’t have that type of feeling for.”
[39] PS denied that she is friends with Mr. Fraser’s sister Catherine stating, “I wouldn’t say that cause I don’t really recognize her”. When pressed, PS stated, “I know Randy has a lot of close friends that he clams to be sisters and stuff like that but I don’t know for sure if they are his sisters or not though”.
[40] When asked whether PS remembered being in court at a time where there was an incident discussed that involved Mr. Fraser and a sister or stepsister named Catherine, PS responded, “No. I remember being outside of court and hearing an incident of Randy and his stepsister but not in court”. When it was suggested that PS was there when the charges were dismissed PS responded, “I don’t recall that whatsoever”.
[41] When asked what PS recalled about what she was like at the time of the alleged incident when she was using crack cocaine, PS testified: “I didn’t think about anything but where I was going to get my next high”.
The Evidence of Mr. Fraser
[42] The complainant’s allegations were put to Mr. Fraser during his examination in chief. He testified that the events recited by PS “did not occur” and the allegations are “not true”.
[43] Mr. Fraser testified that PS, M, and D, showed up at his apartment in a cab and rang his apartment buzzer. He further stated that PS asked if she, M, and D, could stay until they found alternate accommodation. Mr. Fraser stated that he contacted his daughter to enquire whether it was okay to allow M and D to stay in her room for a bit and after she agreed Mr. Fraser advised PS they could stay until they found alternate accommodations.
[44] Mr. Fraser testified that he then went downstairs where he found PS, M, and D, and a cab with their belongings outside of his apartment.
[45] Mr. Fraser testified that M and D given his daughter’s bedroom, and PS was to share his bedroom with him except he allowed her to use his bedroom for visitors. Otherwise, Mr. Fraser and PS shared his bedroom while PS stayed with him.
[46] Mr. Fraser testified that on the first day that PS arrived, PS had a visitor for an hour or a half hour and then had a shower and joined him in his bedroom. Mr. Fraser testified that both he and PS were naked while in his room. Mr. Fraser testified that he and PS “partied” meaning they smoked crack cocaine and weed and ingested mushrooms and alcohol for two to three days straight without sleeping. He testified that they were really high and had a lot of fun.
[47] At day two or three, Mr. Fraser ran out of drugs. PS, however, still had drugs as she had been the person who had purchased the drugs while at the apartment. Mr. Fraser testified that PS purchased the drugs from D (who was in his daughter’s bedroom). Mr. Fraser further testified that when he ran out of drugs, he fell asleep. PS was still awake as she still had drugs left and was smoking the last of her crack cocaine from her pipe when he fell asleep/passed out.
[48] Mr. Fraser denied that he sexually assaulted PS, denied that the events as she described ever occurred, and testified that he and PS had a lot of fun and did not exchange harsh words or have any disagreements during her time at his apartment.
[49] When Mr. Fraser and PS were awake, PS told Mr. Fraser that she was going out to see a family member (he thought it was her sister) to try to get some money from her. When PS returned from her outing, PS told Mr. Fraser that her family had staged an intervention and she had to leave to stay with a family member. PS thanked Mr. Fraser and left. Mr. Fraser did not see or hear from PS for at least a year and not until he was charged with the offences before the court.
[50] Mr. Fraser denies that the sexual assault as alleged by PS occurred. He denies that he ever attended PS’ apartment in Red Pines or ever knew that PS lived at Red Pines.
POSITIONS OF THE CROWN AND DEFENCE
[51] The Crown claims that the internal integrity and consistency of the evidence presented, satisfies the burden of proof beyond a reasonable doubt that the accused is guilty of the offences as charged.
[52] The accused asserts that the onus lies solely on the Crown to prove the accused’s guilt beyond a reasonable doubt on the entirety of the evidence admitted and in the present case the Crown has not met the burden.
[53] The accused is presumed innocent of all charges and is not guilty of any offence unless the Crown proved beyond a reasonable doubt that the offence occurred.
[54] It is the Crown that bears the burden of proving guilt beyond a reasonable doubt, not the accused who must prove his innocence. Justice Cory expressed and detailed this principle’s importance in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320 at paras. 27 and 39:
the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence.… If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law.
A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.
[55] It is not enough for me to believe that the accused is probably or likely guilty of the offences to which he stands charged. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Having said this, it is impossible to prove anything with absolute certainty. The Crown is not required to do so. Absolute certainty is a standard of proof that is impossibly high. However, proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt.
ASSESSMENT OF EVIDENCE
[56] When reviewing and assessing it, all the evidence should be considered together rather than considering individual items in isolation. In other words, the standard of reasonable doubt is not applied to individual pieces of evidence but is applied to the evidence as a whole to determine if guilt is established by the prosecution beyond a reasonable doubt. This is particularly true where the principal issue is a witness’ credibility and reliability: see R. v. Gostick, 1999 3125 (ON CA), [1999] O.J. No. 2357 (Ont. C.A.) at paras 14-8; and, R. v. B. (R.W.), [1993] B.C.J. No. 758 (B.C. C.A.) at para. 28.
[57] Credibility is a witness’s willingness to tell the truth. Reliability is the accuracy of their testimony. Accuracy is affected by the witness’s ability to accurately observe, recall, and recount events: R. v. G. (E.), 2016 ONSC 4884, [2016] O.J. No. 4205 at para. 16.
[58] A witness whose evidence is not credible cannot give reliable evidence. A credible and honest witness, however, may still be unreliable: R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639 (Ont. C.A.) at para. 33. The reliability of the evidence is what is paramount: R. v. Norman, 1993 3387 (ON CA), [1993] O.J. No. 2802 (Ont. C.A.) at para. 47.
[59] Mr. Fraser testified that the incident as described by the complainant PS did not occur. If I believe that evidence, I must acquit. If I do not believe that evidence but it leaves me in reasonable doubt, I must acquit. Even if I am not left in doubt by the accused’s evidence, I must still consider, on the basis of the evidence that I do accept, if I am satisfied beyond a reasonable doubt of the guilt of Mr. Fraser. If I cannot decide whether to believe Mr. Fraser or if I cannot decide who to believe, or I am unable to resolve conflicting evidence and therefore left in a state of reasonable doubt, I must acquit. A criminal trial is not a credibility contest. At the end of the day, the Crown has the onus of proving its case beyond a reasonable doubt.; R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 66, 67. As stated by the Supreme Court of Canada in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21:
The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused: W.(D.), at p. 758. The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonable doubt remains the central consideration. A verdict of guilt must not be based on a choice between the accused's evidence and the Crown's evidence: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8.
(Also see R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 (S.C.C.), at paras. 9-13)
ISSUES TO BE DETERMINED
[60] In order for the accused to be convicted of sexual assault, the Crown must prove beyond a reasonable doubt that the alleged sexual activity took place without the complainant’s consent and that the accused did so with the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”; R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at para. 42.
[61] The first part of the equation is the actus reus of the offence while the second part of the equation is the mens rea of the offence. The Crown must prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea; R. v. Barton, 2019 SCC 33, 86 at para. 87.
ANALYSIS
[62] Mr. Fraser testified in a reasonable and straightforward manner. He was soft spoken, slightly nervous, and appeared to be frank, forthright, and candid in his retelling of the events surrounding the alleged sexual encounter.
[63] Although Mr. Fraser testified that he and the complainant PS did “a lot of drugs” he did not waiver during cross-examination and was appropriately firm that the drugs did not affect his memory of the events that occurred.
[64] Mr. Fraser’s re-telling of the events surrounding the alleged sexual encounter differed from that told by PS. While some of the differing facts were minor, such as how PS came to stay at Mr. Fraser’s apartment, some were major, such as Mr. Fraser’s denial that the sexual encounter as described by PS occurred.
[65] Having heard, considered, read, and re-read the testimony of PS and Mr. Fraser, to the extent that there is a difference in the re-telling of the events, I find that I prefer and accept Mr. Fraser’s version of events, inter alia, for the following reasons:
a. PS stated that she “bumped into” Mr. Fraser on the street and he offered for her to stay after being evicted from her home while she was carrying two bags of her belongings and accompanied by M and D, who were also carrying their belongings. During cross-examination PS was elusive and argumentative and when pressed that M and D took “all their stuff” from her husband’s home and therefore could not have walked, she responded “I didn’t pay attention to their stuff. Their stuff is not a bearing to me”. I found PS’ version of events to be lacking in common sense and concocted.
b. Mr. Fraser stated that PS together with M and D attended his apartment by cab and rang his buzzer. When he answered the buzzer, PS asked if they could stay at his apartment. Mr. Fraser confirmed with his daughter that it was okay that M and D stay in her room (as she was friends with M) and then Mr. Fraser came downstairs to assist moving their belongings upstairs. Unlike PS, Mr. Fraser was not elusive or argumentative and did not take oppositional positions. When pressed that he did not see the cab arrive, Mr. Fraser responded “I don’t know if she took a cab or not, but they were all there with a cab”. Mr. Fraser’s version of the events has a ring of truth and simplicity that is lacking from PS’ version.
c. PS repeatedly stated that her children were apprehended by CAS because D had a seizure (not an overdose) and that ten people called CAS. PS adamantly denied that her children were apprehended due to her drug use - despite her own testimony that at the time she “didn’t think about anything but where I was going to get my next high”. PS’ repetitive insistence that her children were apprehended due to a medical emergency suffered by D, as opposed to her addiction to crack cocaine appears to be unduly oppositional and/or intentionally misleading and/or untruthful and/or represents a complete lack of self/situational awareness and affects the credibility and reliability of her evidence.
d. PS claimed that Mr. Fraser agreed that M and D would have his daughter’s room and she could “rent” his room while he stayed on the couch. PS said, “I pay my way” and when asked how she paid the rent to RF she said “welfare". When pressed, PS relented and said, “I didn’t pay Randy cause I was only there for three, four days max”. I am concerned with this inconsistency in PS’ evidence. I find that this inconsistency/inattentiveness affects the reliability of PS’ evidence. Mr. Fraser’s version is noted below which I prefer and accept as there were no inconsistencies in his evidence.
e. Mr. Fraser testified that PS’ version of how she came to stay and where he would sleep was “not true”. Mr. Fraser said that he was only staying in the living room when PS had a visitor, otherwise they were sharing his bedroom. Mr. Fraser further stated that he only gave his bedroom up for an hour or half hour. Mr. Fraser denied that he agreed to sleep on the couch while she was there. Again, I find Mr. Fraser’s version of events to be more narratively logical and believable.
f. Contrary to PS’ evidence, Mr. Fraser testified that PS’ visitor stayed only an hour or half hour and then left the apartment. After, PS exited the bedroom, showered, and then joined Mr. Fraser in his bedroom. Mr. Fraser testified that after her shower PS remained naked while they “partied” and that he was also naked as he always slept naked, and they were going to sleep. Mr. Fraser testified that he and PS then “partied” meaning that they consumed “weed, alcohol, crack cocaine, and mushrooms” for two to three days before he fell asleep. Mr. Fraser testified that PS purchased all the drugs from M and D (who were living in his daughter’s bedroom). Mr. Fraser also testified that PS consumed more drugs than him as she had purchased them. Contrary to PS’ testimony, Mr. Fraser testified that he passed out first as PS still had crack cocaine in her bowl that she was consuming. Mr. Fraser explained that he was out of drugs and so he went to sleep/passed out first. As for the allegations of sexual assault, Mr. Fraser testified that it “No, no. Didn’t happen. Nothing, nothing bad happened”. “None of that happened”. As for PS’ statement that he apologized repeatedly when she chastised him, Mr. Fraser testified “Not true” and “Never happened” and he confirmed that when PS, M and D, were staying at his apartment they were never any incidents that involved cross words. Having heard, read, and re-read the testimony of PS and Mr. Fraser, I find again that Mr. Fraser’s version of events has a “ring of truth” that is absent from PS’ version. It belies common sense that Mr. Fraser would allow PS, M, and D, to use the bedrooms while he stayed on the couch. I prefer Mr. Fraser’s simple, straight forward, and logical narrative to that provided by PS.
g. Mr. Fraser did not recollect the alleged sexual assault because he said it did not happen. Mr. Fraser stated that he fell asleep first and did not engage in the alleged sexual relations as described by PS. Mr. Fraser testified that it was not true and did not happen. Mr. Fraser was consistent, straight forward, and forthright in testifying. He was never evasive or argumentative and despite the large quantity of drugs consumed, appeared to have a good recollection of the events, and was not shaken on cross-examination. I prefer and accept Mr. Fraser’s recollection of the events in this regard.
h. Mr. Fraser testified that when PS left his apartment, she stated she was going to see a family member to get some money. Contrary to PS’ testimony, Mr. Fraser stated that when PS returned to his apartment, she was grateful for his hospitality and advised him that she had to leave as her family had staged an intervention and she had to go with them. Mr. Fraser testified that there were no incidents or unkind words exchanged between them and they remained good friends when PS left his apartment. I prefer and accept Mr. Fraser’s evidence in this regard.
i. As for PS’ evidence that Mr. Fraser attended her Red Pine apartment in December of 2017, and groped her, Mr. Fraser testified that he never knew that PS lived at Red Pine and never visited her there. He stated that while he had attended Red Pines it was not to visit PS and had only visited her at her home with her husband as he (Randy) had a room in their rooming house for a bit. With respect to this evidence, I accept and prefer Mr. Fraser’s evidence to that provided by PS.
[66] Mr. Fraser testified in a simple, straight forward manner. He answered all questions put to him by both Crown and Defence and was never confrontational or argumentative. Mr. Fraser explained the situation as he remembered it and did not seek to exaggerate or to speculate on the events that occurred.
[67] Overall, I found Mr. Fraser to be a credible and reliable witness. He testified in a straight-forward manner with no artifice. He answered every question asked of him plainly and without hesitation. Mr. Fraser did not seek to expand, blame, or excuse his actions. He readily admitted that he and PS did “a lot” of drugs of all different descriptions. However, he steadfastly denied that the events as described by PS ever occurred. Mr. Fraser appeared genuinely baffled by the accusations and provided a narrative of the events that occurred over the period with care and consideration. I accept and prefer Mr. Fraser’s testimony in this matter over that of the complainant PS’s evidence.
[68] As for PS, I did not find her to be a credible witness, nor did I find her evidence to be reliable. While no evidence was called to confirm or deny PS’ evidence regarding the apprehension of her children, I have doubts regarding her evidence that her children were apprehended due to a medical emergency encountered by a resident of her home as opposed to her admitted drug addiction. Further, I doubt that she “bumped into” Mr. Fraser in the roadway and that Mr. Fraser then initiated the invitation to stay at his apartment. While these matters are not necessarily relevant to the issue as to whether a sexual assault occurred – they are relevant to the complainant’s credibility. PS did not appear truthful in even minor details. She sought to place blame on those around her – and did not accept responsibility for any of the events that occurred during the period despite her admitted ongoing addiction to crack cocaine.
[69] As for the reliability of PS’ testimony, she acknowledged that she had done “a lot” of crack cocaine and was “really high”. PS also acknowledged that she had not slept in three to five days and was very sleep deprived. Additionally, PS had just suffered great emotional harm with the apprehension of her children and her eviction from her home.
[70] PS was addicted to crack cocaine and was in a spiral of drug addiction and emotional loss on the date of the alleged offences. It is my view that due to PS’ emotional, psychological, and drug induced sleep deprived state, that her evidence on the material points in issue is not reliable.
[71] While PS may believe that the events that she recounted were true and accurate – I have great doubt that the events occurred as she recollected. Instead, I am of the view that PS’ ongoing consumption of drugs, sleep deprivation, and the great emotional and psychological distress suffered by her at that time all negatively affected the reliability of her evidence such that it would be unsafe to base a conviction on PS’ evidence.
[72] Having heard, considered, and reflected on the totality of the evidence provided at trial I have a reasonable doubt as to guilt of the accused Randy Fraser.
[73] Having reviewed and considered the entirety of the evidence in the context of the alleged sexual encounter, including the entirety of the evidence, I find that that his evidence leaves me in reasonable doubt as to whether the alleged sexual assault occurred.
[74] I find that the evidence provided by Mr. Fraser regarding the narrative of the events that occurred that resulted in PS staying with him for a short period, including PS’ drug addiction, the utilization of his bedroom and the partying and drug use that occurred between himself and PS, to be both internally and externally consistent with his description of the events.
[75] Having considered the evidence in its entirety, I find that the evidence of the accused Randy Fraser leaves me with a reasonable doubt that the events as described by the complainant PS did not occur as alleged by her.
CONCLUSION
[76] For the reasons contained herein, as I am left with a reasonable doubt as to the accused’s guilt and an acquittal shall be entered with respect to both counts.
Madam Justice S.J. Woodley
Released: July 18, 2022
COURT FILE NO. CR-18-00000697
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
• Randy Fraser
REASONS FOR DECISION
Madam Justice S.J. Woodley
Released: July 18, 2022