COURT FILE NO.: CR-15-5062
DATE: 2022/10/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
M.D.
F. Rupert and A. Riopelle, for the Crown
O. Abergel and K. Lundrigan, for M.D.
HEARD: October 18, 19, 20, 21, 25, 26, 27, and 29, and November 26, 2021, May 16, 18, 20, 24, 25, 26, 27, and July 11, 2022
subject to any further order by a court of competent jurisdiction, an order pursuant to s. 486.4 of the criminal code has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other crown witnesses, shall not be published in any document or broadcast in any way
REASONS FOR JUDGMENT
ryan bell J.
Introduction
[1] M.D. is charged with one count of sexual assault contrary to s. 271 of the Criminal Code. The charge arises from an incident alleged to have occurred in the early morning hours of February 16, 2015 in the upstairs washroom of a bar. M.D. was the manager of the bar and the complainant, S.F., was working at the bar, training as a bartender.
[2] The Crown’s position is that M.D. sexually assaulted S.F. in the upstairs washroom by forcing oral sex on her at a time when she was vulnerable, having consumed a large quantity of alcohol and vomiting into a toilet. The Crown submits that although S.F. “likely had” the capacity to consent, she did not in fact consent to the alleged sexual activity.
[3] The principal witness for the Crown was the complainant, S.F. S.F.’s former boyfriend, J.E., also testified at trial. The Crown’s case also included expert evidence in the areas of body fluid identification and DNA analysis and interpretation, and toxicology opinion evidence. Surveillance footage video depicting events inside the bar on February 15 and 16, 2015 and a series of text message communications were also admitted in evidence.
[4] As is his right, M.D. chose not to testify at trial. No evidence was called on his behalf. His position is that S.F. is neither a credible nor a reliable witness and that the Crown has failed to prove the offence of sexual assault beyond a reasonable doubt.
Legal Principles
[5] M.D. is presumed innocent of the charge against him. It is only after consideration of all the evidence and only if that evidence is found to establish guilt beyond a reasonable doubt that the presumption of innocence is set aside, and a finding of guilt can be made. It is not sufficient for the Crown to establish possible guilt or even probable guilt. For a finding of guilt to be made, the court must be sure that the offence was committed. There is no onus on M.D. to prove anything, least of all his innocence.
[6] A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in the trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or the absence of evidence.
[7] The outcome of this case turns on issues of credibility and reliability. Credibility has to do with the truthfulness of the witness. Reliability has to do with the ability of a witness to observe, recall, and recount events that are in issue: R. v. C.(H.), 2009 ONCA 56, at para. 41. The assessment of the evidence of a witness is not an all or nothing proposition. A judge is entitled to accept some, all or none of a witness’ evidence: R. v. Leblanc, [2018] O.J. 5779 (S.C.J.).
[8] I am mindful of inconsistencies and contradictions in the testimony of any witness. Consistency is an element of truthful testimony; however, perfection in a witness’ testimony is not expected. Significant inconsistencies or contradictions can, however, in some circumstances, result in a witness’ testimony being rejected in whole or in part. An inconsistency that relates to a peripheral issue may not have a significant impact on the witness’ credibility. If, however, a witness’ account contains many inconsistencies on peripheral issues, this could undermine the overall reliability of their evidence. Testimony that is internally contradictory, incoherent, or implausible may lead to a finding that a witness is not worthy of belief on specific topics, or more generally.
[9] The credibility and reliability of the complainant is the central issue in this case. Testimonial demeanour is a relevant consideration in evaluating the credibility of any witness, but “as a predictor of testimonial accuracy, a witness’ demeanour is fallible”: R. v. Chacon-Perez, [2022] O.J. No. 43 (C.A.), at para. 119. As Watt J.A. stated in Chacon-Perez, its fallibility is a function of many disparate factors, including the culture of the witness, stereotypical attitudes, and the artificiality and pressures associated with a courtroom. Indeed, in R. v. J.J., 2022 SCC 28, at para. 1, the Supreme Court of Canada expressly observed that “the criminal trial process can be invasive, humiliating, and degrading for victims of sexual offences.” The fallibility of a witness’ demeanour as a measuring stick of testimonial accuracy therefore “signals caution in its role” – it is but one of many factors, not exclusive and certainly not predominant: Chacon-Perez, at para. 120.
[10] In this matter, I have heard only from Crown witnesses. However, it is settled law that the Supreme Court of Canada’s direction in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 applies to the evaluation of the credibility of exculpatory evidence given by any witness, including Crown witnesses: R. v. Charlton, 2019 ONCA 400, at para. 45. I have therefore instructed myself in accordance with the W.(D.) direction in relation to the exculpatory text message sent by M.D. to S.F.’s boyfriend denying the allegation that he had tried to force himself on S.F.
[11] Consent is the foundational principle upon which Canada’s sexual assault laws are based: R. v. G.F., 2021 SCC 20, [2021] S.C.J. No. 20, at para. 1. There is no room for implied consent in Canada. Capacity and consent are inextricably joined. Subjective consent to sexual activity requires both that the complainant be capable of consenting and does, in fact, consent: G.F., at para. 2.
S.F.’s testimony
[12] S.F. was a 19-year old university student when M.D., a bar manager, hired her to work as a hostess at the bar. Prior to S.F.’s first shift at the bar and in response to her inquiry about whether she needed to wear anything specific, M.D. sent her a text saying, “underwear optional.” At the bar that night, M.D. hugged her and ran his hands down her hips.
[13] M.D. repeated this behaviour on S.F.’s next shift. M.D. and S.F. engaged in a text message exchange in the early morning of February 8, 2015, which included M.D. asking her whether she had any naked photos of herself on her cell phone.
[14] Prior to her shift on February 13, 2015, M.D. sent a text to S.F. stating “No underwear plz. Thanks.” S.F. responded that she usually did not wear underwear so that it would not be a problem. That evening, S.F. worked on coat check. M.D. hugged her and again, felt down her sides.
[15] S.F. acknowledged the flirtatious nature of the text exchanges. She testified that she did not know how to respond, that she was trying to manage M.D.’s advances toward her. She could not be rude to him because he was her boss; he was in control of her job and how much money she would earn.
[16] On February 15, 2015, S.F. was scheduled to train as a bartender during a private function at the bar. S.F. was excited about her shift. The position of bartender was appealing to her because it was more lucrative than other positions. Before S.F. arrived at the bar, she worked a double shift at a restaurant. She had not had anything to eat. M.D. texted her about wearing “something hot.” S.F. sent M.D. several pictures of herself in possible outfits.
[17] After S.F. finished her shift at the restaurant, S.F. drove to J.E.’s home to get ready for her shift at the bar. J.E. worked at another bar nearby. S.F. drove the two of them in her car and dropped J.E. off at his bar. She then parked her car in a nearby parking garage.
[18] S.F. arrived at the bar around 10 p.m. She started drinking shots after 10 p.m. and testified that she had between 8 and 10 shots of alcohol that night or “maybe a bit more.” S.F. testified that when she started working behind the “main bar”, M.D. was around a lot more. They were doing shots and he was hugging her and feeling her sides. He felt a piercing on her hip, and she showed it to him. She said, “we were flirting.” M.D. caught her with her cell phone and told her to give her phone to him. She gave it to him because he was her boss and he put it in his pocket.
[19] At 1:03:53 a.m., according to the time stamp on the video, S.F. asked M.D. for permission to go upstairs to get some candy from her coat pocket. Her coat was in the coat check, upstairs. S.F. fell as she was going upstairs. When she fell, she looked to her right and saw M.D. speaking to another man. She went over to M.D. to get her phone back and to make sure that M.D. did not see her fall on the stairs. The other man walked away. M.D. then started scrolling through the photos and videos on her phone. S.F. started jumping to try to grab her phone away from M.D. She began to vomit in her mouth and ran down the hall to the upstairs washroom, locked the door behind her, and vomited into the toilet. She was nauseous, extremely intoxicated, and vomiting, and she could not focus.
[20] M.D. came into the upstairs washroom and closed the door. He stroked her back and began to kiss the side of her neck. S.F. testified that at that point, she “froze up.” She was in and out of consciousness. She testified that M.D. performed oral sex on her as she lay with her back on the floor or against the wall. S.F. testified that, after that, she was on her elbows and knees. She saw M.D.’s penis and saw him zipping up his pants. M.D. told her to clean herself up, get back to work, and “we’ll finish this later.” After her memory was refreshed, she testified that M.D. penetrated her vagina with his penis. She did not consent to any of the sexual activity.
[21] M.D. then left the washroom. S.F. locked the door and looked for her underwear, which she did not find. She remained in the washroom for a few minutes and then ran to the coat check to retrieve her coat and went downstairs to get her boots and her purse. She got her phone back from M.D. and took a cab to J.E.’s bar. J.E. sat S.F. down in a booth, but when she started to vomit, he became angry and took her to the washroom where she continued to vomit. She told J.E. that M.D. forced himself on her but did not, at that point, give J.E. a full account; she only gave him the “gist” of what happened. J.E. then used S.F.’s phone to text M.D.
[22] Around 5 or 6 a.m. on February 16, 2015, J.E. drove S.F. to the hospital to have a sexual assault kit performed. S.F. reported the assault to the police about a month later.
Analysis
[23] I have carefully considered S.F.’s testimony, together with the testimony of the other witnesses called by the Crown. The Crown acknowledged that there were inconsistencies in S.F.’s evidence but submitted that S.F.’s “overall story” did not change – she did not waiver on the point that M.D. performed oral sex on her, to which she did not consent, at a time when she was vulnerable. Because of S.F.’s uncertainty on whether she was penetrated by the accused – a matter on which S.F.’s memory was refreshed – the Crown does not ask the court to convict on that feature. The Crown submits that J.E.’s description of S.F. when she arrived at his bar – earlier than anticipated and in a highly distressed state – is compelling evidence from which an inference should be drawn that S.F. was emotionally devasted because something emotionally devastating had happened to her – that is, the sexual assault by M.D.: see R. v. A.J.K., 2022 ONCA 487, at para. 43.
[24] S.F.’s evidence suffered from major shortcomings that adversely affected her credibility and reliability. I provide the following examples.
[25] The first example relates to S.F.’s evidence on the issue of whether there was vaginal penetration or not. As I have already stated, the Crown seeks a conviction based on forced oral sex and not on vaginal penetration – the latter being the point on which S.F.’s memory had to be refreshed. Even so, S.F. maintained on cross-examination that her memory had become better over the years. When asked on cross-examination to explain how, during her examination in chief, she could not remember that M.D. inserted his penis into her vagina without being refreshed by what she had said in the past, S.F. questioned “What do you mean that I didn’t remember that?” and stated, “I remembered that.” She denied that she did not remember that M.D. put his penis in her vagina until she read about it. Then, when asked to agree with defence counsel that in chief, she went through her account of the events and did not, at first, say that M.D. put his penis in her vagina, she responded that she did not recall.
[26] Later in the cross-examination, S.F. continued to maintain that she did not forget and that “he raped me...If I forgot he raped me, I wouldn’t be standing here right now” and “I was raped, that’s why we’re here.” It is difficult to reconcile S.F.’s statements with the fact that she had to have her memory refreshed on that very point. Equally troubling from the standpoint of S.F.’s reliability and credibility is that she refused to agree with the fact that she forgot and had to have her memory refreshed.
[27] The second example relates to S.F.’s disagreement that she had no problem with anything that was going on at the bar prior to 1:03 a.m. when the video shows S.F. leaving from behind the bar. S.F.’s evidence at trial was in direct contradiction to her evidence at the preliminary inquiry where she agreed that up until 1:03 a.m. nothing that had happened at the bar had been a problem for her and when she went to go upstairs, she was in a good mood. At trial, S.F. stated that “perhaps in 2017 it wasn’t problematic for – times have changed.” S.F.’s statement does not in any way explain the clear inconsistency as to her subjective belief at the time.
[28] Further, when it was put to S.F. on cross-examination that she had testified earlier in the trial (prior to the lunch recess) that she had never previously said that things which happened at the bar before 1:03 a.m. were problematic, S.F. responded that she did not agree. S.F.’s inability to remember her own testimony from a few hours earlier gives rise to significant concerns as to her reliability as a witness.
[29] When it was put to S.F. that the video showed her smiling throughout, S.F. disagreed and suggested that perhaps she was not smiling when her back was to the video camera. The video does, in fact, show S.F. smiling the entire time she was behind the bar until she is shown leaving from behind the bar.
[30] Third, I do not accept S.F.’s evidence that she felt coerced by M.D. into drinking alcohol that night at the bar. S.F.’s trial testimony was in clear contradiction to her testimony at the preliminary inquiry when she testified that she made every decision when she had a drink and that no one told her to drink.
[31] I do not accept S.F.’s claim that she felt coerced into drinking by M.D. for a second reason. S.F. testified that she had her “Smart Serve” training to serve alcohol. She was working in the “bar scene” as she described it, and, in the past, she had been employed at a bar, where, in her words, “we were kind of getting paid to party, pretty much.” At that time, she was drinking maybe three or four nights a week, and on an average night, she would consume four mixed drinks and three shots of alcohol. J.E. testified that he warned her not to have too much to drink that night. S.F.’s claim that she felt coerced into drinking is not credible in light of her own testimony and J.E.’s evidence, which I accept.
[32] The fourth area of concern regarding S.F.’s evidence relates to the suicide note and its contents. S.F.’s testimony on this subject was rife with inconsistencies. On cross-examination, S.F. told defence counsel that she wanted to reference the note, stating “it does mention your client by name, and that that was the reason for my suicide.” She then stated “I remember writing it. It said “make [M.] pay” or something like that it was something along those lines. It did reference him because he was the reason.” Following the lunch recess, S.F. testified “I wasn’t sure on the contents, but I said that there was a suicide note, and I’m pretty sure I mentioned your client’s name.” S.F.’s evidence evolved further: “I just remember trying to kill myself that night. I don’t really remember what was written on the note nor was that even of that importance [sic] to me.” She denied telling defence counsel about the contents of the note. Then, after a playback of her evidence, S.F. agreed that she had testified that she knew that her note referenced M.D. because that was the reason for her suicide attempt.
[33] The suicide note does not, in fact, reference M.D. When the note was put to S.F. and she was asked to agree that it did not mention M.D., S.F. countered with “perhaps there was a draft copy.” S.F. did not testify that there was, in fact, a draft copy of the note.
[34] On its own, the evolving nature of S.F.’s testimony on this topic raises significant concerns as to S.F.’s credibility and reliability as a witness. However, there was more. S.F. ultimately agreed that it was an honest mistake for her to have thought that M.D.’s name was referred to in the note. But her trial testimony in this regard was in direct contradiction to her evidence at the preliminary inquiry. On that occasion, when asked about the contents of the note, S.F. stated that she had no idea as to its contents or to whom the note was addressed. With this clear inconsistency, I can only conclude that S.F. was not being truthful when she testified about the suicide note at trial.
[35] Fifth, S.F. gave evidence that was contradicted by other testimony I do accept. For example, S.F. testified that she was vomiting in front of J.E. at the bar where he worked and that he moved her to the washroom because she was vomiting. J.E. testified that he did not see S.F. vomit. J.E. has no interest in the outcome of this case. He delivered his evidence in a straightforward manner and I accept his evidence.
[36] When confronted by the inconsistency between her evidence and that of J.E., S.F. described J.E. as a “controlling boyfriend” even though she had earlier testified that he was very supportive of her.
[37] By way of another example, J.E.’s recollection was that S.F. told him that M.D. tried to force himself on her. The text message J.E. sent to M.D. also uses the word “tried.” S.F. repeatedly maintained that she did not use the word “try” when she spoke to J.E. and refused to agree that it was possible that she had done so. S.F.’s refusal to accept reasonable propositions – here, that it was possible she had used the word “tried” when speaking with J.E. – also adversely impacts her credibility.
[38] Sixth, S.F.’s evidence that she was unable to move when she was in the upstairs washroom, but then was able to navigate her way to the bar where J.E. worked, was not explained by the toxicology evidence. Put simply, the toxicology evidence does not explain S.F.’s level of activity immediately before the alleged sexual assault – serving people at the bar, going upstairs to get candy – and S.F.’s testimony that, within minutes thereafter, she felt like a potato, unable to move in the upstairs washroom. Nor does the toxicology evidence explain how S.F. went from being unable to move, to being able to retrieve her belongings, to go up and down the stairs at the bar, and to take and pay for a cab to J.E.’s bar.
[39] Seventh, S.F.’s testimony that, after she had tripped and fallen going upstairs, she saw M.D. upstairs, speaking with a man, is logically inconsistent with what is evident from the videotape footage. The video shows S.F. leaving the bar approximately 50 seconds before M.D. As a matter of logic and common sense, it would not have been possible for M.D. to have arrived upstairs before S.F. and to be engaged in a conversation.
[40] Eighth, in addition to the examples I have already given, S.F.’s trial testimony was impeached numerous times based on her evidence in other proceedings. She was impeached on her trial testimony that it was not common for bartenders to drink while on shift. In previous proceedings, S.F. agreed that it was common. S.F.’s occasional responses that an answer was her “final answer” can only be characterized as defiant.
[41] At trial, S.F. was certain that she had locked the washroom door behind her. In prior statements, she expressed some uncertainty on this issue. S.F.’s response to the inconsistency was that “you [defence counsel] are just taking it in a different context.”
[42] S.F. was also impeached on her trial testimony that the conversation at 1:03 a.m. with M.D. was about going upstairs to get the candy. On cross-examination, S.F. then said that she was unsure if she came back after she is seen leaving on the video at 1:03 a.m. and that she was not sure what the conversation was about – it could have been about the washroom or it could have been about the candy. She claimed that the video had been altered. Ultimately, S.F. agreed that she went upstairs to get candy at 1:03 a.m. However, at the first trial, S.F. testified that at 1:03 a.m. she headed to the washroom on the main floor, and then returned. When it was put to S.F. that she had described two very different orders of events, her response was “not really, no.” S.F.’s refusal to agree with reasonable propositions adversely impacts her credibility as a witness.
[43] S.F. was impeached on her trial testimony as to when she claimed to have seen M.D. upstairs: she testified that she saw him, to her right, when she tripped on the way up the stairs. She agreed that she had this image “burned in her mind.” At the preliminary inquiry she testified that she saw M.D. after she had come out of the coat check and looked to her left. In an apparent attempt to explain, S.F. testified that “I think they’re [the two different scenarios] very easily confused.”
[44] A final impeachment example: at trial, S.F. testified that J.E. did not get “really mad” at her when he saw the text messages between her and M.D. She denied that they ended up having a pretty significant fight. This was in direct contradiction to her evidence at the preliminary inquiry on both points. S.F. then refused to agree that her answers were not “polar opposites.”
[45] Ninth, in responding to questions on cross-examination, S.F. was argumentative and combative with defence counsel. She was not prepared to agree that she was extremely drunk: she was intoxicated. She then denied having previously testified that she had never felt this drunk in the past. She argued with defence counsel that there was a difference in meaning between “forced” and “coerced.” Despite acknowledging in her testimony in chief that the text messages were flirtatious, S.F. denied that they were flirtatious on her cross-examination. More than once, when caught in a clear inconsistency, S.F. stated “that’s my final answer.”
[46] Finally, when repeatedly confronted with inconsistencies between her trial testimony and her prior statements, S.F. complained that she had not been provided with a copy of her previous transcripts to review. This remarkable statement from the witness – made more than once – necessitated Crown counsel putting on the record that S.F. had in fact been provided with all the transcripts, including those from the preliminary inquiry. Perhaps even more incredible was the fact that S.F. made this claim when she had testified at the beginning of the trial that she had all the transcripts, but that she did not think that she needed to review them because she had a good enough memory.
[47] These examples are by no means the only difficulties that arose in S.F.’s evidence. I find that the totality of the problems with her testimony make her account both unreliable and untrustworthy. I conclude that it would be dangerous to convict M.D. based on S.F.’s evidence. The Crown has failed to prove the charge of sexual assault beyond a reasonable doubt.
Disposition
[48] For these reasons, I find M.D. not guilty of the charge of sexual assault and an acquittal will be entered accordingly.
Justice Ryan Bell
Released orally: October 11, 2022
Released in writing: October 12, 2022
COURT FILE NO.: CR-15-5062
DATE: 2022/10/12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Crown
– and –
M.D.
Defendant
REASONS FOR JUDGMENT
Ryan Bell J.
Released orally: October 11, 2022
Released in writing: October 12, 2022