ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SOREN LE GOFF
Defendant
Constantinos Stratos, for the Crown
Sean Robichaud and Jacob Roth, for the Defendant
HEARD: October 12, 13, 14, 15, 18, 19, 20, 21, 2021; November 8, 12, 2021
RESTRICTION ON PUBLICATION
An order has been made pursuant to s. 486.4(1) of the Criminal Code directing that any information that could identify the complainant shall not be published in any document or transmitted in any way. This judgment complies with that order and may be published.
reasons for judgment
J. R. PRESSER J.
I. INTRODUCTION
1Soren Le Goff and T. R. met at a 25th birthday party. Over the course of the night they, and everyone else at the party, consumed alcohol. Both Mr. Le Goff and T. R. became intoxicated. Over the course of the night, both vomited. Both stayed overnight at the house. After everyone had gone to bed, Mr. Le Goff went into the room T. R. was sleeping in. There was sexual contact between them. T. R. had almost no memory of what happened that night from quite early on until she woke up at noon the following day. At that point, she saw some fluid in her vagina or anus. She wiped it up, smelled it, and thought it smelled like semen. She believed someone had had sexual intercourse with her. She went to the hospital and then to the police. Ultimately, forensic comparison of semen from the jeans she had been wearing with DNA seized from Mr. Le Goff confirmed that he could not be excluded as a contributor to the semen on T. R.’s jeans. He was charged with a single count of sexual assault.
2Mr. Le Goff testified at trial and acknowledged that he had sexual contact with T. R. He agreed that she was intoxicated, but maintained that she was awake, responsive, and consenting throughout their sexual contact. T. R.’s evidence was that she was very intoxicated and had no memory of most of the events of that night.
3There is no question that Mr. Le Goff had sex with T. R. The issues for my determination are whether T. R. had capacity to consent, whether she did consent, and Mr. Le Goff’s knowledge and belief as to her consent.
II. EVIDENCE
4What follows in this section is a summary of the evidence. I will not refer to all of the evidence, but only to the evidence I consider relevant to the issues I must determine. I have, however, carefully reviewed and considered all of the evidence in deciding this case. My consideration of the evidence was not limited to the evidence to which I refer in these reasons.
A. The Party
5On the night of April 21, 2018, Jazmine Kearney and her boyfriend Joshua Deptuck threw a party to celebrate his 25th birthday at their home at 162 Hummingbird Drive in Scarborough. Jazmine’s sister Sheena Kearney1 and Sheena’s daughter Anastasia also lived at this address. All four residents of 162 Hummingbird were present on the night of the party.
6Mr. Le Goff, a childhood friend of Mr. Deptuck, was the first guest to arrive at the party. He said he arrived at around 9pm. Two other guests, Mr. Deptuck’s friend Yao and Yao’s girlfriend Brenda, arrived shortly after Mr. Le Goff. Sheena went upstairs to put Anastasia to bed at around 9pm. She estimated that she was upstairs for about an hour, coming downstairs to the party at around 10pm. When Sheena joined the party, Mr. Le Goff was already there. T. R. arrived shortly after Sheena joined the party, around 10:30pm.
7There was a lot of alcohol at the party, including a “Texas mickey”2 of vodka, a “60 pounder” bottle of Sourpuss, and also possibly wine and sangria. T. R. recalled bringing a bottle of wine with her. Others recalled that T. R. had brought a number of stubby bottles of red label beer.
8Everyone at the party was drinking alcohol. There were mixed drinks and shots served, likely one to one and a half ounces each.
9Sheena testified that when she joined the party around 10pm, people were already drinking. She said that there were approximately eight rounds of shots where glasses were lined up and everyone took a shot together. Jazmine could not say how many rounds of shots there were. Sheena periodically “tapped out” or declined rounds of shots, and she noticed that Jazmine did too on occasion. She did not notice others declining rounds of shots but acknowledged that she was not paying particular attention to what everyone was drinking. Jazmine saw T. R. decline some rounds of shots. Both Sheena and Mr. Le Goff thought there may have been some rounds of shots consumed before T. R. arrived.
10T. R. started drinking less than half an hour after her arrival. She said she was drinking shots of vodka mixed with a coloured mixer. Sheena and Mr. Le Goff recalled that T. R. was also drinking the red label beer she had brought.
11T. R. did not know how many alcoholic drinks she consumed that night. She said she had more than one drink but was not able to estimate beyond that. She participated in “cheerses” and group shot-taking. She was not pouring her own drinks. When her cup emptied, someone filled it up. None of the other witnesses could say how much T. R. had to drink that night. T. R. described herself as “not a big drinker.” She said she felt intoxicated. She had never felt that intoxicated before.
12Mr. Le Goff participated in the rounds of shots. According to both Jazmine and Mr. Deptuck, Mr. Le Goff drank multiple shots very quickly. He was taking one shot after another without necessarily waiting for other people to drink with him. Mr. Le Goff did not know how many drinks he had over the course of the night.
13There was food set out at the party. While no one was certain of what foods there were, there was some consensus that there was chili, stuffed potato skins, chips, and possibly some other snacks as well. T. R. thought she had eaten before the party. She may have done some snacking there but could not recall for certain whether or what she ate at the party. No other witnesses could say what T. R. ate at the party.
14The party centered around the open-concept kitchen on the ground floor of the house. For much of the party, everyone was sitting or standing around the kitchen island. In addition to participating in toasting with drinks and doing shots, there was conversation and dancing. Some attendees may have gone outside to smoke marijuana, but no one could say for sure who participated, or how many times.
15Most of the witnesses testified that T. R. was initially “standoffish” or not friendly and social when she arrived at the party. She seemed to get more comfortable after she started drinking alcohol. As she warmed up, T. R. had some “girl talk” with Brenda (who she thought was named Sabrina). T. R. also danced. T. R. did not think she was standoffish, and she could not recall dancing.
16Mr. Le Goff was a “lively presence” at the party. He was happy, friendly, and even flirty, though Sheena said not in a “creepy” or obnoxious way. Mr. Le Goff periodically called out others’ names to invite them to toast and drink with him.
B. Party Attendees Get Sick and Go to Bed
17Over the course of the night, Mr. Le Goff, T. R., Mr. Deptuck, Brenda, and possibly Yao threw up from alcohol consumption.
18Mr. Le Goff was the first to get sick. He said he went to the washroom on the ground floor, where he coughed up and dry heaved. As he left the washroom, Mr. Le Goff said he saw T. R. and joked that the party was getting too crazy and that he was drinking too much. He said T. R. laughed. Mr. Le Goff said he then approached Jazmine and asked whether there was another washroom he could use. She directed him upstairs. Mr. Le Goff said he went upstairs and saw Mr. Deptuck and Yao talking in a bedroom, but he could not wait and ended up throwing up on the side of the bed. Mr. Deptuck confirmed that Mr. Le Goff threw up on the master bed. Mr. Le Goff said he then walked into Jazmine and Mr. Deptuck’s washroom where he threw up more. He was not feeling well. He remembers being on the floor. Jazmine came in to check on him. He apologized to her for throwing up on the bed and in the washroom.
19Jazmine said she took Mr. Le Goff upstairs to the master bathroom3 because she had noted that he was looking unwell, as if he might have head spins. She did not testify to Mr. Le Goff having already been upstairs where he threw up on the bed in the master bedroom. She said that in the bathroom, Mr. Le Goff threw up and lay down on the floor. He apologized to her for becoming sick at her party. Jazmine ultimately left Mr. Le Goff there and rejoined the party. She estimated that she took Mr. Le Goff upstairs at 1 or 2am. Sheena thought Mr. Le Goff had gone upstairs about 20 minutes before Anastasia woke up and came downstairs at 1am.
20T. R. was the second person to get sick. She did not have much memory of that night after arriving, meeting Mr. Deptuck for the first time, and early drinking and conversing with “Sabrina.” But T. R. thought she recalled throwing up for the first time in the bathroom on the ground floor (same level as the party). Jazmine did not recall T. R. throwing up in the ground floor bathroom.
21T. R. did not think she had any further alcohol to drink after she threw up in the ground floor bathroom. She said she would not have continued to drink if she was already intoxicated.
22When Anastasia came down at 1am, T. R. was still downstairs. Sheena was confident of the time because she wanted to know how long her daughter had been asleep, so she checked the time on her phone. Sheena said that she, Anastasia, and T. R. were in the kitchen; Jazmine and Mr. Le Goff were upstairs; and Mr. Deptuck, Yao, and Brenda were in the living room. At some point, Brenda and possibly Yao started throwing up. They were sitting on the couch. Mr. Deptuck brought them a bucket.
23According to Sheena, T. R. started to withdraw when Anastasia arrived downstairs. Sheena said that T. R. was slumped or slouched, and she was not perky. In Sheena’s observation, T. R. had seemed pretty “together” that night until she started slouching. At that point, Sheena characterized T. R. as intoxicated, but not “crazy next level” intoxicated. Sheena was not worried about T. R. She did not have any concerns for T. R.’s safety. She did not think T. R. had alcohol poisoning. Instead, as she put it, she thought it was time for T. R. to “collect herself.”
24Sheena was unsure of whether T. R. was still drinking when Anastasia was downstairs but said she might not have been.
25Sheena and Anastasia went upstairs at 2am. They both went to sleep in Sheena’s room.
26Jazmine testified that about an hour after Mr. Le Goff got sick, T. R. was looking a “little too drunk.” T. R. told Jazmine she needed to lie down. Jazmine took T. R. upstairs and put her in Anastasia’s playroom with a foam mattress and blankets from the master bedroom placed on the floor. Jasmine said that T. R. did not consume any alcohol after she went upstairs. In the playroom, T. R. started retching and puking. Jazmine gave her a bucket. At some point, T. R. decided that she did not want to continue throwing up in the bucket. She ran to the bathroom, which Jazmine characterized as a reasonable thing to do. Jazmine got T. R. resettled in the playroom and went downstairs to rejoin the party. T. R. did not come back downstairs that night.
27T. R. had no recollection of how she got upstairs or of being placed in a room with just a foam mattress on the floor.
28Mr. Le Goff testified that at some point while he was in the master bathroom, T. R. came in and either threw up or coughed up in the sink. He said they exchanged words about how crazy the party was getting and that T. R. laughed and left the bathroom.
29After spending some time in the master bathroom, Mr. Le Goff explained that he got up, splashed water on his face, and felt better. He said he then went downstairs. He saw Brenda and Yao passed out on the couch, and Jazmine and Mr. Deptuck talking together in the kitchen. He thought Mr. Deptuck was intoxicated and feeling unwell and Jazmine was trying to help him. Mr. Le Goff said he went back upstairs and sat at the top of the stairs next to the hallway until Jazmine and Mr. Deptuck came upstairs and went into their bedroom. No other witnesses recalled Mr. Le Goff coming downstairs at that point, and Jazmine thought he was still in the master bathroom when she went into her room.
30Jazmine explained that she and Mr. Deptuck went upstairs to go to sleep after Sheena did. When they went into their bedroom, the master, they found T. R. asleep in their bed with no blankets. Jazmine tried to wake T. R. to get her to move out of that bed. She could neither be persuaded to move nor be moved.
31T. R. had a memory of waking up in a bed in a darkened room. She recalled that someone was tugging on her or her clothes. She was not sure how long she was awake, or if she even opened her eyes. She said she felt like she could not move.
32While he and Jazmine were in the master bedroom, Mr. Deptuck became sick. He ran to the playroom where he vomited on the carpet. Jazmine left T. R. and started cleaning the vomit in the playroom.
33Jazmine said that Mr. Le Goff got up at this point and was less drunk. She thought he was awakened by her trying to get T. R. up and/or Mr. Deptuck vomiting. Mr. Le Goff was concerned about Brenda and Yao driving home drunk. He went downstairs to talk to them, and ultimately to see them off. Mr. Deptuck thought Brenda and Yao had come upstairs to say goodbye.
34Mr. Le Goff said he could not hear Jazmine’s interactions with T. R. in the bedroom. Music was playing. Sheena confirmed that the top of the stairs was quite far from the entrance to the master bedroom and even further from the bed, which was located at the furthest point from the door of that room.
35When Jazmine came out of the master bedroom, Mr. Le Goff asked her where he should sleep. She directed him to Anastasia’s room. According to Mr. Le Goff, Jazmine told him that T. R. wanted to sleep in her and Mr. Deptuck’s bed. Mr. Le Goff maintained that Jazmine did not tell him that T. R. could not be moved. Jazmine explained that when she told Mr. Le Goff to sleep in Anastasia’s room, she must have told him that T. R. was in the master bedroom.
36Mr. Le Goff felt badly that Mr. Deptuck had thrown up and that Jazmine had to clean it. He offered to help her and may have gotten a bucket for her.
37Jazmine spent about 20 minutes to half an hour cleaning Mr. Deptuck’s vomit in the playroom. She and Mr. Deptuck then went to sleep on the foam mattress on the floor of that room. Mr. Le Goff lay down on a child’s mattress that was pulled out from under Anastasia’s bed on the floor in the child’s room. Jazmine estimated that it was 4 or 4:30am by the time they all went to bed.
C. The Sexual Encounter
38All of the evidence in relation to what occurred after everyone went to bed came from Mr. Le Goff. T. R. had no memory of this time. None of the other witnesses heard or saw anything. They had no evidence about what took place from when they went to bed until they woke up the next morning.
39Mr. Le Goff testified that he tried to fall asleep in Anastasia’s room for a while but could not. He found the kiddie mattress on the floor very uncomfortable, and the room unbearably hot. He decided to try to find another place to sleep.
40The doors to the playroom and Sheena’s room were closed. Mr. Le Goff knew that there were two people sleeping in each of those rooms. He did not want to disturb them as they slept in their own home. He believed that Brenda and/or Yao had vomited on the living room couch. So he did not see the playroom, Sheena’s room, or the couch as possible places for him to sleep.
41The door to the master bedroom was open (because Mr. Deptuck had received a chin-up bar that hung over the door as a birthday gift and this device prevented the door from closing). Mr. Le Goff knew that there was only one person, T. R., sleeping in that room. He decided to see if he could also sleep in the master bedroom.
42Mr. Le Goff went into the master bedroom. It was cold. The blinds and window were open. It was dark outside but streetlights and the moon shone in through the window. Mr. Le Goff could see T. R. lying on the bed. She had a blanket on her lower body, but her upper body was exposed. She was not wearing a shirt, only a bra. She was shivering. She seemed cold and uncomfortable. Mr. Le Goff asked T. R. if he could lie down and she said yes. She was still shivering so he asked if she wanted him to close the window and she said yes. He closed the window and came back to the bed. Mr. Le Goff asked T. R. if she wanted him to warm her up and she said yes. He started rubbing her arm and her back. They were both lying on their sides facing each other. T. R. moved toward him and cuddled up close to him. T. R. put her arm over him. Their legs were touching. Her head was near his chest. After a short time, T. R. seemed warmer. Mr. Le Goff asked her whether she was warm now, and she said yes, thank you.
43Mr. Le Goff knew that T. R. had been drinking and was probably drunk, but nothing indicated to him that she was drunk at that time. He did not recall smelling alcohol on her. When he was talking with her, T. R. was awake. She looked at him and responded to him. Her answers were responsive to what he asked. He thought she knew who he was and understood him.
44T. R. moved closer and closer to Mr. Le Goff. Their torsos and crotches were touching. She held him tightly. She moved upwards and put her face near his. Their faces were touching. She looked right at him. At this point, Mr. Le Goff knew that something else was going on, something more intimate. He kissed T. R.’s lips. She reciprocated. They started making out. She used her tongue. Mr. Le Goff and T. R. started rubbing and touching each other’s upper bodies. This progressed to touching legs and buttocks. Mr. Le Goff slid his hand down the back of T. R.’s jeans and then pulled it out. He asked her, “are you good?” He said he wanted to know whether she was okay, and whether she was liking everything that was going on. T. R. responded, “yes I’m good.”
45Mr. Le Goff put his hands back down her pants and did some “heavy petting” without touching under her underwear or any digital penetration. T. R. rolled onto her back, raised her buttocks, undid and loosened her pants, and tried to slide them down. Mr. Le Goff helped ease her pants off. T. R. pushed the pants off her thighs. Mr. Le Goff did not recall where the pants ended up.
46Mr. Le Goff started rubbing T. R.’s vaginal area over her underwear. She seemed to be excited by this. She moaned. They continued kissing and touching each other all over. T. R. touched his torso under his shirt. He removed his shirt. T. R. touched Mr. Le Goff’s legs and his crotch area over his pants and grabbed at his pants. He removed his pants. She was moaning as if she was excited. Mr. Le Goff lowered her underwear to the thigh area and T. R. removed her underwear. He did not know where the underwear ended up. He rubbed T. R.’s vaginal area.
47T. R. was on her back at this point. She tried to get Mr. Le Goff on top of her. He moved so that he was on top of her with one of his knees between her legs. He asked her again, “are you good with this?” T. R. responded, “it’s good.” She opened her legs. He took off his boxers. She guided his penis into her vagina with her hand. T. R. moaned. There was no discussion of condoms or birth control. Mr. Le Goff said it was “so good.” T. R. asked him to “go harder.”
48After a time, Mr. Le Goff withdrew, sat up, and asked T. R. to perform oral sex on him. She did for a short time. Mr. Le Goff then told T. R. that he wanted to have sex from behind, with her buttocks facing him and her stomach facing the bed. She moved into this position and they had intercourse with Mr. Le Goff’s penis entering T. R.’s vagina from behind. He asked her whether this felt “so good.” She replied, “fuck my pussy.” Mr. Le Goff ultimately withdrew and ejaculated on T. R.’s buttocks area. He did not clean his ejaculate and did not know how it got cleaned up.
49Mr. Le Goff lay down on his back on the bed. T. R. rolled onto her side. She was still panting and moaning. He asked if she was okay and she affirmed that she was, saying “uh huh.” Mr. Le Goff was going to sleep there but then he thought about Jazmine, Mr. Deptuck, or Sheena walking into the room and seeing him there naked. He thought that the least he could do was not sleep in Jazmine and Mr. Deptuck’s bed after he had had sex in it. He told T. R. that he was leaving. She said, “ok.” He left and returned to Anastasia’s room where he fell asleep. He did not think too much about how hot the room was or how uncomfortable the child’s mattress on the floor was at that point. It was still dark outside when Mr. Le Goff left T. R. The parties agreed that sunrise was at 6:22am that day.
50According to Mr. Le Goff, T. R. was awake and understood what was going on at all times throughout their encounter. At no point was she unresponsive.
D. The Next Day4
51Sheena woke up at 7 or 7:30am. She and Anastasia had things to do that morning. She went into the master bedroom to get something. She saw someone was sleeping there, cocooned in her daughter’s Paw Patrol blanket. She thought the person was clothed. She and Anastasia left the house.
52Jazmine and Mr. Deptuck woke up at 8 or 9am. Jazmine saw that T. R. was still sleeping in the master bedroom. Jazmine said she was wrapped in the Paw Patrol blanket like a burrito. Initially, Jazmine said she could not see T. R.’s clothing or skin. But when confronted with her police statement that T. R. was wearing pants at that time, Jazmine adopted the earlier statement as accurate. Mr. Deptuck also said T. R. was wearing her pants when he saw her in the bed.
53Mr. Le Goff said he woke up in Anastasia’s room because it was still very hot, and he was uncomfortable. He asked Jazmine if he could move into the playroom. She agreed. He lay down in the playroom and slept some more.
54Jazmine and Mr. Deptuck went downstairs to clean up from the party. Mr. Le Goff was the next person to come down. Sheena and Anastasia returned home briefly around noon. Sheena saw T. R. lounging in bed, dressed, scrolling on her phone. Sheena said T. R. came downstairs shortly after that.
55T. R. said she woke up at noon. She was not wearing pants or underwear, and she was only wearing one of the two bras she had been wearing the night before or possibly neither bra. She said she normally sleeps naked, so she thought maybe she had removed her own clothing. She found her pants between the bed and the wall but never found her underwear. The underwear was never recovered.
56T. R. still felt intoxicated. She said she did not move for an hour. Then she went to the bathroom, threw up, and examined herself. She found some bruises on her body and had some pain and discomfort in her private areas. She wiped herself, found some discharge on her leg and vagina or anus, and smelled it. She said it smelled like semen. She had no recollection of having had sex the night before but suspected that someone had had sex with her.
57When T. R. came downstairs, Jazmine, Mr. Deptuck, Mr. Le Goff, and Sheena were there. T. R. felt nauseous. Jazmine brought her a Gravol. Sheena said T. R. was standoffish and focused on her phone. Jazmine, Mr. Deptuck, and Mr. Le Goff said that they all, including T. R., went outside to smoke marijuana together. T. R. had brought some marijuana and was sharing a joint with Mr. Le Goff. Jazmine saw T. R. and Mr. Le Goff talking. According to Jazmine, when T. R. left, she said goodbye to everyone gave hugs all around, including to Mr. Le Goff. T. R. denied speaking with Mr. Le Goff or sharing a joint with him.
E. Subsequent Events
58On April 23, 2018, T. R. texted Jazmine to say that Mr. Deptuck had tried to have sex with her. Over the course of the next several days, Jazmine and T. R. texted back and forth (see screen shots of text messages, Exhibits 7a – j) and had at least one telephone conversation. Jazmine could not believe that Mr. Deptuck had had sexual contact with T. R. Jazmine had been with Mr. Deptuck throughout the night, so he would not have had an opportunity to have sex with T. R. In a phone call, T. R. said she could remember that the person who was pulling at her clothes had skull rings on their fingers and a buzz cut as Mr. Deptuck had on the night of the party. When Jazmine continued to deny that Mr. Deptuck could have been the assailant, T. R. asked Jazmine to inquire of the other man at the party, Mr. Le Goff.
59Mr. Deptuck contacted Mr. Le Goff and Yao by Facebook to ask whether either man had had sex with T. R. There were a number of aggressive and insistent Facebook messages from Mr. Deptuck about this. He was angry and scared because he was being falsely accused. Mr. Le Goff and Mr. Deptuck ultimately spoke on the phone. Mr. Le Goff acknowledged that he had lain down next to T. R., or brushed against her, but denied trying to have sex with her. Facebook messages from Mr. Deptuck continued. Both Yao and Mr. Le Goff ultimately blocked Mr. Deptuck on Facebook.
60On April 25, 2018, T. R. attended at Women’s College Hospital and requested that a Sexual Assault Evidence kit be performed. A 4 cm x 4 cm area of swelling on her right thigh above her kneecap and some smaller abrasions on her right inner leg below her kneecap were noted. T. R. refused to allow the nurse to take swabs from her private areas but did swab herself and provided the swabs to the nurse. There was no further evidence as to the results of the Sexual Assault Evidence kit introduced at trial.
61T. R. provided the jeans she was wearing on the night of the party to police for DNA testing. DNA samples from semen were located in the inner crotch area of the jeans (see photograph of cut out of jeans, Exhibit 18). On July 19, 2018, Mr. Deptuck provided a consent sample of his DNA. On August 22, 2018, following forensic analysis, Mr. Deptuck was excluded as a possible source of the DNA from semen located in T. R.’s jeans. On September 6, 2018, Mr. Le Goff was arrested and charged with sexually assaulting T. R. A DNA warrant for Mr. Le Goff was sought and obtained on April 16, 2019. On May 10, 2019, that warrant was executed. On May 31, 2019, the Centre for Forensic Science compared Mr. Le Goff’s DNA to the DNA samples located on T. R.’s jeans. The DNA from the jeans was estimated to be greater than one trillion times more likely to have come from Mr. Le Goff than from an unknown person. Mr. Le Goff could not be excluded as the source of the DNA.
III. ANALYSIS
A. Sexual Assault – The Elements of the Offence
62In order to secure a conviction for the offence of sexual assault, the Crown must prove four essential elements beyond a reasonable doubt. These are: (i) that Mr. Le Goff intentionally applied force to T. R.; (ii) that T. R. did not consent to the application of this force by Mr. Le Goff; (iii) that Mr. Le Goff knew that T. R. did not consent, or that he was reckless or wilfully blind as to whether she consented; and (iv) that the force applied by Mr. Le Goff was of a sexual nature: R. v. P. M., 2019 ONSC 987, at para. 17.
63There is no dispute as to the first and fourth elements in this case. Mr. Le Goff acknowledged that he had sexual relations with T. R. The only issues for my determination then, are whether T. R. did not consent (which is an essential part of the actus reus), and whether Mr. Le Goff knew she did not consent or was reckless or wilfully blind as to whether she consented (which forms an essential part of the mens rea). In order to prove the mens rea element, the Crown must prove that Mr. Le Goff knew or honestly believed that T. R. positively communicated her consent. A belief that she consented because she passively acquiesced or did not resist does not amount to an honest belief in consent: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579.
B. Consent – An Overview
(i) Definition of Consent
64“Consent” is defined in s. 273.1(1) of the Criminal Code, R.S.C., 1985, c. C-46:
273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
Where no consent obtained
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Subsection (2) not limiting
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
65Consent focuses on the complainant’s actual state of mind and whether she wanted the sexual activity to take place: Barton, at para. 89; R. v. Ewanchuk, [1991] S.C.R. 330, at p. 348. It is a wholly subjective state of mind on the part of the complainant at the time of the sexual activity: Ewanchuk, at p. 348. There is no such thing as implied consent: Ewanchuk, at pp. 349-350. Either the complainant actually subjectively consented, or she did not: R. v. Tariq, 2016 ONCJ 614, at para. 62. Consent can be revoked by the complainant at any time for any reason: R. v. J. A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 40.
66Direct evidence of the existence of consent can only ever come from the complainant. This follows from the fact that consent depends completely on the complainant’s subjective state of mind. For this reason, as Schreck J. recognized in P. M., at para 21, the Crown will typically rely on the complainant’s evidence that she did not consent as proof of that element of the offence. But, “where direct evidence of the complainant’s state of mind is unavailable, for example, if she has no memory of the events, then the Crown may rely on circumstantial evidence” to establish that she did not consent: P. M., at para. 21; R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237, at para. 69. See also R. v. Kishnayinew, 2020 SCC 34, 451 D.L.R. (4th) 426, where the Supreme Court upheld the conclusion of the trial judge and the dissenting opinion in the Court of Appeal that the complainant, who had no memory of the alleged sexual assault, did not consent based entirely on circumstantial evidence.
(ii) Consent Issues Arising in this Case
67T. R. testified that she had been drinking alcohol, that she was very intoxicated, and that she had almost no memory of events from the night of April 21, 2018.
68T. R. was not able to say what occurred during the period of which she had no memory. Consequently, there is no direct evidence as to her subjective state of mind in relation to the sexual activity. She was not asked whether, and she did not testify that, she did consent to the sexual activity in the period she could not remember. Equally, she was not asked whether, and she did not testify that, she did not consent to sexual activity during that period.
69Mr. Le Goff testified that in the master bedroom T. R. was conscious, awake, talking to him, and looking at him. Generally, the effect of his evidence was that she was interacting responsively and purposefully. According to Mr. Le Goff, T. R. communicated her consent to engage in sex acts with him both verbally and non-verbally.
70In these circumstances, there are two live consent issues for my determination. I must consider both whether T. R. had the capacity to consent to sexual activity, and whether she did in fact subjectively and voluntarily consent.
71In R. v. G. F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 4, 24, 52 – 53, the Supreme Court of Canada held that capacity to consent is a necessary (but not sufficient) precondition to a sexual assault complainant’s subjective consent. Consequently, where both capacity and consent are in issue, the trial judge is not required to consider these two requirements separately or in any particular order: G. F., at paras. 4, 24, 53. In this case, it makes sense to consider whether T. R. had the capacity to consent first. If I conclude that the Crown has proven beyond a reasonable doubt that T. R. did not have the capacity to consent at the time of the sexual activity, then there can be no question that she consented. This is because there can be no subjective and voluntary consent without the capacity to consent: s. 273.1(2)(b) of the Criminal Code; G. F., at paras. 53 – 58. In other words, if I conclude that the Crown has proven lack of capacity to consent beyond a reasonable doubt, T. R. cannot have consented, Mr. Le Goff must be convicted, and I need not move on to consider whether T. R. actually consented as a separate inquiry. It is only if I conclude that the Crown has not proven lack of capacity beyond a reasonable doubt that I then need to move on to consider whether the Crown has proven that T.R. did not subjectively and voluntarily consent beyond a reasonable doubt.
(iii) Circumstantial Evidence
72In assessing capacity and consent in the absence of direct evidence as to T. R.’s subjective state of mind at the relevant time, I must consider all of the evidence in the case, including circumstantial evidence: Al-Rawi, at paras. 69 – 74. In R. v. J. R., 2006 22658 (Ont. S.C.), at paras. 18 – 20, Ducharme J. considered the effect of a sexual assault complainant’s memory loss. He held that memory loss on its own does not conclusively establish that the complainant did or did not consent, or that they were or were not capable of consenting. However, a complainant’s memory loss may be circumstantial evidence of the fact that the complainant did not consent, or that they were incapable of consenting, as follows:
. . . Absent expert evidence, a loss of memory or a “blackout” is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period. . . . In R. v. Esau (1997), 1997 312 (SCC), 116 C.C.C. (3d) 289 (S.C.C.) … at 297, Justice Major said of the complainant’s memory loss, “[a]ny number of things may have happened during the period in which she had no memory.” Thus, the only significance of memory loss, without more, is that the complainant cannot give direct evidence as to whether or not she consented to the sexual contact or whether or not she had the capacity to do so.
. . . In none of . . . [the] cases is a blackout or memory loss, without more, taken as proof of lack of consent or lack of capacity.
This does not mean that evidence of memory loss or a blackout is unimportant, irrelevant or necessarily lacking in probative value. It may well be circumstantial evidence which, when considered with the other evidence in a case, may permit inferences to be drawn about whether or not a complainant did or did not consent or whether she was or was not capable of consenting at the relevant time. But even here, while not required as a matter of law, for such evidence to be probative, some expert evidence will almost always be essential.
73As noted, where a complainant is unable to testify to her subjective state of mind, the Crown may prove a lack of consent and/or lack of capacity to consent through circumstantial evidence. This may include evidence of the complainant’s lack of memory, along with all of the other circumstantial (and direct) evidence in the case.
74The position of the Crown in this case is that the only reasonable inference to be drawn from all of the evidence, including the circumstantial evidence, is that T. R. lacked the capacity to consent because she was either asleep or unconscious at the time of the sexual contact. Or, if she did have the capacity to consent, that she did not do so. The position of the defence is that on all of the evidence, including the testimony of Mr. Le Goff which I should accept, there are reasonable inferences available that are inconsistent with guilt. In particular, the defence position is that all of the evidence gives rise to reasonably plausible inferences that T. R. was capable of consenting and did consent at the time of the sexual contact.
75A defendant may only be convicted in cases that rely heavily on circumstantial evidence where “an inference of guilt drawn from circumstantial evidence . . . [is] the only reasonable inference that such evidence permits”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30; Al-Rawi, at para. 74. Triers of fact need to guard “against the risk of ‘filling the blanks’ by too quickly overlooking reasonable alternative inferences”: Villaroman, at para. 30. Such alternative inferences need not be based on proven facts; they need only be plausible based on logic and experience as applied to the evidence or the absence of evidence, not on speculation: Villaroman, at para. 37. Inferences that are “irrational or fanciful” will not be reasonable possibilities or plausible theories: Villaroman, at paras. 35 – 37. But to support inferences other than guilt, alternative inferences need only be reasonable. They do not have to be as strong or as compelling as the inference of guilt: “[I]t is not enough for the Crown to prove that guilt is the strongest reasonable inference. It must be the only reasonable inference,” R. v. Knight, 2019 ONSC 2443, at para. 20.
C. Has the Crown Proven Beyond a Reasonable Doubt that T. R. Was Not Capable of Consenting?
(i) Capacity to Consent – the Law
76For a sexual assault complainant to be capable of subjectively consenting to sexual activity, they must be able to understand four things: (i) the physical act(s); (ii) that the act(s) is/are sexual in nature; (iii) the identity of the partner(s); and (iv) that they have the choice to refuse to participate in the sexual act(s): G. F. at paras. 55 – 58. A complainant must be able to understand all four of these factors to be capable of providing consent. If the Crown establishes that a complainant is not able to understand any one of the factors beyond a reasonable doubt, then they are incapable of consent and the absence of consent component of the actus reus of sexual assault has been proven: G. F. at para. 58. The Supreme Court of Canada further elaborated on these four requirements for capacity to consent in G. F. at paras. 55 – 56 as follows:
As capacity is a precondition to subjective consent, the requirements for capacity are tied to the requirements for subjective consent itself. Since subjective consent must be linked to the sexual activity in question, the capacity to consent requires that the complainant have an operating mind capable of understanding each element of the sexual activity in question: the physical act, its sexual nature, and the specific identity of their partner: Barton, at para. 88; Hutchinson, at paras. 54-57.
There is one further requirement. Because subjective consent requires a “voluntary agreement”, the complainant must be capable of understanding that they have a choice of whether or not to engage in the sexual activity in question: Criminal Code, s. 273.1(1). At the very least, a voluntary agreement would require that the complainant exercise a choice to engage in the sexual activity in question. In this narrow sense, in order to voluntarily agree to the sexual activity in question, the complainant must understand that saying “No” is an option. In J. A., this Court held that consent requires that the complainant have “an operating mind” at the time of the touching, capable of evaluating each sexual act and choosing whether or not to consent to it: paras. 36 and 43-44. Thus, an unconscious complainant could not provide contemporaneous consent. It follows that where the complainant is incapable of understanding that they have this choice to engage or refuse to engage, they are incapable of consenting. Accordingly, a complainant who is unable to say no, or who believes they have no choice in the matter, is not capable of formulating subjective consent: see R. v. Al-Rawi, 2018 NSCA 10, 2018 NSCA10, 359 C.C.C. (3d) 237, at para. 60, citing R. v. Daigle (1997), 1997 9934 (QC CA), 127 C.C.C. (3d) 130 (Que. C.A.), aff’d 1998 786 (SCC), [1998] 1 S.C.R. 1220.
77Whether or not a complainant remembers the events at issue is not determinative of whether they have capacity to consent: G. F., at para. 65; R. v. C. P., 2019 ONCA 85, 373 C.C.C. (3d) 244, at para. 65, aff’d 2021 SCC 19; see also J. R. at para. 43. The Supreme Court recognized this in G. F. at para. 65, holding that “[t]he ultimate question of capacity must remain rooted in the subjective nature of consent. The question is not whether the complainant remembered the assault, retained her motor skills, or was able to walk or talk. The question is whether the complainant understood the sexual activity in question and that she could refuse to participate.”
78The case law establishes that mere drunkenness, alcohol-induced imprudent decision-making, or loss of inhibition are not the equivalent of incapacity: R. v. T. J., 2018 ONSC 6385, at para. 56. Nor is the issue whether a person would have made a different decision if they were sober: T. J., at para. 57. It is an error in law for a trial judge to equate any degree of intoxication with incapacity to consent: G. F. at para. 5. Intoxication might deprive a complainant of capacity, but “this is only a possible, not a necessary, result”: J. R. at para. 43. A person may be intoxicated and still capable of understanding the factors prerequisite to capacity, as Justice Duncan held in R. v. Cedeno, 2005 ONCJ 91:
Cases where the complainant is said to be incapable due to consumption of alcohol or drugs are less clear-cut [than cases where the complainant is unconscious or in a coma]. Mere drunkenness is not the equivalent of incapacity. Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibition or self control. A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at times. Expert evidence may assist and even be necessary, in some cases, though it is not required as a matter of law [Citations omitted].
79For the Crown to establish incapacity, it is not enough to prove the mere fact of loss of memory or intoxication on the complainant’s part. Rather, to establish incapacity, the Crown must prove beyond a reasonable doubt that the complainant was incapable of understanding the physical act(s) or their sexual nature, the identity of the partner(s), or that they could refuse to participate: G. F., at para. 65; R. v. Patriquin, 2004 NSCA 27, 221 N. S. R. (2d) 370; J. R. at paras. 42 – 43. In other words, the Crown must prove beyond a reasonable doubt “that the complainant’s cognitive capacity is sufficiently impaired by the consumption of alcohol so as to make her incapable of knowing that she is engaging in a sexual act or that she can refuse to engage in the sexual act”: Tariq, at para. 94, or of knowing the identity of her partner(s).
(ii) Assessing the Evidence Relating to Capacity to Consent
80T. R. had almost no memory of the night of April 21 – 22, 2018. She did recall that she drank alcohol that night, although she could not say how much. No one else could say exactly how much alcohol T. R. had consumed that night either.
81It seems clear that T. R. started drinking alcohol relatively shortly after her arrival at the party at around 10:30pm. But the evidence as to when she stopped drinking was not as clear. T. R. said that she would have stopped drinking after she went to throw up in the ground floor bathroom because she was already intoxicated at that point. Sheena was quite certain that Anastasia was downstairs from 1 to 2am. Sheena did not say that T. R. left to go to the bathroom during the period that Anastasia was downstairs. Instead, her evidence was that T. R. was slouched in a kitchen chair during this time. This means that if T. R. did go to throw up in the ground floor bathroom, she must have done so before 1am. Sheena was not certain of whether T. R. was still consuming alcohol between 1 and 2am but thought she might not have been. Jazmine said that T. R. did not consume alcohol after she came upstairs. She estimated that T. R. came upstairs about an hour after Mr. Le Goff did at 1 or 2am. Sheena said that Mr. Le Goff had gone upstairs about 20 minutes before Anastasia came down, or at approximately 12:40am. If T. R. went upstairs about an hour after Mr. Le Goff, she went up some time between 1:40 and 3am. On the basis of all of the evidence, I conclude that T. R. consumed an indeterminate amount of alcohol starting shortly after 10:30pm until sometime between 1 and 3am.
82While T. R. thought she had eaten before and at the party, she was not sure of what she ate or when. None of the other witnesses knew what T. R. had eaten either.
83There was no independent or objective evidence of T. R.’s level of intoxication, such as expert toxicology evidence. Such evidence would likely have been of limited utility here because of the dearth of evidence as to what T. R. ate and drank over what time period. The evidence simply did not permit expert assessment of what T. R.’s blood alcohol concentration (BAC) might have been, or how that BAC might have affected her capacity to consent.
84Regardless of how much alcohol she consumed, over what time period, or what she ate, there can be no doubt that T. R. was intoxicated. T. R. said she felt intoxicated. All of the witnesses said she was intoxicated. The question for my determination is whether the Crown has proven beyond a reasonable doubt that T. R. was so intoxicated (or so asleep) at the time of the sexual contact that she was deprived of the capacity to consent.
85T. R. testified that she had never felt that intoxicated before. By contrast, Jazmine testified that she had seen T. R. intoxicated before, and on the night of the party T. R. was drinking the way Jazmine knows her to drink. T. R. was not drinking more or less than she usually did. She said T. R. was not “going crazy with the drinks,” but she drank more than she should have.
86T. R.’s period of memory lapse started fairly early on in the evening. She recalled arriving at the party, meeting Mr. Deptuck for the first time, and talking to “Brenda” (i.e., Sabrina). After that, T. R. had only two brief memories.
87During the period of which T. R. had no memory, other witnesses described her as dancing, socializing and talking, sitting and standing with the group around the island in the kitchen, and participating in some rounds of group shots and declining some. This evidence suggests that T. R. was aware of her level of intoxication and was making and executing choices about how much and when to drink. Of her conversation with “Brenda,” T. R. could only recall being told that Brenda was from Guyana. But Jazmine described this conversation as a “girl talk” that went on for quite some time, approximately 40 minutes. This suggests that T. R. was able to understand and participate in dialogue.
88Mr. Le Goff testified that he encountered T. R. outside the ground floor bathroom after he had thrown up there. He joked with her about how crazy the party was getting and about how he had been drinking too much. He said she laughed in response. This evidence suggests that T. R. understood Mr. Le Goff’s joking comments and was able to respond.
89In the period before 1am, none of the witnesses described T. R. as falling down drunk. None of them said she lost motor control, slurred her speech, passed out, or lost consciousness. No one described her as exhibiting signs of extreme intoxication in this period. In fact, Sheena characterized T. R. as pretty “together.” The evidence of witnesses who did recall the party suggests that despite her memory lapses for this period, T. R. was conscious, talking, interacting, and behaving apparently more or less normally.
90At around 1am, Sheena noticed that T. R. started to withdraw and slouch. T. R. did not respond to a comment from Sheena, but Sheena thought that T. R. may not have heard her (as music was playing), or assumed T.R. was taking to Anastasia, or that T.R. had chosen to ignore her. Sheena thought T. R. was intoxicated, but not “crazy next level” intoxicated. Sheena had no concerns about T. R.’s safety. She merely thought that T. R. was intoxicated to the point where she needed to “collect herself.” I understood Sheena’s evidence to be that while T. R. was drunk, she still appeared able to pull herself together and to take actions to care for herself. This could be considered evidence of an operating mind, despite intoxication.
91Soon after, T. R. told Jazmine she needed to lie down. This accorded with Jazmine’s observation that T. R. was looking a “little too drunk.” Upstairs, T. R. vomited into a bucket in the playroom. At some point, she ran to Sheena’s bathroom to continue vomiting there. Jazmine thought that T. R. did not want to continue throwing up in the bucket, preferring the bathroom. She thought it was reasonable for T. R. to choose to vomit in the bathroom. T. R. apparently had no difficulty finding the bathroom or making her way there in time.
92Mr. Le Goff testified that at some point while he was in the master bathroom, T. R. came in. They joked and she laughed. This evidence suggests that, despite having no memory of having done so, T. R. was able to make her way to the master bathroom from the playroom to throw up in the sink on her own. She did not just vomit where she lay on the foam mattress on the floor of the playroom. This suggests that she had an awareness of her situation, the ability to consider her options, and the ability to consciously direct her movements to give effect to her choices. It also suggests that she was able to converse, understand the conversation, and respond to it.
93At some point, T. R. moved from the playroom to the master bedroom. Jazmine agreed that the master bed was more comfortable that the foam mattress she had placed on the playroom floor for T. R. Although T.R. could not recall moving to the master, that she did so suggests that she was not passed out, unconscious, or profoundly asleep in the playroom. She knew that she was uncomfortable where she was and that she wanted to move. She was able to get up and make her way to a more comfortable spot. This too suggests that T. R. had an awareness of her situation, the ability to consider her options, and the ability to consciously direct her movements to give effect to her choices.
94When Jazmine and Mr. Deptuck made their way to their bedroom, they found T. R. sleeping there. They tried to wake her and get her to move. Jazmine said she could neither get T. R. to move, nor move her. T. R. communicated that she did not want to move. Jazmine thought T. R. was unmovable because she was too drunk. But she acknowledged that it was possible that T. R. did not want to move because she was asleep and did not want to be awakened, or because she was more comfortable in the master bed than she had been on the playroom floor. T. R. testified that she had a memory of waking up in a bed with someone pulling on her or her clothes. She said she felt that she could not move at that time. If Jazmine was correct that T. R. could not be moved because she was too drunk, and if T. R. really could not move in the brief moment she recalled, this suggests that she may have been unconscious or in an intoxicated and profound sleep.
95Mr. Le Goff went into the master bedroom some time after Jazmine and Mr. Deptuck went to sleep at 4 or 4:30pm, and left when it was still dark — before sunrise at 6:22am. He testified that throughout his interactions with T. R., including sexual ones, she was at all times awake, conscious, responsive, and consenting. If true, this evidence suggests that, despite her lack of memory, T. R. was capable of consenting to sexual activity.
96To properly assess this evidentiary record with a view to determining whether the Crown has proven beyond a reasonable doubt that T. R. was incapable of consenting, I must consider the credibility of the witnesses.
(iii) Assessing Credibility
(a) Credibility and the Burden of Proof – the Applicable Law
97It is well-established that triers of fact should assess the credibility of a defendant and its relationship to the burden of proof in accordance with the process set out by the Supreme Court of Canada in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. That case established that defence evidence must be assessed in the context of the evidence as a whole, not in isolation, in this way: (i) if the trier of fact believes the evidence of the defendant, they must acquit; (ii) if the trier of fact does not believe the evidence of the defendant but is left in reasonable doubt by it, they must acquit; and (iii) even if not left in reasonable doubt by the evidence of the defendant, the trier must determine whether, on the whole of the evidence they do accept, they are convinced of the guilt of the defendant beyond a reasonable doubt. This formulation seeks to ensure that the burden of proving the charge remains on the Crown and never shifts, and that the standard to which the Crown must prove the charge is proof beyond a reasonable doubt and nothing less. In other words, a defendant can only be convicted if the trier of fact is satisfied that the exculpatory version of events is false and is also satisfied that the inculpatory version of events is true.
98I now proceed to assess the evidence, applying these legal principles, to determine whether the Crown has established that T. R. was incapable of consenting beyond a reasonable doubt.
(b) The Evidence of Jazmine, Sheena, and Mr. Deptuck
99There were some inconsistencies across the evidence of all of the witnesses who testified at this trial. Most of these related to specific details like precise timing of events. There were also some gaps in the evidence. Most of the gaps also related to specific details like how much alcohol was consumed, or what food was set out. I consider these inconsistencies and gaps to be the natural effects of a combination of factors. First, all of the witnesses were intoxicated. Some of them were very intoxicated. As a matter of common sense and experience, and as noted already in these reasons, intoxication may inhibit a person’s ability to recall events. Second, all of the witnesses were at 162 Hummingbird Drive that night for a party. They wanted to celebrate and have fun. They moved about and socialized. They were not there to closely observe events and each other for the purpose of being able to give evidence in court at a later date. They had no reason at the time to pay close attention to every detail of everything that happened or firmly fix them in memory. Finally, about three and a half years have passed since the night of the incident. Some memory loss would be normal with this kind of passage of time.
100In my view, even with some inconsistencies, Jazmine, Sheena, and Mr. Deptuck were sincere and credible witnesses. There was broad consistency in the overarching story that each of them told about the events of April 21 – 22, 2018. They each carefully and candidly admitted the limits of their memory, and the things they could not be certain about. I am satisfied that each of these witnesses did their best to provide truthful evidence. I recognize that the inconsistencies and memory gaps, and the reasons for them, might give rise to reliability concerns. The witnesses’ intoxication, lack of attention because they were at a party, and natural forgetting caused by the passage of time might well have affected the witnesses’ ability to perceive, remember, and recount what occurred. But in my view, such unreliability as exists here is not of major concern. As noted, there was broad consistency across the overall story told by each of the witnesses, and they were, in the main, careful to acknowledge what they could not remember or were not confident about.
(c) Assessing Mr. Le Goff’s Credibility
101The position of the Crown was that Mr. Le Goff was not a credible witness because: (i) he was very intoxicated on the night in question, so his evidence should be treated with caution; (ii) he lied to Mr. Deptuck when confronted with T. R.’s allegation that someone had had sex with her by denying that he had done so, and he then blocked Mr. Deptuck on Facebook; (iii) he maintained that he had many memory gaps about what occurred on April 21 – 22, 2018 but had a very clear and detailed recollection of his sexual encounter with T. R. The Crown submitted that this was selective, self-serving, and not credible; (iv) there were some material inconsistencies between Mr. Le Goff’s evidence and that of Jazmine and Mr. Deptuck; and (v) circumstantial evidence reveals that Mr. Le Goff could not have been telling the truth. For these reasons, the Crown submitted that I should not believe Mr. Le Goff’s evidence nor be left in a reasonable doubt by it. The position of the defence was that Mr. Le Goff was a careful witness who sincerely explained what he could and could not remember; whose evidence was not implausible and was largely consistent with the evidence of Crown witnesses other than the complainant, and those inconsistencies that arose were immaterial or should be resolved in his favour; and that circumstantial evidence relied on by the Crown does not undermine his evidence. For these reasons, the defence submitted that I should believe Mr. Le Goff’s evidence or at least be left in reasonable doubt by it.
102I have carefully considered the submissions of counsel and all of the evidence in the case. For the reasons that follow, I am left in a state of reasonable doubt by Mr. Le Goff’s evidence. I will proceed to consider the Crown’s submissions regarding Mr. Le Goff’s credibility in greater detail. But I start with stating my overall conclusion: Mr. Le Goff’s evidence could plausibly be true. Considering the evidence as a whole, avoiding prohibited myths and stereotypes, in the context of this party that took place years earlier, where all of the witnesses had consumed alcohol and were intoxicated, some memory lapses and inconsistency across witnesses are to be expected. It may not signal dishonesty. Witnesses may act in ways that seem irrational with the benefit of hindsight without those actions being implausible or incredible. Events could reasonably have occurred as described by Mr. Le Goff.
(c - i) Crown submission that Mr. Le Goff is not credible because he was very intoxicated on the night at issue
103The Crown submitted that Mr. Le Goff’s evidence must be treated with caution because he was very intoxicated on the night of April 21 – 22, 2018. His intoxication, the Crown argues, may have impacted on the reliability of his perceptions and his interpretation of events: R. v. T. S., [1999] O. J. No. 268, at para. 166. The evidence reveals that Mr. Le Goff was indeed intoxicated. So much so that he vomited and spent some time lying on the floor of the master bathroom. However, both Jazmine and Mr. Le Goff testified that after a time in the bathroom, he got up and was feeling better or less intoxicated. They both testified that he was concerned about Brenda and Yao driving home drunk at that point. He went downstairs to try to talk them out of doing so. When he returned upstairs, Mr. Le Goff expressed that he felt badly that Jazmine had to clean up Mr. Deptuck’s vomit. He scolded Mr. Deptuck to stop vomiting on the carpet and offered to assist Jazmine with clean up. He may have also brought her a bucket to assist. In my view, while Mr. Le Goff was very intoxicated earlier in the night, by the time he got up he was somewhat less so. The evidence satisfies me that while he was no doubt still feeling the effects of his alcohol consumption, by the time he entered the master bedroom, he was more in possession of his faculties. He was alert and aware enough to be concerned about Brenda and Yao, to feel and express concern for Jazmine, and to try to assist all of them. Mr. Le Goff’s perceptions, interpretations, and memory of events may still have been affected by his alcohol consumption, but not so much so as to cause me to reject his evidence outright.
(c - ii) Crown submission that Mr. Le Goff is not credible because he lied to Mr. Deptuck and blocked Mr. Deptuck on Facebook
104The Crown submitted that Mr. Le Goff was not worthy of belief because he lied to Mr. Deptuck. Mr. Deptuck confronted Mr. Le Goff in a Facebook message with T. R.’s allegation that someone had tried to have sex with her after the party. Mr. Le Goff told Mr. Deptuck that he had lain down next to T. R., and may have brushed up against her, but he denied trying to have sex with her. After a barrage of Facebook messages from Mr. Deptuck, Mr. Le Goff blocked him on social media.
105When confronted with his lie at trial, Mr. Le Goff admitted it. He explained that he lied out of fear. He said he knew he had had consensual sex with T. R., but Mr. Deptuck was accusing him of doing something wrong. Mr. Deptuck told him that T. R. was threatening to go to police. Mr. Le Goff did not want any part of this. He explained that Mr. Deptuck was aggressive and insistent, spamming his Facebook account and posting to his public-facing Facebook wall. Mr. Deptuck agreed that he was shocked and angry that he was being wrongly accused of trying to have sex with T. R. And he was angry that Mr. Le Goff knew he was being blamed but did not do anything to help. Mr. Deptuck agreed that he did not use “the nicest of language” with Mr. Le Goff, including profanities. Mr. Deptuck agreed that he could see why Mr. Le Goff may have found his approach to be accusatory. Yao also blocked Mr. Deptuck on social media after being confronted by him with T. R.’s allegations.
106I do have concerns about the fact that Mr. Le Goff lied to his friend. He has shown that he is someone who will lie when it suits his purposes to do so. It is difficult to believe him knowing that he has admittedly lied in the past. However, lying to an angry and threatening person who is insistently and publicly accusing you is not the same thing as lying under affirmation in a court of law. The former is unethical and discreditable. But the latter is an offence that brings with it potential criminal charge and sanction. Knowing that Mr. Le Goff lied, albeit while in difficult circumstances, makes it difficult for me to believe his evidence. Yet I am not able to conclude on that account that his evidence under affirmation at trial might not reasonably be true, especially when considered alongside all of the other evidence in the case.
107I note that the Crown also implicitly argued that Mr. Le Goff’s actions in both lying to Mr. Deptuck and blocking him on social media was after-the-fact conduct evidence of consciousness of guilt from which I should infer that he had committed sexual assault. I agree that these actions provide some evidence from which a consciousness of guilt could be inferred. However, in my view, the probative value of this after-the-fact conduct evidence is low. In R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 116 – 117, the Supreme Court of Canada cautioned against the potential dangers of after-the-fact conduct evidence:
This evidence may . . . appear more probative than it is, it may be inaccurate, and it may encourage speculation. After-the-fact conduct evidence may thus give rise to imprecise reasoning and may encourage decision makers to jump to questionable conclusions.
To meet the general concern that such evidence may be highly ambiguous and susceptible to jury error, the jury must be told to take into account alternative explanations for the accused’s behaviour. In this way, jurors are instructed to avoid a mistaken leap from such evidence to a conclusion of guilt when the conduct may be motivated by and attributable to panic, embarrassment, fear of a false accusation, or some other innocent explanation. [Citations omitted]
108As instructed by the Supreme Court, as trier of fact, I must take into account alternative explanations for Mr. Le Goff’s behaviour. I must take care to avoid a mistaken leap from his lying and blocking Mr. Deptuck to a conclusion of guilt if this conduct may have been motivated by another innocent explanation. In this case, Mr. Le Goff explained that he lied to Mr. Deptuck because he was afraid. Mr. Deptuck, by his own admission, was angry, insistent, using profanities, and adopted what could be perceived as an accusatory tone. Mr. Le Goff explained that he was afraid of being falsely accused. He had testified that he did not want Jazmine and Mr. Deptuck to know that he had had sex in their bed. He may well have lied to Mr. Deptuck because he was embarrassed about having done so. Mr. Le Goff explained that he blocked Mr. Deptuck on social media because Mr. Deptuck was spamming his Facebook account and publicly posting about T. R.’s allegations. This too speaks of the possibility that Mr. Le Goff was fearful of public embarrassment, shaming, or being wrongly accused. It is telling that Yao, who did not have sex with T. R., also chose to block Mr. Deptuck. In my view, this speaks to the accusatory, hostile and insistent tone and approach that Mr. Deptuck employed in his Facebook communications with Mr. Le Goff and Yao. In these circumstances, I cannot conclude that Mr. Le Goff’s after-the-fact conduct in lying to and blocking Mr. Deptuck evidence consciousness of guilt for sexual assault.
(c - iii) Crown submission that Mr. Le Goff is not credible because his memory was selective and self-serving
109The Crown argued that Mr. Le Goff was not credible because he had many memory gaps about what occurred on April 21 – 22, 2018 but maintained that he had a very clear and detailed recollection of his sexual encounter with T. R. Examples of some of the things Mr. Le Goff could not remember included: how much he had to drink that night; how much time he spent lying on the floor in Anastasia’s room before he went to find another place to sleep; what the blanket on the bed in the master bedroom looked like; and how much time he spent in the master bedroom with T. R. Yet Mr. Le Goff claimed to have a very detailed recollection of what took place when he was with T. R. in the master bedroom, including all of the minutiae of their sexual encounter, his efforts to confirm that she was consenting, and her expressions of consent by words and actions. The Crown effectively argued that Mr. Le Goff only remembered what was helpful to him, and this he remembered in great detail. In the Crown’s submission, Mr. Le Goff’s evidence was selective and self-serving, which I should find negatively impacted on his credibility.
110I am not overly troubled by Mr. Le Goff’s memory lapses. Most of the things he could not recall were relatively minor. He, like all of the other witnesses who testified at this trial, was intoxicated. This may have impacted on his ability to observe and remember every detail. In this respect, Mr. Le Goff’s evidence was no different from that of the other witnesses who also could not recall precise details of how much was consumed by whom, or precisely when certain events occurred. He, like all of the other witnesses who testified at this trial, was subject to the natural process of forgetting that occurs with the passage of time.
111Having observed Mr. Le Goff testify, I did not find him to be evasive in his answers about things he did not remember. I did not perceive him to be dissimilating or evading questions when he testified that he could not recall something that was asked of him. In my view, when Mr. Le Goff said he could not recall, he was carefully recognizing and conveying the limitations of his memory. He refused to guess or speculate. He repeatedly declined invitations in cross-examination to provide details where his memory did not allow him to do so.
112I am somewhat more troubled by the contrast between Mr. Le Goff’s extremely detailed recollection of his late-night interaction with T. R. and his lack of memory of some of the other details of that night. I do not accept that Mr. Le Goff remembered every detail of his sexual encounter with T. R. to the level of detail to which he testified. Especially when compared with the relative absence of detail in his testimony in relation to some other events. However, I do consider that the broad outlines of Mr. Le Goff’s evidence about what happened in his interaction with T. R. might nonetheless reasonably be true when considered alongside all of the evidence in the case. I come to this conclusion for the following reasons.
113First, T. R.’s allegation that she had been sexually assaulted was brought to Mr. Le Goff’s attention very quickly after the night of the party. He would therefore have been alerted early on to the need to focus on what had transpired in his encounter with T. R. and commit it to memory. T. R. texted Jazmine on April 23, 2018 (the day after she left 162 Hummingbird) alleging that she thought someone had sexually assaulted her. On April 24, 2018, further texts between Jazmine and T. R. reveal that as Jazmine denied that Mr. Deptuck could have done this, both of them started considering whether Mr. Le Goff was the assailant. Later, on April 24, 2018, Jazmine texted T. R. to say that Mr. Deptuck had communicated with Mr. Le Goff who denied having tried to have sex with her. As noted, Mr. Deptuck was angry and accusatory with Mr. Le Goff. There was mention that T. R. was considering calling the police. In other words, just over two days after the sexual encounter, Mr. Le Goff was put on notice that he might be called upon to answer an allegation that he had sexually assaulted T. R. He had reason to focus his attention on the details of his interaction with T. R. and remember it precisely. The same would not have been true, or at least not to the same extent, for other more peripheral details of the night of the party.
114The second reason I find that Mr. Le Goff might reasonably have a more detailed recollection of the sexual encounter than of other details of that night is this. As a matter of common sense and experience, many people would find a sexual encounter more exciting and therefore more memorable than more mundane things like how many drinks they had, or how long they remained in a particular location.
115The third reason is that it is not the case that Mr. Le Goff only remembered the details of his interaction with T. R. and could not remember anything else from that night. His evidence about his encounter with T. R. was more detailed than any of his other testimony. But he also did recall many of the other events of the night, and he was able to testify to them in some detail. For example, Mr. Le Goff remembered meeting the other party attendees and some details of his conversations with them. He remembered that Yao gave Mr. Deptuck a ring as a birthday present. He remembered asking Jazmine to direct him to another bathroom, that she sent him upstairs where he encountered Yao and Mr. Deptuck talking in the bedroom, and that he threw up on the bed and then went into the master bathroom where he recalled the details of further discussion with Jazmine. He remembered and candidly admitted that he knew T. R. was in the master bedroom when he went in there looking for an alternate place to sleep, and that T. R. was likely still drunk during their sexual encounter. And he testified to a number of other events in some detail as well.
116In other words, it was not the case that Mr. Le Goff had little or no recollection about anything that transpired that evening, except for a very detailed and exculpatory version of his sexual encounter. It was not the case that he only remembered what was helpful to him. He remembered many things from that night. Some of them were helpful to him, some of them were neutral, and some were actually unhelpful to him. For this reason, I do not accept that Mr. Le Goff’s memory was selective and self-serving. I do not accept that he claimed only to “remember” those things that he knew would be exculpatory, when in reality he was fabricating in a self-serving way. Rather, I consider it quite likely that Mr. Le Goff embellished the details of what he recalled from his time with T. R. For this reason, I do not accept that Mr. Le Goff remembered every detail of his sexual encounter with T. R. to the level of detail to which he testified, but I still consider it reasonably possible that the broad outlines of his story are true.
(c - iv) Crown submission that Mr. Le Goff was not credible because there were material inconsistencies between his evidence and that of Jazmine and Mr. Deptuck
117The Crown submitted that there were inconsistencies between the evidence of Mr. Le Goff and that of Jazmine and Mr. Deptuck. The Crown position was that these negatively impact on Mr. Le Goff’s credibility.
118There are two inconsistencies alleged by the Crown. First, that Mr. Le Goff said he went downstairs after leaving the master bathroom, where he saw Brenda and Yao passed out in the living room. He said he also saw Jazmine and Mr. Deptuck in the kitchen. Neither Jazmine nor Mr. Deptuck testified to Mr. Le Goff coming downstairs before they went upstairs. Second, that Mr. Le Goff said that when he went back upstairs, he sat at the top of the stairs next to the hallway until Jazmine and Mr. Deptuck came upstairs and went into their bedroom. By contrast, Jazmine testified that she thought Mr. Le Goff was still in the bathroom when she and Mr. Deptuck came upstairs and went into their room. She thought Mr. Le Goff was roused by her efforts to wake and move T. R., and by Mr. Deptuck vomiting in the playroom. When she exited the master bedroom, she saw Mr. Le Goff in the hallway. Both Mr. Le Goff and Jazmine testified that at that point, Mr. Le Goff asked her where he should sleep.
119In my view, the inconsistencies relied on by the Crown are not significant. Neither touches on the core of Mr. Le Goff’s evidence. These are not, to borrow language from R. v. A. M., 2014, ONCA 769, 123 O.R. (3d) 536, at para. 13, (in the context of prior inconsistent statements, but still applicable here) “material” inconsistencies “about which an honest witness is unlikely to be mistaken.” In light of all the witnesses’ intoxication and the passage of time, Mr. Le Goff or Jazmine and Mr. Deptuck could have been mistaken about these two issues and still have been credible and reliable in the main. I am bolstered in this conclusion by the fact that all of the evidence of Jazmine, Mr. Deptuck, Sheena, and Mr. Le Goff in relation to the events of April 21 – 22, 2018 was largely consistent.
120Further, it is to be expected that witnesses will have differing recollections of some events. As Boswell J. observed in R. v. D. M., 2012 ONSC 6353, at para. 63:
It is not at all uncommon for several eyewitnesses to the same event to remember it entirely differently, even with respect to significant features and even though each is an honest and otherwise dependable witness. Frequently, when people forget certain aspects of an event, they fill in the blanks based on their common sense and experience.
121In addition, I am not convinced that these actually were inconsistencies. Or, if they were, that it was Mr. Le Goff who was wrong in his evidence about these issues. It is possible that Mr. Le Goff went downstairs but was not seen by Jazmine or Mr. Deptuck. They may have been preoccupied with Jazmine’s care for the unwell Mr. Deptuck. They may not have noticed Mr. Le Goff as a result. It is also possible that Mr. Le Goff had already left the bathroom when Jazmine thought he was still in there. Jazmine’s evidence was that she thought he was still in the bathroom at that time, indicating that she was unsure. She also said that she assumed the bathroom door was closed. Jazmine may simply have incorrectly assumed that Mr. Le Goff was still in the bathroom. Moreover, Mr. Le Goff’s reasons for sitting at the top of the stairs made sense. He explained that he was waiting for Jazmine to direct him to a room to sleep in. He did not want to enter the master bedroom and invade Jazmine and Mr. Deptuck’s privacy. So sitting at the top of the stairs waiting for Jazmine to emerge and show him to a room would have been a sensible thing to do. When Mr. Deptuck got sick and ran to the playroom, followed by Jazmine, Mr. Le Goff followed to ask about where to sleep, and then was seen by Jazmine in the hall.
(c – v) Crown submission that circumstantial evidence supports a conclusion that Mr. Le Goff could not have been telling the truth
122The Crown submitted that I should infer from circumstantial evidence that Mr. Le Goff’s evidence was implausible, and that he therefore could not have been telling the truth.
123The first circumstantial evidence the Crown relies on relates to what it argues is the implausibility of consensual sexual activity. The Crown argues that it is implausible that two people who are effectively strangers would suddenly engage in consensual sexual activity. The Crown further argued that it was implausible that, having engaged in consensual sexual activity, Mr. Le Goff would not have wanted to contact T. R. again to continue the relationship or have a “friends with benefits” arrangement.
124I do not agree that Mr. Le Goff’s evidence of consensual sex is implausible in these circumstances. I consider the Crown’s position to be an invitation to engage in reasoning from a prohibited myth or stereotype about a sexual assault complainant. In essence, the Crown is asking me to find that T. R. would not have consented to having sex with someone she just met. I am not prepared to make that finding. I cannot rely on solely on “my own preconceived notions” of “what a victim of sexual assault will do in any given circumstance”: R. v. J. S., 2021 ONCJ 669, at para. 44. As the Ontario Court of Appeal held in R. v. J. L., 2018 ONCA 756, 143 O.R. (3d) 170, at para. 46:
The second basis for the trial judge’s conclusion depended on an assumption about what a “young woman” will and will not do. As mentioned, the trial judge said: “I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity. In other words, the trial judge could not accept, or even have a doubt arising from, the appellant’s evidence because the trial judge was of the view that young women would not do what the complainant was said to have consensually done. There is a real danger that this reasoning contributed to the trial judge’s assessment of whether, on the whole of the evidence, the Crown had proven the appellant’s guilt beyond a reasonable doubt. I do not share the trial judge’s view that it can be taken as a fact that no young woman would consensually engage in the alleged behaviour.
See also R. v. Steele, 2021 ONCA 186; R. v. Cepic, 2019 ONCA 541; R. v. Delmas, 2020 ABCA 152.
125In a similar vein, I cannot infer that if Mr. Le Goff had consensual sexual relations with T. R. on the night in question, he would necessarily have wanted to continue to have sexual relations with her. Further, I cannot infer that because he testified that he had no interest in an ongoing sexual relationship with T. R., the sexual encounter he did have with her cannot have been consensual. In the absence of evidence about Mr. Le Goff’s own beliefs, views, or practices, the Crown is asking me to rely on a prohibited “stereotypical understanding of how men in those circumstances would conduct themselves”: R. v. Quartey, 2018 SCC 59, [2018] 3 S.C.R. 687, at para. 3, aff’ing 2018 ABCA 12, 430 D.L.R. (4th) 381; Delmas, at paras. 29 – 34.
126Another basket of circumstantial evidence the Crown relies on in asking me to infer that Mr. Le Goff cannot have been telling the truth relates to sleeping arrangements. The Crown submits that Mr. Le Goff’s reasons for leaving Anastasia’s room and his reasons for choosing to move to the master bedroom do not make sense. The Crown further submits that his return to Anastasia’s room to sleep negatives his reasons for leaving that room in the first place. I understand the Crown’s position to be that the only reasonable inference to be drawn is that Mr. Le Goff left Anastasia’s room because he intended to sexually assault T. R. in the master bedroom. I do not accept this position.
127In my view, Mr. Le Goff’s reasons for wanting to move and choosing the master bedroom were not implausible. He was uncomfortable on the small child’s mattress pulled out from under Anastasia’s bed and placed on the floor. The room was too hot. The Crown suggested to Mr. Le Goff that he could have tried to improve conditions in Anastasia’s room — that he could have piled more blankets or the other mattress on top of the one he had been given, and that he could have tried opening a window. Mr. Le Goff responded that it was dark in the room, the window blinds were down, and effectively these options did not occur to him at the time. A sober and wide-awake person in these circumstances might well have taken these steps to improve their conditions before moving. But Mr. Le Goff was not a sober and fully awake person at that time. It was late and he had been drinking. He made his decisions and acted in real time. As a matter of common sense and experience, sometimes people make small in-the-moment decisions without much thought or deliberation. Sometimes they just react. Mr. Le Goff’s decision to seek out a more comfortable place to sleep without having tried to improve conditions where he was, in these circumstances, was not so irrational or nonsensical as to be implausible.
128I also find that Mr. Le Goff’s reasons for deciding to see if he could sleep in the master bedroom made sense. He knew that the couch had vomit on it. He knew that the playroom and Sheena’s room each had two people already sleeping in them. There would have been no room for him to sleep in a bed or on a mattress in one of those rooms. The doors to those rooms were closed. Mr. Le Goff did not want to invade the privacy of the residents of the house sleeping behind those closed doors. He knew that T. R. was sleeping in the master bedroom. That was the only room that was occupied by only one person. And the door to that room was open. In my view, Mr. Le Goff’s stated reasons for choosing to try to move to the master bedroom were plausible here.
129While he found Anastasia’s room uncomfortable, Mr. Le Goff had a reasonable explanation for why he returned to sleep there after having sex with T. R. He explained that he did not want Jazmine and Mr. Depuck to find him in their bed after he had had sex in it. Mr. Le Goff had already apologized to Jazmine for throwing up on her bed and in her bathroom. Already embarrassed about his conduct, Mr. Le Goff did not want Jazmine and Mr. Deptuck to know that he had engaged in sexual activity in their bed. In effect, Mr. Le Goff explained that he was prepared to return to sleep in Anastasia’s room even though it was uncomfortable because being discovered in the master bed would have been even more uncomfortable for him. For this reason, Mr. Le Goff’s return to sleep in Anastasia’s room, despite its discomfort, did not negative his reason for leaving it in the first place. I cannot infer that the only reasonably possible explanation for Mr. Le Goff going in to the master bedroom was that he intended to sexually assault T. R.
130The next circumstantial evidence advanced by the Crown in support of its position that Mr. Le Goff cannot have been telling the truth relates to T. R.’s underwear. T. R. testified that she could not find her underwear on April 22, 2018. The underwear was never located. The Crown submitted that the only reasonable conclusion was that Mr. Le Goff must have taken T. R.’s underwear. I understand the Crown position to be that Mr. Le Goff would only have taken T. R.’s underwear if he had sexually assaulted her, as a sort of “trophy.” I do not accept that the only reasonable inference available is that Mr. Le Goff must have taken the missing underwear. Nor do I accept that, if he did so, the only plausible explanation is that he must have sexually assaulted T. R.
131T. R. could not recall what underwear she wore to the party that night. There was no evidence that T. R. told Jazmine that her underwear was missing, that she sought help in locating it, or that others were aware of the lost underwear or helped look for it. This leaves open a number of possible explanations for what happened to T. R.’s underwear. One is that in the clean up after the party, the underwear was found but no one recognized it as belonging to T. R. Another is that it was mistakenly thrown out or put into the laundry and mixed in with Jazmine or Sheena’s clothes. There is also no basis to conclude that the police would have found the underwear. The prosecution did not call evidence that the police searched for it. And if they did, in the absence of evidence from T. R. about what underwear she was wearing, police would not have known what to look for.
132Even if Mr. Le Goff had taken T. R.’s underwear, I cannot conclude that this means he must necessarily have sexually assaulted her. It is of course possible that a sexual assailant might take their victim’s underwear as a trophy. But without evidence that is relevant to this particular case and this particular defendant, I cannot assume that taking a sexual partner’s underwear can only mean that the sexual encounter was not consensual. To do so would be to engage in prohibited reasoning from sexual myths or stereotypes. It would be to impermissibly reason from assumptions or stereotypes about what people in sexual situations always do and do not do.
133The Crown also relies on circumstantial evidence in relation to the “Paw Patrol” blanket in support of its position that Mr. Le Goff is not credible. This was a blanket that, according to Sheena, was on Anastasia’s bed when she went to sleep early on in the night. Sheena said that Anastasia did not bring the Paw Patrol blanket downstairs with her at 1am, and that it was not brought into Sheena’s bed when she and Anastasia went to sleep. Mr. Le Goff said that he did not bring the Paw Patrol blanket with him when he went into the master bedroom. He noted that T. R. had a blanket on her when he entered that room. But he could not recall what the blanket looked like, beyond that it looked too small for the master bed. Jazmine and Sheena testified that T. R. was wrapped in the Paw Patrol blanket in the master bed on the morning of April 22, 2018. The Crown position was that Mr. Le Goff had carried the Paw Patrol blanket with him into the master bedroom from Anastasia’s bedroom. And that he did so because he intended to sexually assault T. R. Knowing that the master bedroom door could not be closed, the Crown argues, Mr. Le Goff planned to perform non-consensual sex acts under cover of the blanket where he would be less likely to be discovered. I do not accept this submission.
134There are a number of innocent ways in which the Paw Patrol blanket could have made its way to the master bedroom. One is that, upon discovering no blankets on the master bed (because Jazmine had moved them to the playroom floor), T. R. went and found the Paw Patrol blanket herself. Another possibility is that T. R. lay in the master bed for a time, became cold (as Mr. Le Goff testified she was when he encountered her), went in search of a blanket, and found that one. Recall that there was evidence that T. R. had moved around on the second floor of the house. It is at least possible that she also went looking for a blanket at some point. Or that she found the blanket and took it with her when she moved from the playroom in search of a more comfortable place to sleep before proceeding to the master bedroom. Indeed, Jazmine testified that she thought T. R. had gone and gotten the Paw Patrol blanket for herself at some point in the night.
135Even if Mr. Le Goff had brought the blanket into the master bedroom (which was not his evidence, and which I have concluded is not the only reasonably possible explanation for how it got there), this does not necessarily mean that he planned to sexually assault T. R. It is equally possible that if Mr. Le Goff brought the blanket into the master bedroom, he did so after discovering that T. R. was cold, shivering, and in need of a blanket.
136For all of the foregoing reasons, I am left in a state of reasonable doubt by Mr. Le Goff’s evidence.
(d) Assessing T. R.’s Credibility
137The position of the defence was that in addition to having no memory of the sexual encounter with Mr. Le Goff, T. R. had difficulty recalling other events of the night of April 21 – 22, 2018 and the following morning, and that her account presented numerous inconsistencies with other Crown witnesses and was often self-serving. The defence asked me to find that, cumulatively, these issues damaged T. R.’s credibility and reliability. The Crown’s position was that T. R.’s evidence in relation to what she could remember was credible and reliable.
138I do not propose to engage in a lengthy or detailed analysis of the issues the defence raises with the evidence of T. R. Having observed T. R. and carefully considered her evidence alongside all the other evidence in the case, I am satisfied that she is generally credible and reliable. I have no doubt that T. R. was intoxicated on the night in question, that she genuinely does not recall much of what happened, and that she sincerely believes that Mr. Le Goff had sex with her when she was asleep or passed out.
139Many of the concerns with T. R.’s testimony raised by the defence relate to her memory of peripheral issues that do not touch on the core of her evidence. For example, the evasions the defence alleges in T. R.’s evidence about Lamar (the man who dropped her off at the party and picked her up the next day) are simply not relevant to whether T. R. was credible or reliable. It is of no moment that T. R. described Lamar as a family friend but did not know his last name. It is equally irrelevant to T. R.’s credibility and reliability at this trial that she initially testified that she had invited Lamar to attend the party with Jazmine’s permission. But that, confronted with her evidence at the preliminary inquiry that Lamar was never going to attend the party, she immediately accepted the earlier evidence as accurate.
140However, there were some issues with T. R.’s evidence that did cause me concern. These were instances of T. R. giving evidence that was inconsistent with the evidence of other Crown witnesses, where the effect of T. R.’s evidence was to minimize her contact with Mr. Le Goff before and after their sexual encounter, and to maximize her level of incapacity. I am referring to the following, quoting from the defence written submissions at para. 164:
- T. R. had limited to no memory of Mr. Le Goff despite the other Crown witnesses referring to him as a memorable, boisterous presence at the party in a confined area with only six other people. Brenda and Yao had left by the next morning, so Mr. Le Goff would have been one of four other people then.
- T. R. did not remember going to the backyard on the morning of April 22, 2018, despite other Crown witnesses placing her there. T. R. was in the backyard with Mr. Le Goff, Jazmine, and Mr. Deptuck. T. R. did not remember Mr. Le Goff being there.
- T. R. denied smoking a joint in the backyard on April 22, 2018. Jazmine, Sheena, and Mr. Deptuck testified that T. R. smoked a joint in the backyard. Jazmine believed it was T. R.’s joint and that T. R. was sharing it with Mr. Le Goff.
- T. R. denied speaking to Mr. Le Goff on the morning of April 22, 2018. Jazmine testified that T. R. said goodbye to and hugged Mr. Le Goff.
141Another inconsistency that causes me some concern was between T. R. and Jazmine’s characterizations of T. R.’s level of intoxication. T. R. said she had never before felt as intoxicated as she felt that night. By contrast, Jazmine testified that T. R. was drinking the way Jazmine knew her to drink — not more or less than was usual for her. On that night, she said T. R. was not “going crazy with the drinks” but did drink more than she should have.
142In addition, T. R. testified that she woke up around noon on April 22nd. She said she was still feeling intoxicated and unwell, and she was unable to move for about an hour. Sheena testified that when she returned home that day around noon, she saw T. R. lounging on the master bed, dressed, scrolling on her phone. Sheena said that T. R. came downstairs soon after, in time to go outside and smoke marijuana with the group, including Sheena who was only home for a short time starting at noon. T. R. could not have been unable to move for an hour starting at noon if Sheena saw her dressed, lounging, and scrolling on her phone at noon, or if T. R. joined the group outside to smoke marijuana shortly after that.
143In my view, T. R.’s evidence that diverges from that of the other Crown witnesses as noted above has the effect of minimizing T. R.’s contact with Mr. Le Goff before and after their sexual contact, and of maximizing her level of incapacity. This seemed to be aimed at conveying that T. R. would not have consented to sexual relations with Mr. Le Goff because even before and after the alleged assault she did not have anything to do with him or even notice him. It also seemed to be aimed at bolstering a conclusion that she was not capable of consenting to sexual activity. I recognize that T. R. may not have remembered all of her contact with Mr. Le Goff or some of the details around how intoxicated or incapacitated she was. Her memory of events on the night of April 21 – 22, 2018 was certainly affected by alcohol consumption. And, like that of the other witnesses, her memory may have faded further with the passage of time. I also recognize that T. R. may have engaged in an unconscious process of shading her evidence on these points so that it conformed more closely to her belief about what had happened to her. As a result, I do have some concerns about T. R.’s reliability in relation to the above-noted inconsistencies. But I remain of the view that T. R. was otherwise generally a sincere, credible, and reliable witness.
(iv) Conclusion with Respect to Whether the Crown Has Proven Beyond a Reasonable Doubt that T. R. Was Not Capable of Consenting
144Having carefully reviewed and considered all of the evidence in this case, I conclude that the Crown has not proven beyond a reasonable doubt that T. R. was asleep, unconscious, or otherwise lacking capacity to consent to sexual activity at the relevant time.
145I accept that T. R. was intoxicated, and that she had almost no memory of what happened that night. But lack of memory does not necessarily mean that a complainant lacked capacity to consent: G. F., at para. 65. Equally, intoxication on its own does not necessarily mean that a complainant lack capacity to consent: G. F., at para. 5. A complainant may have been capable in the moment, notwithstanding that they were intoxicated and later cannot remember what happened: G. F., at para. 65. To establish that a complainant was not capable of consenting, the Crown must prove that they were cognitively incapable of understanding the physical act(s), that the act(s) is/are sexual in nature, the identity of the partner(s), or that they have the choice to refuse to participate: G. F. at paras. 55 – 58. In this case, I am not satisfied that the Crown has met this burden.
146T. R.’s lack of memory of the sexual encounter does not assist me in determining whether she was incapacitated. There is no way for me to determine from her evidence in relation to that period whether she does not remember because she was profoundly asleep or unconscious, or whether it was because she had alcohol-induced amnesia while remaining capable. And there is no independent or objective evidence of her blood alcohol level at the time, or of how that would have affected her cognitive capacity. So, I must consider all of the other evidence that is available to me.
147T. R. testified that she had never before felt as intoxicated as she did that night. She testified that she remembered opening her eyes, finding herself in a bed with someone tugging on her clothing, and feeling like she could not move. She further testified that when she woke up at noon the next day, she felt sick and could not move for an hour and that she then went into the bathroom and threw up. This is some circumstantial evidence from which I could infer that T. R. was incapacitated at the time of the sexual encounter.
148However, I have already found that there are reliability concerns with some of T. R.’s evidence in relation to how intoxicated and how incapacitated she was. In my view, inconsistencies with the evidence of other Crown witnesses on these points suggest that T. R. may have forgotten how drunk and how incapacitated she was. Or that T. R. consciously or unconsciously embellished her evidence on these issues to accord with her belief that she was so drunk as to be incapacitated. Consequently, I cannot conclude from T. R.’s evidence that intoxication to the point of incapacity is the only reasonably possible inference available.
149I note that there was no evidence from other Crown witnesses that was inconsistent with T. R.’s evidence about waking in a bed with someone tugging at her clothing and feeling that she could not move. However, T. R.’s evidence that she could “not move” the following day for an hour was inconsistent with Sheena’s observations of her at that time. I consider T. R.’s evidence that is inconsistent with Sheena’s on this point to be of questionable reliability for the reasons already outlined. I consider T. R.’s similar evidence that she felt she could “not move” when she awoke in the night to similarly be of questionable reliability.5
150The other Crown witnesses testified as to their observations of T. R. that night. This is circumstantial evidence from which inferences about her level of intoxication and her capacity at the relevant time may be available.
151All of the other witnesses testified that, until around 1am, T. R. was drinking, interacting, dancing, engaging in conversation, was responsive to conversations and social cues, and generally appeared to be intoxicated but functional. She did not lose motor control, slur her speech, or pass out. Sheena described her as being “together.” T. R. had almost no memory of this period. The evidence as a whole from this period of the night convinces me that, until 1am, T. R. was cognitively capable while in a state of alcohol-induced amnesia.
152In the period starting around 1am, Jazmine and Sheena testified to observations of T. R., and her actions and movements. These suggested that T. R. was appearing more intoxicated, but was still conscious, conversing, moving around, and making reasonable choices, which she was still able to act on. Mr. Le Goff testified that T. R. made her way into the master bathroom to throw up, they exchanged words, and she laughed. This too suggests that T. R. was still conscious, conversing, responsive, and moving around.
153Some time after 2am, and possibly quite a bit later than that, Jazmine and Mr. Deptuck found T. R. asleep in their bed. They were unable to get her to move. She responded to them to convey that she did not want to move, but her response may have been non-verbal. Jazmine thought T. R. was too drunk to be roused.
154I have given much anxious consideration to the circumstantial evidence of T. R.’s condition between 1am and when Jazmine and Mr. Deptuck went to bed at 4 or 4:30am. The inference that T. R. was incapacitated by alcohol or in a profound intoxicated sleep is certainly available on this record, particularly in the later part of this period. But I am not persuaded that this is the only plausible inference available on the record. It is also reasonably possible that T. R. was very intoxicated but remained cognitively capable while suffering from alcohol-induced memory loss. Jazmine, Sheena, and Mr. Le Goff’s evidence as to T. R.’s appearance, interactions, and movements leave open the reasonable possibility that she continued to have an operating mind despite her intoxication and lack of memory. In coming to this conclusion, I have considered Jazmine’s observations of T. R.’s condition when she tried to get T. R. to move from the master bed. While Jazmine thought T. R. could not be roused or moved because she was extremely intoxicated, she agreed that other explanations were possible. She agreed that T. R. may not have wanted to move because she was comfortable where she was, and the playroom floor was less comfortable. She also agreed that T.R. may not have wanted to move because she was asleep and just wanted to keep sleeping. This evidence supports my finding that there are reasonably possible inferences other than incapacity available here.
155The only evidence from the period after Jazmine and Mr. Deptuck went to sleep came from Mr. Le Goff. He testified that she was awake, conscious, looking at him, and responding to him. He said that T. R. was not unresponsive or unconscious at any point when he was with her in the master bedroom. He also said that she was acting independently (e.g., snuggling closer to him for warmth, undoing and loosening her pants, removing her underwear) and initiating contact with him (e.g., touching his body, guiding his penis into her vagina). As noted, I do not completely accept Mr. Le Goff’s testimony about his sexual encounter with T. R. I do not believe that he would have had the level of detailed recollection that he testified to. At the same time, I am also unable to completely reject his evidence. Considered alongside all of the other evidence, I find that Mr. Le Goff’s account that T. R. was awake, conscious, and responsive during their sexual encounter is reasonably possible.
156Mr. Le Goff’s evidence, considered alongside all the other evidence, leaves me in a state of reasonable doubt as to whether T. R. was incapable of evaluating each sexual activity and choosing whether to consent to it: G. F., at paras. 54 – 57. I have already noted that I consider that the broad outlines of Mr. Le Goff’s evidence might reasonably be true. By “broad outlines” of T. R.’s evidence that might reasonably be true, I mean: that T. R. woke up when Mr. Le Goff entered the master bedroom to ask her if he could lie down, that she saw him and knew it was him, that she was cold and he offered to warm her up, that this led to cuddling and snuggling which then progressed to touching and kissing, that Mr. Le Goff asked T. R. several times if she was okay with what was happening and that she agreed, that both Mr. Le Goff and T. R. initiated sexual contact, that they engaged in vaginal sexual intercourse and oral sex, and that Mr. Le Goff ejaculated on T. R.’s buttocks. It is reasonably possible that T. R. was capable of evaluating each sexual act and choosing whether to consent to it.
157All of the evidence considered together satisfied me that there is a “plausible theory or reasonable possibility” upon which an inference other than guilt can be drawn: Villaroman, at para. 37. It is reasonably possible that T. R. was cognitively capable of consenting, even though she was intoxicated and in a state of alcohol-induced amnesia, at the time of the sexual encounter. The Crown has not proven beyond a reasonable doubt that T. R. was incapable of consent.
D. Has the Crown Proven Beyond a Reasonable Doubt that T. R. Did Not Consent?
158My inability to conclude that T. R. lacked the capacity to consent at the relevant time does not end the matter. A complainant who is capable of consent may not, in fact, have subjectively and voluntarily consented at the relevant time. Although the Crown has not proven incapacity beyond a reasonable doubt, it may still secure a conviction by proving lack of consent beyond a reasonable doubt. Absence of consent may be proven by circumstantial evidence where the complainant has no memory of the sexual encounter.
(i) Browne v. Dunn Issue
159On two occasions before defence counsel began cross-examining T. R., they alerted the Court to their intention to proceed in a manner that might raise Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H. L. (Eng.) concerns. Counsel indicated that they did not intend to specifically put Mr. Le Goff’s version of the sexual encounter to her. The rationale animating this decision was that it would be at best fruitless, and at worst upsetting to T. R., to be confront her with Mr. Le Goff’s version of the sexual encounter during a period she could not recall.
160I was not asked for a ruling and did not rule on the defence’s proposed approach to the cross-examination of T. R. Instead, I indicated to defence counsel that this was an issue for them to decide. As counsel apprised of all the information and law relevant to the case in this adversarial process, including the requirement of fairness enshrined by the rule in Browne v. Dunn, it was for them to determine how to conduct their case.
161Defence counsel ultimately chose not to put Mr. Le Goff’s version of the sexual encounter to T. R.
162The Crown did not raise a strenuous objection to this approach. I was not asked to give Mr. Le Goff’s evidence less weight, or for T. R. to be recalled, on the basis of the defence failure to comply with the rule in Browne v. Dunn. Notwithstanding the Crown’s position, I have considered the impact and consequences of the defence approach.
163The purpose of the rule in Browne v. Dunn is fairness. It aims to ensure fairness to witnesses by giving them the opportunity to respond to matters of substance on which their credibility will be impeached and on which they have not had an opportunity to give an explanation: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 79 – 82. Compliance with the rule does not require that “every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination”:Quansah, at para. 81. The key question when considering failure to confront a witness is whether it was clear that the defence would be contradicting the complainant’s version of events and whether her view on the matter was apparent from her testimony: Quansah; R. v. Paris (2000), 2000 17031 (ON CA), 150 C.C.C. (3d) 162 (Ont. C.A.), at para. 23.
164In R. v. J. K., 2014 ONSC 5347, Justice Molloy considered the defence’s failure to put certain details to the complainant who had no memory of an alleged sexual assault. She found that the defence did not breach the rule in Browne v. Dunn, holding that because the complainant repeatedly stated that she had no memory of what happened it was not necessary to put every detail to her: J. K.. Even if there had been a breach, Justice Molloy held that the appropriate remedy would have been to recall the complainant, which was not sought by the Crown. See also R. v. Graham, 2019 SKCA 63, for another example of a case where it was not necessary to cross-examine a complainant on every detail of the sexual activity given that she could not remember what happened.
165Here it was very clear that T. R. did not have any memory of her interaction with Mr. Le Goff. Defence counsel asked her, and she confirmed, that she did not have any specific recollection of any kind of sexual contact that night. She could not provide any information about what happened in her encounter with Mr. Le Goff. In my view, notwithstanding the defence failure to put all of the details of Mr. Le Goff’s evidence to her, T. R. gave all the evidence she had to give. Her memory was exhausted. It was clear that the defence would be contradicting her version of events. Her views were apparent from her testimony. The only further evidence T. R. could have given was that while she could not remember whether she consented, she did not think she did. Or that she would not have done so. It was readily apparent from her testimony and how emotional she was when she gave it that T. R. did not think she had consented. And she did give evidence from which the Crown asked me to infer that she “would not have” consented (which I will return to consider below). Any more detailed cross-examination on the details would have been fruitless. There was no unfairness to T. R. here.
166Moreover, any more detailed cross-examination of T. R. about a period she could not remember would likely have been very upsetting for her. Needlessly so. I am mindful that “[t]estifying in a sexual assault case can be traumatizing and harmful to complainants”: R. v. R. V., 2019 SCC 41, 436 D.L.R. (4th) 265, at para. 33. Courts have repeatedly emphasized that cross-examination, particularly of sexual assault complainants, must not be abusive, disrespectful, or demeaning: R. v. Thomas, 2017 ONSC 7023, at paras. 61 – 62. Here, T. R. was very emotional during her testimony, requiring frequent breaks to collect herself. She did not want to say Mr. Le Goff’s name, instead saying only “him” or “that person.” She was assisted by a support person and a support dog. In these circumstances, a cross-examination that confronted her with all of the specific details of Mr. Le Goff’s story would have been worse than merely fruitless. It would likely have been very disturbing to her.6
167I conclude that there was no breach of the rule in Browne v. Dunn here.
(ii) T. R.’s Evidence that She “Would Not Have” Consented
(a) The Issue
168Crown counsel asked T. R. about her views on unprotected sex. T. R. replied that she does not have unprotected sex, except with her child’s father. She said she has to put her health first, so unprotected sex is not something she does. The Crown implicitly asked me to infer from this evidence that because Mr. Le Goff did not use protection, T. R. “would not have” consented to having sex with him. The defence objected to the admission of this evidence on the basis that it strayed into T. R.’s sexual history, and risked inviting twin myths reasoning.7 In order to challenge T. R.’s evidence that she “would not have” consented to have unprotected sex, the defence would need to explore whether she had engaged in consensual unprotected sex with others in the past. The defence objection to this evidence amounted to a concern that they could not rebut the Crown’s submission that because T. R. had not consented to unprotected sex with people other than her baby’s father in the past, she would not have consented to unprotected sex with Mr. Le Goff. Any rebuttal would require the defence to call evidence of T. R.’s sexual history and argue that because T. R. had consented to unprotected sex with others in the past, she was more likely to have consented to unprotected sex with Mr. Le Goff. This would engage the general prohibition on admission of sexual history in s. 276 of the Criminal Code.
169In response to the defence objection, Crown counsel initially took the position that the evidence he sought to elicit — regarding T. R.’s views on unprotected sex — did not invite prohibited reasoning. It was only the complainant’s unsolicited evidence that she only ever had unprotected sex with her baby’s father that was problematic. Defence counsel maintained their objection, even to the more limited evidence of T. R.’s views. The defence position was that to be able to rebut T. R.’s stated views in relation to unprotected sex, it would have to explore and attempt to call sexual history evidence.
170In response to the defence submissions and some questions from me, the Crown further revised its position. Crown counsel noted that evidence of T. R.’s views was not very probative because no one would say that they were willing to risk their health and safety by having unprotected sex. He went on to say that he could now see that all of this evidence was inadmissible because it opens the door to admission of sexual history and twin myth reasoning. He took the position that it would be better to proceed without any of this evidence.
171I told both parties that if the Crown wanted to rely on this evidence, I would entertain a s. 276 application. The Crown responded that it would not rely on the evidence. Accordingly, I indicated on the record that T. R.’s evidence that she would not engage in unprotected sex except with her baby’s father would not be admitted.
172Notwithstanding the position the Crown had ultimately taken at trial and my exclusion of the evidence, Crown counsel referred to and relied on T. R.’s evidence about unprotected sex in its written submissions at the end of the trial (Crown Written Submissions, at paras. 75 – 76; 130 – 131; 135; 137 – 143). In essence, the Crown renewed its submission that I could infer that because T. R. did not generally engage in unprotected sex, she “would not have” consented to having unprotected sex with Mr. Le Goff.
173In closing oral argument, defence counsel responded, again arguing that inferences regarding consent from T. R.’s general attitudes and practices regarding unprotected sex amounted to prohibited reasoning from sexual propensity.
(b) A Complainant’s Evidence that They “Would Not Have” Consented – The Law
174In the absence of direct evidence from a complainant in relation to her consent, including because she had no memory, triers of fact may rely on circumstantial evidence: Al-Rawi, at para. 69. This may include evidence of a complainant’s “pre-existing attitudes and assumptions regarding the period during which she has no recollection”: R. v. Garciacruz, 2015 ONCA 27, 320 C.C.C. (3d) 414, at para. 69. Where a complainant with memory gaps testifies that they “would not have” consented to certain acts, as recognized in R. v. Mugabo, 2019 ONSC 4308, at para. 69:
[S]uch a statement is not direct evidence of a lack of consent, but rather “a statement of her assumption or belief about how she behaved at a time she cannot recall” (see J. R., at para. 22). Such a statement may, however, be properly received as circumstantial evidence of whether consent was present at the operative time. The strength of any inference flowing from such a statement is fact specific and must be assessed in relation to the entire evidence including the possibility of the complainant behaving out of character due to her intoxication (R. v. Meikle, 2011 ONSC 650, 84 C. R. (6th) 172, at paras. 41 – 43).
175Courts have entertained evidence from a complainant that she “would not have” consented as circumstantial evidence of capacity and of actual consent on numerous occasions: Garciacruz, at paras. 30, 69 – 70; J. R., at paras. 25 – 28; Tariq, at paras. 69 – 70; R. v. Kontzamanis, 2011 BCCA 184, at para 31. The weight assigned to this circumstantial evidence, and the strength of the inferences that will be drawn from it, often depend on:
- whether there is other evidence supporting the complainant’s testimony about what she would not do: see, for example, Mugabo, at para 75; R. v. Carpov, 2018 ONSC 6650, at para. 90; R. v. Olotu, 2016 SKCA 84, at paras. 59 – 60, aff’d 2017 SCC 11;
- whether there was evidence of the complainant’s actions that contradicted her testimony about what she would not do: see, for example, Garciacruz, at paras. 77, 80 – 81; Meikle, at para. 43; and
- whether the complainant had specific and compelling reasons for which she said she would not have consented or whether her evidence that she would not have consented depended on her general attitudes, character, or personal code of conduct: see, for example, J. R., at paras. 31 – 35.
176The above summary of the law leaves open the question of whether evidence of a complainant’s attitudes or practices engages s. 276 or invites twin myth reasoning. This issue was considered in R. v. Way, 2022 ABCA 1. In that case, at para. 65, the Court held that the complainant’s evidence that she “would not have” consented did not invite consideration of sexual history or twin myth reasoning:
. . . the testimony given by the complainant to the effect that the appellant’s version of events would have been “out of character” for her, and that she “would not” have done the things put to her, was admissible as found by the trial judge. The testimony was not evidence of prior sexual conduct raising the danger of distorting the truth-seeking process by raising the “twin myths” (more likely to consent, less worthy of belief), which is what the restrictions in s 276 are aimed at preventing. Rather, the complainant blurted the “out of character” evidence not to support an inference that she was “more likely to have consented”, but rather the opposite. In the context of this case, the evidence was relevant to the material issue of consent, and its probative value exceeded its prejudicial effect: R. v. Vant, 2015 ONCA 481 at para. 66.
However, the Court cautioned the Crown to be careful in eliciting evidence that a complainant “would not have consented.” This is because such evidence can prejudice the defence, as they may not be able to cross-examine on it by operation of s. 276: Way, at para. 66.
177In R. v. G. L., 2021 ONSC 271, Justice Bondy came to a different conclusion in considering whether s. 276 applies to evidence of the complainant being less likely to have consented and more worthy of belief. In that case, the Crown brought a s. 276 application seeking to adduce evidence that the complainant was a lesbian who had never had sex with a man and was therefore less likely to have consented to sex with the defendant who was a man. Justice Bondy dismissed the application, holding that the Crown’s position relied on stereotypical notions of sexual orientation that amounted to propensity reasoning: “at the heart of the prohibition against twin myth reasoning is the lack of probative value in propensity reasoning”: G. L., at para. 34. He further held that the prohibition against relying on sexual history as evidence of propensity applied regardless of whether it was tendered to prove that a complainant was “more likely to have consented” or “less likely to have consented.” It would not make sense, he reasoned, to admit evidence that a homosexual complainant was less likely to have consented to sex with a person of the opposite sex and exclude evidence that a homosexual complainant was more likely to have consented to sex with a person of the same sex: G. L., at paras. 16 – 17.
(c) Analysis
178The Crown reversed its ultimate trial position that T. R.’s evidence about unprotected sex was inadmissible. In its closing written submissions, the Crown implicitly asked me to revisit the issue of admissibility. It did so by submitting that I should infer from T. R.’s evidence (as to her general attitudes and practices about unprotected sex) that she “would not have,” and did not, consent to having sex with Mr. Le Goff.
179With respect, the Crown’s change of position was a bit like closing the barn door after the horse has already gone. T. R. did testify on this point. But as a result of the positions taken by both counsel at trial, the evidence was excluded. No s. 276 or common law sexual history application was brought by either party.8 The Crown was prevented from further exploring T. R.’s position, and the defence was prevented from trying to rebut it. As a result, even if I accede to the Crown’s request that I revisit the exclusion of the evidence and admit it, there is little in the way of detailed evidence to consider.
180In considering the weight to be accorded to T. R.’s evidence, and the strength of the inferences I can draw from it (should I decide to admit it), I turn to the factors other courts have considered in doing so outlined above:
- Here there was no other evidence supporting T. R.’s testimony that she would not have unprotected sex with anyone other than her child’s father;
- On the other hand, there was no evidence of the complainant’s actions that contradicted her testimony that she would not have unprotected sex with anyone other than her baby’s father; and
- T. R. did give a specific reason for not having unprotected sex. She said she did not have unprotected sex because she had to put her health first. However, as acknowledged by the Crown, this was not a particularly compelling basis for accepting T. R.’s evidence on this point or drawing inferences from it. In the Crown’s language, T. R.’s stated reason for not engaging in unprotected sex was not very probative of whether she consented to unprotected sex on this occasion because no one would say that they were prepared to risk their health for sex. I understand the Crown’s concession here to have been that most people, if asked, will say that they do not engage in unprotected sex to avoid the transmission of disease (and/or unwanted pregnancy) whether or not this is true in practice. Consequently, T. R.’s evidence that she would not have unprotected sex is not so specific to her, or so compelling, as to attract a lot of weight.9
181On this evidentiary record, T. R.’s testimony as to her general attitudes and practices surrounding unprotected sex has limited probative value. To say the same thing another way, this evidence does not compel a strong inference that she “would not have” consented to unprotected sex with Mr. Le Goff. This is because T. R.’s evidence on point was not explored, tested in cross-examination, supported, contradicted, very specific or compelling. Beyond considering the testimony on its own at face value, I have no way to weigh T. R.’s statement that she generally refused to engage in unprotected sex. Equally, I have no way to determine whether she behaved differently on this night than she says she usually did owing to her intoxication Nevertheless, this evidence does provide some circumstantial evidence of lack of consent: P. M., at para. 58; Tariq, at paras. 69 – 70.10
182Given my conclusion that this evidence does not compel a strong inference that T. R. “would not have” consented to sex with Mr. Le Goff, the defence would not be prejudiced by its admission. This is so notwithstanding that, as this issue unfolded over the course of the trial, the defence was deprived of an opportunity to bring a s. 276 application and try to call evidence to challenge this evidence. I conclude that the probative value of T. R.’s attitudes and practices around unprotected sex (albeit low) outweighs its prejudicial effect. I accede to the revised Crown request that I admit the evidence and consider it as some circumstantial evidence of T. R.’s lack of consent.
183I do not consider it necessary or advisable for me to determine whether evidence of general attitudes and practices advanced in support of an inference that a complainant “would not have” consented runs afoul of the prohibition on twin myth reasoning. The evolution of this litigation resulted in no s. 276 application being brought. I did not have the benefit of full written and oral argument on whether s. 276 or the common law rules governing admission of sexual history evidence were engaged.
(iii) Conclusion with Respect to Whether the Crown Has Proven Beyond a Reasonable Doubt that T. R. Did Not Consent
184Having carefully reviewed and considered all of the evidence in this case, I conclude that the Crown has not proven beyond a reasonable doubt that T. R. did not consent to engaging in sexual activity with Mr. Le Goff.
185Because consent depends completely on the complainant’s subjective state of mind, direct evidence of consent can only ever come from the complainant: P. M., at para. 21. Here, T. R. had no memory of the sexual encounter, so she could point testify as to whether she subjectively consented to it. There was no direct evidence from the complainant that she did not consent.
186I have therefore considered the circumstantial evidence from which lack of consent could be inferred, including that:
- T. R. and Mr. Le Goff met for the first time that night;
- They did not spend a lot of time together during the party before the sexual encounter;
- It was late at night (early in the morning), T. R. had been partying, had been asleep in the master bed, and would still have been tired;
- T. R. was intoxicated;
- T. R. had thrown up, told Jazmine that she needed to lie down, and testified that she was still feeling unwell the next morning;
- T. R. was distraught when she woke up and realized that someone had had sex with her;
- T. R. had almost no memory of events of that night;
- It was clear from her testimony that T. R. genuinely believed that Mr. Le Goff had sex with her without her consent; and
- T. R. testified that she generally did not have unprotected sex except with her child’s father. On the morning after the sexual encounter, T. R. found ejaculate on her leg and private areas. Mr. Le Goff testified that he had unprotected sex with T. R.
187In my opinion, there is a reasonable inference to be drawn from the circumstantial evidence that T. R. did not subjectively consent to engaging in sexual activity with Mr. Le Goff. However, as noted earlier, where the Crown relies on circumstantial evidence to prove an essential element of an offence, the accused can only be convicted if guilt is the only reasonable inference available on the evidence. In my view, absence of subjective consent was not the only reasonable inference available on the evidence.
188I have already considered Mr. Le Goff’s evidence, including that T. R. explicitly by words and actions consented to having sex with him. I did not accept Mr. Le Goff’s evidence because I found it difficult to believe that he would recall the sexual encounter to the level of precise and exacting detail of his testimony. However, considered alongside all the evidence, Mr. Le Goff’s evidence left me in reasonable doubt. I considered it reasonably possible that the broad outlines of Mr. Le Goff’s evidence, including that T. R. consented, were true. On the evidence of all of the Crown witnesses, I considered it reasonably possible that T. R. was intoxicated and experienced alcohol-induced memory loss while still being cognitively able to consent. Based on Mr. Le Goff’s evidence about the sexual encounter, considered against the backdrop of all of the evidence, I am left with reasonable doubt as to the absence of consent. I consider it reasonably possible that T. R. consented to engage in sexual activities with Mr. Le Goff.
E. Mens Rea for Sexual Assault
189As the Crown has not met its burden of proving beyond a reasonable doubt that T. R. did not consent or that she was incapable of consenting, the actus reus of the offence of sexual assault is not made out. I need not move on to consider whether the Crown has proven that Mr. Le Goff had the required mens rea of knowledge that T. R. was not consenting, or recklessness or wilful blindness as to whether she consented.
F. Conclusion
190I have no doubt that T. R. sincerely believes that Mr. Le Goff sexually assaulted her at a time when she was intoxicated but that she cannot recall. However, there is a reasonable possibility here that T. R. was not asleep or incapacitated by alcohol, and that her lack of memory was caused by alcohol-induced memory loss, not unconsciousness. There is also a reasonable possibility that she did consent to engage in sexual activity with Mr. Le Goff at that time, even though she cannot remember that she did. As a result, the Crown was not able to meet its high burden of proving the offence of sexual assault beyond a reasonable doubt.
191For the foregoing reasons, having carefully considered all of the evidence, I am left in a state of reasonable doubt about whether T. R. lacked capacity to consent or did not consent. The Crown has not met its burden of proof beyond a reasonable doubt.
IV. DISPOSITION
192Mr. Le Goff is found not guilty of sexual assault.
Presser J.
Released: January 27, 2022
COURT FILE NO.: CR-19-3-0000-762
DATE: 20220127
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SOREN LE GOFF
Defendant
REASONS FOR JUDGMENT
Presser J.
Released: January 27, 2022
Footnotes
- To avoid confusion, I will refer to Jazmine Kearney and Sheena Kearney by their first names.
- There was no evidence at trial as to the exact volume of alcohol in a “Texas mickey.” But all witnesses who gave evidence in relation to this said that it was very large.
- Throughout these reasons, I have referred to the largest bedroom and the bathroom attached to it on the second floor of 162 Hummingbird Drive as the “master” bedroom and the “master” bathroom. I have used the word “master,” despite its outdated and hierarchical connotations because that is the language used by the witnesses in their evidence at trial.
- The party was on the night of April 21 – 22, 2018. In this section, I am summarizing the events that took place on April 22, 2018, after all witnesses had been to sleep and woken up. This was really a continuation of the same day that started at midnight at the party. I am referring to it as the next day, even though it was technically the same day as some of the events already described, because it was the morning after the party.
- For the sake of completeness, I want to add that Jazmine testified that T. R. had initially been very confident that the person who tried to sexually assault T. R. was wearing skull rings and had a buzz cut. She said this was the reason T. R. offered for believing that Mr. Deptuck (who was wearing skull rings and had a buzz cut) was her assailant. The Crown suggested that T. R.’s memory was from when Jazmine and Mr. Deptuck were trying to move her from the master and that is the reason she recalled her body or clothing been tugged by someone with a buzz cut wearing skull rings. It is reasonably possible that T. R.’s memory of that moment did, indeed, come from when Jazmine and Mr. Deptuck tried to move her. If so, T. R.’s memory relates to a period some time before Mr. Le Goff’s contact with her. Her level of capacity may not have been the same at both times.
- I do not mean to suggest that defence counsel would have been abusive, disrespectful, or demeaning if they had confronted T. R. with the details of Mr. Le Goff’s evidence. On the contrary, defence counsel were at all times respectful, careful, and appropriate in their cross-examination of T. R. I mean only to suggest that more detailed confrontation in this case, with this complainant, could well have had the effect of needlessly contributing to a process that felt abusive, disrespectful, or demeaning to her.
- The prohibited twin rape myths are: (i) that because a complainant had consented to sex in the past, she was more likely to have consented on this occasion; and (ii) that because a complainant had consented to sex in the past, she was less worthy of belief: R. v. Seaboyer; R. v. Gayme, 1991 76 (SCC), [1991] 2 S.C.R. 577; see also s. 276(1) of the Criminal Code.
- I note that in Barton, at para. 80, the Supreme Court of Canada held that while s.276(2) only applies to evidence led by the defence, the Crown should bring a common law application when it wants to lead evidence of prior sexual activity.
- Contrast this with J. R., at paras. 31 – 35, where the complainant’s reasons for why she “would not have” consented to sex with the defendants were extremely specific to her and therefore compelling. She said she had had an abortion several days before the alleged sexual assault and had been told by her doctor to abstain from intercourse for two weeks; that she was in love with someone else (not either of the defendants) so she would not have consented to have sex with anyone other than the object of her affection; that she was not attracted to black men and one of the defendants was a black man; that she was not attracted to the black defendant and would never have sex with him; and that she was not interested in having sex with the other defendant.
- Evidence that a complainant “would not have” consented may, in addition to being relevant to the issue of consent, be relevant to the issue of capacity to consent: Garciacruz, at para. 69. I have considered T. R.’s evidence of her attitudes and practices around unprotected sex and the inference that may be made from it that she “would not have” consented in my deliberations on the issue of capacity as well as in relation to the issue of consent.
