Court file no. CR-21-15618

DATE: 20221207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King

– and –

Tyler Fee

D. Morgan, for the Crown

M. Ahumada, for Tyler Fee

HEARD: October 31, November 2, and November 4, 2022

RESTRICTION ON PUBLICATION

There is an order banning publication of any information identifying the complainant in this proceeding.

REASONS FOR DECISION AT TRIAL

OVERVIEW

[1] The accused, Tyler Fee, stands charged with one count of sexual assault against the complainant, CF.

[2] The complainant alleges that Mr. Fee sexually assaulted her on July 31, 2020, shortly after midnight, while aboard his boat at the Pickering marina, following an outing with mutual friends.

[3] The accused testified at trial and denied the allegations. Mr. Fee admits that the parties engaged in sexual relations but asserts that the relations were initiated by the complainant who remained a willing and consensual participant throughout.

[4] In this case, there is no dispute that there was sexual activity between the complainant and the accused.

[5] In order for the accused to be convicted of sexual assault, the Crown must prove beyond a reasonable doubt that the sexual activity took place without the complainant’s consent and that the accused did so with the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched” (See R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, 169 D.L.R. (4th) 193 at para. 42.)

[6] The first part of the analysis is the actus reus of the offence, while the second part of the analysis is the mens rea of the offence. The Crown must prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea. (See R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579 at para. 87.)

ISSUES

[7] This case raises two issues:

1. Has the Crown proven beyond a reasonable doubt that the complainant did not consent to the sexual activity; and,

2. If the answer to issue 1 is yes, has the Crown has proven beyond a reasonable doubt that the accused had the requisite mens rea, and that there was no mistaken belief in communicated consent.

FACTS

The Testimony of the Complainant CF

[8] The complainant, CF, presented as a confident and well-spoken witness. She claimed to have a clear recollection of the events and repeatedly asserted that she drank minimally the day of the alleged sexual assault. She stated that she was “sober” while all others (excepting her sister) were intoxicated.

[9] On July 31, 2020, being the date of the alleged sexual assault, the complainant was 60 years old and resided in Scarborough, Ontario. The complainant frequented a local pub where she became friends with a man named John Vrbanic, approximately four years prior to the alleged incident.

[10] Mr. Vrbanic, who appeared as a witness at trial, was approximately 55 years old on July 31, 2020. He owned a home in Scarborough and kept a boat docked at the Pickering marina close to the accused’s boat. Mr. Vrbanic and the accused Mr. Fee were “good friends” and Mr. Fee had met the complainant on two prior occasions at the local pub while with Mr. Vrbanic.

[11] Sometime prior to July 2020, the complainant had introduced Mr. Vrbanic to her “new friend” Sarah Murray. Ms. Murray was approximately 50 years old and resided in Vancouver. Ms. Murray and Mr. Vrbanic began a romantic relationship sometime in July 2020.

[12] On July 29, 2020, Ms. Murray spent the evening at the complainant’s home. During this visit, Mr. Vrbanic invited Ms. Murray, the complainant, and the complainant’s sister, to join him for a barbeque on July 30, 2020, on his boat in Pickering.

[13] On July 30, 2020, the complainant’s sister drove the complainant to Mr. Vrbanic’s boat. Ms. Murray drove separately in her rental car. Both cars arrived at the marina at approximately 4:30 pm. Mr. Vrbanic met the women in the parking lot and accompanied them to his boat.

[14] The complainant brought her bathing suit, refreshments and some snacks to the boat but did not bring any overnight provisions as she had not been invited to sleep over.

[15] The complainant testified that when she approached Mr. Vrbanic’s boat, she saw Mr. Fee on his boat and agreed that the boats were docked close to one another such that you could see and speak between the two boats.

[16] After the women arrived at Mr. Vrbanic’s boat - they settled in, had a drink, and socialized together. Mr. Fee joined them and spent the afternoon between Mr. Vrbanic’s boat and his own boat. The complainant testified that everyone was enjoying themselves and having a good time.

[17] Approximately 45 minutes after they arrived, everyone had a shot of liquor, and then went on a boat ride. The ride lasted about 45 minutes. Upon returning to the marina, the parties continued to socialize, and the complainant assisted in the preparation of dinner.

[18] The complainant testified that Mr. Fee joined their group for dinner and that all parties were having a good time. However, apart from herself and her sister, everyone, especially Ms. Murray, was drinking heavily and intoxicated.

[19] Following dinner, at approximately 9:30 pm, the complainant’s sister left Mr. Vrbanic’s boat and went home.

[20] The complainant testified that she chose not to leave with her sister as: (i) Mr. Vrbanic offered her a place to sleep on the outside deck of his boat; and (ii) Ms. Murray was heavily intoxicated and needed to be “looked after”.

[21] The complainant testified that when her sister left, she was still having fun. However, shortly thereafter, Ms. Murray and Mr. Vrbanic began kissing while seated at the table and this made the complainant “uncomfortable.”

[22] Ms. Murray and Mr. Vrbanic went inside the boat for a period, while the complainant and Mr. Fee remained outside. During this period, the complainant and Mr. Fee shared casual conversation. The complainant agreed that Mr. Fee did not act inappropriate in any manner during this period.

[23] At about 10:30 pm, Ms. Murray and Mr. Vrbanic began arguing. The complainant said that Ms. Murray was very intoxicated at this point and was running between the boats, yelling, and making a scene. Mr. Fee offered that the complainant could move to his boat to avoid the arguing. The complainant agreed and followed Mr. Fee to his boat. The complainant testified that Ms. Murray accompanied them to Mr. Fee’s boat.

[24] Once aboard Mr. Fee’s boat, Mr. Fee offered the complainant a glass of wine which she accepted but advised she merely had “two sips.” The complainant and Mr. Fee “chatted” while the arguing between Ms. Murray and Mr. Vrbanic continued and could be heard from Mr. Fee’s boat.

[25] The complainant testified that on at least two occasions Mr. Fee returned to Mr. Vrbanic’s boat to attempt to calm and diffuse the situation. The complainant did not assist and remained on Mr. Fee’s boat.

[26] After a while, Ms. Murray came aboard Mr. Fee’s boat. The complainant testified that Ms. Murray was “out of control” and broke a wine bottle on Mr. Fee’s deck. Mr. Fee cleaned up the broken glass and Ms. Murray returned to Mr. Vrbanic’s boat and went to bed.

[27] Following Ms. Murray’s departure, the complainant and Mr. Fee were left alone on Mr. Fee’s boat. The complainant testified that Mr. Fee asked where she would be sleeping, and she advised that she had been invited to sleep outside on Mr. Vrbanic’s deck. Mr. Fee invited the complainant to spend the night on his boat.

[28] At or around 11:30 pm, the complainant followed Mr. Fee downstairs and the two prepared to go to bed. The complainant testified that the inside of Mr. Fee’s boat was “disgusting” and that there was mold in the sink, garbage on the floor and no sheets on the bed. The complainant testified that Mr. Fee picked up a dirty, balled, sheet from the floor and placed it on the bed.

[29] The complainant testified that Mr. Fee then removed her dress gently. After the complainant’s dress was removed, she testified that she laid down on Mr. Fee’s bed in her bra and underwear. Mr. Fee then laid down on his bed (which was a double/small queen) and they lay face to face.

[30] The complainant testified that she was sober and could have taken an Uber or taxi home but did not.

[31] The complainant testified that she believed that she and Mr. Fee would simply go to sleep.

[32] After a few moments, the complainant alleged that Mr. Fee held her down on the bed and repeated several times in an aggressive tone, “Don’t tell John (Mr. Vrbanic) about this”. The complainant said she did not know what he meant by this statement, but she agreed in any event.

[33] The complainant testified that after Mr. Fee made the above statement, he began kissing her while her arms were pinned above her head. The complainant testified that when the kissing began, she realized that she “was in trouble.”

[34] The complainant stated that the accused removed her bra and underwear while continuing to hold her hands over her head. The accused then removed his own board shorts (which had a drawstring). She does not recall that the accused was wearing underwear, nor does she recall if he removed his shirt.

[35] After Mr. Fee had disrobed them both, the complainant attempted to push Mr. Fee off, but could not, and so she gave up and submitted.

[36] The complainant testified that the accused then penetrated her, vaginally. She did not call out or make any sounds at any time nor did she put up any further resistance as she felt it was futile.

[37] After a period of about 10 to 15 minutes of intercourse in the missionary position, the accused rolled onto his back while still restraining the complainant and pushed her head onto his penis forcing her to perform oral sex. The oral sex continued for a short time and then the sexual encounter ended. The complainant did not believe that Mr. Fee ejaculated at any time, nor did she believe he used a condom.

[38] The complainant testified that she did not attempt to leave the boat, nor did she call out or seek help from Ms. Murray or Mr. Vrbanic on the neighbouring boat. Instead, she said that she went to sleep with Mr. Fee beside her because she was “exhausted.”

[39] The complainant testified that after she had been asleep for awhile, the accused woke her and demanded that she leave his boat. The complainant refused to leave the boat. The complainant said that the accused was quite aggressive and repeated his demand, but she was adamant, she did not want to leave, would not leave, did not leave, and instead went back to sleep.

[40] The complainant agreed that she had been “sleeping peacefully” until Mr. Fee woke her. When asked whether she was concerned for her safety, the complainant responded, “I was asleep.” When asked if she was concerned whether Mr. Fee would do it again the complainant responded, “I was asleep.”

[41] When challenged that she was provided with an opportunity to leave the man that she claimed had just sexually assaulted her whom she claimed to be terrified of, and refused to leave, the complainant responded, “I said no. That’s it. I said no. I wasn’t going to leave his boat.”

[42] The complainant testified that after she refused to leave the boat, the accused left and she “went back to sleep”. She awoke just before 9 am the next morning.

[43] The complainant dressed, but could not find her underwear, so she went to Mr. Vrbanic’s boat to ask Ms. Murray to assist her to search. After an unsuccessful search, Ms. Murray and the complainant left Mr. Fee’s boat, sometime following 9:15 am and Ms. Murray drove her home.

[44] Ms. Murray testified that the complainant seemed “completely fine” in the morning when she helped search for her underwear and that the complainant told her that she had a “great time” the night before.

[45] The complainant denied that she told Ms. Murray that she had “a great time”. The complainant stated that if Ms. Murray told the police that she said she had a “great time” the night before, Ms. Murray lied because “I don’t remember saying that to her” and “I’m saying I don’t remember because I do not recall that happening ‘cause I was looking for my underwear that was the priority with her and getting home”. The complainant also stated, “It’s hard to recall every single moment of that time. I do not recall saying I had a great time to Sarah”.

[46] On July 31, 2020, after Ms. Murray drove the complainant home, the complainant sent Mr. Vrbanic a text message thanking him for his hospitality and wrote that he is a “seriously good host”. She also wrote “tonight is a night to relax and take it easy (with a smiley face emoji)”.

[47] The complainant testified that following the alleged sexual assault that her body was covered in bruises – her biceps, a large bruise on her stomach, and a large bruise on the left side of “her crotch”. The complainant did not take any photographs of the alleged bruising, nor did she seek medical attention until following her recorded police statement, at which time there were no bruises remaining.

[48] Shortly prior to September 13, 2020, the complainant sent Mr. Fee the following Facebook Messenger message: “I agree with your friend Brent’s comment. You and I both know what happened on your boat July 30th. After that you told me to go home I said no. You left. I had bruises all over my body. Plus, my underwear were no where to be found. What do you think I should do as a woman? I’ve been holding this in way too long…I suggest that you get back to me ASAP”.

[49] On September 13, 2020, the complainant reported the alleged assault to the Toronto police. On September 15, 2020, the complainant attended Durham Regional Police Service and provided a video-recorded statement of her allegations.

[50] The complainant advised Ms. Murray and Mr. Vrbanic that she had been sexually assaulted after her first report to the police. The complainant testified that Ms. Murray and Mr. Vrbanic said that they believed her.

[51] On September 23, 2020, the complainant advised the police that Mr. Vrbanic told her Mr. Fee was using her underwear as a flag on the mast of his boat, and she feared for her safety.

[52] The complainant testified that Mr. Vrbanic offered her to go to the boat and talk to Mr. Fee and she said she was “not interested”.

[53] On September 24, 2020, the complainant sent Mr. Vrbanic a text message as follows: “Do you believe me that Tyler sexually assaulted me? On his boat when you invited my sister Karen, Sarah and me to your boat on July 20th. You said you did when I told you about a month or so ago when we were at the Working Dog sitting at the high-top table. Please let me know”.

[54] Mr. Vrbanic replied, “… I have know (sic) idea what you want out of this some 2 months later. You have your story and we were all wasted with booze. Don’t put words in my mouth. I am truly sorry with all. I wish we could back in time so that I can follow up with all to proof right here! FYI. You have destroyed my relationship with Sarah is not forgivable to me with your constant messages”.

[55] On December 18, 2020, the complainant sent Mr. Vrbanic the following text message: “I can’t believe you don’t have anything to say to me. When I told you what Tyler did to me you asked me if I wanted you to talk to him. I told you I wanted you to go get him. Did he ever find my panties?”

[56] The complainant was questioned why on December 18, 2020, she asked Mr. Vrbanic if Mr. Fee found her underwear when on September 23, 2020, she told the police her underwear was being used as a flag. The complainant responded, “Are you saying that I left my underwear on the boat on purpose? No, I did not do that”.

The Evidence of the Accused Tyler Fee

[57] Mr. Fee testified in a calm and straight forward fashion. He answered all questions put to him without hesitation. His evidence was not changed or varied under cross-examination.

[58] Mr. Fee was 49 years old at the date of the alleged offence. He was single and had no children. Mr. Fee does not have a criminal record.

[59] Mr. Fee owned a home in Pickering and a boat with a sleeping cabin at a marina in Pickering, docked close to Mr. Vrbanic’s boat. Mr. Fee is a software salesperson. In July of 2020, he was between jobs.

[60] Mr. Fee agreed that he had been introduced to the complainant by Mr. Vrbanic on two prior occasions. Mr. Fee described the complainant as being friendly and overly talkative with a habit of interrupting other people.

[61] Mr. Fee testified that on July 30, 2020, he arrived at his boat around 4:30 pm with some food and provisions as he planned to spend the night on his boat. He had not previously met Ms. Murray and was not aware that any guests were joining Mr. Vrbanic on his boat.

[62] As Mr. Fee was friends with Mr. Vrbanic and their boats were docked close to one another, he did spend some time visiting with Mr. Vrbanic and his guests and alternated his afternoon and evening between Mr. Vrbanic’s boat and his own.

[63] Mr. Fee testified that he went out on the boat ride with Mr. Vrbanic and his guests but did not eat dinner with them as he had his own supplies on his boat. Mr. Fee spent the dinner hour on his boat speaking by phone to his mother and to friends that he was golfing with the following morning. Mr. Fee returned to Mr. Vrbanic’s boat following dinner around 9 pm.

[64] Mr. Fee testified that around 10:30 pm, Ms. Murray and Mr. Vrbanic began arguing and for this reason he returned to his own boat accompanied by the complainant.

[65] Mr. Fee testified that he offered the complainant a glass of wine and had one himself. He stated that his intoxication level was about a four out of ten, and he judged the complainant’s intoxication level to be about the same. Mr. Fee stated that he shared casual conversation with the complainant over the course of the evening, and to his mind, neither were engaging in flirtatious behavior.

[66] Mr. Fee testified that he returned to Mr. Vrbanic’s boat to quell the argument and diffuse the situation. Ms. Murray came aboard his boat around 11 – 11:30 pm, after Mr. Vrbanic had gone to sleep. While on his boat, Ms. Murray broke a bottle of wine, which he cleaned up, and then Ms. Murray left to go to bed on board Mr. Vrbanic’s boat.

[67] Mr. Fee testified that, at that time, he was tired and wanted to go to sleep. He asked the complainant where she was staying and offered that she could sleep on his boat and share his bed. He testified that he had no romantic agenda in offering her a place to sleep.

[68] Mr. Fee testified that the complainant followed him downstairs, removed her own dress and they both got into bed. He stated that he was fully clothed in his t-shirt, board shorts and underwear while the complainant was in her bra and underwear.

[69] Mr. Fee testified that as his bed is fairly small, it is difficult not to touch with two people in the bed. They were talking face to face and the complainant began kissing him. He stated that while he did not initiate the sexual contact he responded in kind “in the heat of the moment.”

[70] Mr. Fee testified that the complainant undid his board shorts and assisted in the removal of his clothing. He took off the complainant’s bra and she took it and put it to the side of the bed. The complainant removed her own underwear.

[71] Mr. Fee testified that the sexual activity between them was fluid and consensual. While there was little speaking, the complainant expressed herself with her body movements and noises (moaning) expressing her enjoyment and consensual participation.

[72] Mr. Fee testified that, contrary to the complainant’s testimony, the parties first engaged in kissing and mutually touching, followed by the complainant initiating oral sex on him, followed by him engaging in oral sex on the complainant. Following the oral sex, the parties engaged in vaginal intercourse with the complainant on top straddling him. He stated that during this period, the complainant was actively moving, moaning and making noises that indicated she was enjoying herself. After a while, they switched positions and engaged in intercourse in the missionary position.

[73] Mr. Fee testified that the complainant was fully engaged in their sexual activity both as an initiator and as a willing participant.

[74] Mr. Fee stated that the sexual relations ended because he was tired and began to regret engaging in the sexual activity. Mr. Fee stated that he was feeling guilty about Mr. Vrbanic and wondered whether Mr. Vrbanic had a possible future romantic relationship with the complainant. He testified that he did not wish to continue the sexual activity and brought it to an end.

[75] When the sexual activity ended, Mr. Fee and the complainant laid down and prepared to go to sleep. However, Mr. Fee remained uncomfortable and requested that the complainant leave his boat and go home. Mr. Fee acknowledged that this request could be perceived as aggressive - but he wanted the complainant to leave as he did not want to wake up with her in the morning.

[76] Mr. Fee testified that the complainant adamantly refused to leave his boat. He said he asked once and when she refused, he gave up and went to sleep beside the complainant for the remainder of the night.

[77] Mr. Fee left early in the morning as he needed to go home to get ready for his golf outing. The complainant was sleeping when he left. He did not say goodbye.

[78] As for the allegation that Mr. Fee took the complainant’s underwear and used the underwear as a mast on his boat, Mr. Fee testified that the suggestion was “ridiculous”. First, he noted that he would never do such a thing. Next, he noted that his boat does not have a mast – and apart from this – he repeated that the suggestion is ridiculous.

[79] Mr. Fee was asked about the FB messenger text sent to him by the complainant in September of 2020 asking he contact her. He advised that he received the message sent by the complainant, or noted that the message had been received (as he is not FB savvy) after he had been arrested. He did not respond for several reasons including the fact that he was subject to a non-communication order.

The Evidence of Ms. Murray and Mr. Vrbanic

[80] Both Ms. Murray and Mr. Vrbanic testified as to their impressions and understanding of the events that occurred on July 30, 2020, which they both stated involved a fair amount of alcohol consumption by all (except the complainant’s sister), and otherwise involved a relaxing and enjoyable afternoon on the boat. They also provided evidence regarding events that occurred the morning of July 31, 2020, and following, that did not involve alcohol consumption.

[81] Ms. Murray confirmed that she did not intend to sleep over, but due to her alcohol consumption opted to stay with Mr. Vrbanic on his boat. She testified that she was dating Mr. Vrbanic and did not need the complainant to look after her.

[82] Mr. Vrbanic testified that he did not invite the complainant to stay over on his boat and expected her to go home.

[83] Ms. Murray testified that she did not find it odd that the complainant had stayed on Mr. Fee’s boat and agreed that on July 31, 2020, the complainant was not being secretive nor was she trying to hide the fact that something had happened between her and Mr. Fee the night before.

[84] Ms. Murray testified that the morning of July 31, 2020, following the alleged sexual assault, the complainant told her that she had a “great time”.

[85] Ms. Murray testified that she was “surprised” and “shocked” by the allegations and asked the complainant to explain why she told her that she had a “great time” that evening. The complainant advised that she had found something out since then which Ms. Murray believed had to do with her underwear, but she does not know.

[86] Mr. Vrbanic testified that he did not believe the complainant’s allegations and his email sent September 24, 2020, reflected his position. He also testified that contrary to the complainant’s evidence he never offered to speak to Mr. Fee on her behalf.

THE LAW

Reasonable doubt and burden of proof

[87] The accused is presumed innocent of all charges and is not guilty of any offence unless the Crown proves beyond a reasonable doubt that the offence occurred. (See R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at paras. 27 and 39).

[88] A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

[89] It is not enough for me to believe that the accused is probably or likely guilty of the offences to which he stands charged. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Having said this, it is impossible to prove anything with absolute certainty. The Crown is not required to do so. Absolute certainty is a standard of proof that is impossibly high. However, proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt.

Consent

[90] “Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”. It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” and it must be freely given.

[91] Consent must exist at the time the sexual activity in question occurs. It can be revoked at anytime and it must be linked to the “sexual activity in question”, the specific physical sexual act. The focus, at this stage, is squarely on the complainant’s state of mind and whether she wanted the sexual activity to take place at the specific time. (See R. v. Barton, at para. 88; R. v. J.A., 2011 SCC 28 [2011] 2 S.C.R. 440, at paras. 23, 31, 34, 40, 43; R. v. Ewanchuk, at para. 26).

[92] The absence of consent is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching at the time it occurred. (See R. v. Ewanchuk, at paras. 25-26; R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375 at para. 43).

[93] There is no such thing as implied consent. Silence does not equate to consent. A complainant need not scream or say “no” or “stop”. A complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established. (See R. v. Barton, at para. 89; R. v. J.A., at para. 37).

Assessment of Evidence

[94] When reviewing and assessing evidence, it should be considered in totality rather than considering individual items in isolation. In other words, the standard of reasonable doubt is not applied to individual pieces of evidence but is applied to the totality of the evidence to determine if guilt is established by the Crown beyond a reasonable doubt. This is particularly true where the principal issue is a witness’ credibility and reliability. (See R. v. Gostick, 1999 CanLII 3125 (ON CA), [1999] O.J. No. 2357 (Ont. C.A.) at paras 14-8; and, R. v. B. (R.W.), [1993] B.C.J. No. 758 (B.C. C.A.) at para. 28).

[95] Credibility is a witness’s willingness to tell the truth. Reliability is the accuracy of their testimony. Accuracy is affected by the witness’s ability to accurately observe, recall, and recount events. (See R. v. G. (E.), 2016 ONSC 4884, [2016] O.J. No. 4205 at para. 16).

[96] A witness whose evidence is not credible cannot give reliable evidence. A credible and honest witness, however, may still provide unreliable evidence. (See R. v. Morrissey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (Ont. C.A.) at para. 33). The reliability of the evidence is what is paramount. (R. v. Norman, 1993 CanLII 3387 (ON CA), [1993] O.J. No. 2802 (Ont. C.A.) at para. 47).

[97] Mr. Fee testified that all the sexual activity was consensual. If I believe that evidence, I must acquit. If I do not believe that evidence but it leaves me in reasonable doubt, I must acquit. Even if I am not left in doubt by the accused’s evidence, I must still consider, based on the evidence that I do accept, if I am satisfied beyond a reasonable doubt of the guilt of Mr. Fee. If I cannot decide whether to believe Mr. Fee, or if I cannot decide who to believe, or I am unable to resolve conflicting evidence and therefore left in a state of reasonable doubt, I must acquit. (See R. v. W.(D), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742).

[98] A criminal trial is not a credibility contest. At the end of the day, the Crown has the onus of proving its case beyond a reasonable doubt. (See R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 66, 67; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639; R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 (S.C.C.), at paras. 9-13).

ANALYSIS

Assessment of Evidence: Witnesses’ Beliefs and Intoxication

[99] With respect to the evidence proffered regarding whether Mr. Vrbanic or Ms. Murray believed the complainant’s allegations, I note that their belief is not relevant to my considerations regarding the accused’s guilt or innocence. Further, while evidence of this type may be relevant to credibility assessments, in the present case it is entirely possible that all parties are telling the truth. The complainant may have understood she was believed - when she was not. As such, in the circumstances of this case, this evidence (whether the witnesses believed the allegations) has no bearing and has been given no weight in my decision.

[100] With respect to the evidence proffered as to the level of intoxication of all witnesses who testified, having considered the entirety of the evidence, I find that the reliability of the complainant CF’s evidence and the reliability of the accused Mr. Fee’s evidence was NOT affected by the consumption of alcohol. As for Ms. Murray and Mr. Vrbanic’s evidence, I find that the reliability of their evidence regarding events on July 30, 2020, that occurred following the afternoon boat ride, was affected by the consumption of alcohol and has not been considered. However, the reliability of Ms. Murray and Mr. Vrbanic’s evidence regarding events that occurred on the morning of July 31, 2020, and following, was NOT affected by the consumption of alcohol, and has been considered.

Has the Crown Proven that CF Did Not Consent to the Sexual Activity?

[101] Mr. Fee testified in a simple, straight forward manner without artifice. He answered all questions put to him by both Crown and Defence without hesitation and was never confrontational or argumentative. Mr. Fee explained the situation as he remembered it and did not seek to exaggerate or to speculate on the events that occurred.

[102] Mr. Fee did not seek to expand, blame, or excuse his actions. He readily admitted the sexual relations that occurred. He readily admitted that he began to feel guilty during the sexual relations and asked the complainant to leave – while it was still dark outside.

[103] Mr. Fee’s narrative included admission of facts not favourable to him, for example:

a. He began to regret the sexual encounter and disengaged prior to completion;

b. He requested the complainant to leave his boat while it was still dark out immediately following the sexual encounter;

c. He left in the early morning without saying good-bye to the complainant; and

d. He never sought to connect or communicate with the complainant at any time following their sexual encounter on July 31, 2020.

[104] Mr. Fee’s narrative was logical, and straight forward. Mr. Fee described the evolving nature of the sexual encounter with sufficient detail and consistency. His evidence regarding consent was also consistent with the peripheral evidence given by Ms. Murray and Mr. Vrbanic regarding July 31, 2020, noting that the focus of consent remains squarely on the complainant’s state of mind and whether she wanted the sexual activity to take place at the specific time the activity occurred.

[105] Overall, I find Mr. Fee to be a credible witness who provided reliable evidence.

[106] As for the evidence of the complainant, I am cognizant that at the first stage of the analysis it is the subjective intent of the complainant that is the focus. However, I must still be satisfied beyond a reasonable doubt that I accept her evidence that she did not consent to the sexual activity.

[107] Although the complainant testified confidently during her examination in chief, her narrative contained factual gaps surrounding the alleged sexual assault. During cross-examination, prior to answering questions about the factual gaps, she often hesitated, repeated the question and/or provided a generalized, vague, or repetitive response.

[108] Having heard and considered the testimony of the accused Mr. Fee and the complainant, CF, I have concerns regarding the reliability of the evidence of the complainant, inter alia, for the following reasons:

a. CF claimed that she remained on Mr. Vrbanic’s boat after her sister left to “take care of” Ms. Murray. However, there is no evidence that CF attempted to “take care of” Ms. Murray. In fact, the evidence suggested that CF moved to Mr. Fee’s boat to avoid Ms. Murray, and provided Ms. Murray with no assistance whatsoever following her sister’s departure.

b. CF claimed that she remained on Mr. Fee’s boat after Ms. Murray went to bed as she was “exhausted”. However, it was not yet midnight. CF had no where to sleep. CF had an Uber account and said she could easily have called an Uber or a taxi. CF had not planned to stay and had no overnight provisions. Additionally, CF testified that Mr. Fee’s boat was disgusting, dirty, hotter inside than outside, and that Mr. Fee was intoxicated, while she was sober. The culmination of factors viewed in context causes me to question the reliability of CF’s evidence in this regard.

c. CF provided no reasonable explanation as to why she refused to leave the boat when given the opportunity, why she remained sleeping on the boat until 9 am the following morning, why the next morning she advised Ms. Murray that she had a “great time” (which evidence I do accept), or why the next day she sent Mr. Vrbanic an email thanking him for being a “seriously good host”. The content and context of this evidence causes me to have concerns about the reliability of CF’s evidence.

d. CF’s narrative regarding the alleged sexual assault contains factual gaps and discrepancies that were not adequately explained or resolved despite being provided with ample opportunity to do so. The constellation of factors viewed in context and in totality causes me to have concerns about the general reliability of CF’s evidence as it relates to the issue of consent.

e. CF provided no reasonable explanation why she sent an email to Mr. Vrbanic on December 18, 2020, asking if Mr. Fee had found her underwear after having told the police on September 23, 2020, that Mr. Vrbanic told her that Mr. Fee was using her underwear as a mast on his boat.

[109] With respect to the credibility of the complainant, there were times during her testimony when I found her to be credible and there were times during her testimony that I questioned her credibility. With respect to the reliability of the complainant’s evidence, there were aspects of the complainant’s evidence that I found reliable and there were aspects that I questioned the reliability of her evidence.

CONCLUSION

[110] Having considered the entirety of the evidence including the evidence as it relates to the individual sexual acts, I find that I am not satisfied beyond a reasonable doubt that CF did not consent to the sexual acts between the parties on July 31, 2020.

[111] For the reasons contained herein, the Crown has not proven Mr. Fee’s guilt beyond a reasonable doubt, and an acquittal shall be entered with respect to the charge.

Madam Justice S.J. Woodley

Released: December 7, 2022

COURT FILE NO. CR-21-15618

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Tyler Fee

REASONS FOR DECISION

Madam Justice S.J. Woodley

Released: December 7, 2022