COURT FILE NO.: 8277/20
DATE: 2022-12-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
S. Woods, Counsel for the Crown
- and -
M.L.
Eric D. McCooeye, Counsel for the Accused
Accused
HEARD: July 19, 20, 21, 28, September 4, 2021, February 7, March 2, April 19, 20, 21, 22, 2022
RASAIAH J.
REASONS FOR JUDGMENT
THE CHARGE
[1] The applicant is charged that he did sexually assault the complainant on December 26, 2018, contrary to s. 271 of the Criminal Code.
LAW
[2] The legal presumption is that an accused is innocent of the accusation that he faces. This legal presumption can only be displaced by reliable and credible evidence that establishes beyond a reasonable doubt all the essential elements of the offence.
[3] I remained mindful of W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, and that the burden is solely on the Crown. The accused is not required to “convince” the judge of anything, and that the assessment of the evidence is from the perspective of the Crown’s obligation to establish all the essential elements beyond a reasonable doubt. If I accept the evidence of the accused, he is entitled to be acquitted. If I do not believe him but his evidence raises a reasonable doubt as to his guilt when considered in the context of the evidence as a whole, I must also acquit him. Even if I do not accept the accused’s evidence and it does not leave me with a reasonable doubt as to his guilt, he may only be found guilty if the remainder of the evidence that I do accept proves his guilt beyond a reasonable doubt.
[4] A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the act (actus reus) and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched: R. v. Ewanchuk, [1999] 1. S.C.R. 330, para. 23.
[5] Accordingly, the Crown must prove beyond a reasonable doubt that the accused touched the complainant directly or indirectly, that the touching by the accused was intentional, that the touching by the accused took place in circumstances of a sexual nature, that the complainant did not consent to the sexual activity in question, and that the accused knew that the complainant did not consent to the sexual activity in question or was reckless or wilfully blind as to lack of consent either by words or actions from the complainant.
[6] I remained mindful that the evidence cannot be approached with unwarranted assumptions as to what is or is not consent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being or has been sexually assaulted will or will not do or say. There is no typical victim or typical assailant or typical situation or typical reaction.
[7] The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of contact, and (iii) the absence of consent. The first two elements are objective: R. v. Ewanchuk, [1999] 1. S.C.R. 330, para. 25.
[8] As to the complainant’s consent, this element of the offence is subjective and determined by reference to the complainant’s internal state of mind towards the touching at the time it occurred: Ewanchuk, paras. 26 and 61. It is a purely subjective approach where the complainant’s individual perspective alone is determinative: they either consented or not Ewanchuk, at paras. 27 and 31. Consent means the voluntary agreement of the complainant to engage in the sexual activity. The consent must be to each act that occurred. There is no consent unless the complainant has agreed in his mind to the sexual activity at the time it was occurring.
[9] The accused’s perception of consent is to be examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent: R. v. Barton, 2019 SCC 33, at para. 90.
[10] I remained mindful that a complainant is not obliged to express a lack of consent either by words or conduct. Silence does not constitute consent, nor does submission or lack of resistance.
[11] The law, and case authorities interpreting the law, make it clear that an individual must be conscious throughout sexual activity in order to provide the requisite consent, to ensure that men and women are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point: R. v. J.A., 2011 SCC 28.
[12] Capacity and consent are inextricably joined. Subjective consent to sexual activity requires both that the complainant be capable of consenting and does, in fact, consent: R. v. G.F., 2021 SCC 20.
[13] Where the complainant is incapable of consenting, there can be no finding of fact that the complainant voluntarily agreed to the sexual activity in question: R. v. G.F., 2021 SCC 20, para 24; Criminal Code s. 273.1(1).
[14] Capacity as a precondition to subjective consent provides certainty because it is inextricably linked to what subjective consent requires: contemporaneous voluntary agreement to the sexual activity in question. Capacity to consent requires that the complainant be capable of understanding what is required for subjective consent – no more, no less: GF, para. 45
[15] In my analysis, I remained mindful that the disposition of the charge is not to be approached between the competing evidence of the accused and the evidence of the complainant.
[16] In determining whether the Crown has met its burden, I must determine which aspects of the evidence I find credible and which aspects of the evidence I find reliable. I may accept some, all, or none of a witness’s evidence. I may afford different weight to different parts of the evidence that I do accept. A witness’ demeanour is a factor I may consider in determining credibility and reliability however I must take care not to overly rely on same in doing so.
[17] As to the defence theories, I recognize that the defence is not under an obligation to prove its theory.
[18] I also recognize the longstanding principle that an absence of motive to fabricate does not enhance credibility.
SUMMARY OF POSITIONS
Defence
[19] The defence submits that the Crown has not proven all the essential elements of the offence beyond a reasonable doubt, there is not sufficient proof.
[20] The accused does not deny that he touched the complainant directly, that the touching by him was intentional, and that the touching took place in circumstances of a sexual nature. Having said this, I acknowledge that his version of the sexual activity is very different from that of the complainant.
[21] The accused asserts that the complainant consented to the sexual activity he described which consent he states was communicated to him by the complainant’s conduct and actions.
[22] The accused’s testimony portrayed the complainant as having an operating mind, that he was aware of what was going on and was an active participant in the sexual acts.
[23] The defence theorizes that the complainant was remorseful and/or ashamed for engaging in sexual activity with the accused and is thus lying and/or has motive to fabricate.
[24] In respect to the complainant’s evidence regarding his level of intoxication and capacity to consent, the defence theorizes that the complainant was feigning being “passed out” and/or intoxicated on the evening in question because the purpose of his visit to Blind River, namely, to be with a woman he was hoping to be with romantically, fell through - he learned she was romantically linked to someone else - he was “jilted” and this was his way of not having to carry on with the planned evening, and to “bow” out.
[25] The defence further raised several arguments related to the credibility and reliability of the complainant’s evidence, asserting that he is an unreliable incredible witness.
[26] The defence, although taking the position that the complainant provided actual consent, also submits, in the alternative, that the accused had an honest mistaken belief in communicated consent.
Crown
[27] The Crown identified two paths for consideration, that would be based on the evidence elicited and the court’s findings of fact with respect to same; namely that the complaint did not consent and/or did not consent lacking the capacity to consent to any sexual activity with the accused.
[28] The complainant many times testified that he was intoxicated, or under the influence, or in and out of consciousness because of tiredness and/or alcohol consumption - that he awoke to a sexual act being performed on him, at which time, he immediately got up and removed himself from the situation.
[29] The Crown points to the complainant’s and accused’s versions as being diametrically opposed, and as such submitted that this is a case of consent, or no consent, that honest but mistaken belief is not available in this case. Even if the court went down the path of rejecting that the complainant was asleep and had reasonable doubt on absence of consent, the said defence would fail on the basis that the accused failed to take all reasonable steps to ascertain consent.
[30] The Crown submits that they had proved all the essential elements of the offence beyond a reasonable doubt.
Summary of Difference in the Accounts
[31] In this case the accused testified that there was one sexual encounter that involved him touching the complainant’s penis on the outside of the complainant’s clothing, touching the complainant’s penis on the inside of the complainant’s clothing, oral sex that he performed on the complainant, and unprotected anal sex that he received from the complainant. There was some issue as to whether the accused had testified to/agreed that he received anal sex. I reviewed the evidence and determined that this was in fact his evidence.
[32] The complainant testified that after a period of being asleep woke up to find the accused anally penetrating him. The complainant denies and/or does not believe and/or recall any other of the other acts occurring as described by the accused. The complainant testified that he was very intoxicated when he went up to the bedroom that the accused had found him in later that evening, that he was in and out of consciousness falling asleep from a combination of his alcohol consumption and tiredness.
Noncontentious Issues
[33] In this case date, and jurisdiction are conceded.
[34] In this case, identity is not an issue.
DISCUSSION AND ANALYSIS
Touching and Nature of Contact
[35] In terms of the elements of touching and the nature of the contact, no matter what version of the acts are accepted by the court, both versions of events, objectively satisfy these two elements beyond a reasonable doubt.
[36] More specifically, the evidence of the accused regarding the sexual activity I sum up as follows.
[37] In Blind River, Ontario, on December 26, 2018, early hours of December 27, 2018, the accused went over to his best friend’s home to see her just after midnight. At the home he found the complainant sleeping in her bed. On her bed, with the purpose related to sexual gratification, the accused after a 20 to 30 minute conversation with the complainant, a person he had never met before, with his consent communicated by actions/reactions and answers to his questions, voluntarily touched the complainant’s penis over the complainant’s pants with his hand, followed by the accused taking down the complainant’s pants at the front and directly touching the complainant’s penis with his hand, followed by the accused pulling the complainant’s pants down past his genitals, followed by accused performing felatio on the complainant, followed by unprotected anal sex received by the accused that he himself positioned himself for on top of the complainant after the felatio. This anal sex ended because the accused detected the odour of fecal matter. He stopped and from being on top of the complainant, got off and sat next to the complainant . There was no ejaculation. After this anal sex ended, the accused testified that as soon as he got off and sat next to the complainant, the complainant rolled on to his stomach and pulled his own pants down to expose his buttocks, with his legs spread, signaling that he, the complainant, wanted anal sex from the accused but that same did not happen. The complainant turned over on his own and he did not assist the complainant with any of that action. The accused denied the complainant’s allegation that he anally penetrated the complainant - at all – testifying that same did not happen. The sexual activity lasted approximately 20 to 30 minutes. They both got dressed. The complainant went downstairs first to the washroom. He sat with the complainant for a few minutes before leaving.
[38] I sum up the complainant’s evidence as to the sexual activity as follows.
[39] The complainant had gone up to the bedroom the complainant found him in one to two hours beforehand. He woke up to find someone next to him that he did not know. They engaged in conversation. During this conversation he was going in and out of consciousness falling asleep. After one of the periods of sleep that he was falling in and out of, he woke up to find the accused anally penetrating him with his penis. The complainant denies or does not recall other sexual activity other than the anal penetration. He was unconscious, namely, asleep. He was not an active participant in any sexual acts with the accused. He had been drinking heavily throughout that evening prior to going to that bedroom and was still under the influence of alcohol at the time he awoke to the act being perpetrated on him. He testified that he drank 6 beer and ½ of a medium sized bottle of liquor over the course of three to four hours that evening. Prior to going upstairs to the bedroom, he had vomited and cleaned it up. He was barely able to speak. After he awoke, he rolled away from the accused and off the bed. In a confused, shocked state, still under the influence, went downstairs with his pants still down to the washroom and hid until the accused left.
Consent or No Consent
Complainant’s State of Mind: General
[40] While the complainant’s testimony is the only source of direct evidence as to his state of mind, credibility must still be assessed by the trial judge considering all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against his assertion that he, in his mind, did not want the sexual touching to take place. If the trial judge believes the complainant that he subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent: R. v. Ewanchuk, [1999] 1. S.C.R. 330, para. 29.
[41] The complainant’s evidence that he did not consent is a matter of credibility to be weighed considering all evidence including any ambiguous conduct. Consideration includes whether the totality of the complainant’s conduct is consistent with his claim of non-consent. If the trier of fact accepts the complainant’s testimony that he did not consent, no matter how strongly his conduct may contradict that claim, the absence of consent is established and the third component of the actus reus is proven: R. v. Ewanchuk, [1999] 1. S.C.R. 330, paras. 30 and 31.
[42] For reasons to follow, I do not believe the accused. I do not believe him that the complainant consented, and that the acts complained of by him did not happen. The accused’s evidence considering all the evidence as a whole did not leave me in doubt as to his guilt. I accept the evidence of the complainant that he was intoxicated and tired that evening, that he was in and out of consciousness, falling asleep during his encounter with the accused, that the accused knew he would find the complainant there before going over to the residence, that the accused was told prior to going over there that the complainant was passed out drunk there, that after the complainant fell asleep he awoke to the accused anally penetrating him, and as such, he was deprived of ability to consent.
[43] I did not believe or find the accused’s evidence credible for many reasons. There was reliable evidence tendered that contradicted his evidence concerning the encounter and events that evening. There were times the accused’s manner of giving evidence did not present as credible or align with the whole of the evidence. There were times when he was inconsistent with his own evidence and/or in my view changed his evidence. Some of his evidence presented as self-serving and/or as an effort to distance him from his knowledge of the complainant’s whereabouts and/or condition before he decided to go over to the residence.
[44] As to the complainant, while there were some blanks in the complainant’s memory, his evidence and the circumstances explain same. On some of the variable evidence, I did not find that the complainant’s evidence was contradicted as asserted. I found no meaningful credibility issues on the part of the complainant on the material issues in the case to raise reasonable doubt based on the totality of his evidence and the other evidence I accepted that supported and/or corroborated his account. In terms of reliability, and partial memory issues related to alcohol/falling asleep, there was reliable evidence tendered beyond the evidence of the testimony of complainant that confirmed and/or supported his accounts and/or called into question, that of the accused’s. There were believable explanations for his conduct and believable explanations for partial memory recall. The complainant presented as forthright.
[45] What follows in this section is my examination of the evidence I considered relevant to all these issues from the exhibits, agreed statements of fact and viva voce testimony of the trial witnesses. There were several witnesses called, including experts. There were agreed statements of facts and exhibits filed. I have for clarity, reviewed, and considered all the evidence in deciding this case. My consideration of the evidence was not limited to the evidence to which I refer in these reasons.
[46] I acknowledge that I had a responsibility to actively evaluate rreliability and credibility of the evidence and witnesses on all the evidence.
[47] I acknowledge that credibility and reliability were significant issues in this case.
[48] I acknowledge in this case that consumption of alcohol was a factor to consider with respect to defence theories and reliability of the complainant’s evidence.
[49] I was alive to the issue that a witness who suffers memory blackouts cannot testify during periods when he or she has no memory, but that factor alone does not render his or her other evidence unreliable. In other words, it creates an absence of direct evidence from the witness for the blackout period but that absence of memory of certain portions of the crucial events and other events does not automatically create an absence of reliability for the witness’ testimony.
Evidence Considered/Examined
Background and Reason for the Complainant’s Trip to Blind River
[50] The complainant resided in Sudbury, Ontario (“Sudbury”). In 2018, he had met a woman, called DL on Tinder, an online dating app. The complainant was 24 years old at the time. The complainant was romantically interested in DL. At the time, DL was residing in Blind River, Ontario (“Blind River”).
[51] DL’s evidence was filed in the form of an agreed statement of facts.
[52] On December 26, 2018, the complainant drove to Blind River from Sudbury with the intention of meeting DL. He drove alone in his truck. He left at approximately 2:00 p.m. and arrived in Blind River at approximately 5:30 p.m.
[53] This meeting was to be the complainant’s and DL’s first meeting in person. It is agreed that DL did not know the complainant well. Prior to this date, she had communicated with the complainant online. They had been communicating for approximately 2 to 4 months prior to this planned meeting.
[54] The complainant’s account of the background and knowledge of the reason for his trip to Blind River was consistent with the accounts attributed to DL, and other witnesses, including the accused.
The Plans
[55] On the evening of December 26, 2018, it was arranged that DL would meet the complainant in Blind River at the Tim Hortons.
[56] The plan was that the complainant and DL would get together, have drinks at DL’s residence, and then go to a party later with DL’s friends at a curling club, Bonspiel event. The complainant was expected to stay overnight at DL’s residence and travel back to Sudbury the next day.
[57] The complainant’s account of the plans was consistent with the accounts attributed to DL, and other witnesses.
Meeting up with DL and DB/Initial Activities at DL’s Residence
[58] DL was driven to Tim Hortons by her female friend called DB, who was the designated driver for the planned evening after DL had dinner with her family.
[59] DL did not know the complainant well.
[60] DB did not know the complainant prior to meeting him on December 26, 2018. This is the only time she met the complainant. DB knew the complainant was coming to Blind River that day. She testified that she understood it was to meet DL. She believed that DL and the complainant were going to be on a date and that they had connected through a dating app.
[61] After meeting at Tim Hortons, the complainant followed DL and DB back to DL’s residence. The complainant believed this was around 7 p.m.
[62] The complainant, DL and DB’s evidence of where they met up, when they met, how, and where they went thereafter coincided.
[63] The complainant had brought a six-pack of bud light beer with him and a medium sized bottle of Sour Puss raspberry liquor for the planned evening. This evidence was not contradicted by any of the other evidence.
[64] DL, DB, and the complainant sat around the kitchen/dining room table at DL’s residence after they got there, the three of them. The complainant testified that they were playing cards. DL and the complainant were drinking.
[65] DL and the complainant’s evidence were consistent, namely that they consumed beer and shots (of liquor). DL observed the complainant to be getting drunk “really fast”.
[66] DB observed the complainant to be drinking beer during the evening and could not recall if he was drinking anything else. She described that the complainant was “pretty intoxicated”. DB’s evidence does not call into question the complainant’s consumption of liquor as she did not testify that it did not happen, just that she could not recall which I attributed to the passage of time.
[67] The complainant testified that he consumed the 6 beer and ½ of the bottle of liquor he brought with him. The complainant’s evidence was not inconsistent in his evidence or contradicted in my view by these witnesses. The complainant reported to the sexual assault nurse that it was a 26 oz bottle of liquor.
[68] At some point, a male friend of DL’s called RE arrived at DL’s residence. DB believes it was about an hour after the three of them arrived at DL’s residence. DB did not recall exactly how RE got to be there. The complainant recalls that RE was picked up by the three of them, in DB’s car. DL had suggested they get RE to party with them and play cards. DL’s evidence does not contradict the complainant on this point. As such the evidence of the complainant is not contradicted. DB had a gap in her memory, which I attributed to the passage of time.
[69] At DL’s residence, DL, RE, DB and the complainant sat around the table for about three to four hours socializing, drinking (DL, RE and the complainant), and listening to music.
[70] The evidence was overall consistent with the complainant’s account that from the time the complainant arrived at DL’s residence at approximately 7:00 p.m., that these individuals did the foregoing until sometime between 10:00 and 11:00 p.m. when they left. DL and DB were consistent overall on the time they left DL’s residence.
DB, DL and RE leave DL’s Residence without the Complainant
[71] The agreed statement of fact related to DL states that the complainant ended up “passing out” at the kitchen table.
[72] I acknowledge that counsel agreed when this statement was filed that the term “passing out” was open for argument as to its meaning, and whether the complainant was in fact “passed out” based on defence theories, and the whole of the evidence.
[73] It is not contested that DB drove RE, DL and herself to the curling club for the Boxing Day Bonspiel event being held there, the party that the complainant was supposed to go to with DL and her friends, that the complainant did not go and that there was a reason why he did not go.
[74] The defence submits the evidence raises question as to the meaning of the words, whether that the complainant was in fact passed out, and/or was intoxicated to the level stated by DL and DB when they left.
[75] The state of the complainant at the time is important.
[76] First, given the passage of time, and the fact that certain of the witnesses were consuming alcohol, including DL and the complainant, I find it is to be expect that the accounts may not completely coincide, and I have to remain mindful of this issue in my analysis. In this case on this point, the variances on the details did not cause me to negate credibility or reliability of the complainant as to his observed state, the complainant’s explanation as to why he was left behind, or DB or DL’s accounts on these points. Further, after reviewing the evidence, I find that “passed out” was referencing sleep related to a combination of alcohol consumption and tiredness.
[77] DL’s evidence was that the complainant was observed by her to be getting drunk “really fast” and that he ended up passing out at the table. DL does not define “passing out”. Her evidence is silent on this point.
[78] DB who was sober, testified that the complainant did not go out with them because he “passed out” at the table, which was further described by her as “sleeping on his arm on the table”. She described that the complainant was “pretty intoxicated” prior to. She remembers that he drank heavily and was maybe passed out for about 30 minutes before they left. DB, DL and RE left at about or between10 or 11 p.m. Drinking was going on during the time frame prior to same, namely since 7 p.m. In addition, prior to the complainant “passing out”, DB testified that she observed other behaviour of the complainant during his state, namely, the complainant yelling at his cell phone over what she believed to be text messages, which she thought was a little odd.
[79] The complainant also was alleged to have told both DB and DL that he “couldn’t drink like he used to” and that he was a “light weight”. The complainant described himself as a “light weight”. The court would later hear evidence from the complainant’s former girlfriend, called DP, that coincided with the complainant’s evidence that he was a “light weight” based on her own personal observations, having had a personal relationship with him and living with him for a period of 2 ½ years, two years prior to the evening in question . This term was clear to mean and defined by the complainant and DP to be related to his consumption of alcohol, that it did not take much for him to become intoxicated.
[80] DB testified that it was DL’s idea to leave DL’s residence to go to the curling club. When they left, the complainant was the only one in the home that she knew of ( and there is no real contest on that in the evidence). The agreed statement of fact regarding DL’s evidence supports the same, along with the evidence of the complainant and even the accused, who found the complainant later in the home, alone. So that I do not have to repeat this, I generally state now that with respect to DL, and credibility, while I recognize that for a portion of the evening the evidence indicates that she was intoxicated, the facts as outlined in the statement of agreed facts do not present as being exaggerated or overdramatized. I emphasize that her evidence was filed as an agreed statement of fact. Except as otherwise stated herein, I found her evidence to be credible and reliable.
[81] The complainant testified that by the time DL, DB and RE decided to leave to go to the curling club, he was too intoxicated so “they” decided he should not go. He believed a liquor control officer would have been at the door of the curling club based on the others’ comments related to attending the event in the past, and that he would not have been able to get in. First, the complainant did not attribute this information to DB. He indicated that it could have been DB or DL. He was unsure. He was intoxicated. DB did not recall any conversation about liquor control officers. However, there were definite gaps in her memory that I attribute to passage of time, as she was sober. Generally, I state now so I do not have to continue to repeat this, that I acknowledge that DB was sober, but she candidly indicated throughout her testimony that she did not recall all the events in question, and I am satisfied that it is related to passage of time. What she could recall appeared to coincide substantially with the events of the evening that DL and the complainant could recall. She presented as forthright. By way of examples, she could not recall how RE got to DL’s residence. She could not recall seeing the complainant drink liquor which DL confirms she and the complainant consumed, and other evidence supports. DB did not recall if anyone told the complainant they were leaving when they left. DB did not recall DL calling out to the accused in the driveway to come out or come over. That being said, I did find her to be a credible witness who was careful to provide only the information that she could recall and not fill in gaps. She did not present as exaggerating or overdramatizing the events. Except as otherwise stated herein, I found her evidence to be credible and reliable.
[82] Beyond the issue of the meaning of “passing out” and theory that the complainant was feigning, the complainant’s evidence that he was intoxicated to the level he stated, was supported by the evidence of DL and DB in respect of their observations. They saw him consume alcohol. They viewed his behaviour.
[83] While DB had some gaps in her recollection, which I attribute to passage of time, I did not find that her evidence was significantly contrary to that of the complainant and/or that variances were not understandable regarding his alcohol consumption and level of intoxication in the circumstances. The fact that she did not recall a discussion about a liquor inspector I find does not translate to it not occurring as suggested. There is no contrary evidence from DL. On the evidence, the circumstance remains that they left the complainant at DL’s residence because they believed him to be passed out, asleep on his arm on the table. In the context of their evidence, I find they related same to his alcohol consumption. Whether there was or was not a conversation about a liquor inspector causes me no concern on the whole of the evidence that supports the complainant’s intoxication level at that time.
[84] The court would also later receive copies of cell phone Facebook messenger messages between the accused and a female friend of his called L.D which were sent on the evening in question and the early hours of the next morning. These messages depict that the accused was given information about the complainant’s condition sometime after DL, DB and RE left DL’s residence. Specifically, the accused messaged LD the following - “there’s some drunk guy at boos passed out lmao he’s from Sudbury they ditched him”, followed by “there all fcked up at 10 no more boozed left lol curling club is packed apparently”. “Boo” is a nickname for DL. It is illogical to interpret the content as not indicating that the complainant was perceived by DL and DB to be drunk and that “all fcked up” does not denote a level of intoxication that is significant in the context of the whole evidence.
[85] The evidence is clear that the accused was not over at DL’s residence at any time before DL, DB and RE left. The messages’ content supports that this information was relayed after they left by the words “ditched him” and to reference to the curling club being packed. It would be illogical to find that the complainant’s condition and whereabouts was received by the accused while DL, DB and RE were still at the residence with the complainant with the use of the word “ditched” in the context of DL and DB’s evidence. It would be illogical to accept the accused’s evidence that the information contained in the message about the curling club was based on his past experience/knowledge of the event and Blind River by the content of the message itself. Its interpretation I find can only be specific to the evening in question. The words he used were “curling club is packed apparently”. His initial answer to how he knew the curling club was packed started out with “because it’s Blind River” and events like this are always packed. He was asked again and/or to confirm that he did not “actually know” and testified, “he assumed the information” and again related it to Blind River events and how they are attended as the basis for his assumption. He was asked again for a third time to confirm, and he said, “maybe Danielle told me”, “maybe they did a drive by and told me and that is why I said that”. Then it continued to develop on further pressing, to that “she must have told me after a drive by” and when asked to clarify yet again, he agreed he was just assuming and in fact did not recall. He was presenting at this point as unreliable and just attempting to fill in gaps that he just did not recall, and as attempting to distance himself from the meaning of the contents of the message, namely what he knew and/or was told and by whom that evening.
[86] In addition, while giving evidence on this point, in my view, the accused presented as resistant to acknowledge who he received the content information from. He agreed eventually that he likely got this information from DL that evening, that it would have been received sometime after 10:00 p.m. by the time stamp above the start of the messages where these messages were found and the content. The content supports this interpretation as to timing. The content of the message relays that all were drunk by 10 p.m. and the information was coming from someone who knew the curling club was packed that evening and that the complainant had been “ditched”. In the context of DL and DB’s evidence, it would be illogical to find that the accused received this message any time before that or that it was based on any assumption based on his past knowledge concerning the event or that it came from someone who was not at DL’s residence that evening. This resistance presented as an attempt to distance himself from the meaning of the contents of the message, what he knew and/or was told and by whom that evening.
[87] On cross-examination, on the topic of being told by DL that the complainant was “passed out”, these types of issues I was seeing in the accused’s evidence continued. The accused responded, “so they say”. He continued to testify that he had no certainty of that. He explained that DL had wanted the complainant there (in Blind River) for his booze, that DL can be overdramatic, and not everything “they” say is believable, which I interpreted to mean DL and/or DB. He was presenting as if he did not believe at the time that the information concerning the complainant’s condition was true based on this reason and was suggesting that DL and DB were not always believable.
[88] First, there appears to be no question that DB was sober. She was the designated driver. He knew that at the time he received the information. As noted above, DB did not present as overdramatic when giving her evidence. She was forthright. Next, this evidence was not put to DB. She was not asked if she is or can be overdramatic and/or would agree with that. DB testified that at the curling club and the bar, DL and RE were drinking and dancing. DL and RE became intoxicated but not to the level of the complainant which comparison is relevant to her evidence concerning the complainant and alleged tendency to overdramatize. This evidence of the accused, accordingly, did not cause me to question DB’s evidence on this point (defence theory of feigning aside for a moment which I will address).
[89] As for DL, DL’s evidence does not speak to the accused evidence of DL being “overdramatic”. There was no basis to conclude that DL would overdramatize the complainant’s condition as she did (defence theory of feigning aside for a moment) on the agreed statement of fact evidence I received. If not for the evidence of DB, one might question her perception, as she was stated to be intoxicated too that evening. However, her perception aligned with DB’s.
[90] Moreover, the accused evidence on this presented as resistant to agreeing that he knew there was a possibility that the information concerning the complainant’s condition was true. He eventually agreed on cross-examination that he would not have written these messages to LD if he did not believe it was true at the time. Again, the accused’s evidence presented as an attempt to distance himself from what he may have known prior to going to DL’s residence on the evening in question. The evidence presented as self-serving and not believable and was supported on the whole of the evidence.
[91] The agreed statement of fact indicates that DL tried to get the accused to come over to her residence earlier that evening. DL saw him on the street getting into his car and yelled for him to come over. Thereafter, the evidence is that DL was trying to get the accused to come out all night when she was out. The text message to LD supports the contact while the parties were out. The accused other text messages support same. He wrote to LD, “she called me”. The next message to LD refers to DL being drunk and DB taking care of her. DB did not call the accused. DB was with DL. RE is male. There is no evidence of anyone else that the accused could logically have been referring to as “she” or “her” other than DL. His testimony surrounding his contact presented to me as though he wanted to distance himself from having knowledge of and/or of actually having been informed by DL of her whereabouts and what she was doing. The accused did however agree that DL was trying to get him to come out. He did not like to go out to bars and these events.
[92] On the issue of credibility, the defence also drew the court’s attention to DL, DB and the accused’s evidence, that the complainant told them that he only had one kidney; that it was not true, and that the complainant was proven to be a liar.
[93] Although he could not remember details of the conversation with the accused, the complainant testified that he could have had a conversation with the accused that included the topic of kidney issues. He has nodules on his kidney, and he may have stated this. The complainant agreed that his father had only one kidney and he may have stated this. Further the complainant agreed that his mother also had nodules and agreed he may have stated this. He may had discussed that these were hereditary issues. However, the complainant testified that he did not tell the accused that he did not have a kidney, and he would not have because it is not true. I found the evidence of the complainant on this point to be forthright. The accused’s evidence supports that the complainant spoke to him about his health, along with his mother’s health and his father’s health, it being hereditary, all related to kidney issues. There were no detailed accounts of the conversation(s) with DL and/or DB to appreciate what weight, if any, should be attached to their evidence. This evidence of DL and DB was not put to the complainant either. On balance on the totality of his evidence, the complainant did not exaggerate his evidence, or state or disagree with anything he did not recall. There were times, the complainant testified he could barely talk and was viewed by DL and DB to be heavily intoxicated. DL observed him to get drunk “really fast” at her residence. He was going in and out of sleep when talking with the accused and feeling under the influence. None of these people knew the complainant well. It is equally plausible that the complainant was misunderstood by the accused, or the others as opposed to being proven a liar. Even if the complainant stated this to the accused or anyone else, this would not have had the effect of meaningfully impacting the complainant’s credibility based on my review of the totality of his evidence and the other supportive/corroborative pieces outside of the complainant’s direct testimony on material issues in this case.
[94] The defence points out that the complainant himself did not testify to being “passed out” at the table before DL, DB and RE left, and that this was an issue related to the complainant’s credibility and/or reliability, and further, that it supported the defence theory, namely that the complainant was feigning being passed out – this was because during the evening at DL’s residence, it became apparent to the complainant that RE was more than a friend to DL, that DL and RE were in fact a couple, and that he felt jilted thus causing him to feign, as a way to “bow out”. I recognize that the defence theory is not suggesting that the complainant did not consume any alcohol on the evening in question and it is not their burden to prove their theory. The Crown suggests they have established on the evidence that this was not the case. I agree.
[95] On level of intoxication, when DB, DL and RE left DL’s residence to go to the curling club, after they left, the complainant testified that he was able to stand up but that he was a bit stumbly. His vision was blurred. He could barely speak. He was trying to hold in vomit before they left. He recalls vomiting in the kitchen after DL, DB and RE left and doing his best to clean it up before he went upstairs to DL’s bedroom where he fell asleep on top of the bed fully clothed. All of what he described was consistent with the intoxication level he was describing. When the complainant went upstairs the lights were on in the kitchen, and it lit the hallway area upstairs. The accused found these lights still on, and the complainant on top of the covers in DL’s bedroom fully clothed.
[96] Further, I reviewed the evidence of the complainant for when he was at the table before everyone left, and I do not agree with defence characterization of the complainant’s evidence.
[97] I noted that the complainant was not specifically asked if he had fallen asleep at the table or was lying on his arm at any time before he got up after he heard the others leave. He testified recalling the others to go to change before they left, and he knew they left only when he heard the door close as he was in the kitchen at the table still which coincides with DL and DB’s evidence. The evidence that he did not speak with the group before they left is supported and he heard them leave, not see them leave. He was at the table.
[98] Before they left, the complainant testified he was trying to hold in his urge to vomit until after they left, he could barely speak and was experiencing blurred vision. It is equally plausible that he had his head down while doing this with his eyes closed. He was not asked and that they could have believed him to be asleep before they left, after going to get ready and not speaking to him before they left. I cannot exclude that he may have had his head down while trying to hold in the urge to vomit. Again, this was not put to him. As such, the fact that the complainant, did not testify to sleeping at the table at any time, did not give me pause as to his credibility or reliability on the point of his level of intoxication or DL’s or DB’s and their observations.
[99] The court would hear later from Ontario Provincial Police (“OPP”) Constable Timmermans, who investigated this matter, and met up with the complainant in the early hours of the morning just before approximately 3:00 a.m., that the complainant in his view presented as still being “slightly intoxicated” and confused. This was approximately 5 hours after he had stopped drinking. Cst. Timmermans who has had experience dealing with intoxicated persons in the 8 years of policing that he had completed to this time frame, decided to postpone taking a statement from the complainant because he felt he was too intoxicated at the time to give one. The cross-examination questions were suggestive that this evidence was contradictory on level of intoxication compared to his notes. I did not interpret same that way. Cst. Timmermans was explaining why he postponed the interview. I did not take his explanation as meaning that he viewed the complainant as grossly intoxicated at the time or as contrary to observations he recorded in his notebook. Cst. Timmermans also indicated that his reasons for postponing the taking of a statement included that the complainant seemed confused and was trying to piece together what happened to him. The court would also hear from another witness, the complainant’s ex-girlfriend called DP, that on or just before the time frame of meeting up with Cst. Timmermans, she picked up and drove the complainant to the hospital. At that time of the morning, which was over an hour after the incident and 4 hours after he had stopped drinking, the odour of alcohol could still be detected coming from the complainant. The court would also receive toxicology evidence from expert, James Rajotte, of alcohol being detected in the complainant’s urine from a sample taken at 3:45 a.m., almost 6 hours after he had stopped drinking. The complainant testified he had stopped drinking close to the time the group was going to leave. I acknowledge that DP’s evidence was such that she did not think that the complainant was intoxicated or that the odour was strong during the time she was with the complainant. I further acknowledge that the urine sample does not indicate concentration in blood or is reliable evidence for concentration. However, while no value as to level, noteworthy is that these two pieces of evidence, along with Cst. Timmerman’s evidence confirms at the very least alcohol consumption and the detection of it approximately 4 to 6 hours after the complainant had stopped drinking. The complainant’s evidence was that between 7:00 p.m. and approximately 10 p.m., he drank 6 beer and ½ a bottle of liquor, which would have been close to 13 ounces on the evidence of it being reported as a 2- ounce bottle of liquor.
[100] As to RE and the theory of feigning, I recognize that DB testified that she felt it became apparent that RE and DL were a couple as they were all talking at the table during the evening, but she did not give evidence regarding who she meant when she stated “they were talking”, and/or on what basis and/or to whom it became apparent, and/or how and when it may have become apparent to suggest that the complainant knew or could have known contrary to his evidence. She was sober. He was not. She reported the complainant as drinking heavily. There was nothing in her evidence to confirm that it was apparent or not apparent to the complainant himself to negate his credibility.
[101] Further, the complainant’s testimony was such that it was not apparent to him. I accept his evidence on this point based on his testimony and the circumstances described by the other witnesses, including evidence of the accused.
[102] The complainant testified that he believed RE to be a high school friend of DL’s. He was not aware of any other relationship between them.
[103] Several of the witnesses confirmed the complainant’s understanding, including the accused, that the complainant travelled to Blind River with the intention to be with DL romantically.
[104] The complainant went up to DL’s bedroom to sleep in DL’s bed after DL, DB and RE left.
[105] There was no indication in the evidence that DL would not be returning to her residence after the outing that evening that was made known to the complainant. The complainant testified that he was still hopeful that he would get together with DL when she returned.
[106] The complainant described that he was already mid-drunk when RE arrived onto the scene and became further intoxicated thereafter. This evidence is supported by DB and DL’s evidence.
[107] The complainant would later have a conversation with the accused in DL’s bedroom, which I will deal with in more fulsome detail later, which conversation led the accused himself to interpret that the complainant was still interested in knowing if DL was interested in him. If this happened, same is consistent with not appreciating that RE and DL were more than friends.
[108] I questioned that if the complainant had, prior to the group leaving, realized that he had been “jilted” and/or was feigning to “bow out”, whether it would make sense for him to go look for DL’s bedroom, lie down to go to sleep in her bed when there were other bedrooms in the house. He knew DL’s son was not home or would not be, he was with a babysitter. According to the accused, the complainant’s comment he related to DL’s interest in him would have been well after the time frame from which the defence theory is premised, namely after he had already “bowed out” or had considered himself jilted during the gathering. One would think he would not do all these things, and especially so, if the complainant was as sober as the accused would have the court believe.
[109] For these reasons, I find the evidence supports that RE and DL being a couple was not apparent to the complainant and the theory is rejected. In addition, for these reasons, I further accept that the complainant was not feigning his state, that he had in fact consumed a significant amount of alcohol, and that he was intoxicated during the evening and before he went up to DL’s bedroom. I further have no concern that the complainant did not describe himself as “passed out” at the table or that DL and DB’s observations were not as a result of feigning on the part of the complainant.
Citing of the Accused at DL’s residence before the Group Leaves
[110] There is no question for me that the complainant and the accused knew of each other’s existence through DL and had never met before that evening. They were essentially strangers.
[111] It is clear on the evidence that the accused knew that the complainant was coming from Sudbury to meet DL and the complainant believed that it was to be with DL romantically, despite what the accused believed were DL’s true intentions.
[112] The accused testified that he was DL’s best friend of only one year. DL considered the accused her best friend. It was not a romantic relationship as the accused was interested in men. He lived or stayed across the street from her on the corner, which was his parents’ home.
[113] DB knew the accused. She had met him a few times. She testified that DL had invited him over for the evening in question but that the accused indicated he could not come over or out because his brother was in town visiting for the holidays. The accused was known to her as a friend of DL’s that lived across the street from DL. She never saw the accused at DL’s residence during the course of the evening.
[114] There was some variable evidence that the accused had been seen earlier in the evening from DL, the complainant, and the accused.
[115] DL had seen the accused outside of her residence that evening and had invited the accused to come over. DL’s evidence speaks to actually seeing the accused outside only once. DL described the time frame as being earlier in the evening and that she saw him on the street when he was getting into his car. Notably, she was not asking him to come out and not getting into DB’s car on her evidence. She was asking the accused to come over to her residence. It would make no sense for her to do that if she was leaving at the time. She does not describe that the accused was with anyone else. The accused’s version involved RE. It would only make sense that the accused saw RE by DB’s car, earlier in the evening, if what the complainant testified to was true, which was that on or about the time frame of 8 p.m. they picked up RE and he saw DL call out to someone when they had arrived back to DL’s residence with RE.
[116] The complainant did not know if anyone else was invited to come over to DL’s residence. The complainant testified that he did have some recollection of the accused being invited over, and that this occurred when he, DL and DB returned to DL’s residence after having picked up RE. He explained that he had already been drinking by this point and was “almost drunk” having consumed about 2 to 3 beer and 3 one to two ounce shots of his liquor by this point. This was consistent with DB’s evidence of the complainant getting drunk “really fast” after they had arrived at DL’s residence at 7 p.m. The complainant does not recall having had any conversation with the accused during this interaction between DL and the accused. He was in the car. He heard DL yell at the accused to come over. The details of DL’s invitation, namely that she called out to him to come over, coincided with the complainant’s account as well.
[117] DB had no recollection of being in a vehicle and the accused being yelled at out of the window to come over to DL’s or seeing the accused when she left with the others to go to the curling club. She did not recall seeing anyone invite the accused over at all but testified that DL had told her that she had invited the accused over. She further could not recall how it was that RE arrived at DL’s residence. This I interpreted as reflective as an understandable gap in her memory due to the passage of time.
[118] The defence suggests that the complainant changed his evidence on day two of his trial testimony with his story because he did not mention this citing on day one. I noted that the complainant on day one of his testimony admitted to drawing blanks. This happened 4 to 5 times. Sometimes he related it to being under the influence and sometimes the passage of time. While I agree that on day two the complainant presented as having more recall of events, the complainant explained the reason for this, and his evidence did not present as spontaneous on day two. He explained that he was able to recall more on day two as he was less anxious on day two. He had blocked out certain facts. On day one, he was struggling and accepted a break to permit him to review his previous statements to refresh his memory. I accept the complainant’s explanation based on my observations. It is not easy to testify in court, he was testifying by CCTV with support. He did present as less nervous on day two. Further, I found that the complainant was forthright and direct. I noted that the complainant was prepared to acknowledge things he did not remember or recall and/or acknowledged events put to him that could have occurred as opposed to denying them outright or providing assumptions or attempting to fill in the gaps. He did not exaggerate. As such, I did not interpret that the complainant’s memory blanks on day one as negating his credibility or that it did, as suggested. His manner fit with his explanation and his actual manner of giving evidence on day one. Further, what he was recalling on day two was by no means self-serving evidence. He presented as trying to do the best he could to recall the events. Portions of DL’s evidence supported his account.
[119] On the day of the incident, the accused testified that his plans were to spend time with his family members which I acknowledge was consistent with the evidence of DL and the understanding of DB. The accused knew that DL was planning to go to the curling club and have drinks at her residence beforehand because he had been invited. He knew in advance that the complainant would be included in those plans. The accused testified that he saw DL, DB and RE that night outside of DL’s residence when he was outside heading to the corner store with his brother and father. He claims to have seen DB, DL and RE getting into DB’s car, the three of them. DL called out to him to “come over or come out”. First DL’s evidence was that it was earlier in the evening when she saw the accused and the invitation was for him to come over not come out. Thereafter, DL’s evidence was that she was trying to get the accused to come out but again does not say that she saw him again that evening prior to leaving for the curling club. Next, DB, DL and RE left the residence between 10 and 11 p.m., which is not early in the evening. There is nothing on the evidence to suggest that DL would be mistaken about the timing because she was inviting him to come over. The group was inside the house drinking and hanging out at the table until 10 to 11 p.m. on all the evidence. RE came into the picture at around 8 p.m.- just arriving, not leaving and so he would not be getting into a vehicle with DB and DL earlier in the evening. Further, the timing did not add up with the accused’s account if he saw the three of them leaving and getting into the car. If he saw them leaving, it would have been between 10 and 11 p.m. The accused testified that after this siting, he, his father, and brother go to the corner store, then they go back home, then they watch a movie having snacks, and then after the movie finished, he goes outside for a cigarette before going over to DL’s residence which he placed at just after midnight. Further, the messages he sent to LD after 10 p.m. did not say that he saw DL and the content of the text supports that he got the information from DL while she was already out based on the references to club being packed and that the complainant had been “ditched” and was at the residence drunk and passed out. And even if he did see DB, RE and DL as he stated, which I will discuss further, this would be evidence of the accused knowing when they went out and when, concerning his belief DL would be home when he went there. It just didn’t seem to add up. I suppose it could if he watched a short movie with his parents and was quick at the corner store with his father and brother - and I recognize he was not asked these things.
[120] In any event, based on the above, I do not conclude that the complainant has been contradicted as suggested to call his credibility and/or reliability into question and I accept his explanation on being able to recall other things on day two of his evidence.
The Accused Going Over to DL’s Residence
[121] In general, the accused testified that he often went to DL’s residence. On previous occasions he had gone over to DL’s residence when no one else was there. The agreed statement of fact of DL’s evidence however stated that the accused went to DL’s home when she was not there when DL gave the accused permission and the key, suggestive of same being arranged. He would go over to check on her cats or put out the garbage if she was at work. Sometimes he would come over and help with things when DL was not there. Further, on December 26, 2018, DL’s evidence is that she had not given the accused permission to go over to her residence when she was not there, although she had invited him over earlier that day.
[122] In terms of going over to DL’s residence that night, the accused testified that he went over to the DL’s residence after having watched a movie with family because he saw lights on at the home through the living room and entrance door windows of DL’s residence. He thought DL may be home. He was outside having a cigarette. It was around midnight. He just walked into DL’s residence. He did not knock. He testified that he never knocks, and DL was comfortable with that. There was no information from DL on that point to negate this statement. I had only the statement of fact that indicated that permission was involved when the accused attended her home when she was not home. After he entered the accused did not see anyone. He quickly walked upstairs. The door was not locked. He entered unannounced. He did not call out to see if anyone was home. He heard no noises before he decided to go upstairs. He saw the complainant when he went upstairs.
[123] The accused had known that evening, that DL was out with DB and RE, that he knew where they planned to go, and further, that the complainant was said to be there at DL’s residence alone, passed out and drunk. He knew DL was out. By his account he saw the three of them leaving which would have been between 10 and 11 p.m. The cell phone message to LD supports that he was informed of the foregoing. The agreed statement of fact of DL indicated contact between her and the accused over the evening and that she was trying to get him to “come out” all night. The text message, the accused sent to LD refers specifically to the complainant, namely as “some guy” from Sudbury.
At DL’s Residence
[124] At DL’s residence, the accused testified that the hallway light upstairs leading to the bedroom was on and that it was “fairly bright” - he could see everything. He walked through the bathroom ensuite entrance into DL’s bedroom and saw that DL was not there. He testified that he was standing at this point and when he saw the complainant, he asked the complainant “where is everybody?”.
[125] As stated, the evidence supports that the accused knew DL was out that evening with DB and RE, and that the complainant had been reported to him by DL as being at her residence passed out drunk. He was told this as early an hour or two before he went to DL’s residence based on the time stamp of the messages he sent to LD and the evidence regarding same. Again, DL was contacting the accused all night trying to get him to come out. I questioned that he would think she was at home simply because a light was on. He also stated that he thought she might be in bed as his reason for quickly going upstairs because of the time. According to the evidence that light, which was not her bedroom light, was on all night before he went over. And if he saw her leaving with DB and RE, just the three of them, that night as he claims he did, then it would have been on then too and questionable as to why he would think she was home in bed already. Also, the complainant’s truck was in her driveway. It would also cause me pause later, given this evidence, to believe him, because he seemed to have no concern for engaging in sexual activity in DL’s bed in DL’s home with the complainant at that time of day when he was presenting as if he did not know where DL was or what she was doing before he went over there or that she could be coming home because of the time. He was by his own evidence familiar with the Blind River events which he testified to, when trying to explain why he referenced that the curling club was packed. He also knew that DL was with DB and the DB was driving her around and taking care of DL exhibited in a text message he sent to LD.
[126] After the accused asked the complainant the whereabouts of the others, he testified that the complainant answered right away that they were at the curling club. The accused stated that the complainant asked if he was “Mikey” and he said, “yes I am”. He then sat on the bed, left side, one foot hanging off the bed and one leg straight on the bed putting him very close to the complainant on the queen-sized bed but not touching. He interpreted the complainant’s inquiry as to who he was as an invitation to him, that the complainant was interested in talking to him. He testified that he did not ask the complainant for his name because he knew the complainant was the company that DL had brought down. He had seen the complainant prior on an unknown date on a skype call that DL had with him. He had never met the complainant before this encounter.
[127] As I continued to consider the accused’s evidence and whether I should accept it, more questions arose. This came when asked he was asked about finding the complainant there. There was no doubt in my mind that the accused was presenting as not knowing that the complainant was at DL’s house before he went over there in this evidence. On cross-examination, the accused testified that he first found out that the complainant had not gone to the club when he got to DL’s house and saw him in her bed. He was asked if he wondered why the complainant was there. His answer was that he was “curious why”, why everyone else was gone and he was not. Again, the messages he sent to LD before he even went to DL’s residence included “there’s some drunk guy at boo’s passed out lmao he’s from Sudbury they ditched him”. “There all fcked up at 10 no more booze left lol curling club is packed apparently”. Further, although he testified that he was curious, he testified that he did not ask why the complainant was there. Again, the backdrop included that he knew that the complainant had travelled from Sudbury to stay with DL and to be with DL for the night. The complainant’s truck was in DL’s driveway. He was DL’s best friend. He knew the group that night was to be DL, DB, RE and the complainant. That was his expectation. He testified he saw the group leave her residence to get into DB’s car, which did not include the complainant. The lights were on when they left. He talked to DL to let her know he could not go out. These lights were still on when the complainant went up to bed after they left. They were still on when the accused went over. Accordingly, these lights were on when he saw them leave, if he did, which was between 10 and 11 p.m. The evidence presented as the accused again attempting to distance himself from the knowledge he had before he went over to DL’s residence.
[128] LD lives in Blind River. She is the cousin of DL. She is also good friends with the accused. She had known the accused since between approximately age 9 to 11. She testified that she saw him almost daily and that they communicated often, multiple times a day. LD communicated with the accused via telephone, Facebook messenger, snap chat and possibly other forms of social media. LD was living in Blind River on December 26 and 27, 2018. LD was not at DL’s residence the evening of December 26, 2018, as she had to work early the next day, approximately 6:30 a.m. With respect to the Facebook messages filed, this witness testified that “boo” or “boo-boo” was the nickname used for DL. On her Facebook messenger, she nicknamed the accused “dink”. She identified Exhibit 6 as being photographs of Facebook messenger conversations she had with the accused that were taken off the screen of her cellphone by police following an interview of her in March of 2019. She explained the conversations, the set up and what the conversation meant that she could recall and when it occurred. She was confident that the time and date stamping was accurate to the time she recalls receiving the messages. She has never experienced an issue with incorrect date and time stamping with messenger ever. If messages were sent within 30 minutes to one hour from the last message, there would not be a time stamp for each message. The time stamp renews after no message is received in that time frame of 30 minutes to one hour.
[129] LD also knew that DL was hosting a man from Sudbury. DL told her about it. She also remembers speaking to the accused about it before that evening. She, DL and the accused a couple of days prior had gone for a drive together and she believes it was during this time that DL told them DL was inviting someone to come down to sleep with her, and that the complainant was intended to be for DL.
[130] All that LD could interpret regarding the messages sent to her by the accused was that the accused understood all were drunk by 10 p.m. and that there was no booze left, DL and the others were out, and had “ditched” the complainant who was at DL’s residence.
[131] LD agreed that it is possible that the accused may have sent her messages via snap chat also, and she would not have a record of same as they delete/disappear after one reads the message. She was confident however that after receiving the message informing her of there being a drunk guy at DL’s residence that she did not have any phone calls from the accused or any other messages on the messenger app other than those on the messenger app records that were filed. He may have tried to call her and if he did, she never answered. She had gone to sleep. The last known message from the accused to her was about 1 or 1:30 am.
[132] LD and the accused have messaged each other since messenger existed, six or seven years. The accused was also very good about responding to her messages quickly.
[133] LD provided the messages to police because she stated she had nothing to hide and hoped they would be helpful. She did not know the complainant at all or know his name, and still does not.
[134] There was nothing in LD’s evidence to cause me any concern as to her credibility and reliability with respect to her evidence.
[135] Based on the above, I found that the accused’s evidence was not credible on his expectations as to who he would find there and very suspect as to his knowledge of DL’s whereabouts at the time. And even though it may be plausible that at the very moment he went over he did not know where DL was at that time and she could have been home, this would not alter my finding that he was not credible on his expectations as to who else he would find there.
At DL’s Residence in DL’s Bedroom
[136] The accused testified that after he sat down beside the complainant on the bed at DL’s residence, he and the complainant had a conversation about the complainant’s tattoo that he noticed on the complainant’s arm. After the accused entered DL’s bedroom where he encountered the complainant, at the point the accused saw the tattoo on the complainant’s arm he stated the complainant was on his back. The tattoo was showing. The complainant’s sleeve was pushed up. They had a conversation about the tattoo which led to the complainant taking his arm out of the sleeve of his shirt to show the tattoo and further a conversation about another tattoo that the complainant had which he lifted his shirt to show the accused. They talked about the accused’s tattoo, and the accused who also had a tattoo, showed his to the complainant. There was nothing in my view about this portion of the conversation or the showing of tattoos on the evidence that presented as sexual in nature or conduct suggestive of consent to sexual activity, nor was same interpreted to be such by the accused on his evidence. He did not rely on any of this conversation as the basis of his understanding that the complainant was consenting to sexual activity. The same I find could be said of other portions of the conversation that followed, namely conversations regarding the complainant’s mother’s health, father’s health and/or the complainant’s health. It is not until the accused made a comment about the complainant’s physique does his mind turns to thinking that the complainant may be interested in him on his evidence. The accused testified that he interpreted the conversation prior to the comment he made regarding the complainant’s physique as them relating well and “chilling” with each other. There had been no physical contact during any of these portions of the conversation or anything of sexual connotation.
[137] The accused drew a blank while giving evidence about the entirety of the conversation. This would happen again in his testimony. The defence was critical of the complainant for drawing blanks, but the accused would do it himself more than once while giving his evidence. On some of these I accept that he like the complainant had some memory blanks which I would attribute to the passage of time. However, some of them, did impact his credibility for me, because instead of just acknowledging that he could not recall, he was answering with assumptions before admitting that he really could not recall.
[138] The accused had a joint (marijuana cigarette) with him. He offered to share the joint with the complainant who declined. The accused proceeded to light the joint and have only some of it. The complainant did not react to the accused smoking the joint. The accused testified that he had brought a joint with him based on his stated assumption that DL was home, and that she would want to smoke. The accused did not testify that he was intoxicated by his drug consumption.
[139] The accused testified that the complainant had no difficulties speaking or articulating during their conversation. He observed no signs of drinking, no signs that the complainant had been drinking alcohol.
[140] I had difficulty believing the accused’s evidence that the complainant exhibited no signs of drinking. He encountered the complainant fully clothed lying on top of DL’s bed. There was an abundance of evidence from other witnesses regarding drinking that evening by the complainant and regarding his state. The accused himself had been told that the complainant had been drinking by DL, that there was no “booze” left, the complainant was “drunk”, “ditched” and “passed out” at DL’s residence. DB was sober, she was the designated driver. Two other sober witnesses (Cst. Timmermans and DP) observed indicia of alcohol consumption well after the acts complained of that included odour of alcohol coming from the complainant, unclear thoughts, and confused behaviour. The complainant had not consumed any alcohol since before he went up to DL’s bedroom.
[141] The accused was in very close proximity to the complainant by his own evidence regarding their sexual encounter.
[142] I found no reason to question Cst. Timmermans and/or DP’s evidence regarding indicia of drinking that they observed well after the fact.
[143] As such, I do not believe the accused that he observed no signs of drinking.
[144] The defence points to observations of the sexual assault nurse and blood testing results of zero detection at 7 a.m. The suggestion was that this evidence was reliable evidence that would raise reasonable doubt as to the level of intoxication of the complainant between midnight and 1 a.m.
[145] First, the nurse saw the complainant at 7 a.m. and the blood testing was done on or around 7:15 a.m., almost 9.5 hours or more after the complainant had stopped drinking, which was not contradicted.
[146] The defence suggests that around 1 a.m. the complainant’s blood alcohol could have been 60 mg which should raise doubt at to the complainant’s level of intoxication at that time. He based this on the evidence of the toxicologist and pointed out that one is permitted to operate a vehicle in law if blood alcohol is under 80 mg. First, that account of the evidence was not accurate and not supported evidence. First the toxicologist opined that blood alcohol concentration does not dilute or eliminate in a linear pattern and is specific to an individual. Further, as blood alcohol concentration reduces, lower-level blood alcohol concentration does not follow a linear path. One would need a starting point of blood alcohol concentration, and also a rate of elimination for the specific individual would involve testing the specific individual to determine accurate blood alcohol concentration at a given time.
[147] Second, the toxicologist testified that even if you could apply a linear pattern of elimination based on a rate related to the majority of the population, the range at 1 a.m. could actually be 60mg to 120 mg, not that it would be 60 mg; the average rate is 10-20 mg per 100ml of blood per hour. Finally, the accused first saw the complainant shortly after midnight, not at 1 a.m.
[148] The toxicology evidence and the observations of the sexual assault nurse are not reliable markers to consider as raising reasonable doubt for these reasons, nor do I find that same negates the complainant’s credibility on his stated level of his intoxication between midnight to 1 a.m., based on the evidence that I do accept.
The Start of the Sexual Activity
[149] The accused testified that the complainant still had his shirt up after showing his tattoo sometime during their conversation and he commented on the complainant’s physique. Almost immediately after that comment is when the sexual aspect of the encounter began. At this point, as stated above, there is absolutely no conduct or words expressed by the complainant indicative of consent.
[150] The accused’s account of the conversation, and the interpretation of the complainant’s reaction to his ‘physique” comment and the chronology of events was confusing, disjointed, and inconsistent.
[151] The accused testified that he complimented the complainant on his physique and that the complainant responded to his comment about his physique by stating “I bet DL told you that”. First, he testified that the complainant’s said response was interpreted by him as the complainant hoping that DL would have talked to him about her interest in him (the complainant). However, on the same topic within seconds after making that comment and having that interpretation, he interpreted the complainant as being interested in a sexual encounter with him because he observed the complainant to have an erection and was relying on the complainant knowing was he was a gay man. I am not sure how to reconcile that evidence, namely that the complainant’s is trying to elicit information about DL’s interest in him but at the same time indicating that he is interested in the accused. In my mind was the backdrop that the accused knew that the complainant was in Blind River with the intention of being with DL romantically. I suppose it would be fair to say that he was not aware fully of the complainant’s sexuality. However, it was still odd.
[152] The accused testified that at the point he made the comment about the complainant’s physique 20 to 30 minutes had passed since the conversation started.
[153] While the complainant was foggy on the conversation and had only partial memories, he was forthright in acknowledging the parts of conversation he could not recall. He was intoxicated and going in and out of sleep. Also, again, it was clear that his engagement to this point in conversation was not conduct or expressions going to consent. Further, when asked why he would have engaged in conversation of that nature with the accused he had an explanation that I accept that made sense. He was intoxicated and testified that people talk and sometimes about random things when they are intoxicated. It made sense given the varied nature of the topics of the conversation, his described state, and the nature of their relationship, never having met before.
[154] However, as the accused continued to testify about the physique comment, I observed inconsistencies and even what I viewed as changed evidence and not recollection restored. The accused first testified that after he commented on the complainant’s physique, after he noticed that the complainant had an erection, which he interpreted as the complainant being aroused by the comment, that he proceeded to put his hand on the erection on the outside of the complainant’s pants without further conversation. He stated that the complainant did not say anything and just looked at him right away. He reiterated that he interpreted his comment to the complainant as arousing him and that he was interested in what was happening. He interpreted the arousal as the complainant’s interest in other genders.
[155] What followed in his testimony was that the accused was led in chief, after he stated that there had been no further conversation… “Did you make any inquiry about his sexuality”. The accused first answered “No” but changed very quickly to state “actually yes, I apologize” and went on to state “I asked him if he had ever been in bed with a guy before or ever did anything sexually with a guy before”. He went on to state that he asked this before he put his hand on the complainant’s penis when previously he had testified that there had been no further conversation. His testimony was now that that he asked about sexuality when he saw the erection and before he put his hand there. He went on to state that he asked this because he wanted to know if that was something that interested the complainant. The accused stated that the complainant responded that he had never done anything with a guy before but had slept in the same bed with one, but nothing happened. There was no evidence indicating that the complainant was aware of or understood the reason why the accused was asking him this question if the accused had asked him this question. The complainant’s response to the question does not include any express verbal consent to sexual activity. The same applies to his response to the accused’s physique compliment.
[156] The accused evidence now at this point was summarily on words/actions inconsistent with non-consent: Never having met the complainant before, after 20 minutes of nonsexual conversation where he felt that they were relating well which included showing tattoos and the complainant pulling his shirt up to show his which he did not put back down in the conversation, he made a physique compliment to the complainant. The complainant responded to with “I bet you DL told you that”, which response he interpreted two different meanings from, one related to the complainant’s wanting to know if DL was interested in the him (meaning the complainant) and one related to demonstration of interest in him which he interlaced with his observation of an erection that he noticed the complainant to have after he made the physique compliment and which he interlaced with his own personal knowledge that the complainant knew he was a gay man. He then asked the complainant if “he had ever been with a guy before”. The complainant responded that he “had slept in the same bed with one, but nothing happened” which he interpreted to mean the complainant was interested in him. This was the scenario that he says led him to physically put his hand on the complainant’s penis – that the complainant was not opposed and consenting.
[157] The complainant denied that he was ever asked by the accused about his sexuality. I acknowledge that there were portions of conversation that occurred between the accused and the complainant that the complainant did not recall and agreed could have happened, that it is clear that he had partial memory. His explanation included that he was going in and out of consciousness falling asleep and was intoxicated, and in some instances, it the explanations included passage of time. Even if he had stated what the accused suggested, the words did not actively express consent.
[158] I remained mindful that lack of memory does not take always away from the issue of no consent and the law does not infer consent in cases of intoxication. Lack of memory can be circumstantial evidence consistent with intoxication, which I find it was in this case. It is not contested that no verbal consent was ever given by the complainant in all the conversations referred to.
[159] There would be more instances in the accused’s testimony on the encounter that diminished his credibility and caused me to question his evidence to follow.
[160] On cross-examination, the accused agreed it was possible that even if the complainant was observed to be aroused after his comment about his physique that it did not mean that the complainant wanted him to touch him. The accused did not confirm the touch was wanted or that the complainant was open to sex with other genders.
[161] The accused stated the complainant smiled when he put his hand on top of his penis on the outside of the complainant’s clothing, there was no negative reaction. Somehow at this point the accused had both legs on the bed and was face to face with the complainant. The accused stated there was no resistance. He relied on the smile and lack of resistance to proceed further. If this occurred, I find that lack of resistance and movement is not inconsistent with of the complainant’s claim of non-consent. I have difficulties believing the accused that he saw the complainant smiling, based on his evidence regarding seeing no signs of drinking and his evidence which I will discuss below regarding seeing the complainant send a text message during their sexual encounter.
[162] The accused testified that after he placed his hand on the complainant’s penis on the outside of his pants that he then proceeded without any further conversation to pull the complainant’s pants down enough without force to put his hand directly on the complainant’s penis. The accused testified that the complainant was “definitely” conscious and, in his mind, knew exactly what was taking place. That was his explanation for his next move on consent.
[163] The accused testified that he then proceeded (again without any further conversation) to perform oral sex on the complainant while on the bed beside him by leaning over the complainant from the side of the complainant but up on all fours, namely, on his knees with one hand on the bed and one hand on the complainant. The accused stated that while he was doing this from this position, he could see the complainant’s entire face – he could see a lot. He stated he was looking because he wanted to see if he still saw what he interpreted to be the complainant’s initial reaction to his comment about his physique – namely arousal, and to see if he was enjoying it, which to him, the complainant appeared to be. He testified that he saw the complainant continue to smile starring directly at him. He testified that there were no jerking movements or anything else by way of reaction of the complainant.
[164] The accused testified that the complainant did not ejaculate and then testified that he had a “mind blank”. Then what followed in his testimony after this pause was evidence that while he was performing the oral sex, he observed the complainant to pick up his phone and start texting, and that he could see what the complainant was texting. I found his evidence very hard to believe and accept on the whole of the evidence.
[165] First, the accused was, as he stated, performing oral sex over the side of the complainant in the manner and position he described while he saw this which is difficult to believe. He testified that he could actually see that the complainant was messaging DB on Facebook messenger, “hey hey when are you coming home” or something to that effect. He testified that what he took from that, was that the complainant was reaching out, concerned he would be caught in the act. When pressed in cross, he could not give any answer for why he thought that other than to state that is just what he believed.
[166] The evidence on viewing the complainant sending a text while the accused was performing oral sex on him leaning over his side presented as fabricated and further there was evidence to the contrary supporting the complainant’s evidence that this did not occur.
[167] The evidence elicited by the Crown that I accept establishes that no such message was sent and that messages sent by the complainant to DB, were well after this point in time.
[168] Further, the content of the messages that were sent to DB by the complainant were not reflective of any concern that the complainant would be caught in the act. He is asking her to come home.
[169] DB testified that she had received Facebook message entries from the complainant. The message entries state, “when you coming back”, “please come home” under a time stamp of 1:09 a.m. followed by “hey”, “I woke up to my”, “pants down” following a time stamp ten minutes later of 1:19 a.m., five conversation bubbles. In between is a missed audio call message to DB.
[170] DB did not receive notification of these messages at the time because they were sent via Facebook and this app does not notify of messages from someone who is not your friend the way it would if the person was your friend. The messages go to what she described was akin to a junk email. She had to refresh to see the messages. She was not friends with the complainant on this app. She does not know how he was able to find her on the app, but he would have to take steps to find her on the app which the accused did not testify to seeing the complainant do.
[171] DB believes the messages came from the complainant because it had his name and a photo icon of him that looked like him. She believes she saw them at about 9 a.m. the next morning after the incident at her home on her cell phone. A copy of the messages was filed. She testified that nothing was altered other than the photo icon was different. She never deleted any messages and kept them in case they were needed. She is using the same cell phone she had in 2018. DB never responded to the complainant’s messages. The first message was shown as being sent at 1:09 a.m. when she, DL and RE would have been at the bar, and the same with respect to the message sent at 1:19 a.m.
[172] The accused testified that the sexual encounter started within 20 to 30 minutes of his arrival just after midnight and ended within 20 to 25 minutes after it started. Further, of note, the stated act of felatio preceded the stated act of the accused receiving anal intercourse which the accused described as lasting 10 minutes, followed by the other acts/events described, namely, him sitting beside the complainant on the bed after the anal intercourse, namely the complainant turning over and pulling his pants down indicating a want for anal intercourse, same not happening, both getting dressed, both going downstairs, the complainant going to the washroom, and the accused leaving after sitting downstairs across from the complainant for 3 to 4 minutes. The timing and content of the complainant’s messages does not support the complainant using the phone to message DB while the accused was performing oral sex to protect himself from getting caught in the act. The accused attributed a text in a series of texts he sent to LD with a time stamp starting at 1:10 a.m. as being sent when he was sitting across from the complainant downstairs before he left DL’s residence.
[173] I acknowledge that the accused testified that these said messages to DB were not the messages he saw. I don’t believe him. I accept that the complainant only messaged DB via Facebook messenger after he looked through DL’s Facebook friends to try to find her contact after the encounter. The accused himself stated it was a Facebook message that he saw. I accept DB’s evidence that there were no other Facebook messenger messages sent to her by the complainant other than the messages filed at trial. There was no reason to question the evidence of DB on this point. The screen shots of the complainant’s cellphone regarding attempts at contacting DB, taken by Cst. Timmermans on December 27, 2018, matched the messages of DB’s for December 27, 2018.
[174] The complainant’s account of what he did after he awoke to being assaulted was supported by the timing noted on the messages.
[175] The complainant denied being embarrassed about the encounter, he was traumatized by it. He was reaching out for help from people he did not know well and even his estranged ex-girlfriend. He was telling them he woke up to his pants down and/or had been raped. He wanted to go the hospital. He went to the hospital. He went through a sexual assault kid administration. He agreed to calling the police after being asked if he wanted to. He spoke to police.
[176] On cross-examination the accused agreed he received anal sex, did not use a condom, and did not talk about protection. On cross-examination he testified that he did not know why he did not talk about protection but then contrary to having stated that he did not know why on cross-examination, on re-examination he testified it was because he felt that the complainant understood what was happening.
[177] The accused first testified that after he performed oral sex that the complainant turned over right away pulling his pants down, and stated he was not sure what was going through his mind when this happened. This evidence presented at trial as very disingenuous to me given the sexual activities he stated were occurring to this point. He then testified that he could not remember what happened from there and was having another “mind blank” and asked for a break. After the break, the accused explained that he had gotten ahead of himself and that during the oral sex he positioned himself for anal intercourse. The complainant was on his back on the bottom. He stated that the complainant was still smiling. He started to go up and down as you would perform while being on top for about ten minutes but then he stopped because he could smell fecal matter. He got off and that is the time frame when the complainant he stated turned over and pulled his own pants down to expose his buttocks with his legs spread apart indicating he wanted anal sex – but that same did not take place. I noted at this point in his evidence now he knew what was going through the complainant’s mind when the complainant turned over.
[178] I was asked to revisit the evidence regarding this sexual activity described by the accused - that same was not put to the complainant. It was not put to the complainant that the accused received anal intercourse; that he did not use a condom, and the complainant allegedly pulled down his own pants after this signalling a want for anal intercourse. I agree that this evidence was not put to the complainant and as such it violates the Brown v Dunne rule. I further find it would not have served the complainant to require the Crown to recall him with respect to same. I agree based on the complainant’s testimony as to the acts complained of that the complainant’s likely response would have been that he would have denied it having taken place or that he did not believe it happened. I also noted in coming to this conclusion that the complainant did not testify to observing signs or odours of fecal matter on his penis after the anal intercourse. He did not observe anything on him. Even it the rule had not been violated, my acceptance of the accused’s evidence on the sexual activity that occurred would have been negatively affected based on the concerns I have identified throughout regarding the accused’s credibility and reliability as to what happened.
[179] After the sexual activity stopped, the accused states nothing is said. The accused stated he sat on the bed next to the complainant. He testified that he got up, dressed, and sat back on the bed and that the complainant got up, put his clothes back on and went downstairs.
[180] The accused testified that the complainant went downstairs, and he also went downstairs pretty much right away after to sit with the complainant because it would be “weird” if he stayed up in the bedroom. When he came down the complainant was in the washroom downstairs.
[181] After the complainant went to the washroom, the accused testified that he sat across from the complainant in the living room. The complainant was in a chair petting the cat. The accused stated that he tried to talk to the complainant, but the complainant would not look at him or say anything. The accused stated he was weirded out, so he left DL’s residence after 3 to 4 minutes.
[182] There was a series of messages to LD sent by the accused starting at 1:10 a.m. that stated, “your still up lmao” followed by a poop emoji and other conversation during which he wrote “came to boos that guy was passed out so I left”. He testified that he was still at DL’s residence when he sent that message. The complainant’s first message to DB as set out above was sent at 1:09 a.m. one minute before he sent LD a text at a time when the complainant was sitting across from him not saying anything or looking at him, petting a cat. The accused did not mention seeing the complainant text anyone or having his phone at that time frame, again according to his evidence the complainant was sitting there silent petting a cat. The complainant stated he sent the 1:09 a.m. text to DB after the accused was already gone after he found her on DL’s Facebook friends list sometime after he ran back upstairs after hearing the main door close, closed the bedroom door, went to the window, and watched the person leave from the bedroom window. He saw the person walking towards the accused’s residence. He did not have his phone until after, as it was not in the bedroom where he remembered brining it. He thought maybe he had brought it to the washroom and went down to look. He does not know how it got there, but he found it downstairs on a shelf by the main door overtop the television.
[183] I considered the accused’s explanation for the 1:10 a.m. texts to LD, namely that he lied in those messages for the complainant’s discretion. The accused started the messages with “lmao” and a “poop emoji”. The after, in this series of messages starting at 1:10 a.m. wrote “came to boos that guy was passed out so I left”. He explained that the complainant’s actions were indicating to him that something was wrong after the encounter. He did not want to “out him”.
[184] First, the accused lied to one of his very long-time friends which in and of itself was a concern for me regarding credibility – stated to protect someone who was essentially a stranger to him. Further, I agree that it did not make sense that he would send any message at all that he was at the residence if this explanation was true. It did not make any sense to send such a text to someone who didn’t even know the complainant or even know that the accused had gone over to DL’s residence in the first place. I do not believe the accused. I believe the message was sent to LD after the accused had left and that it was sent to protect himself, not the complainant.
The Complainant’s Evidence on the Encounter
[185] On day one of his evidence, the complainant recalled waking up on DL’s bed and that someone was beside him. It shocked him. He remembered the odour of marijuana in the room. He was on the right side of the bed on his left side facing the closet and washroom. The person was to the right of him had he been laying on his back. He believed the person was smoking a joint. He recalls talking to the person about the tattoo on the person’s arm and he believed that is when he went back out of consciousness meaning he fell back asleep. He did not recall anything after that until he woke up again after having fallen back asleep during the conversation, to being anally penetrated.
[186] The complainant had limited memory of the conversation. He explained he did not recall everything because he was still under the influence. The complainant was able to describe what the person was wearing. He believes the conversation about the tattoos and with the accused were about 5 to 10 minutes in duration. He did not really remember talking about anything else. He did not know how the accused got on the bed. He did not know who the person was when he first woke. The accused may have told him his name, during their initial conversation but he did not know who he was when he initially woke up. The lighting was not the greatest and the only light coming into the bedroom was that coming through the bedroom window from the street.
[187] Witnesses described DL’s residence. Photos were filed. The evidence of the complainant and the accused accorded for the most part regarding the residence. The agreed statement of fact described that the head of the bed in DL’s bedroom was at a window that faced Leacock and stated that there was a decent amount of light from the streetlight outside of the residence that created a decent amount of light in the bedroom.
[188] The complainant stated that the accused used his cellphone to light up the room as he walked around. The accused denied that he had his light on when he walked into the room but acknowledged that he did turn it on at some point to look for something he dropped, which was the joint that he brought over.
[189] The complainant remembered the person having a beard and being a medium healthy weight and similar to his height. He was feeling drunk. His head was spinning, and he could not keep his bearings when he woke up. Before he went out of consciousness again, he may have been awake 5 minutes but agreed it could have been longer, 10 minutes. His description of his head spinning, having trouble keeping bearings and going in and out of consciousness are consistent with his evidence that he was feeling drunk. When he woke up again, it was because he had to go to the washroom and woke up to the accused penetrating him with his penis, his pants were down around his ankles. He did not see the accused’s penis. He felt it. When he had turned around, he saw the accused’s pants were taken down as well. He believed penetration was penile because the accused was fully nude on the bottom half of his body. The complainant testified that he did not say anything to the accused. He does not like confrontation and never has been one for confrontation. He was also confused and still under the influence. He was also in shock. The complainant could not recall if the accused said anything to him.
[190] The complainant testified that he did not at any point consent to anal intercourse or sexual contact or being touched, nor did he discuss same with the accused. He did not know if lubricant had been used or a condom. He does not recall noticing any ejaculate or stains of any kind on his clothing. He had no recollection of being touched with anything other than the accused’s penis. He rolled and twisted off the bed to get the accused off him, went to the washroom downstairs and hid. He described his mental state at the time as confused, violated, terrified, still intoxicated. The room was no longer spinning as much at this point in time. He was feeling throbbing pain in his anus. His “buzz” was starting to diminish but he still felt under the influence. He did not know how much time had passed between losing consciousness after the conversation with the accused to waking up to being penetrated by him. He had no scratches, bruises, or other injuries except blood in his feces when he was at the Sault Area Hospital sometime later which occurred for 3 to 5 days after.
[191] Contrary to defence interpretation, the complainant did not leave the impression with me during his examination in chief on day one that he did not have any idea who the accused was generally or at all prior to the encounter. He testified that he knew of him and that he was DL’s friend. The complainant acknowledged that DL had spoken to him about her gay best friend before that date. He knew his first name as Mike, and that she and the accused were very close, they slept in bed together sometimes and that he babysat her son sometimes. He did not move from not knowing who the person was beside him when he first woke up and the accused was beside him. The accused was not familiar to the complainant. They had never met before. He did say in his evidence in chief that he may or may not have asked him his name after that, he did not recall. On day one of his evidence, the complainant testified that he may have asked him his name or was told his name. On day two, he agreed that it could have happened that he asked the accused if he was “Mikey”. His evidence on my analysis was not contradictory.
[192] On day two, the complainant explained his “blanks” and memory lapses concerning the encounter on day one of his evidence, and again, contrary to defence submission, the complainant did not deny having any conversation at all with the accused on day one. He explained he was going in and out of sleep. On day one he was answering what he next remembered. He answered that he “did not recall” that day, to questions he could not answer that day. He did not make anything up or fill in gaps. He was careful not to, and he presented as forthright. He testified he was under the influence. He also testified that he was anxious on day one of his testimony which I have already addressed. Having partial memories and unclear memories was the impression that the complainant left me with based on his states at the time, and passage of time. I remained mindful of that in assessing the credibility and reliability of the complainant. It did not create an absence of reliability for me or render the evidence that he did give unreliable. The lack of memory/inability to recall fit with his stated intoxication that evening.
[193] The complainant’s actions after the incident are consistent with feeling violated, confused and in shock, including going downstairs to hide in the washroom. He testified that after the incident he tried to call DL multiple times without answer except one time when he heard mumbling on the end of the line. He tried to get contact information for DB. He went through DL’s Facebook friends to find her. Once he did find her, he sent her a message on Facebook messenger. The messages filed support this evidence. The complainant ended up reaching out to an ex-girlfriend DP after he could not reach DB or DL. DP agreed to come get him to take him to the hospital. He was drawing a blank but may have tried to contact others through Facebook. He was contacting others to get help for well over an hour after which included two people he barely knew and an ex-girlfriend who he did not really have a relationship anymore at the time. He was not in the state of mind to call 911 initially. He started making these contacts within 5 to 10 minutes after the incident. The timing accords with the accused’s evidence for how long he was at the residence and when he left the residence. The message the complainant sent to DB was at 1:09 a.m. and thereafter. The same was demonstrated with the rest of the screen shots of the complainant’s phone that Cst. Timmermans took on December 27, 2018.
[194] The complainant testified that he believed that DP came to get him within 5 to 10 minutes after she finally answered his calls after getting her parent’s vehicle which was around 2 to 2:30 a.m. He believes he called her about 5 times. If she had not answered his next step was going to call 911. The screen shots match the attempts.
[195] The defence raised issue with the complainant’s credibility on his efforts to get help because DL and DB returned to the residence sometime between 1:30 and 2:00 a.m. on the evidence.
[196] The agreed statement of fact indicated that DL returned to her residence around 1:30 to 2:00 a.m. to get food and alcohol. She could hear someone walking around upstairs. She assumed this person to be the complainant. No one came downstairs. She was drunk and making noise. She did not see or speak to the complainant. She did not see anything out of the ordinary, no other shoes or pieces of clothing. She left the residence and spent the night at RE’s residence and returned to her own later that morning.
[197] DB testified that after the bar, she drove DL and RE back to DL’s residence around the same time that DL stated. DL wanted to go in and grab snacks and alcohol. DB also went inside as she had left her charger on the kitchen table. She observed that the complainant was no longer at the table. She did not see the complainant or hear anything. She did not go upstairs and look. She does not recall if DL did. DB thought the complainant was upstairs because his vehicle was still there. She did not go upstairs because it was late, and she was focused on getting home. The plan was that she was driving DL to RE’s residence. DB testified that there was no indication that there was anyone else other than herself and DL in the home at that time, but she did not check. She and DL were maybe in the home about five minutes in total. RE had stayed in her vehicle.
[198] The complainant testified that he believed that he did hear people come home when he was in the bedroom upstairs. He testified that at this point, he was still in shock to talk to anyone or go downstairs. He did not know how much longer it was after the accused left that he heard the people come home or how long he had been in the bedroom. He was still terrified, and still under the influence. They did not call up to him or go upstairs. What he heard was that they may have been in the doorway, walked in, opened the door, and said, “I guess he went to bed” and left. It was very quick.
[199] The phone records show that the complainant was texting and trying to get DL and DB to come home before they came home based on the messages filed. I agree with that. The messages demonstrate that he tried to get help and to get in touch with DL, and DB to get them to return home starting at 1:09 p.m. He made several calls to DP. DP was someone he was estranged from who he called repeatedly until she answered. I agree that some of the evidence of the complainant as to when this all happened and what happened, and the order did not always align. At first instance, I agree that one may find it very unusual that the complainant did not go downstairs when he heard people come home when he was reaching out for help. First, I am guided to remember that there is no typical victim or reaction or to make any unwarranted assumptions. Hearing “people” return to the residence after the incident was part of the evidence he offered in chief. His recollection was that he heard a voice and the voice say that he must have gone to bed but then they left, and it was very quick. He did say that he recognized the voice as DL in chief but his evidence was that they left right after he heard her voice. He heard the door close. On the evidence, DL and DB were in and out of the residence within 5 minutes. His evidence did not leave me with the impression that he knew it was them immediately when they arrived there. I cannot assume that he knew it was DL and DB when they were actually there at the residence before he heard her and they left, that was not the evidence. At the time he heard people come home, he testified that he was still feeling shocked, confused, under the influence, and sometimes disoriented. The backdrop is that he had woken up to find someone beside him that evening that he did not know that he felt should not have been in the house and later to that person anally penetrating him. Cst. Timmermans spoke to the complainant at some time shortly after he arrived at the hospital and described him as still intoxicated and confused, to a point where he would not take a statement from him. The text messages demonstrate that he was trying to get help.
[200] When the complainant finally reached DP, DP took the complainant to the Blind River Hospital. He told the nurse he spoke to at this hospital what happened. They could not help him there but asked if he wanted to report to the police and he said “yes”. Blind River Hospital could not administer a sexual assault kit. Cst. Timmermans arrived at the hospital, and he spoke to him at about 2:51 a.m. The complainant chose to go to the Sault Area Hospital because it was closer and easier for him to pick up his vehicle on the way back. At the Sault Area Hospital, the complainant saw the sexual assault nurse. After the sexual assault kit was administered Cst. Timmermans took the complainant back to Blind River. The complainant stayed at DP’s residence. He slept most of the day, then retrieved his truck, attended with Cst. Timmermans to give a statement, and then returned home to Sudbury. The complainant could not remember everything he told Cst. Timmermans as to what happened. He stated he was confused and still under the influence when Cst. Timmermans spoke to him at the hospital. Cst. Timmermans’ evidence confirmed this portion of the complainant’s evidence.
[201] DP as stated is a former girlfriend of the complainant. They dated for approximately three years and lived together for approximately two and a half years during that time. DP confirmed that the complainant called her the early hours of December 27, 2018. At that time, she was living in Blind River. The state of the relationship at that time was that they were not speaking and were not involved. They had not been involved at this time for approximately two years. They had minimal contact over the two years related to monetary issues, but they had no friendship. DP did not know the accused at all.
[202] On the said morning in question after the incident, DP described that she had received 2-4 calls from the complainant at approximately 2:00 to 2:30 a.m. At first, she ignored the calls but after getting so many in a row over a period of minutes, she decided to answer because she felt something was wrong. She had no idea the complainant was in Blind River at the time. She did not believe that he knew anyone in Blind River, did not know why he was there.
[203] When DP finally answered the last call, she testified that the complainant told her that he thought he had been raped. He had a feeling he had. He did not go into specifics.
[204] DP testified that the complainant wanted her to pick him up and take him to the hospital. She agreed. He gave her the location. She believes that she would have arrived there about ten minutes after ending the call, after she arranged to wake up her mother to borrow her mother’s vehicle to pick him up. From her residence it took her about two minutes to get to the location. There was no traffic. The location he gave her was correct.
[205] DP attended the location, which was the Leacock residence.
[206] DP testified that the complainant wanted her to go inside the hospital with him. She did. But after police arrived, she left because she herself was not well and was no longer needed. She testified that she was at the hospital with him for approximately five minutes.
[207] The complainant testified that he told DP he was raped and at this time was still under the influence and confused.
[208] Overall, his evidence was consistent with a significant portion of DP’s admissible evidence on his attempts to call her, her arrival to pick him up, him having told her he was raped, her taking him to the hospital and leaving shortly after they arrived at the hospital.
[209] Of note, the hearsay evidence regarding their conversations it was agreed was not elicited for the truth of its contents.
[210] DP was asked to describe the complainant’s demeanour.
[211] DP testified that the complainant seemed fine and did not seem stressed out. I noted there was no evidence that she even asked him how he was feeling. In fact, she testified that they did not get into specifics.
[212] DP felt it was weird that the complainant was waiting in the house for her as if something happened, she would have expected him to be outside. He was very calm and thanked her.
[213] First, it is confirmed by DP’s evidence that she picked him up more than an hour after the incident. He testified that it was cold outside that evening. He also testified that his ‘buzz” had already started coming down before she picked him up.
[214] As for observations of intoxication, she indicated that she could smell alcohol and knowing him for three years supported that it does not take much for him to be intoxicated. She observed no tipsiness or slurring of words. While she could smell alcohol, the odour was not strong to her. She testified that having lived with him and dated him for three years that she had a good idea when he was intoxicated and when he was not, and he did not seem intoxicated to her. The defence focused on this, but again, my appreciation of the complainant’s evidence was that he was not stating that at this point in time that he was “grossly intoxicated”, and his testimony also included that he was confused and in shock. Further, the impression I was left with was that DP and the complainant did not have any in depth conversations either on the phone, while she drove him to the hospital or while at the hospital. The extent of DP’s conversation with the complainant was minimal on her evidence, including a two-minute phone call, a short ride in a vehicle to the hospital, and a five-minute stay at the hospital before she left. DP smelled alcohol in the early hours of the morning which was hours after the complainant’s drinking had stopped. The fact that DB observed the complainant to be calm does not raise a doubt for me either. Every individual reacts differently. DP is not an expert on victim reactions, shock, his reaction to being assaulted by anyone, and/or intoxication. Further, she had not lived with or communicated with the complainant for some time prior to that day. The expert who was qualified and did testify indicated very clearly that level of intoxication is specific to an individual and other factors at any given time. Other factors included the shock and confusion he was feeling.
[215] DP has not seen the complainant since having driven him to the hospital. She had arranged for him to sleep on the couch at her residence and had made the couch up for him for when he was done at the hospital. She does not know if he in fact slept there but did see his hat there, confirming that he had been there at some point. She did receive a message that he had to travel to Sault Ste. Marie because Blind River hospital did not administer rape kits. The message also included that he would come back later for his vehicle.
[216] In sum, DP’s observations after the incident does not raise any doubt for me given the complainant’s consumption of alcohol (supported by other witnesses), the nature of DB’s and the complainant’s relationship at the time (former boyfriend/girlfriend relationship, strained separation with no friendship for approximately two years prior by her own evidence), the short time they were together that morning, and the complainant’s evidence of having been in shock and still under the influence but not feeling grossly intoxicated. Further, her interactions with the complainant were not in-depth conversations by her own evidence. Again, the fact that the complainant appeared to her to be calm I remained mindful that there is no typical reaction of a person or situation in sexual assault cases.
[217] The fact that the complainant was able to send messages, make calls, and advise DP of his location does not raise doubt for me either. His level of intoxication he stated was less at that time on his evidence, and he did not exaggerate his condition. He attributed his state to more than just alcohol. The complainant testified that after the incident he still felt under the influence, but his “buzz” was coming down.
[218] Further, the test is not whether the complainant retained motor skills or was able to talk. Consent must be present at the time the sexual activity in question takes place. The question is whether the complainant understood the sexual activity in question and that he could refuse to participate.
[219] I believe the complainant on the whole of the evidence concerning his state and the other evidence.
[220] I note, although a small point, but relevant in my view given the argument, some of the complainant’s messages to DB and others present as disjointed and were by no means full sentences or one congruent message, and/or messages without any errors. Of note also is the uncontradicted evidence of the complainant that he had a smart cellphone that had autocorrect features and contact lists that he could access. He would not have to use significant effort to look up phone numbers or dial telephone numbers specifically.
[221] The complainant testified that he pieced together who the accused was later through Facebook looking at DL’s friends and the accused’s tattoo. The evidence of Cst. Timmermans supports this.
[222] The complainant did not recall all the details when he spoke to the police after the incident at the hospital but agreed the memories were fresher in his mind 3 years prior. He reiterated that for a period immediately after the incident however he was in shock and was confused and still felt under the influence of alcohol.
[223] In this case, I remained mindful of established principles that mere proof of alcohol consumption does not negate capacity to consent.
[224] I was also guided by the case authorities not to simply discount the complainant’s evidence based on the evidence of the accused who could easily provide self-serving and unanswerable testimony as to the appearance of consent when you have a complainant who states they were asleep at the time or in a blacked-out state or intoxicated.
[225] As to the acts complained of, the defence suggests that the complainant’s version of anal penetration is not supported by the evidence.
[226] The defence points to lack of DNA evidence.
[227] Michael Bissonette, a qualified forensic scientist testified and reported that the accused could not be excluded as a contributor from a swab taken by Sault Area Hospital sexual assault nurse Maureen O’Shea from the external genitalia of the complainant which likely related to skin or saliva cells. Notably, this swab was taken from the area of under the complainant’s scrotum back to the anus. I acknowledge that the report does not address how or when the DNA may have been deposited but based on the accused own evidence of the touching, the fact that the two had never met before, the fact that the complainant’s pants were on when he went to the bed no doubt exists for me that it was the accused’s DNA was present in that area. That being said, I acknowledge that no DNA profile could be obtained from the anal swab itself taken from the complainant and that evidence would have been helpful. However, the lack of same is explained and the explanation for same made sense. There was insufficient DNA on the swab itself, insufficient to complete a test for any DNA determination, including DNA from the complainant himself. So the fact that there was no reliable DNA evidence to confirm the complainant’s account of anal penetration did not raise reasonable doubt for me.
[228] The sexual assault kit records were pointed to.
[229] The sexual assault nurse made no observations of ejaculate. The accused testified there was no ejaculation by either of them. The complainant did not observe any either.
[230] The sexual assault nurse checked “yes” on her report to a category that included penile penetration, and “yes” to attempted anal finger and penis penetration. She testified that the information came from the complainant. The record of the finger penetration by the nurse was of limited value as the complainant was not asked about this notation. He was asked why he thought he was penetrated by a penis as opposed to a finger. The complainant answered (and did not move from that answer) that it was penile. He saw that the accused was nude, and his bottom half was exposed. He also felt it.
[231] The nurse did not mark any visible injuries to the complainant’s penis, scrotum, anus, or rectum at the time of the exam. The complainant testified that there was blood in his stool for 3 to 5 days after and to his discomfort after the act, “throbbing in his anus”. He himself testified that he did not observe any visible injuries to those areas after the incident either. The accused’s evidence does not suggest any injuries occurred.
[232] Examining all the evidence that can be relied on, the complainant’s evidence accordingly is not contradictory from a physical perspective as suggested.
[233] The defence also argued that it is incredible that the complainant could have left the bedroom and/or ran out of the bedroom with his pants down and navigate the stairs to the lower level of the home.
[234] First, the accused testified to pulling the complainant’s pants down to a particular level. Although he claims that the complainant lowered them further himself, at the end of the sexual encounter, the complainant’s pants are confirmed as being down at the end of the sexual encounter on both versions.
[235] It was clarified by the complainant supported by the accused’s evidence that “ran” meant that he walked down the stairs. He had hurriedly rolled and maneuvered himself off the bed after he awoke while confused, still feeling under the influence, having to go to the washroom.
[236] The complainant candidly agreed that it would make sense that he would have pulled his pants up, but he was pretty sure he did not. During the time frame after he woke and went to the washroom he was in a confused state. He was still feeling under the influence. He also testified that he was terrified and in shock. His evidence of what happened after the encounter was consistent with being meaningfully shaken.
[237] Two hours later, at approximately 3 a.m. Cst. Zimmermans testified to the complainant still being slightly intoxicated and presenting as confused.
[238] While there were stairs to navigate on the way to the washroom, they did not present in the photographs filed by the Crown as so steep and/or out of the ordinary to make the complainant’s account impossible as suggested, viewing all the available photographs of the staircase filed. There was no evidence that would support that there was anything on the stairs at the time or that they were slippery. There are no turns in the staircase itself. There are 12 treads to take, descending in a straight line down to the lower level. The washroom is depicted in the photographs as just around the corner from the bottom of the stairs. The photographs depict that they were not a significant distance from the bedroom either. For all the reasons, I am satisfied beyond a reasonable doubt based on the evidence that I do accept that the Crown has met its burden that the complainant did not consent to any of the sexual acts described, that he was asleep as a result of a combination of being tired and having consumed too much alcohol, and his state at the time of the acts complained of, depriving him of capacity to consent, and that he woke to the accused penetrating him anally with his penis, that he did not feign intoxication and/or is lying because he felt he had been jilted by DL and/or because he was remorseful or embarrassed/feared embarrassment for engaging in sexual activity with the accused. I do not find the complainant’s conduct/words in the scenario described by the accused inconsistent with his claim of non-consent.
Mens Rea/Defences
[239] The accused is entitled to have all available defences founded on a proper basis considered by the court whether he raises them or not: R. v. B.(E.H.), 1987 CanLII 56 (SCC), [1987] 1 S.C.R. 782 (S.C.C.) p. 789. There must be some plausible evidence in support so as to give an air of reality to the assertion: R. v. Esau, [1997] S.C.R. 777 (S.C.C.) para. 15. The question is whether there is some evidence adduced upon which a properly instructed trier of fact could form a reasonable doubt as to the accused’s mens rea: R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595 (S.C.C.), pp. 653-654 and p. 687. Honest mistaken belief removes culpability for those who honestly but mistakenly believed that they had consent. A “yes” may be given by either the spoken word or by conduct: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, paras. 51.
[240] As outlined in my analysis of the complainant’s consent, I have set out the issues of credibility that I found negatively impacted the accused evidence, causing me not to believe the accused. I have outlined the reasons why the accused’s evidence on the whole of the evidence does not raise reasonable doubt for me as to his guilt. On the whole of the evidence I have accepted, I have found the complainant on the totality of his evidence to be credible, and portions of his evidence to be supported by reliable credible evidence. I accepted the complainant’s evidence of his level of intoxication based on the descriptions he provided as to his state and evidence as to what he ingested. On the whole of the evidence, I accepted that he was going in and out of consciousness/sleep during his encounter with the accused based on a combination of tiredness and the significant alcohol consumption he engaged in that evening, and as such, that he was in a state that deprived him of the ability to formulate subjective consent at the material time, the time of the sexual activity. I have accepted the complainant’s evidence that following an occasion of falling back to sleep during the encounter, that he awoke to the accused anally penetrating him. I found that the evidence elicited establishes that the complainant was not feigning his stated consumption of alcohol and/or level of intoxication and/or tiredness. I have found that the evidence elicited establishes that the complainant did not have the theorized motives to fabricate. I have rejected the evidence of the accused that the complainant was fully aware of what was happening and awake for their entire encounter, and that the complainant’s words and actions during same were inconsistent with his claim of non-consent. I have rejected the accused evidence that he observed no signs that the complainant had been drinking alcohol during the encounter, and other accounts of what he states happened during it. I have rejected the accused’s evidence that he did not know that the complainant was at DL’s residence until the moment he got there or that he was not expecting to find him there. I have no doubt that the accused was aware that he would find the complainant at DL’s residence, that he was made aware of the complainant’s condition prior to going to DL’s residence; that when DL was out with DB and RE the complainant was reported to him to be at DL’s residence believed to be drunk, and passed out and all were “fcked up”. I have rejected the accused’s evidence that there was reason to question the information reported to him by DL about the complainant’s condition. I have no doubt that the accused was reckless and wilfully blind to the complainant’s ability to consent when he encountered the complainant, and during their encounter as a result. Moreover, there is no question that the accused version of the sexual acts does not include, and he has outright denied, the acts complained of by the complainant as ever occurring.
[241] Based on my analysis and for these reasons, there is no defence of honest mistaken belief in communicated consent available to the accused in this case. An honest but mistaken belief in communicated consent cannot succeed when evidence of voluntary agreement to the activity is not present, not affirmatively expressed by words or actively expressed by conduct; the touching arose from the accused’ recklessness or willful blindness; or when the accused denies that the act complained of ever occurred.
CONCLUSION
[242] For all these reasons, I am satisfied beyond a reasonable doubt, that the Crown has established all the essential elements of the offence charged.
[243] Accordingly, I find the accused guilty and the indictment will be endorsed accordingly.
Rasaiah J.
Released: December 6, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
M.L.
REASONS FOR JUDGMENT
Rasaiah J.
Released: December 6, 2022