Court File and Parties

CITATION: R. v. Morrison, 2023 ONSC 3938 COURT FILE NO.: CR-21-50000191-0000 DATE: 2023-07-05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DUNCAN MORRISON

Counsel: C. McNeill, counsel for the Crown J. Rabinovitch, counsel for the defendant

HEARD: June 26, 27, and 30, 2023

Pursuant to s. 486.4(1) of the Criminal Code there is an order that any information that could identify the Complainant shall not be published in any document or broadcast or transmitted in any way.

Reasons for Judgment

C. Rhinelander J.:

Introduction

[1] Duncan Morrison is facing one count of sexual assault contrary to s. 271 of the Criminal Code in relation to the Complainant, A.G-A.

[2] The Complainant and Mr. Morrison have known each other for approximately ten years but had lost contact with one another after 2015. In the weeks preceding April 17, 2018, they had renewed contact via text message and the Snapchat app. Through their communications, they had agreed to meet at the Complainant’s residence for the purpose of a sexual encounter.

[3] The prosecution alleges that prior to engaging in sexual intercourse, A.G-A. was adamant that Mr. Morrison must use a condom. The Complainant testified that she watched Mr. Morrison put the condom on his penis before they engaged in vaginal sex. It is alleged that during the act, Mr. Morrison removed the condom unbeknownst to the Complainant. When the Complainant realized Mr. Morrison had removed the condom, she directed him to stop and requested that he leave her residence immediately. There is no dispute that Mr. Morrison and the Complainant engaged in sexual intercourse. The issue is whether the Complainant consented to having sex without a condom.

[4] There are several facts not in dispute including that something changed while the parties were engaged in sexual intercourse that caused the Complainant to order Mr. Morrison to stop and direct him to leave. Mr. Morrison followed the Complainant’s directions, gathered his belongings, and exited the apartment.

[5] Shortly after Mr. Morrison left the residence, a series of text messages were exchanged between the two parties. This is also not disputed. The question is the meaning and interpretation of the text messages in relation to what occurred in the bedroom.

[6] A roommate of the Complainant who was home, heard raised voices, a door slam, and observed a male exit the apartment. There is no dispute the male was Mr. Morrison.

[7] Both A.G-A. and Mr. Morrison testified. They gave very similar accounts of the events leading up to April 17, 2018, but, diverged as to the conversations or discussions that took place in the bedroom prior to engaging in sexual intercourse and after Mr. Morrison was directed to stop.

[8] It is imperative to acknowledge that a criminal trial is not a credibility contest, in which the Court picks the version of events it prefers more. Nor is it a question of which version the Judge thinks is more likely. Rather, the question in this case is whether the Crown has established beyond a reasonable doubt that Mr. Morrison is guilty of the offence charged. To be clear, the trier of fact’s task is not to choose between the two competing versions of events: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9. If after a careful consideration of all the evidence, I am unsure if Mr. Morrison committed the offence, then I must find him not guilty.

[9] In assessing this question, the reliability and credibility of the evidence of both A.G-A. and Mr. Morrison are crucial issues. I must also assess other evidence before the Court, including the testimony of the Complainant’s roommate, the text messages exchanged between the Complainant and Mr. Morrison after he left the residence, and the fact the Complainant sought medical assistance to test for pregnancy and STIs in the days following, to determine to what extent this evidence assists the prosecution in meeting the high burden required to ground a conviction.

[10] I propose to start out with a brief overview of the evidence, before turning to my analysis.

Brief Overview of the Evidence

[11] A.G-A. and Mr. Morrison had known each other for approximately ten years. They shared a mutual circle of friends but had lost contact with one another a few years back. In weeks preceding the incident in question, they had reconnected through text messages and Snapchat. Through these conversations they agreed to meet at the Complainant’s residence on April 17, 2018. The sole purpose of this meeting was for a sexual encounter.

[12] Both parties testified that there had been no discussions about any preconditions or the use of a condom for sexual intercourse prior to Mr. Morrison’s arrival at the Complainant’s residence.

[13] Mr. Morrison arrived at the Complainant’s apartment on the evening of April 17, 2018, and was let in. This was an apartment she shared with two others. Mr. Morrison and the Complainant went to her bedroom shortly after his arrival and closed the bedroom door.

[14] The two engaged in sexual activity that included intercourse. At some point, the Complainant directed Mr. Morrison to stop and requested he leave her apartment. A series of text messages were exchanged shortly after his departure.

[15] There were no further communications between the Complainant and Mr. Morrison after that evening until an unexpected meeting at a weekend cottage trip of a mutual friend. The cottage weekend took place in the summer, it is unclear if it was in 2018 or 2019. Suffice to say, both parties testified to having a brief discussion at the cottage, however, their descriptions of the conversation are disparate.

[16] The Complainant provided a statement to the police on December 4, 2019. Mr. Morrison was arrested in January of 2020.

Facts not in Dispute

[17] The sole purpose of the meeting on April 17, 2018, was for a sexual encounter.

[18] The parties had communicated with each prior to this date via text message and Snapchat.

[19] There were no discussions or communications about condoms during the text communications or via the Snapchat app.

[20] The topic of the necessity of the need for a condom was first raised in the bedroom on the evening of April 17, 2018.

[21] Mr. Morrison stated to the Complainant, “I’m not a condom type of guy” or words to that effect.

[22] The Complainant and Mr. Morrison engaged in sexual intercourse.

[23] The parties switched positions and continued to have sexual intercourse.

[24] While in this second position, the Complainant directed Mr. Morrison to stop and ordered him to leave her apartment.

[25] A series of text messages were exchanged between the Complainant and Mr. Morrison shortly after he left her apartment.

[26] The Complainant attended a medical clinic on April 24, 2018, to be tested for sexually transmitted infections at her request.

[27] The Complainant and Mr. Morrison had no further contact with each other until they saw each other at a mutual friend’s cottage.

[28] I do not intend to repeat the facts that are not disputed but will focus on the differences in the evidence between the Complainant and Mr. Morrison. I have followed the chronological flow of the order in which they testified.

A.G-A.’s Account of Events

[29] A.G-A. testified that they had a brief conversation in the hallway outside her front door. She gave him a very brief tour, before entering her bedroom. They sat on her bed and chatted a bit more. They then talked about the fact they were going to have sex. A.G-A. testified that she let him know she would not have sex with him without a condom. She indicated he told her he was not a condom guy at which point she repeated her position that she would not have sex without a condom. This conversation lasted about 45 seconds. She then watched him put a condom on and they began to have sex. After 3- 4 minutes, she looked to her right and saw a condom on the windowsill.

[30] In cross-examination, the Complainant acknowledged that her and Mr. Morrison may have begun kissing when this conversation took place and possibly started to disrobe while talking.

[31] Upon further questions from the Crown, the Complainant explained that initially she was on her back when they started having sex and at some point, she was flipped onto her stomach. Shortly after that, she noticed the used and crumpled condom. She was unable to say at what point the condom was removed when asked by the Crown.

[32] Upon seeing the condom, the Complainant ordered Mr. Morrison to stop and positioned herself in a way that she could face him while seated on the bed. She asked him if he had removed the condom and he said no. She repeated the question 4X and on the 5th time, Mr. Morrison replied “yes I did”. Ms. A.G-A. could see that Mr. Morrison was naked and did not have a condom on.

[33] She said after he admitted to removing the condom, she asked him to leave her apartment. She said he was repeatedly saying “I’m sorry”.

[34] After Mr. Morrison left, A.G-A. went to her roommate, L.R., and spoke with her. Her roommate had a friend over at that time. The Complainant explained the story to them “to kind of get some, I don’t know, some sympathy I guess”. After this conversation, all three went to McDonalds.

[35] The Complainant sent a text message to Mr. Morrison shortly after his departure asking when he had last been tested for STIs. He replied, “2 weeks” and that he hadn’t “ducked since” (note this was either a typo or autocorrect but should be an “f” not a “d”). The Complainant replied, “lie to me one more time”. She referenced this was referring to him lying about not having removed the condom. The Complainant next inquired whether he had ejaculated in her. He replied he had not, that she had nothing to worry about and apologized indicating he was a “prick”. She said he was disgusting and to never disrespect another woman like that again.

[36] The Complainant maintains she was insistent on using a condom and would not have had sex with Mr. Morrison without one. She said she only consented to having sex with him with a condom and that Mr. Morrison had violated those terms.

[37] The Complainant next saw Mr. Morrison at a cottage a few months later. She was unaware he was to be there and set out to avoid him. Mr Morrison approached her, apologized, and said he wouldn’t do something like that again. She interpreted his apology to be referencing the incident that occurred in April when he removed the condom.

[38] The Complainant did not report the incident to the police immediately as she was having difficulty processing the event and the feelings that stuck to her for a period after. A separate matter that she saw on social media triggered her to come forward in November 2019.

[39] The Complainant was insistent on using a condom to protect herself from STIs and pregnancy. She had not seen Mr. Morrison in a while and was unaware of his past.

[40] She sought testing for sexually transmitted diseases and pregnancy shortly after the events.

Mr. Morrison’s Account of Events

[41] Mr. Morrison said that the first time the topic of a condom was raised was after they had performed oral sex on one another and immediately before they began sexual intercourse.

[42] The Complainant asked Mr. Morrison if he had brought a condom and he indicated he had not. Mr. Morrison went on to explain that his general attitude towards condoms was that he usually doesn’t use them. In fact, he doesn’t think he has ever bought condoms in the past and was unable to tell the Court the last time he would have used one.

[43] Mr. Morrison was not equipped with a condom and did not have one in his possession when he attended at the Complainant’s residence that evening.

[44] After the inquiry about whether he had a condom, the Complainant did not provide or offer him one but laid back on the bed and they began to have consensual sexual intercourse.

[45] Sometime after, the Complainant on her own volition turned over onto her stomach and they continued to have sex. It was in this position that she directed him to stop and ordered him out of her residence.

[46] He did not understand why she was upset, but nor did he inquire. He simply gathered his belongings attempted to get dressed and followed her directions. He said he wanted to diffuse the situation as it was clear she was upset. His explanation for why he did not ask her why she was upset was because he believed she would tell him if she wanted to.

[47] He denied there was any conversation about the removal of a condom.

[48] He was asked about the text messages and his responses. He indicated that saying sorry and apologizing were just something he did. He could offer no explanation for his texting, “I’m a prick.”

[49] In relation to the cottage, he said he was unaware that she would be in attendance and believed they went the summer of 2019. He denied apologizing to her but did speak to her as he wanted to make peace so as not to ruin or affect the enjoyment of the others present that weekend.

Evidence of L.R.

[50] L.R. testified that the Complainant told her that someone was coming over that evening. There was no plan to be introduced unless it was necessary. She did not meet the individual.

[51] L.R. testified that she heard shouting from A.G-A. and came out of her room and saw a male leave. A.G-A. came back to L.R.’s room and explained what happened analogous to a debrief. The details of this conversation were not adduced in evidence. She described A.G-A.’s demeanour as being upset and shocked.

[52] L.R. was unaware that the events of the evening had been reported to police until she was contacted by a police officer.

[53] She had not met the male individual that evening and was unable to recall if she heard the male say anything.

[54] It is not disputed that the male was Mr. Morrison.

Admission that Complainant sought medical assistance

[55] It is not in dispute that the Complainant attended at the Humber College Health Centre on April 24, 2018, to be tested or checked for sexually transmitted infections.

Analysis

[56] Mr. Morrison is presumed to be innocent, unless and until the Crown has proven the offence against him beyond a reasonable doubt.

[57] It is not enough for me to believe that Mr. Morrison is possibly or even probably guilty. I must be convinced of his guilt beyond a reasonable doubt. Reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. Reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

[58] Mr. Morrison testified and denied his guilt. The law is clear that if I believe his evidence, then I must acquit. Moreover, even if I do not believe Mr. Morrison’s evidence, I must consider whether I am left with a reasonable doubt by his evidence. If so, then I must acquit. Finally, even if I am not left with a reasonable doubt by Mr. Morrison’s evidence, I must ask myself whether based on the evidence that I do accept I am satisfied beyond a reasonable doubt of his guilt. If not, then I must acquit.

Assessment of Mr. Morrison’s Evidence

[59] I turn first to my assessment of Mr. Morrison’s evidence. Mr. Morrison appeared to give his evidence in a forthright manner. He acknowledged that he did not remember certain things and was unable to recall specific words or actions. This is understandable in these circumstances as he was not arrested until January 2020. He provided his answers in a straight-forward and thoughtful manner. He made efforts to answer the questions as best he could.

[60] Having said that, his evidence was not without problems. On many occasions, Mr. Morrison prefaced his answers with “I believe”, “I probably”, or “I think”.

[61] As stated earlier, it is not disputed that the first conversation about a condom happened that night in the bedroom. There was no dialogue or suggestion that sexual intercourse was predicated on a condom being used in advance of Mr. Morrison’s arrival at the apartment. Unlike the facts in R. v. Rivera, 2019 ONSC 3918, where the Complainant made it very clear through text messages to the accused, in advance of any agreement to meet, that condom use was a necessity and failure to do so was a deal breaker, this was not the case here. Mr. Morrison had no reason to believe that he needed to bring a condom prior to arrival at the Complainant’s residence and therefore I accept Mr. Morrison’s evidence that he did not have, nor did he bring a condom that night.

[62] Mr. Morrison explained how he and the Complainant engaged in foreplay that included performing oral sex on one another. His evidence on this point was uncontradicted.

[63] After Mr. Morrison was directed to stop and leave, he gathered his clothes, fumbled to get dressed, and left the Complainant’s residence. He did not inquire as to why the Complainant was upset, why she told him to stop, or why she ordered him out. His explanation was that he simply left so as not to upset her further. In cross-examination, he agreed that he did not send any further messages or inquire what had upset the Complainant. Given there was no dispute that the Complainant became upset and ordered him to stop, I was troubled by his lack of concern or disinterest in what caused the Complainant to abruptly terminate sexual intercourse and order him out of her residence and found his evidence difficult to believe on this point.

[64] When asked about the text messages, he understood the first text message to be referring to whether he had been tested for STIs. He indicated he did not understand the meaning of her text “lie to me one more time” but assumed she was accusing him of lying about being tested.

[65] He was asked about having said “I’m sorry” in the text messages and that he “felt really bad [ir] that means anything”. He again told the Court that he apologized just to apologize and said he felt bad and thought it would further diffuse the situation. It is unclear from his evidence what needed to be “diffused” at this point as he had left the apartment, was in his car, was driving, and was no longer in the Complainant’s company. Further, he could provide no explanation for why he apologized and referred to himself as “a prick”. It seems odd that he would apologize repeatedly via text, refer to himself in such a fashion and state he felt bad, if he didn’t have some idea as what had caused the abrupt stop to the sexual intercourse and for her to be so upset. His explanation in cross was wanting, insofar as he said apologized with zero idea about what she was talking about or upset about. His explanations for these responses were lacking.

[66] In cross-examination, Mr. Morrison was adamant that he had not put a condom on. He clarified that the only conversation about a condom was whether he had one. When he said he did not, the conversation about condom use did not continue and that the Complainant laid back on the bed and would have been aware he did not have a condom on as he had not brought one and she had not provided or offered him one.

[67] I will come back to Mr. Morrison’s evidence after setting out my assessment of A.G-A.’s evidence.

Assessment of A.G-A.’s Evidence

[68] In general, I thought A.G-A. came across well throughout the examination in chief. She presented as articulate, intelligent, and thoughtful. She seemed open and genuine. In cross-examination, although her demeanour became more reserved, I did not take this into consideration when assessing her evidence. As she stated, this was a very emotional and difficult time, and it took time for her to process the events. I accept this.

[69] A.G-A. was clear in her evidence that 1) she had a conversation with Mr. Morrison just before they engaged in sexual intercourse and insisted he needed to use a condom; 2) she watched Mr. Morrison put the condom on his penis; 3) she saw a used and crumpled condom on her windowsill while they were having sexual intercourse; 4) she told him to stop; and 5) she asked him repeatedly if he had removed the condom and that he admitted to her he had.

[70] A.G-A. came across as credible, however, I had difficulties with the reliability of portions of her evidence given her lack of recollection and ability to recall. I struggled with her inability to remember and recall much of the events of that evening, other than what I set out above.

[71] Initially A.G-A. indicated the conversation about the condom was initiated before she and Mr. Morrison began foreplay shortly after they entered her room. During her testimony, she agreed they may have started to kiss but were still fully clothed. In cross-examination, she agreed they may have been kissing and disrobing at the time the conversation about the use of a condom was first raised, and ultimately agreed with counsel for the defence, that Mr. Morrison’s pants were off, and she was only wearing a shirt when she told him use of a condom was necessary.

[72] In terms of the removal of the clothing, A.G-A. could not recall if Mr. Morrison had removed her lower clothing or if she did.

[73] A.G-A. was unable to recall if they had engaged in oral sex, him on her, and her on him, prior to engaging in intercourse. Counsel for Mr. Morrison clarified that the Complainant was not saying it didn’t happen, just that she could not recall what occurred that night, to which she agreed.

[74] At a later point in cross-examination, A.G-A. was asked if they had participated in anal sex prior to having intercourse and she was unable to remember. At one point, A.G-A. replied, “we went into sex I don’t recall if any more acts prior to that”. Her lack of memory on this point was important as Mr. Morrison was quite clear that they had performed oral sex on one another, hence, an explanation for why both their lower garments were removed prior to her asking about a condom.

[75] The parties had engaged in sexual intercourse in the missionary position and then changed to A.G-A. on her stomach and Mr. Morrison behind her. She said in examination in chief that when they changed sexual positions, “I was flipped onto my stomach”. In cross-examination, she was asked what Mr. Morrison did after she “rolled over onto her stomach” and again “before you turned over”. On neither of these occasions did the Complainant correct counsel that she was “flipped” to her stomach by his client as indicated when asked questions by the Crown, thereby, seeming to agree that she initiated the change in position.

[76] A.G-A. was clear in her testimony when asked questions by the Crown that she would not have consented to sexual intercourse without a condom. However, I struggle with this given her inability to remember very important details of that evening.

[77] A.G-A. was unable to provide any explanation for where the condom came from other than Mr. Morrison produced it. She was questioned extensively on where and who produced the condom by counsel for Mr. Morrison. As an example,

• Q. Did you ask him if he had a condom?
• A. I don’t remember
• Q. Did you offer him a condom?
• A. I don’t remember
• Q. The condom he put on, where did it come from?
• A. It came from him
• Q. It came from him, so you didn’t give it to him?
• A. I don’t remember
• Q. well you said it came from him?
• A. yeah cause he did, he put it on
• Q. so if it came from him it didn’t come from you?
• A. ok that’s correct
• Q. you didn’t have one on your bedstand nightstand table where you handed it over to him
• A. I don’t … yet
• Q. you didn’t get off your bed and go into a drawer or into another room or a washroom and get a condom in the apt
• A. no I don’t recall doing that

[78] After this series of questions, A.G-A. was asked if she didn’t provide the condom then how or where it came from Mr. Morrison. Again, A.G-A. could provide no information about what he had been wearing or where the condom may have come from as she had no recollection or memory.

[79] Given the importance of the use of a condom and the lack of recollection as to who produced the condom or where it came from, I am concerned with the reliability of evidence on this point. Ms. A.G-A. was adamant that she would only consent to sexual intercourse with the use of a condom. This is the crux of the issue to be determined here. Did she consent to sexual intercourse without a condom?

[80] As stated earlier, there were no prior discussions that this was a pre-condition [1] to having sex and no basis for Mr. Morrison to have brought a condom, other than general health and safety. Having considered how important condom usage was to Ms. A.G-A., one would have thought that in the absence of these discussions and in advance of the encounter, steps would have been taken to confirm that Mr. Morrison or the Complainant would be responsible for supplying protection for the evening.

[81] In addition, a further series of questions followed where A.G-A. was unable to recall or remember not just the sequence of events but events themselves. She did not dispute the events did not occur, simply that she could not remember.

[82] A.G-A. said she attended for testing for pregnancy and STI’s shortly after these events. An agreed statement of fact was filed as exhibit 2 and is corroborative for her being checked for sexually transmitted infections but not for pregnancy.

[83] It is clear something changed in the bedroom that evening that caused A.G-A. to direct Mr. Morrison to stop. However, A.G-A.’s inability to recall important aspects of the events that transpired on that date, including the timing of when the conversation re the condom occurred, the removal of their clothing, whether oral sex occurred, whether anal sex occurred, where the condom came from, and who produced it, has affected A.G-A.’s reliability and I have difficulty relying on her evidence.

[84] While I appreciate that Mr. Morrison and the Complainant saw each other after April 17, 2018, at a cottage, I am unable to conclude that if Mr. Morrison apologized it was on the basis as set out by the Complainant.

Assessment of L.R.’s Evidence

[85] L.R. testified in a credible and straightforward manner. She testified that the Complainant told her that someone was coming over that evening. She did not meet the individual. She remembers someone coming into the apartment and later hearing yelling and a door slamming.

[86] L.R. testified that she heard shouting from A.G-A. and came out of her room and saw a male leave. A.G-A. came back to L.R.’s room and explained what happened analogous to a debrief. She described A.G-A.’s demeanour as being upset and shocked.

[87] L.R. was unaware that the incident had been reported to police until she was contacted by a police officer.

[88] In cross-examination she acknowledged she had not met the male individual and was unable to recall if she heard the male say anything. She had not had any conversation with the individual.

[89] It is not disputed that the male was Mr. Morrison.

Admission that Complainant sought medical assistance

[90] It is not in dispute that the Complainant attended at the Humber College Health Centre on April 24, 2018, to be tested or checked for sexually transmitted infections.

Conclusion

[91] As I said at the outset of these reasons, a criminal trial is not a credibility contest where I choose the version I prefer more. Rather, the question is always whether the prosecution has established its case beyond a reasonable doubt.

[92] While I had some issues with Mr. Morrison’s evidence, and his explanation for his apologies in the text messages, his account of having not brought a condom is plausible. There was no evidence proffered by the Complainant as to where or who provided a condom. In fact, the Complainant was unable to provide any information as to where it came from, other than she was adamant she saw Mr. Morrison place a condom on his penis and observed a used condom on her windowsill during sexual intercourse. Mr. Morrison’s evidence is arguably consistent with him not anticipating requiring a condom as a precondition or consent to have sexual intercourse with the Complainant. Both agreed he indicated he was “not a condom guy” or words to that effect prior to engaging in sexual intercourse. Under the circumstances, it does not make sense that he would have come prepared for the evening’s encounter armed with a condom. His cavalier attitude towards condom usage in this day and age is irresponsible. However, I am left in a state of doubt on the evidence on this issue given Ms. A.G-A.’s inability to remember or recall important events from that evening.

[93] At the end of the day, I had some concerns with Mr. Morrison’s evidence, but when I consider his evidence in the context of all the evidence, including the issues that I identified with A. G-A.’s evidence, I am left with a reasonable doubt. I am not permitted to speculate or surmise what I think may have happened and am restricted by the evidence before the Court.

[94] For the reasons set out above, I have concluded that the prosecution has failed to establish beyond a reasonable doubt that A.G-A. did not consent to the sexual activity that occurred on April 17, 2018. I want to be clear that this is not a positive finding that A. G-A. did consent. There is a difference between a finding of a lack of consent and a finding that there is a reasonable doubt about consent. The difference flows from the fact that the burden of proof always rests on the prosecution. I have determined that the prosecution has failed to establish, to the requisite degree, lack of consent, an essential element of the offence.

[95] As a result, I find Mr. Morrison not guilty.

Released: July 5, 2023 Justice Catherine Rhinelander

[1] It is recognized and acknowledged that A.G-A. had every right to insist on condom usage at any point during the sexual activity and not having discussed it in advance did not establish that she consented to sexual activity without a condom.