COURT FILE: CR-19-1992-00 DATE: 2023 01 18 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING A Persad-Ford, counsel for Crown

• and –

T Kirichenko, counsel for the Accused VERMA Accused

Heard: 28, 29, 30 November, and 1 December, 2022

Reasons for Decision

TRIMBLE, J.

Introduction

[1] Mr. Verma is accused of one count of sexual assault of JB.

[2] This matter was tried by me, sitting alone over 4 days, after which I reserved judgment. In court this morning, on the record, I announced that I had found Mr. Verma guilty, and that my verdict of guilty would be registered on the indictment. I also advised those in the room that I would release written reasons in hard copy to those counsel and parties in the Courtroom and that my decision would be uploaded to Caselines, as well. These are the written reasons for my decision.

[3] In this trial, I heard from three witnesses: JB (the complainant), C.R., and Mr. Verma. Each was cross examined thoroughly. I have considered all of the oral evidence, and the exhibits, and the able argument of both counsel in coming to this decision.

The Law

A) Sexual Assault

[4] Mr. Verma is accused of sexually assaulting JB contrary to section 271 of the Criminal Code between the 1st and 30th of June, at the Brampton house in which they were both living.

[5] There are four elements to the events of sexual assault:

a) that the accused intentionally applied force to the complainant;

b) that the complainant did not consent to the force that the accused intentionally applied;

c) that the accused knew that the complainant did not consent to the force that he applied intentionally; and

d) that the force that the accused intentionally applied took place in circumstances of the sexual nature.

[6] In this case, Mr. Verma admits that he had sex with JB. Both JB and Mr. Verma said that Mr. Verma touched JB sexually, placed his penis in her mouth, tried to penetrate her vaginally with his soft penis, and penetrated her vaginally with his erect penis. The only issue for me to decide is whether JB consented to having sex with Mr. Verma. She says she did not consent to sex with Mr. Verma. She says that she was incapable of consenting due to her extreme intoxication. Mr. Verma says that she was sober enough to invited him to have sex with her, which invitation he accepted.

[7] Mr. Verma did not argue that he had an honest, but mistaken belief that JB consented to sex with him. Rather, he argued that his version of events is true, and that I should reject JB’s version of events because she and Ms. Morrissette are witnesses that cannot be believed.

[8] Deciding the guilt or innocence of an accused person in a “he said – she said” case is not a matter of accepting one person’s version of events over the other’s. Credibility, however, does play a role.

[9] In WD, the Supreme Court of Canada, instructed trial judges to approach the evidence in the following way:

a) if I believe Mr. Verma’s evidence that JB consented to having sex with him, I must find him not guilty;

b) if, after careful consideration of all the evidence I am unable to decide whom to believe, I must find Mr. Verma not guilty because the Crown would have failed to satisfy me of Mr. Verma’s guilt beyond a reasonable doubt;

c) even if I do not believe Mr. Verma’s evidence that JB consented to having sex with him, if his evidence leaves me with a reasonable doubt about whether JB consented to having sex with him, I must find him not guilty; and finally

d) even if Mr. Verma’s evidence does not leave me with a reasonable doubt about whether JB consented to having sex with him, I can only convict Mr. Verma if the rest of the evidence that I accept proves, beyond a reasonable doubt, that JB did not consent to having sex with them.

B) Consent

[10] The concept of legal consent to sexual act comprises two components: the capacity to consent and the fact of actual consent (see: R. v. G.F. 2021 SCC 20).

i. Capacity

[11] Where the complainant is incapable of consenting to the sexual act alleged, there can be no finding of fact that the complainant voluntarily agreed to it. In other words, the capacity to consent is a necessary - but not sufficient - precondition to the complainant’s subjective consent. When a trial engages both the issues of whether the complainant was capable of consenting and whether the complainant actually consented to the sexual activity, the trial judge is not necessarily required to address them separately or in any particular order as they both go to the complainant’s subjective consent to sexual activity ( see G.F., para 24).

ii. Consent

[12] The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent ( see: R. v. Ewanchuk, [1999] 1 S.C.R. 330, 1999 SCC 711, at para. 25; R. v. Chase, [1987] 2 S.C.R. 293, 1987 SCC 23).

[13] At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant did not consent or was reckless or wilfully blind as to the absence of consent ( see: Ewanchuk, at para. 42). The accused’s perception of consent is examined as part of the mens rea ( see: R. v. Barton, 2019 SCC 33, at para. 90).

[14] Consent is defined broadly by s. 273.1(1) of the Criminal Code, which reads:

Meaning of consent

273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

[15] This definition is subject to ss. 273.1(2) and 265(3) of the Criminal Code. Under s. 273.1(2), there can be no consent under s. 273.1(1), if a) the agreement is expressed by a person other than the complainant, b) the complainant is unconscious; c) the complainant is incapable of consenting to the activity for any reason other than she is unconscious; d) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; e) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or f) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

[16] Under s. 265(3), there can be no consent where the complainant submits or does not resist because of the application of force by someone else, threats or fear of the application of force to the complainant or to a person other than the complainant, fraud; or by the accused exercise of authority.

[17] Consent is defined as “the voluntary agreement of the complainant to engage in the sexual activity in question”. Whether the complainant consented is a purely subjective analysis, determined by reference to the complainant’s state of mind at the time of the touching ( see: Ewanchuk, at paras. 26-27; R. v. J.A., [2011] 2 S.C.R. 440, 2011 SCC 28, at paras. 34 and 43-44).

[18] At the actus reus stage, consent means that the complainant, in her mind, agreed to the sexual touching taking place ( see: Ewanchuk, at para. 48; J.A., at para. 23; R. v. Park, [1995] 2 S.C.R. 836, 1995 SCC 104, at para. 16, per L’Heureux-Dubé J.; Barton, at para. 89; R. v. Goldfinch, 2019 SCC 38, at para. 44).

[19] Consent, however, requires more. It requires the complainant’s conscious agreement to engage in every sexual act in a particular encounter with a particular person. Consent is not considered in the abstract but rather must be linked to the sexual activity in question. The sexual activity in question involves not only the physical act and its sexual nature, but it also involved consent to sex with the specific identity of the complainant’s partner or partners (see: J.A., at para. 31 and 34, and Hutchinson, 2014 SCC 19, paras. 54-57; Barton, at para. 88).

[20] Cases have used a wide variety of terms when referring to consent, notwithstanding that the Criminal Code simply speaks of “consent”. The Supreme Court of Canada, for instance, has spoken about “meaningful consent” ( see: J.A., at para. 36), “true consent” ( see: R. v. Cuerrier, [1998] 2 S.C.R. 371, 1998 SCC 796, at para. 127), “apparent consent” ( see: Ewanchuk, at para. 36; Hutchinson, at para. 4), and “subjective consent” ( see: Hutchinson, at para. 37).

[21] If the trial judge finds as a fact that there was no subjective consent, then the actus reus is made out. Subjective consent may be vitiated, or have no legal effect, where the consent is obtained by the use of force, threats, or fear of force, certain types of fraud, or the exercise of authority (see: s. 265(3)), or where the complainant is induced to sexual activity by the accused abusing a position of power, trust, or authority. None of these apply here.

[22] In R. G., at para. 55 to 58, the Supreme Court of Canada tells us that in order for a complainant to be capable of providing subjective consent to sexual activity, she must have an operating mind such that she is capable of understanding and affirmatively agreeing to four things:

1. the nature of the physical act;
2. that the act is sexual in nature;
3. the specific identity of the complainant’s partner or partners; and
4. that she has the choice to refuse to participate in the sexual activity.

[23] An unconscious complainant cannot comprehend any of these four elements, cannot consent, and is incapable of understanding that she has the choice of whether to engage or refuse to engage in the sexual act.

[24] The only relevant period of time for the complainant's consent is while the touching is occurring ( see: Ewanchuk, at para. 26; R. v. Rand, 2021 ONCA 731, para. 17; J.A., para. 46).

[25] In R.G. (para. 63 to 65), the court held that the fact that the complainant was “passed out” is evidence of her incapacity. Further, that the complainant has a memory of events does not mean she had capacity or consented to the act. The ultimate question of capacity is rooted in the subjective nature of the consent to each of the four requirements, above. The question is not whether the complainant remembered the assault, retained motor skills, or was able to walk and talk. The question will always remain whether the complainant understood the sexual activity in question and that she could refuse to participate.

[26] In R. v. Kishayinew, 2020 SCC 34, the court accepted that where the complainant suffered from memory blackouts, the only evidence of subjective consent could be circumstantial evidence with respect to the four requirements of capacity. Therefore, where the complainant had no memory of the beginning of the sexual activity but did have memory of parts of it during its course, it cannot be said that she subjectively consented to it, nor can her memory gaps undermine her credibility (see also: R. v. Crespo, 2016 ONCA 454, para.14; Rand, para. 17).

[27] In terms of the circumstantial evidence which may be relevant, the courts of accepted the post event demeanour of the complainant ( see: R. v. Rose, 2021 ONCA 408, para, 22 and 23), and pre-and post event evidence about levels of the complainant’s intoxication (see: R. v. Maharaj, [2007] O.J. No. 1184 (Ont. SCJ), para. 28 and 29).

Assessing Credibility

[28] The resolution of this case turns on the credibility assessment of the three witnesses: JB, C.R., and Mr. Verma.

[29] An assessment of any witness' credibility involves an assessment of a) the witness' honesty (his belief in the truth of what he said), and b) the reliability of the witness' evidence (his ability to remember and testify accurately) when compared with all of the other evidence.

[30] In addressing the credibility of each of the three witnesses in this case, I have directed myself to the following considerations:

a) What is the witness’ demeanour while giving evidence? While how a witness gives evidence is relevant, findings of credibility should not be made on demeanour alone. There may be cultural, social, ethnic, or other reasons to explain how specific witness testifies. There are too many factors that affect a witness' ability to testify comfortably to make demeanour the sole or most important factor in determining credibility.

b) Does the evidence make sense in light of the preponderance of probabilities or improbabilities which a practical and informed person would find reasonable given the particular circumstances?

c) Does the evidence have an internal consistency and logical flow?

d) Is the evidence consistent with the witness' other statements? How significant are the differences and are they adequately explained?

e) Is there independent confirming or contradicting evidence?

f) Does the witness have a motivation to lie or exaggerate or lie? The witness' motivation to lie must be greater than his or her interest to win or lose the case.

[31] This case is a “he said-she said” case.

[32] I must also remind myself that the legal test, at all times, is that the Crown must prove each element of the offence, beyond a reasonable doubt. The accused has no burden. I can only convict an accused only where the evidence is sufficiently clear, convincing, and cogent to convince me that the Crown satisfied its burden beyond a reasonable doubt.

[33] Assessing credibility is not an exact science. A trial judge must weigh a complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events based on all of the evidence.

A) JB’s Evidence

[34] JB was unable to provide dates with respect to the events at issue.

1. Coming to Brampton

[35] JB said that she came to Brampton with her best friend, Ms. Morriseau, to live with Morriseau and her fiancé, Jay, in the same house, and work for one of Jay’s companies.

[36] Other people lived at this house. Aman and his girlfriend or fiancé had a room in the basement of the house. Mr. Verma, whom JB knew as “Ace” had his room on the 2nd floor, as did C.R. and Jay, and JB. JB knew none of these people other than that they were J’s friends.

[37] While JB did not remember the days or dates of the events leading up to her sex with Mr. Verma, she remembers a sequence of events. On day one, they drove in Jay’s car from Sudbury Brampton. On day two, she cleaned and decorated her room. On day three, C.R. and Jay were married. JB attended the wedding. She had little or no contact with others in the house on the first three days, other than with C.R. and J. On day four, there was a party. Most of her evidence centred on day four.

2. The Party and Intoxication

[38] JB described the party is a chance to celebrate her move, her new job, her new freedom, C.R. & Jay’s wedding, and her new friends. The intention all along was to have a party only among the occupants of the house.

[39] She, C.R., and Jay went to the liquor store where JB bought a 24 ounce bottle of tequila, a large bottle of wine, and six tallboy cans of “Twisted Tea” (a vodka cooler). Jay and C.R. bought their own alcohol. Jay paid for all the alcohol.

[40] JB testified that she was not much of a drinker and had a fairly low tolerance or capacity for alcohol. She admitted that she bought an “absurd amount” of alcohol, intentionally, because the party was a celebration.

[41] The three returned to the house around 1 or 1:30 PM, where C.R. and JB immediately began drinking, beginning with their wine. JB initially started drinking with a glass but after drinking half of the bottle, she began to drink from the bottle directly. It took her about three hours to consume the first half of bottle of wine, and a shorter time to drink the second half bottle.

[42] About three hours after C.R. and JB started to drink, the other house occupants, including Mr. Verma, arrived, which would put their arrival time at approximately 5 PM. When the others arrived, JB described herself as having consumed only ½ bottle of wine and therefore was a talkative and “dancy”, meaning her inhibitions were reduced. She and C.R. had been dancing and listening to music videos until the others arrived. Neither had anything to eat.

[43] When the others arrived, all of the alcohol was on the island separated living room from the kitchen. Music videos were playing. The drinking continued. JB said that her memory of events after 5:30 is hazy. She remembered snippets of the evening, but there were large portions of the evening in which she was dancing and being active, but of which she has no memory. She was shown a number of video clips, none of which she remembered.

[44] Over the course of the evening, the group played two drinking games. JB suggested and led the first, which involved the participants banging their shot glasses twice on the table and then drinking the shot in one gulp. JB thinks that she had three shots during this game, which occurred at 6 PM. Her shots were tequila. She didn’t know what the others were drinking.

[45] Later, C.R. suggested another drinking game which involved using her cell phone. The game required people to be in partners. The two couples were partnered, and by default, JB and Mr. Verma were partnered. JB doesn’t remember the details of that game. She continued to drink wine and her coolers. All she remembers is that at one point she was sitting on the floor next to Mr. Verma. She does not remember the time that they played this game.

[46] Aside from playing the game, JB does not recall having much interaction with Mr. Verma.

[47] JB remembers there being cocaine at the party which C.R. or Jay purchased. It was out on the island with the liquor. She does not remember if she used any of it although admitted it was possible. She was aware that partiers, when they began to suffer the somnolent effects of intoxication by alcohol, could use cocaine as a pick-me-up to restore energy. She referred to this as a “med-kit”.

[48] Over the course of the evening, JB went out to the backyard several times with C.R., to chat and to smoke cigarettes. After all the drinking games and had stopped, while she was outside with C.R., JB remembered being very intoxicated. She was tripping and had difficulty walking. She was slurring and stumbling over her words. She mostly mumbled.

[49] JB asked C.R. to take her to bed. C.R. agreed, and placing her arm under JB’s arm and across her back, she helped JB to walk. She asked C.R. to help her because she didn’t think she could climb the stairs. The two entered the back door to the house, walked through the kitchen, by the living room where the others were sitting, down the hall to the stairs, and then went up the stairs. C.R. laid JB on the bed, on her back, on top of the sheets. C.R. was intoxicated as well, although not as badly as JB.

[50] JB said that she remembers going up the stairs and thinking “holy shit I am drunk”. She was dizzy, had the spins and was nauseous. She knew she was going to pass out and therefore asked for help going to bed.

[51] C.R. stayed with her in the room for a few moments. C.R. said to JB “I love you” as C.R. put JB to bed.

[52] JB was wearing her black track pants and a hoodie sweatshirt.

[53] By this time, JB said that she had consumed, at a minimum, a large bottle of wine, three tallboy vodka coolers, three shots of tequila during her drinking game, and at least one shot during C.R.’s drinking game. She doesn’t recall what else she had to drink.

[54] With respect to her memory, JB described quote blacking out” as being different than having no memory. Blacking out was becoming unconscious with no voluntary movements.

3. The Sexual Contact

[55] JB has no consistent, unbroken memory of the events of sexual contact. Rather, she described her memory as “snapshots”.

a) Touch #1

[56] After she heard C.R. say “I love you” JB fell asleep. She awoke to feel someone lightly touching her vagina over her pants. She then heard the door close quickly. She was on antidepressants at the time because of a miscarriage she had shortly before moving to Brampton. These caused her to have vivid dreams. She wondered whether this episode was one of those vivid dreams. She said nothing and did not move. After she heard the door close, she fell asleep or passed out. She thinks she must have moved or flinched thereby scaring off the person who was touching her. She does not remember opening her eyes. She did not know who was touching her.

b) Touch #2

[57] JB heard the door to the room open and close. She felt the touch on her vagina, again, over her clothes. This time, she realized the first touch and what was going on at that moment, were not dreams. She fell asleep or passed out again. She did not remember opening her eyes nor did she know who was touching her.

c) Touch #3

[58] JB woke up again. This time, she was naked, and her legs were spread apart. Someone was on top of her and aggressively fingering her vagina. This went on for a while although she didn’t know how long. She blacked out or fell asleep again. She remembers thinking, at this time, that the person touching her was Mr. Verma, although she doesn’t know why she thinks that. She doesn’t remember opening her eyes and seeing him.

d) Touch #4

[59] She woke up and felt a soft penis “ramming” her vagina. She was confused but remembered thinking that this must be hurting of the man. She remembered feeling numb. She could feel his weight on top of her. She remembered screaming to herself in her head but did not remember that she said anything or the length of time this went on. She then passed out again.

e) Touch #5

[60] JB woke up, only this time she felt an erect penis inside her vagina. The man was on top of her. She did not recall opening her eyes and did not recall who it was. The man was moving himself in and out of her. At the time she thought “why me, what did I do to deserve this?” JB told herself to scream but could not say anything. The man said nothing either. She did not know the duration of this event. The lights were off and the door, closed.

[61] JB blacked out again but wakened when she heard or saw the door open. She could see light coming through the door and see the outline of a face. She did know who it was. She told herself to say something, but she couldn’t. The door then closed. She blacked out again, with the man’s hard penis still inside of her.

[62] JB woke up again, to hear Mr. Verma say that he was going to get a glass of water. She felt dizzy, frightened, confused, and still very drunk. She couldn’t move or make a sound. She watched Mr. Verma leave the room, after which she forced yourself up off the bed, opened the door, and went to C.R.’s bedroom to see if she was there. She was not. JB was still naked.

[63] JB began screaming for C.R.. She went back into her room to look out the window to see if C.R. was outside. Eventually, C.R. entered the house and went up the stairs towards her, followed by Mr. Verma. C.R. went into JB’s room with JB and closed the door behind her, leaving Mr. Verma outside.

4. The Aftermath

[64] When JB was alone in the room with C.R., she told C.R. what happened. C.R. went to get Jay and then returned with Jay. They all saw that there were three bloodstains on the bedsheet near the pillow. All three people were crying as JB related what had happened. At some point, there was a knock on the door and Aman came in. He said that he had walked in on a couple having sex and said that it was consensual.

[65] As they spoke, JB remembered tasting Mr. Verma’s penis in her mouth. She chugged vodka to get rid of the taste. C.R. and JB continued to drink until JB went to sleep.

[66] Over the next two days, JB remained in her room. She was confused and depressed. She wanted to show her father that she was a strong independent woman but now felt like a failure. She felt disgusted. She started to have suicidal thoughts. She couldn’t figure out why this had happened to her. She isolated herself, seeing only C.R. during his two days.

[67] On the second day after the sexual touchings, things all came together for her. While she was showering, she noticed blood on her leg. She also noticed that she had not shaved her pubic hair. She had never had sex with anybody without shaving her pubic hair. It was at that point, she realized that she could never have consented to sex. She spoke to C.R. about this at about 9 o’clock that evening and by 11 o’clock were at the police station reporting the sexual assault.

JB’s Credibility Issues

[68] JB gave her evidence in a straightforward manner. She was a very determined witness, although she readily conceded that she had no memory of much of the evening. For the most part, she did not resist questions and conclusions that were difficult for her position.

[69] Some aspects of JB’s testimony affected her credibility, negatively, for example:

[70] First, she had no memory of things that one would have expected that she had remembered, such as:

• She came from Sudbury to Brampton for her friend’s wedding but could not recall when or where it took place.
• She was a witness at the wedding but never saw the marriage license, nor was she required to sign any papers at the wedding.
• She did not remember any details of the wedding

[71] Second, she gave evidence that was contradictory, for example:

• In examination chief, JB indicated that she was not an experienced drinker or drug user. In cross examination, she admitted that she had used cocaine on occasion as a “med kit” to renew her energy when she consumed too much alcohol. The amounts of alcohol that she purchased and drank suggests that she was a more experienced drinker than she agreed to in examination in chief. In light of her cross examination, she minimized her experience as a drinker or partier;
• In examination in chief, he said that she did not think that she consumed any cocaine but in cross-examination agreed that she may have consumed cocaine;
• She said that she had bruises on either side of her vagina, presumably from the aggressive finger penetration by the assailant, yet did not preserve that evidence photographically; and
• she reported bloodstains on the sheet which she concluded were from the sexual activity it did not preserve the evidence photographically or preserve the sheets. Further, she said one of them was located on the bed up near the pillow but did not remember where the other two were;

[72] Third, some of her evidence contradicted the evidence of others, for example:

• She said that she was coming to Sudbury for a job with Jay’s company. C.R. remembers nothing with respect to a job.
• JB does not recall taking cocaine. C.R. says that she did, consuming up to a gram of it.
• Immediately before she had sex of Mr. Verma, JB said that she was unable to move or to speak, although immediately after, was able to stand up, run to the hall, look in Ms. Morriseaus’s bedroom, and then begin screaming her name.

Ms. Morriseau’s Evidence

[73] Ms. Morriseau was a weak witness. Her memory was poor. At several points during her evidence, the Crown suggested that she refresh your memory from her statement. At least one occasion, she asked to do so. While her memory may have been poor, there was no indication that she was lying.

[74] Ms. Morriseau confirmed that she, Jay, and JB drove from Sudbury to Brampton so that JB could live with she and her fiancé, whom she married on 25 June 2019. She had known her fiancé/husband for four years before the wedding and were engaged for the year before they married. The marriage did not last. J returned to India shortly after the wedding.

[75] Ms. Morriseau had known JB since grade 7. They were best friends.

[76] The house in Brampton was home to Jay and C.R., Aman and his girlfriend, JB, and Mr. Verma. Aman the did business with Jay, and Mr. Verma was a friend of Jay’s. Jay told her that his parents owned the house.

[77] Ms. Morriseau confirmed that Jay took she and JB to buy alcohol. She bought wine, tequila, and vodka. She doesn’t recall going anywhere else other than home, to which they returned at about 2 PM. She and JB began to drink. They both drank wine, to start with. She did not recall much else other until the other habitants of the house joined the party. She does not recall when this was. By the time everyone else got there, Ms. Morriseau was drinking vodka and tequila.

[78] Ms. Morriseau recalled playing a drinking game led by JB. Until she refreshed her memory from her statement, she didn’t recall leading a game from a phone app. Everybody at the party was happy and talkative.

[79] At some point either Jay or she produced cocaine which had been purchased for the party. She confirmed that she, JB, Jay, Mr. Verma, and Aman all consumed cocaine. She consumed half a gram and, JB and Jay, between ½ and 1 gram each.

[80] During the evening, they talked, danced, and watched videos. Several times through the night she went out into the yard with others, including JB, for a cigarette. She and JB talked and smoked. JB laid on the cool grass.

[81] With respect to JB’s sobriety, she looked very drunk before Ms. Morriseau led the drinking game from her phone app. By the time of that game, Ms. Morriseau had consumed most of her wine, and was drinking vodka and tequila and had some cocaine. After the drinking game, Ms. Morriseau consumed half of the 26 ounce bottle of vodka but doesn’t recall the number of shots that she had. Shots were done in a group that included JB, Jay, Mr. Verma, and Aman. Notwithstanding the amount that she had to drink, Ms. Morriseau was still able to walk, converse, although she did have memory lapses of the evening.

[82] By the end of the night, Ms. Morriseau said that JB was very drunk. They were outside in the yard and JB was laying on the grass. She had consumed cocaine, and alcohol to the extent that she was having difficulty walking, was slurring, and speaking in a different voice. JB did not “look okay”.

[83] After reviewing her statement, Ms. Morriseau added that JB was sprawled out on the lawn on her back with her arms splayed. Ms. Morriseau asked if JB was all right but did not recall a response. Ms. Morrissette asked if JB wanted to go to bed. JB replied that she wanted to lay on the grass for a bit longer. After perhaps another half an hour, JB said that she was far too drunk and wanted to go to bed. She asked for help from Morriseau who assisted JB by placing her arm under JB’s and across her back, to help her to bed. JB was stumbling and having in hard time walking. As they walked up the stairs, she stumbled a couple times more. They entered her room at the top of the stairs and Ms. Morriseau helped JB lay “starfish” on the bed, meaning fully dressed, on her back, on top of the covers, with her arms and legs splayed.

[84] JB was not very responsive. Ms. Morriseau asked JB if she was “okay”. JB responded with “mm-hmm”. Ms. Morriseau asked JB if she wanted her to stay with her. Again, JB responded with “mm-hmm”. After a short time, Ms. Morrisseau left the room and closed the door.

[85] After leaving JB in her room, Ms. Morriseau and Jay left the house to get cigarettes and more cocaine. She estimates that this trip took more than 30 minutes, but not as much as an hour. When she returned, she went upstairs to check on JB. She opened the door and saw someone else in the room with her. Ms. Morriseau remembered that they were both on the bed but didn’t remember hearing any sounds. She didn’t recall JB’s position or the other person’s position. She didn’t recall if the lights were on or off. She closed the door and went down to get Jay.

[86] After reviewing her statement again, Ms. Morriseau recalled that the people that she saw in JB’s room were JB and a man whom she didn’t recognize, but who had short hair and had his back towards her. He was shirtless. She could see JB’s leg poking out from under covers and the man’s hair and back.

[87] On seeing this, Ms. Morriseau was concerned because JB was very intoxicated when she left her. She closed the door went down and out to the car to get Jay because of her concern. She was not sure what she wanted Jay to do but wanted him to come upstairs with her. She left the car and went back up. Jay did not follow her immediately. When she started to climb the stairs, JB was in the hall, naked. She grabbed Ms. Morriseau’s arm and punched her. This time her eyes were wide open. She was distressed. They went back into JB’s room when JB began yelling at her asking “how could you leave me”. JB pointed to the blood on the bed, and started to vomit, such that Ms. Morriseau gave her a garbage can. She said “I smell like him” so Ms. Morriseau gave her a cloth to wipe off the smell. JB was crying and disturbed. JB said that someone had come into the room, touched her, left the room, returned to the room and touched her again. He undressed her. She said that it was Mr. Verma who then tried to penetrate her with his soft penis, had penetrated her with his fingers, and eventually inserted his erect penis into her mouth and her vagina. JB showed Ms. Morriseau bruising on the outside of her vulva.

[88] While Ms. Morriseau was in the room with JB, JB threw up twice and was crying. They both drank more vodka and did more cocaine. Eventually, JB went back to sleep and Ms. Morriseau left the room and went to bed. While they were in the room, Aman came into the room and asked what happened. JB tried to explain. Aman said that Mr. Verma would never do such a thing. He said that he did not believe JB.

Ms. Morriseau’s Credibility

[89] As indicated, Ms. Morriseau was a weak witness with a poor memory. She did not appear to lie, however. There are aspects of her evidence that reflected negatively on her credibility, for example:

[90] First, some of her evidence contradicted the evidence of JB or others, for example:

• She said neither she nor JB had jobs when they came to Brampton. JB said she had a job.
• She said that the party was not planned. It “just came together”. JB and Mr. Verma said that the party was planned at least by a day in advance.
• She said that JB was wearing shorts and a sports bra when Ms. Morriseau laid her on the bed. JB and Mr. Verma said JB was wearing track pants and a hoodie. The video clips show her wearing tight fitting athletic long pants and a sports bra.
• She said that she did not recall seeing Mr. Verma again after he had sex with JB. He says he tried to speak there several times over the next two days, and she would not speak to him.

[91] Second, she had no memory of significant events that one would have thought she would have had a clear memory of, especially relating to her wedding, for example:

• she is not sure of the date or place of her wedding.
• She didn’t recall when or where she got her marriage license. She only remembers it was in June, after she moved to Brampton.
• She did not recall what was done or said at the wedding. It was all in another language.
• Within a few days of the marriage, her husband left the country. She didn’t recall what it was a few days or a week.

[92] Third some of her evidence did not make sense, for example:

• notwithstanding her concern that somebody was having sex with her badly intoxicated best friend, she did not interrupt him or yell at him to stop.
• She did not suggest preserving the sheets with the bloodstains either photographically or actually, nor did she suggest taking photographs of the bruising that JB that she saw on JB’s vulva.

Mr. Verma’s Evidence

[93] Mr. Verma was a student in June 2019, who had a room at the house in Brampton. Jay and he saw the on-line ad for the house and rented it beginning in January 2019. He paid his proportionate share. Originally, the room that JB occupied was occupied by Jay’s sister’s boyfriend. They moved out and JB moved in. Jay told Mr. Verma that his share of expenses would not change after JB and Ms. Morriseau began living there.

[94] Mr. Verma met JB and Miss Morriseau a couple of weeks before they moved in. He didn’t recall how long that meeting lasted. They didn’t speak much. He met them a second time the day they moved in. The two women arrived at 9 or 10 PM, with their suitcases and a dog. He merely said hello to them.

[95] Mr. Verma did not see JB or Ms. Morriseau over the next three days. He was at school.

[96] The big party occurred the fourth day after JB and Ms. Morriseau moved in. It was a Sunday. He woke up at noon, went out with friends, and came home at 3 or 4 PM. He saw JB, Ms. Morriseau, and Jay in the living room drinking. Jay told him previously that there was going to be a party in order to get to meet the new roommates.

[97] After seeing the three drinking in the living room, Mr. Verma went to his room, rested, and got ready for the party which he joined at about 6 PM. He said that he was drinking vodka at first but then switched to beer, of which he had four or five. He recalls playing two drinking games. The first drinking game was the one showed on the video Exhibit 1 where the parties hit their glasses twice on the table and drank their shot. This was led by JB. He recalls the second drinking game that Ms. Morriseau lead based on an app on her phone. He did shots two or three times during this game. Other than that, they spent time talking, dancing, and watching music videos.

[98] The second drinking game happened approximately 10 PM. The participants paired off with the romantic couples being teammates, leaving he and JB, by default, as a couple. He doesn’t remember the details of the game. They were all sitting on the floor with the partners next to each other in a tight circle.

[99] Mr. Verma remembers having discussions with JB throughout the night. By 8 or 8:30, the two of them were sitting on the couch. Jay and Ms. Morriseau were out getting food. Aman and his girlfriend were in their room. Mr. Verma and JB alone for 30 to 40 minutes, talking, and watching videos. They got to know each other. He talked about school, their future plans, and how they came to be in Brampton. They were sitting very close. Eventually, she sat on his lap and they began having a “romantic time”. When others came into the room, JB got off his lap but said that they would continue “chilling and talking” in her room after the party.

[100] After the group reassembled, Ms. Morriseau’s drinking game got started.

[101] Mr. Verma conceded that he had at least two vodka shots during Ms. Morriseau’s phone game and then after the phone game had another 4 to 5 beers and perhaps four or five vodka shots. Notwithstanding the amount of alcohol he had consumed, he said “I was still in my senses” meaning he could walk and talk. He was feeling happier and bolder, however.

[102] Mr. Verma said that he consumed no cocaine during the evening, although Jay, Ms. Morriseau, and JB consumed it. After Ms. Morriseau’s drinking game, the party continued with dancing, for another hour. Others went outside to smoke weed and cigarettes.

[103] At one point, Ms. Morriseau and JB were outside in the yard. He, Jay, and Aman were on the couch. Eventually, he went upstairs to go to his room. He saw JB’s room door partly open and went in. She was asleep. He tried waking her by poking her gently on the right shoulder three or four times. She was still laying on her back on the bed and did not respond. He went to the door and opened it to leave. The door creaked. JB woke and said to him “don’t go”. He turned to face her. JB was sitting on the edge of the bed, facing him, and said “do you want to fuck?” He replied yes. She told him to wait on the edge of the bed while she went to the bathroom. She said that she would be back shortly. He said that he was “down for everything”.

[104] When JB returned, they both laid on the bed. She asked if he wanted her to remove his clothes and he said “okay”. She did so and removed her own. She removed both of their clothes while he laid on the bed and she laid on top of him.

[105] At this point, notwithstanding that he was anticipating sex, he was not erect. She offered to help by giving him fellatio. He agreed. After that, she laid on top of him and they had vaginal intercourse.

[106] During intercourse, Mr. Verma heard the door open and saw Ms. Morriseau standing in the door. At this point he and JB were under the blankets, lying face-to-face on their sides. JB asked if it was Ms. Morriseau at the door, to which Mr. Verma said yes. He then asked JB if she wanted some water. She said yes. He put his clothes on and went downstairs to get the water. As he walked to the living room, he saw Aman, who was smoking weed. He told him that he just had sex with JB. He got the water and then went back upstairs. As he went the stairs, he met JB who came to him and showed him a text on her phone in which Ms. Morriseau said “SOS – need to speak to you”. At that point, Ms. Morriseau came in, took the water from him, and said she would give it to JB. The two women when the JB’s room. Mr. Verma went to the living room where he and Jay joined Aman and smoked more weed. After about 15 minutes, he went to bed. The next day, he saw only Aman.

[107] The wedding was two days after the party. The date had been fixed about a week earlier. The wedding between Jay and Ms. Morriseau was an immigration marriage to permit him to stay in the company country since he only had a student visa and was no longer a student.

[108] Mr. Verma went to the temple for the wedding. However, Ms. Morrisseau denied him entry because she told him that no one wanted him there. She told him to go home. He asked what had happened and what he did but was not told. He went home, regardless. When people came home, he tried to engage Ms. Morrisseau about why he had been excluded. She said she did want to talk about it. Shortly after that he and Aman went out together and he asked Aman what had happened. Mr. Verma did not indicate what he was told. He came home at 9 or 10 PM and saw Jay who told him that the police want to talk to him. He spoke to police the next day.

Mr. Verma’s Credibility

[109] Mr. Verma gave his evidence in a calm, straightforward manner, without prevarication. There are several aspects of his evidence, however, that reflected negatively on his credibility, namely:

[110] First, he became unnecessarily combative in cross-examination.

[111] Second, he refused to concede the obvious. On several occasions, for example, when he said that he did not remember something, he refused to concede that the thing he did not remember may have actually occurred.

[112] Third, some of his evidence made no sense, for example:

• JB’s invitation was for him to come to her room after the party and talk. He did not say that the invitation was for sex.
• He said that he went into JB’s room to continue their conversation that had been interrupted earlier. Yet. when he entered JB’s room, she was asleep. He conceded that she was in no condition to have a conversation, and that he could have continued their conversation the next day. Notwithstanding that she had been very intoxicated and was asleep, he tried waking her to continue a conversation.
• He said, at first, that he could not wake her, having poked her in the shoulder three or four times. He knew that she was extremely intoxicated. He then said that the creak of the door woke her and when he turned towards her, JB was sitting upright with her feet and the floor asking him in a sober voice “do you want to fuck”
• Mr. Verma said that JB performed fellatio on him while she was sitting on his knees. He did not offer any explanation as to how physically she could have done so.
• Mr. Verma said that while JB was laying on top of him, she took off his clothes and her clothes. He did not offer any excavation as to how physically she could have done this while she was lying on him while he was lying on the bed at all times.

[113] Fourth, at times his evidence was inconsistent. For example:

• In examination in chief, he said that he was going to his room when he saw JB’s door partially open, and went in. In cross-examination, he indicated that is going to his room to find his cell phone, went into his room, and it was only on leaving his room that he saw JB’s door was partially open and went in.
• In his examination in chief, he said that at 8 PM everyone was gone and he and JB were sitting on the couch. In cross-examination he said that he was certain it was 8 PM because he saw the time on his phone. In his police statement he said he had no independent memory of the fact.
• In his examination in chief, he said that he may have smoked one cigarette that evening. In cross-examination, he agreed he smoked one cigarette a day, and more at social events.

[114] Fifth, he added details to his evidence as it progressed, for example:

• In his examination in chief, he said that when JB returned from the bathroom he laid with his back on the bed and she on top, and she undressed him. In cross-examination, he said that she came back and they laid down and then she got up to get her laptop to play “romantic music” in order to “to create romance”.
• With respect to the above, he conceded in cross-examination that this was the first time he had ever mentioned that the purpose of the music was to create a romantic atmosphere.

Analysis

A) Intoxication and Consent

[115] As I indicated earlier, credibility of all of the parties is an important factor in deciding this case.

[116] None of the witnesses was free from credibility issues. On the issue of JB’s level of intoxication, I prefer the evidence of JB and Ms. Morriseau to that of Mr. Verma. JB’s evidence of her level of intoxication is confirmed, generally, by Ms. Morriseau. I find that her evidence was not coloured by any desire to support JB in this matter.

[117] Accordingly, on the basis of all of the evidence, I find that the Crown has satisfied me beyond a reasonable doubt that because of her level of intoxication at the time she had sex with Mr. Verma, JB did not have the capacity to consent to the four required aspects of sexual activity as set out by the Supreme Court of Canada.

[118] I say this for the following reasons:

a) By the time JB asked Ms. Morriseau to take her to bed, JB was sufficiently intoxicated that she could neither walk on her own, climb the stairs without stumbling, nor engage in conversation. Ms. Morriseau confirmed this evidence.

b) Mr. Verma, himself, says that by the time the evening ended for JB, she was very intoxicated.

c) On any version of events, JB had consumed a large amount of alcohol. She had consumed not less than one large bottle of wine, three tall boy cans of Twisted Tea vodka coolers, and three or four shots of tequila. This finding is supported by JB and Ms. Morriseau.

d) I also find that JB probably consumed more alcohol than she remembered. The totality will never be known because of her lapses in memory.

e) I also find that she consumed between .5 and 1 grams of cocaine through the evening. While she is no memory of consuming cocaine, she did so in the past in order to blunt the somnolent effects of alcohol. Given the quantity of alcohol she consumed that night, I find she probably consumed cocaine for that reason.

[119] I do not accept Mr. Verma’s evidence with respect to the conversation in which she invited Mr. Verma to have sex. I say this for the following reasons:

a) Mr. Verma said that JB was unconscious lying on the bed and that he couldn’t rouse her by poking her three or four times in the shoulder, yet the creak of the hinge woke her up.

b) Further, given JB’s level of intoxication at the time she went to bed, I do not accept that she would have sobered up enough in a period of 30 to 60 minutes to have spoken to Mr. Verma in a clear and sober voice and invite him to have sex with her.

[120] Given my findings about JB’s level of intoxication, I also accept JB’s evidence that her memory of events that occurred in the bedroom after the party was fragmented. I also accept her evidence that even if she had the capacity to consent to any of the sexual activity with which she engaged Mr. Verma, she did not so consent.

B) The Sexual Touchings

[121] I now turn to the events of sexual touching.

[122] I have a reasonable doubt about whether Mr. Verma touched JB’s vagina on two occasions, over her clothing, that he penetrated her with his fingers, or that he attempted to penetrate her vaginally with his not-yet erect penis.as she reported.

[123] Given JB’s admitted memory lapses, and absent any firm corroboration that these events occurred, I am left with a reasonable doubt that they did.

[124] I do find, beyond a reasonable doubt, that Mr. Verma inserted his not-yet erect penis into JB’s mouth in order to achieve an erection, and that he had vaginal intercourse with her. He admitted that she performed fellatio on him and that they engage in vaginal intercourse. I have already found that she lacked capacity to consent to any sexual activity.

Conclusion

[125] A verdict of guilty will be entered on the sole count on the indictment.

Trimble, J.

Released: 18 January 2023

COURT FILE: CR-19-1992-00 DATE: 2023 01 XX ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING and - ANKSHIT VERMA REASONS FOR DECISION Trimble J. Released: 18 January 2023