Court File and Parties

COURT FILE NO.: CR-21-10000647-0000 DATE: 20240425 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – ENRIQUE HUMBERTO MARTINEZ-REYNOSA Defendant

Counsel: Ethan Garber, for the Crown Marcel Buchler and Randall Baran, for Mr. Enrique Humberto Martinez-Reynosa

HEARD at Toronto: February 21 and 22, 2024

J.K. Penman J.

Notice of Restriction on Publication

Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the complainant or a witness may not be published, broadcasted, or transmitted in any manner.

Overview

[1] Mr. Martinez-Reynosa has applied at the close of the Crown's case for a directed verdict of acquittal with respect to the first count of sexual assault which is alleged to have occurred July 13, 2018.

[2] Mr. Martinez-Reynosa and the complainant, A.S., were co-workers and friends. After a night of drinking with other friends and co-workers, Mr. Martinez-Reynosa, the complainant, and Mr. Yeung returned to the complainant’s apartment and continued drinking. I understand the complainant also smoked some marijuana. It is alleged that at three different points that night and into the morning, Mr. Martinez-Reynosa sexually assaulted the complainant while she was either unconscious or asleep.

[3] The first sexual assault is alleged to have occurred sometime between 2:10am which is when Mr. Yeung left the apartment, and 3:11am when Mr. Martinez-Reynosa left the apartment. The complainant testified that she has no memory of the 1st incident. It is during the second incident when Mr. Martinez-Reynosa told her that they “had sex” earlier in the evening, that A.S. understood there was an earlier incident of sexual activity. Shortly after the third incident, A.S. had a phone conversation with a friend and disclosed the sexual assaults. A.S. disclosed to her husband the next day and steps were taken to report the matter to the police.

[4] The defence has brought an application for a directed verdict arguing that there is no direct evidence of consent or capacity to consent with respect to the first allegation of sexual assault. They argue that there is insufficient circumstantial evidence upon which a properly instructed jury, acting reasonably, could find Mr. Martinez-Reynosa guilty of sexual assault on count one.

[5] The Crown argues that the test on a directed verdict application is whether the evidence, if believed, could reasonably support an inference of guilt. In this case, the Crown argues the evidence is capable of supporting an inference that A.S. did not consent or lacked the capacity to consent to sexual activity with Mr. Martinez-Reynosa.

Test for Directed Verdict

[6] The test for a directed verdict is well settled and is the same test applied by a judge at a preliminary inquiry in determining whether there is sufficient evidence to commit an accused for trial. As stated in R. v. Charemski, [1998] S.C.J. No 23 at para 2.

The leading case on the issue of directed verdicts is United States of America v. Sheppard, [1977] 2 S.C.R. 1607, which sets out the test to determine whether a case should go to a jury in terms, at p. 1080: "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty". See also R. v. Monteleone, [1987] 2 S.C.R. 154 at p 160.

[7] Chief Justice McLachlin in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at p 840 states the weighing that is to be conducted in cases where the Crown has not presented direct evidence as to every element of the offence. “The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw….The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.”

[8] The Hodges case rule does not apply to directed verdict applications. The question of whether the circumstantial evidence meets the requirements of the Hodges Rule, that is, whether or not there is a rational explanation for that evidence other than the guilt of the accused, is for the jury to determine: see R. v. Charemski, [1998] 1 S.C.R. 679 at p 684.

[9] On a directed verdict application, it is for the jury to determine and weigh any competing inferences, not the trial judge. When it is possible for the trier of fact to draw more than one inference, a circumstantial case should go to the jury.: see R. v. Jama, 2017 ONSC 471 at para 30.

[10] I have done a limited weighing of the evidence, only for the purpose of assessing whether the evidence is reasonably capable of supporting the inferences the Crown is asking the jury to draw. To properly consider the available field of permissible inferences, it is important to look at the whole of the evidence. For the following reasons, I find that there is some evidence upon which a properly instructed jury, acting reasonably, could conclude that A.S. did not consent or did not have the capacity to consent to the sexual activity in count one.

[11] First, A.S. testified that she believed Mr. Martinez-Reynosa had been flirting with her in the days and weeks leading up to the incident. It appeared to her that Mr. Martinez-Reynosa wanted to spend time alone with her. A.S. did not want to engage with Mr. Martinez-Reynosa on this level, the inference being that she did not wish to engage in sexual activity with Mr. Martinez-Reynosa. A.S. spoke to a work colleague about her belief that Mr. Martinez-Reynosa was flirting with her and forwarded her friend some of the messages to that effect.

[12] Second, A.S.’s level of intoxication on the night in question. A.S. stated, that earlier in the evening she drank four shots of whiskey, three beers and had two hits of marijuana. As the evening progressed, she felt more intoxicated, and things started to become “fuzzy.”

[13] Mr. Hui testified that as they walked back to A.S.’s apartment, she picked up a construction cone and walked with it for approximately half a block. There is video footage of A.S. in the elevator of her building at 1:10am, and there are indicia of impairment in her behavior. When they returned to the apartment A.S. had two shots of tequila in quick succession and another hit of marijuana. A short time later, A.S. texted a friend saying, “I’m fucked up”.

[14] At approximately 1:45am, A.S. texted Mr. Hui telling him that “Wain is creepy” “this shot is words”, “weidel”, “weird”. It is clear in the messages that she is having difficulty typing. Shortly after this A.S. “blacked out” and her next full memory is waking up the next morning to Mr. Martinez-Reynosa having intercourse with her. She described a “flashback’ memory of Mr. Martinez Reynosa behind her on the bed in the act and falling off the bed. She was unable to give any details beyond this.

[15] Third, A.S.’s state of mind in the morning when she woke up to Mr. Martinez-Reynosa in bed with her. A.S. described being confused, having no idea what had happened the night before, and why Mr. Martinez-Reynosa was in her bed. A.S. texted Mr. Hui asking him what had happened, when everyone had left and telling him that there was vomit in her bed. Her confusion persisted for several hours. A.S. later found more vomit in her apartment.

[16] A few hours later, A.S. texted Mr. Hui screenshots of messages from Mr. Martinez-Reynosa that he had sent her at 7:30am. A.S. believed these were an attempt by Mr. Martinez-Reynosa to cover up the fact that he was in her apartment at the time. Her last memory of him was at 1:43am on the balcony. A.S. did not know that he had in fact left her apartment at 3:11am and did not return until 8:30am, when the second incident occurred. This characterization of Mr. Martinez-Reynosa engaged in a cover up suggests that A.S. would not have engaged in any sexual activity with the accused.

[17] Fourth, A.S.’s post event demeanor. Mr. Hui testified that A.S. was upset and crying on the phone when she disclosed to him that she had been sexually assaulted. A.S. may well have been crying for reasons unrelated to not consenting to sexual activity, however this evidence has the potential to support the complainant’s evidence that she did not consent to any sexual activity.

[18] I appreciate that absent expert evidence a loss of memory or ‘blackout’ is “direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period”.: see R. v. J.R. and J.D. at para 18. As was noted in R. v. Esau, 116 C.C.C. (3d) 289 at 296, the significance of the memory loss of a complainant is no direct evidence as to whether or not she consented to the sexual contact or whether she had the capacity to do so.

[19] But this does not mean that evidence of memory loss or a blackout has no value. There may be circumstantial evidence which, when taken together with other evidence, may permit the inference that the complainant lacked the capacity to consent or did not consent to the sexual activity.: see J.R. and J.D at para 20.

[20] In the case at bar, the complainant testified that before the evening the accused was flirting with her in a manner she did not want. Upon waking up in the morning after a night of heavy drinking, she was confused and upset. There is evidence from the accused himself, related by the complainant, that there had been sexual activity earlier in the evening. Notwithstanding the lack of expert evidence, I find that there is sufficient evidence of a lack of consent and capacity to consent, to permit count one to be considered by the jury.

Conclusion

[21] The directed verdict application is dismissed.

J.K. Penman J. Released: April 25, 2024