COURT FILE NO.: CR-22-70000023-0000

DATE: 20241212

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

FRANCISCO AGUILAR LOPEZ

Jackson Foreman, for the Crown

Owen Wigderson, for Francisco Aguilar Lopez

HEARD at Toronto: November 18, 19, 20 and 21, 2024

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Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the complainant or a witness may not be published, broadcasted, or transmitted in any manner.

j.k. penman j.

A OVERVIEW

[1] Mr. Aguilar Lopez (“Mr. Aguilar”) and the complainant, D.R., were co-workers. On June 27, 2021, they were socializing together at a bar and then at Mr. Aguilar’s apartment. D.R. woke up the next morning in Mr. Aguilar’s bed, naked, confused and with no memory as to how she got there or what happened.

[2] It is alleged that Mr. Aguilar then touched D.R.’s breasts, buttocks and tried to touch her vagina which she did not want and told him to stop. D.R. came to believe she had been sexually assaulted in the night and went to the police later that day. Mr. Aguilar was subsequently charged with sexual assault.

[3] It was agreed by counsel that when Mr. Aguilar and D.R. were at Mr. Aguilar’s residence the night of June 27, unprotected vaginal intercourse took place.

[4] D.R. testified that she has no memory of the sexual intercourse that took place the night of June 27, and as a result, cannot say if she consented to the sexual activity or not. The Crown argues that I accept the unequivocal evidence of D.R. that she never wanted to nor would have had sex with Mr. Aguilar, nor would she have done so without the use of a condom. The Crown also argues that D.R.’s evidence about the sexual activity in the morning was credible and reliable and also establishes the offence of sexual assault.

[5] Mr. Aguilar did not testify.

[6] The defence argues that the Crown has not established beyond a reasonable doubt that D.R. did not consent to the sexual activity with Mr. Aguilar. The defence argues that when applying the principles in R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, the Crown has not proven an absence of consent. Counsel takes that position that D.R.’s claim that she cannot remember is not credible, and that the Crown has not proven the mens rea of the offence beyond a reasonable doubt. The defence also argues that D.R.’s evidence about the sexual activity in the morning is not credible or reliable and should be rejected.

[7] The issue is consent, specifically did D.R. consent to any sexual activity with Mr. Aguilar. Honest but mistaken belief in consent is not an issue in this trial.

B LEGAL FRAMEWORK AND ANALYSIS

[8] Mr. Aguilar is charged with one count of sexual assault contrary to s. 271(a) of the Criminal Code. In order to establish this offence, the Crown must prove all of the following essential elements of the crime beyond a reasonable doubt: i) that the accused intentionally touched the complainant in circumstances of a sexual nature that compromised her sexual integrity; ii) that the complainant did not consent to this touching; and iii) that the accused knew that the complainant was not consenting to the sexual touching, or that he was reckless or willfully blind to whether or not the complainant was consenting: R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at paras. 23-25; R. v. H.W., 2022 ONCA 15, 160 O.R. (3d) 81, at paras. 70-71.

[9] The law is clear that the actus reus of the offence of sexual assault involves a purely subjective view of consent. As explained by the Supreme Court in Ewanchuk, at para. 27:

for the purposes of determining the absence of consent as an element of the actus reus, the actual state of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective.

[10] Consent is defined in s. 273.1(1) the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question.” Consent is not an all or nothing concept. A complainant can consent to some types of sexual activity but not others. Consent can also be revoked at any time. Consent requires a freely given “conscious agreement of the complainant to engage in every sexual act in a particular encounter”: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 31; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at para. 44; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 88; and Ewanchuk, at para. 36.

Evidence of D.R.

[11] D.R. came to Canada in December of 2020 and obtained a job with Mr. Aguilar’s cleaning company in January of 2021. On June 27, 2021, D.R., Mr. Aguilar and Jose Luis Montoya, went to a bar after work to celebrate Mr. Montoya’s birthday. At about 7:00pm they decided to go to Mr. Aguilar’s apartment to continue socializing.

[12] The group was in the living room/kitchen area listening to music. D.R. described feeling dizzy and her last memory was texting with a friend and then waking up naked in Mr. Aguilar’s bed. D.R. was confused, disoriented, and dizzy. Her body was in pain, her vagina was burning, and her hips hurt. D.R. asked Mr. Aguilar what time it was, and he responded that it was 5:30am. D.R. looked for her phone because she was worried about her cousin who would be wondering where she was.

[13] Mr. Aguilar said he would drive D.R. home but wanted to sleep some more. After finding her clothes, they lay back down on his bed, and D.R. testified that Mr. Aguilar repeatedly touched her breasts, buttocks and tried to touch her vagina. She kept taking his hand off her and told him to stop. Mr. Aguilar drove D.R. home later that morning. D.R. told her cousin what happened and D.R. reported it to the police later that night.

[14] For the following reasons I find D.R. to be a credible and reliable witness who gave her evidence in a straightforward and direct manner. She was candid about what she did and did not remember, did not exaggerate any aspects of her evidence, and was steadfast in her evidence that she would not ever have engaged in sexual activity with Mr. Aguilar. I will address the arguments raised by the defence in turn. I am mindful that these arguments must be considered as whole when looking at the totality of the evidence.

i) Did D.R. Have a Motive to Lie?

[15] Counsel for Mr. Aguilar argued that D.R. had a motive to lie because she had to explain to her cousin why she did not come home the night of June 27. It was suggested that her cousin would not have approved of D.R. spending the night with Mr. Aguilar who was not her boyfriend, and D.R. therefore had to lie to her about why she had not come home. I am not persuaded by this submission.

[16] There is no obligation on an accused to identify a potential motive to lie. To require him to do so would be contrary to the presumption of innocence and reverse the Crown’s burden to prove his guilt beyond a reasonable doubt. Not only is there no burden on an accused to prove a motive to fabricate, but there is also no burden on an accused to disprove that the complainant had no motive to fabricate or explain why a complainant has made the allegations. It is dangerous and impermissible to move from an apparent lack of a motive to lie to the conclusion that the complainant must be telling the truth.

[17] Lack of evidence of a complainant’s motive to lie, however, may be relevant in assessing credibility, particularly where the suggestion is raised by the defence: R. v. Gerrard, 2022 SCC 13, at para. 4, citing R. v. Stirling, 2008 SCC 10, [2008] S.C.R. 272, at paras. 10-11 and R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38 and 52. The absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist): Gerrard, at para. 4, citing R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at paras. 31-33.

[18] At the time D.R. was living with her cousin and her cousin’s husband, and typically would let them know if she was not coming home. When she woke in the morning D.R. noticed her cousin had been trying to get ahold of her.

[19] D.R. acknowledged not telling her cousin that morning when she first woke up what had happened, instead sending her a message that she had lost track of time. She explained that at the time she was confused, ashamed and embarrassed. I accept the evidence of D.R. that she had no memory of what had happened but that it clearly involved sexual activity with a man she did not want to have sex with, and that this was embarrassing, confusing and left her feeling ashamed.

[20] I do not believe that D.R. lied to her cousin to hide a night of consensual sex with Mr. Aguilar. D.R. testified that her cousin would have had no issue if she wanted to have sex with Mr. Aguilar even if they were not boyfriend/girlfriend. D.R. maintained that what her cousin thought was inappropriate was Mr. Aguilar “sexually abusing her”.

[21] D.R. was in her late twenties at the time of these incidents. D.R. agreed that her cousin would look out for her. But this does not lead to an inference that D.R. would have felt she had to lie to her cousin about why she had spent the night with Mr. Aguilar.

ii) Was D.R.’s Memory Loss Feigned?

[22] Counsel for Mr. Aguilar argued that D.R.’s claim about having no memory should be rejected because of the implausibility of her evidence about her intoxication, her description of the apartment, and how she behaved when she woke up. I will deal with each of these in turn.

How Much D.R. had to Drink

[23] Counsel argues that D.R. was inconsistent about what she drank and whether she would have been intoxicated to the point of not remembering what happened. Flowing from this it is argued that D.R.’s memory loss of the events of that night is implausible.

[24] D.R. testified that while at the bar she had four beers and two shots of tequila. Once they arrived back at Mr. Aguilar’s, D.R. was offered a drink and she chose to have Baileys of which she had two sips. This is generally confirmed by Mr. Montoya who testified that at the bar the group had six beers and two shots of tequila, and back at Mr. Aguilar’s D.R. drank Baileys. Mr. Montoya said the group ate food at the bar which contradicted D.R.’s evidence that she had nothing to eat.

[25] I appreciate that D.R. testified she felt fine while at the bar, and although she was not drunk at the time of her last memory, she did testify to starting to feel dizzy. In the morning, she felt disoriented and still dizzy. D.R. testified she is aware of the effects of alcohol and reiterated that she was not drunk. Mr. Montoya described feeling drunk when he left Mr. Aguilar’s apartment shortly before midnight. D.R. had no memory of Mr. Aguilar texting her in the morning about work in Windsor the following week until she was shown the messages in court which is some support for her memory loss.

[26] Whether D.R.’s memory loss and dizziness were because of intoxication or something else is not clear, but in the end D.R. was never shaken in her evidence that she had no memory of what had taken place during the night. While D.R.’s evidence about whether she was feeling the effects of alcohol was somewhat odd, I am unable to find based on the account of her alcohol consumption that D.R. was feigning her memory loss.

D.R’s Description of the Apartment

[27] In her statement to police, D.R. described a second bedroom in Mr. Aguilar’s apartment which had no bed and just clothes in it. D.R. initially testified she was aware of the second bedroom because of the time she had visited on an earlier occasion. It was put to her that she had remained at the front of the apartment and would not have seen the second bedroom. D.R. then explained that as she was leaving the apartment the morning of the 28th, she was able to see into the second bedroom.

[28] Counsel argued that D.R.’s evidence about the second bedroom was inconsistent and her knowledge of the second bedroom undermined her evidence that she had no memory of the events the night before. While I appreciate D.R. was inconsistent in her evidence about when she saw thesecond bedroom, in my view it is a minor inconsistency.

[29] It is reasonable to infer that D.R. saw the second bedroom when she was leaving the apartment the morning of the 28th. I am not satisfied that the discrepancy suggests that she was not telling the truth about having no memory.

Post Event Demeanour of the Complainant

[30] Counsel for Mr. Aguilar argues that D.R.’s conduct in the morning undermines D.R.’s evidence that she has no memory and is consistent with her having consented to the sexual activity. Counsel relies on R. v. Rose, 2021 ONCA 408, in support of this argument.

[31] It was put to D.R. that when she woke up with no memory and realized something had happened between her and Mr. Aguilar, she could have just called a taxi or her cousin to come and pick her up. She did not need to lay back down with Mr. Aguilar and wait for him to take her home. D.R. agreed that when she messaged her cousin in the morning, she did not tell her what happened, but simply said she had lost track of time. Her explanation for not telling her the truth was she felt vulnerable and ashamed.

[32] D.R. agreed that she could have asked her cousin to come pick her up but explained that she was disoriented, not feeling well, was not certain what had happened and was ashamed. D.R. testified to wanting to “get out of there fast” but also said she lived “far away”, which according to Officer Villeneuve’s notes was in Bradford, and that she was not in a state to leave on her own.

[33] D.R. did not know what was happening to her but knew that something “bad had happened”, and was embarrassed about waking up next to a man she did not like. Although she did not immediately phone her cousin to tell her what happened or to come get her, once D.R. made it home, she told her everything.

[34] In my view this argument is based on the stereotype that a victim of sexual assault would immediately run away and distance themselves from their assailant. Myths and stereotypes have no place in a criminal trial: R. v. Kruk, 2024 SCC 7, at para. 43. It is impermissible to assess a complainant's credibility by looking at consistencies or inconsistencies grounded in a search for "expected" post-sexual assault behaviour: R. v. A.R.D., 2017 ABCA 237, at para. 64, aff’d 2018 SCC 6.

[35] I accept D.R.’s evidence about how disoriented, embarrassed, and ashamed she felt. D.R. had woken up in her boss’s bed, naked, in pain, disoriented and not certain how she got there. I draw no adverse inference against the complainant that she did not immediately leave Mr. Aguilar’s apartment. There is no hard and fast rule for how a sexual assault victim will behave: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65. D.R.’s conduct in the morning of not immediately calling her cousin and leaving does not undermine D.R.’s evidence that she had no memory, and it does not raise a reasonable doubt on the issue of consent.

iii) What did Mr. Aguilar Tell D.R. Had Happened?

[36] Counsel for Mr. Aguilar argued that D.R. was inconsistent in her evidence about what Mr. Aguilar said to her the next morning. In my view while there is somewhat of an inconsistency, what is noteworthy is the suspicious nature of what Mr. Aguilar did and did not say.

[37] Not knowing how she had ended up in Mr. Aguilar’s bed, D.R. asked Mr. Aguilar what had happened between them, but he refused to respond. Later when she asked him again, he only told her that she had asked to stay with him. D.R. told him she had no memory, and he did not respond. When she asked him how she became naked, he told her she had stained her shirt and that he had to wash it. When she found her shirt, she did not notice any stain.

[38] D.R. asked him again in the car what had happened and why she could not remember, and again he did not respond but changed the topic to money that he owed her. When speaking to the police, D.R. said she asked Mr. Aguilar why no one had taken her home and that he said to her that it was because she wanted to stay and she wanted to sleep with him, and she wanted to stay at his house. At no time, however, did he say there had been any sexual activity between them.

[39] While there is some inconsistency here, the import of this evidence is that Mr. Aguilar never acknowledged or talked about any sexual activity that had taken place the night before. There was no conversation about them having had any sexual activity much less unprotected vaginal intercourse. D.R. was telling Mr. Aguilar that she did not remember what happened. If Mr. Aguilar had engaged in sexual activity that was consensual, why not talk about it?

[40] During the car ride home with Mr. Aguilar, D.R. noticed a mark on her neck. It was an agreed fact that the mark was a “hickey”. D.R. asked Mr. Aguilar about the mark and he told her she had fallen and hit herself against the door. D.R. did not believe him. I accept D.R.’s evidence that Mr. Aguilar told her that the mark on her neck was because she had fallen into a door. D.R. denied making this up, and in fact expressed anger about Mr. Aguilar not telling her what happened and lying to her about the hickey on her neck.

[41] In my view Mr. Aguilar lied to D.R. about the hickey to distance himself from any suggestion that there had been sexual activity between them the night before. In my view the refusal to talk about what happened in combination with the lie about the hickey is because Mr. Aguilar was aware that D.R. was not a willing participant.

iv) Did Mr. Aguilar Touch D.R. in the Morning?

[42] Counsel for Mr. Aguilar argues that D.R.’s evidence that Mr. Aguilar touched her in the morning was not credible nor reliable and should be rejected. Counsel argues that D.R.’s evidence is internally inconsistent, and again relies on her post event demeanour to raise a reasonable doubt that the touching even occurred.

[43] When D.R. reported what happened to the police she was taken to the hospital for examination. While at the hospital two officers spoke to her with her cousin’s husband translating. It was put to D.R. that she did not tell the officers that night that Mr. Aguilar touched her breasts, buttocks and tried to touch her vagina, but she did tell the officer that Mr. Aguilar tried to hug her.

[44] At trial she explained that she did not remember what happened at the hospital as she was still disoriented and confused, but that it was possible she did not tell them about the touching, but instead said he hugged her. She also described that having been sexually abused she did not want to speak with male officers about the details, but just wanted the day to end. When pressed about whether Mr. Aguilar hugged her, D.R. agreed if it was in the officers’ notes, it must have happened. In re-examination she confirmed she had no memory of Mr. Aguilar hugging her. D.R. was frustrated by this line of questioning.

[45] In my view there is an inconsistency, albeit a minor one in that D.R. did not tell the officers at the hospital that Mr. Aguilar had touched her breasts, buttocks and tried to touch her vagina, but did say he tried to hug her. D.R. did tell the officers that interviewed her at the police station a short while later that he had touched her breasts and buttocks. At the time D.R. was at the hospital she was having a medical examination conducted with respect to the events of the night before. She was obviously upset at the time and was not being formally interviewed in any event.

[46] It is also of no moment that D.R. did not tell the police in her videotaped statement that Mr. Aguilar had tried to touch her vagina. When asked about the mechanics of how she was touched, D.R. said he tried to touch her vagina when he was touching her buttocks. They occurred at the same time. This is not an omission of any significance in my view.

[47] I have already addressed the evidence of the complainant’s conduct in the morning. I am satisfied when looking at the totality of the evidence that Mr. Aguilar touched D.R.’s breasts, buttocks and tried to touch her vagina, and did so without her consent.

v) Did D.R. Consent to Unprotected Vaginal Intercourse with Mr. Aguilar?

[48] Notwithstanding my findings that D.R. was a credible and reliable witness, I still must consider whether there is a reasonable, alternate inference on the evidence that D.R. consented to the sexual activity with Mr. Aguilar. Inferences consistent with innocence do not have to arise from proven facts, as this would place too high a burden on the accused. As Mr. Aguilar did not testify, I must look at all the evidence, including the surrounding circumstances, to determine whether there is a reasonable inference other than guilt. If so, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt: Villaroman, at para. 35.

[49] A loss of memory, without more, cannot be taken as proof of lack of consent. Absent expert evidence, a loss of memory is “direct evidence of nothing” other than the fact that the witness cannot testify to what happened during the relevant period: R. v. J.R., 2006 22658 (ON SC), at paras. 18-19, aff’d 2008 ONCA 200; R. v. Esau, 1997 312 (SCC), [1997] 2 S.C.R. 777, at para. 19.

[50] When asked how she came to believe that she had been “raped”, D.R. responded that she had no memory of going to bed with Mr. Aguilar, she would not have slept with him, and that her vagina and body were hurting when she woke up. D.R.’s assertion that she would not have consented is simply a statement as to her assumption or belief as to how she behaved at a time when she has no memory.

[51] D.R. was steadfast and never wavered throughout her evidence that she did not like Mr. Aguilar, would never have wanted or consented to having sexual activity with him, and felt “grossed out” when he touched her in the morning. D.R. repeatedly told Mr. Aguilar to stop touching her. D.R. was also clear that she would not have consented to vaginal sex without a condom.

[52] In cross-examination when it was put to her that she could not remember whether she consented or not, D.R. was adamant she never would have consented to sexual activity with Mr. Aguilar. When it was suggested to her that alcohol might have led to her changing her mind, D.R. was clear that it would not have.

[53] D.R.’s reaction to Mr. Aguilar touching her in the morning is not determinative but is some support for her evidence that she never would have consented to having sex with him the previous night. D.R. repeatedly took Mr. Aguilar’s hand off her and told him to stop. D.R. did not want him touching her. In addition, the following morning Mr. Aguilar sent D.R. numerous text messages and tried to call her several times, but D.R. did not respond or pick up his calls. D.R. never worked for Mr. Aguilar again.

[54] It was argued that D.R. going out for drinks with Mr. Aguilar and Mr. Montoya earlier in the evening was a piece of circumstantial evidence forming part of a sequence of events supporting an inference other than guilt. In my view the drinks earlier in the evening do not add anything to the suggestion she might have then changed her mind about her feelings for Mr. Aguilar. In my view D.R. felt comfortable going for drinks with Mr. Aguilar because he was her boss, because she trusted him, and because he was a good person who she never believed would do anything like this. In my view this is not consistent with a possible change in her feelings.

[55] As I explain more fully below, I am not satisfied that there is an inference available that the added factor of alcohol consumption would have led to D.R. changing her mind and finding Mr. Aguilar attractive to the extent that she would then have consented to having unprotected vaginal intercourse with him.

[56] In this case D.R. testified that although she was not drunk or feeling the effects of alcohol, she started to feel dizzy shortly before her last memory. Whether this was because of the alcohol or something else is not clear, but in the end is of no moment. There was no evidence adduced about how D.R. reacts to alcohol and to what extent or how it might make her disinhibited.

[57] This contrasts with the case of R. v. J.R., where the witness acknowledged experiencing the disinhibiting effects of alcohol, that it made her “flirty” in the past and that she had done things while drunk that she later regretted: at para. 29. Notwithstanding this evidence the trial judge was not left with a reasonable doubt that the disinhibiting effect of alcohol would have been sufficient to cause the complainant to engage in unprotected sex with either of the accused.

[58] While there was no expert evidence called and even assuming that alcohol can have a disinhibiting effect, other than D.R.’s memory loss, there is no evidence that would suggest that D.R. changed her mind and chose to have unprotected sexual intercourse with Mr. Aguilar.

[59] It was also argued that Mr. Aguilar acting as though they were boyfriend/girlfriend the next morning when whey they were lying in bed supports an inference that the sex earlier in the night was consensual. I am not persuaded by this submission given my finding that Mr. Aguilar would not take no for an answer when D.R. kept moving or pushing his hand away and telling him to stop. In my view, this is not consistent with a previous consensual encounter but speaks to Mr. Aguilar’s problematic approach to consent.

[60] These pieces taken together or individually do not amount to a reasonable alternate inference that D.R. consented to sexual activity with Mr. Aguilar. I accept D.R.’s evidence that at the time of June 27, she would not have consented to sexual activity with Mr. Aguilar. I am also satisfied that D.R. would not have consented to sexual activity with Mr. Aguilar at any time, under any circumstances. In my view, if D.R. had consented to the sexual activity, she would have insisted that Mr. Aguilar wear a condom. It is agreed that a condom was not worn, and this is compelling evidence that the sexual intercourse was not consensual.

[61] Added to this conclusion is the evidence that Mr. Aguilar refused to acknowledge to D.R. in the morning that they had engaged in sexual activity. If the sexual activity was consensual, why was Mr. Aguilar refusing to talk about it? Mr. Aguilar lied to D.R. about the hickey on her neck, again in my view, to distance himself from there having been sexual activity the night before knowing that D.R. had not been a willing participant.

C CONCLUSION

[62] D.R. is a credible and reliable witness. She testified in a straightforward manner, becoming emotional at the more personal aspects of the evidence. I have kept in mind that reliance on demeanour evidence must be approached with caution. While at times D.R. was frustrated with the questioning, in my view this does not take away from the reliability of her account.

[63] It is an admitted fact that while at Mr. Aguilar’s house unprotected vaginal intercourse took place. I am satisfied that when considering the whole of the evidence the only reasonable inference is that D.R. did not consent to the sexual activity with Mr. Aguilar. I am also satisfied that in the morning Mr. Aguilar touched D.R.’s breasts, buttocks and tried to touch her vagina, also without her consent.

[64] Mr. Aguilar is guilty of sexual assault of D.R. on June 27 and 28, 2021.

J.K. Penman J.

Released: December 12, 2024

COURT FILE NO.: CR-22-70000023-0000

DATE: 20241212

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

FRANCISCO AGUILAR LOPEZ

REASONS FOR JUDGMENT

J.K. Penman J.

Released: December 12, 2024