COURT FILE NO.: 8086/19
DATE: 2024-02-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
David Kirk, Counsel for the Crown
- and -
PHILIP RENNER
Bruce Willson, Counsel for the Accused
Accused
HEARD: March 8, 9, 10, 11, 18, April 8, 21, July 23, 2021, February 7, 16, 28, April 17, May 19, October 3, 2022, February 15, 24, 2023, January 23, 24, 30, 2024
VARPIO J.
REASONS FOR JUDGMENT
[1] On the night of June 16, 2018, the complainant, Ms. S.Y., and the accused, Mr. Philip Renner, had a sexual encounter. The pair did not know each other. Mr. Renner was driving his truck in downtown Sault Ste. Marie when he saw the complainant on the street. She entered his truck. They got a coffee at the downtown Tim Horton’s drive-through. They ultimately drove to a parking lot where they had sex.
[2] The accused dropped the complainant off at a nearby bar. She made a 911 call stating to the attendant that she had been “raped”. She gave a police statement and the accused was charged with sexual assault. The complainant testified at the preliminary hearing. After the preliminary hearing, the complainant unfortunately passed away. Accordingly, the Crown sought to adduce the 911 call, the police statement and the preliminary hearing transcript at trial. I admitted all of the evidence (see 2021 ONSC 1299).
[3] In all her statements and her testimony, the complainant was consistent in her evidence that she had been “raped”.
[4] For his part, the accused gave a statement to police after his arrest and he testified at his trial. He initially denied having sex with the complainant in his police statement. In his testimony before me, he admitted that he initially lied to police. Instead, he stated that on the night in question, he went downtown to solicit the services of a sex trade worker and that he hired the complainant.
[5] The trial lasted a considerable length of time as the COVID pandemic interfered with the ability of the court to entertain the hearing. Further, the defence position regarding the necessity and the procurement of certain evidence required numerous adjournments.
[6] Ultimately, I must decide whether the Crown has proven its case beyond a reasonable doubt. Upon a review of the entirety of the evidence as well as the relevant Criminal Code provisions and the governing jurisprudence, I hereby find the accused not guilty of the offence before the court.
FACTS
The Crown’s Case
Accepted Facts
[7] On the night of June 16, 2018, Mr. Renner was driving his pick-up truck in downtown Sault Ste. Marie when he happened upon S.Y. S.Y. entered the truck and pair went to Tim Horton’s on Bay Street. Mr. Renner used the drive-through and purchased two coffees. At some point while the pair drove, Mr. Renner grabbed the complainant’s breast. He then drove to a nearby parking lot located at K.C. Roofing where the pair had sexual intercourse.
[8] S.Y. took the accused’s identification card.
[9] After the encounter, Mr. Renner drove S.Y. to a downtown bar known as Coch’s Corner. S.Y. approached a patron who in turn assisted S.Y. in making a phone call. S.Y. placed a 911 call and told the attendant that she had been “raped”. The police attended and S.Y. gave a statement to the police. During the course of police investigation, S.Y. gave the police Mr. Renner’s identification card.
[10] S.Y. then attended the Sault Area Hospital where a nurse performed a “Sex Assault Kit”. A vaginal swab revealed the presence of semen. Semen was also located around the area of S.Y.’s anus and in the anal canal. A sample of the semen was taken and a subsequent DNA analysis performed by the Centre of Forensic Sciences indicated that the DNA of the sample matched Mr. Renner’s DNA.
[11] A number of witnesses testified for the Crown but, given the accused’s evidence and counsel’s submissions, their testimony need not be repeated in these reasons since the evidence given was ultimately accepted by the accused.
The Complainant’s Evidence
The 911 Call
[12] In the 911 call, the complainant sounded as though she was in an agitated state. She was asked whether she needed police, fire or ambulance and she responded that she needed an ambulance and the police. When asked why, the complainant responded that she had just been “raped”. She did not know the name of the bar from where she placed the call.
The Complainant’s Police Statement
[13] In her video interview with police, the complainant spoke in a rapid-fire, stream of consciousness manner. She also jumped around from topic to topic and the investigating officer often used leading questions to direct the complainant.
[14] The complainant told the officer that she had been back and forth between the hospital and her home for “detox”. She was at home on the night in question as she had just come back from the hospital. She decided to go for a walk. An individual pulled up in a truck on the other side of the road and he struck up a conversation. He appeared drunk. He was trying to initiate sex, but the conversation went to drugs and alcohol.
[15] She asked for a cigarette, and he gave her one. He indicated that he did not let people smoke inside his vehicle. He put his hands on her breasts and began making sexual remarks. By this point, S.Y. had entered the vehicle. They stopped somewhere, and she remembers him saying something about cameras. He started grabbing himself and masturbating outside the truck. He started asking sexual questions. He got out of the truck, forced the complainant down and pulled her pants down. The complainant was trying to get the conversation turned towards getting a drink. The accused would not listen. She remembered being pushed down, with his arm on her back. He ejaculated. She was in shock.
[16] She did not tell the man where she lived. She gave him directions to drop her off on East Street. He dropped her off and she walked around the corner. She saw a woman outside a bar. She went up to the woman and the woman brought the complainant inside the bar. The complainant told bar staff what had happened, and a 911 call was placed.
[17] The complainant indicated that, “for some strange reason”, she stole the accused’s identification. She was looking for some way to identify the accused because it was “full-blown rape”. The identification card was a “United Brotherhood of Carpenters and Joiners of America” Training and Verification card in the name of “Philip Jr. J. Renner”.
[18] The complainant could not remember the man’s name.
[19] The complainant told the officer that the man picked her up at the Algonquin Hotel, after she had left “detox”. The complainant could not identify where the pair drove or for how long.
[20] With respect to the incident in the parking lot, the complainant indicated that the accused let her out of the truck to have a cigarette, he pushed her onto the truck, she was bent over and he pulled her pants down. His pants were down at that time. He penetrated her and then masturbated to ejaculate. When asked if the penetration was vaginal or anal, the complainant responded, “kind of both”. She kept asking the accused if they could leave, if they could have a drink. She said this in an attempt to end the interaction.
[21] She looked for his ID inside the “hide-a-box” in the truck. The man had said that he had lost his smokes, and the complainant was looking for the smokes inside the hide-a-box. The hide-a-box was in-between the two seats.
[22] When the accused grabbed the complainant’s breast, she said, “No”.
[23] The complainant indicated that the accused ejaculated inside of her. After the man ejaculated, the complainant pulled up her pants and went back inside the truck. They began to drive. She saw a friend’s house on East Street and she told the man to drop her off at that point, which the man did.
[24] The complainant took the ID after the man ejaculated, while looking for cigarettes. She took the ID so as to identify the man and because she believed that he had given her an alias.
[25] The complainant indicated that, during the drive to the area where the sexual activity occurred, the accused took the complainant to a Tim Horton’s on Bay Street.
The Complainant’s Preliminary Hearing Evidence In-Chief
[26] The complainant gave evidence at the preliminary hearing wherein she repeated some of the evidence that she provided to the police ab initio. I will not repeat same in my reasons.
[27] The complainant testified that she was walking home from “detox” when a truck pulled up on the road. She asked the driver for a cigarette. She testified that the driver identified himself as “Phil”.
[28] The complainant offered that she was very intelligent, but that she had a learning disability.
[29] The pair drove to the place where there were cameras, and the man “bitched at [the complainant] and told her to look for his smokes”.
[30] In the parking lot, the accused pushed the complainant down, she was on her knees and elbows on the foot-steps of the truck. This occurred at the passenger-side door of the truck.
[31] She could not remember if she initially pulled her pants down, or if the accused pulled them down. She remembers trying to pull her underwear back up and the accused would not let her. According to the complainant, “[t]hat’s when he violently raped” her.
[32] The complainant normally wore glasses, but she did not wear glasses on the night in question.
The Complainant’s Preliminary Hearing Cross-Examination
[33] The complainant was often combative with defence counsel as he asked questions. The complainant apologized to the court for her testimony and indicated that she was sleep deprived. She asserted that she was highly intelligent but that her learning disability, which necessitated repetition and explanation, accounted for her behaviour.
[34] The complainant testified that she did not work but that she received ODSP.
[35] On the night in question, the complainant left “detox” after having stayed there for a couple of days. She testified that she was a recovering alcoholic.
[36] She testified that, when she got into the car, she began talking to the accused about his interests. She indicated that by interests, she meant general interests, not sexual ones. The complainant entered the truck because the accused spoke to the complainant as though he knew her. She wanted to get alcohol and “weed”. The accused wanted cocaine, which the complainant did not want.
[37] The complainant was asked why she did not exit the vehicle at Tim Horton’s. The complainant testified that she did not observe any “red flags” about the accused when they were in the drive-through at Tim Horton’s, although she did not drink the coffee for fear of it being “spiked”.
[38] The complainant indicated that the accused touched her breasts as soon as she got in the truck, before they got to the Tim Horton’s.
[39] The complainant denied that she was a “prostitute” and denied that there was an argument over money.[^1]
[40] The complainant could not be sure where the sexual assault took place, but the accused drove her to a place that he said had cameras. She believes it was near the Algonquin Hotel but was not sure if it was near the Bush Plane Museum.[^2]
[41] The complainant did not know why she got out of the truck. The next thing she knew, the accused was having sex with her from behind. When asked about her underwear, the complainant testified that “I may have taken them down willingly, but I tried to pull them up. That’s when he yanked them down.” She then testified that “[he] didn’t rape me until after he pulled my pants down.” The accused put his arm on the complainant’s back and held her down as he “violently raped [her]”. The sexual act may have lasted five or ten minutes. The accused then masturbated outside his truck after the intercourse ended.
[42] The complainant recalled her elbows being on the “step” of the truck.
[43] The complainant testified that she was familiar with downtown Sault Ste. Marie because she walks around downtown.
[44] When she was being dropped off, the complainant ensured that she did not tell the accused where she lived. It was dark when the event took place.
The Accused’s Evidence
Examination in-Chief
[45] The accused testified that he lives in Sault Ste. Marie. On the night of June 16, 2018, he and his common-law girlfriend had a fight. Accordingly, he got in his truck and drove to downtown Sault Ste. Marie to look for a prostitute. He had $40 with him and he planned to get a “blowjob”.
[46] He was on Wellington Street, drove past Gore Street, and drove towards the Casino. He circled the area around Gore Street and saw a woman standing at the lights near Church Street. It was late.
[47] He pulled his passenger side window down as she walked up towards his truck. He asked if she wanted to go for a ride and the woman said, “yes”. She got in the vehicle. The woman asked what the man wanted and he replied, “a blow job”. She said she would have sex, and the man stated that he only had $40. She wanted $60. They negotiated over price and the woman asked for cocaine. They agreed on $40, but she was not happy about the price. The accused stated that they should grab a coffee at the Tim Horton’s.
[48] The accused drove to the Tim Horton’s drive-through and paid for the coffee with bills that he had taken with him to procure the services of a sex trade worker. The accused testified that he was not paying attention to the fact that he used this money on coffee because he was “on automatic”. The money was in the accused’s wallet and he left the wallet on the console of his truck.
[49] As they were driving, the accused felt the woman’s breast. He was not sure if the touching occurred before or after Tim Horton’s. She did not respond to his touching.
[50] The accused drove to KC Roofing. His parents own the business and he knows that there are cameras that oversee the parking lot. He helped install the cameras. He parked his truck in the parking lot. Both people exited the vehicle to have a smoke, and then have sex. She bent over the truck, pulled down her pants and they had sex. The accused ejaculated inside her “for the most part”, he removed his penis from her vagina, and cleaned himself off. She pulled up her pants and entered the vehicle. The accused denied having anal sex with the complainant. When asked why he wanted to have sex somewhere where he knew there were cameras, he responded “I don’t know really. I just – that’s where I was comfortable to be...”
[51] The accused then pulled his vehicle out of the parking lot and the woman asked to get some cocaine. He tried to give her money, including bills and change, when the woman became angry. She grabbed at loose change and other items on the console. The accused let the woman off at the corner of Coch’s Corner, and she was yelling and swearing. The accused did not see the woman take the identification card from the console.
[52] The accused testified that he left his residence around 10:00 p.m., so the incident would have occurred later in the evening.
[53] The accused was interviewed by police as regards this incident shortly after the incident. The accused initially believed that he was being investigated as a result of a complaint made by another woman who had previously made complaints about him. During the interview, it became clear to the accused that the police officer was discussing an incident involving the complainant. In his statement, the accused denied having sex with the complainant.
[54] In his testimony, the accused indicated that he lied to police because he was scared of being arrested for criminal offences involving the sex trade as “lots of people have been charged with it in town”.
Cross-Examination
[55] The accused admitted that his parents had access to the videos from the parking lot.
[56] The accused also admitted that the investigating officer on the accused’s police video explained at the start of the interview that the accused was being interviewed regarding S.Y. The accused also confirmed that he was advised at the start of the video that he was being interviewed in connection with an alleged sexual assault. In explaining why he thought he needed to explain alleged events with another woman, the accused testified, “I think my mind was fogged”.
[57] The accused confirmed that the agreement between himself and the complainant was $40 for vaginal intercourse.
POSITION OF THE PARTIES
[58] The Crown takes the position that the accused committed sexual assault on two occasions:
a. When he grabbed the complainant’s breast in the truck; and
b. When the pair had sexual intercourse in the parking lot.
[59] The complainant did not consent to either sexual interaction, and, as such, the accused is guilty of sexual assault.
[60] The Crown also submits that the accused’s evidence is entirely unworthy of belief in that he lied to police and his testimony before me contains weaknesses such that he cannot be believed. In contrast, the complainant’s evidence was consistent with respect to the vital points of the case and ought to be believed beyond a reasonable doubt, despite the fact that she did not testify before me.
[61] For his part, the accused takes the position that the sexual encounter was entirely consensual and was in furtherance of a sex trade transaction. The accused submits that his version of events as described to me is believable. Further, the complainant’s inconsistencies, coupled with the fact that she did not testify before me, is such that I cannot accept her evidence beyond a reasonable doubt. Accordingly, the accused ought to be acquitted of the charges before the court.
ANALYSIS
The Burden of Proof
[62] R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 is often quoted as representing the framework by which credibility is to be assessed when an accused person testifies. At para. 28 of W.(D.), the Supreme Court stated:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[63] The W.(D.) analysis was synthesized for trial judges sitting alone in R. v. Dinardo, 2008 SCC 24 at para. 23:
The majority rightly stated that there is nothing sacrosanct about the formula set out in W.(D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.); it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. In my view, the substantive concerns with the trial judge's decision in this case can better be dealt with under the rubric of the sufficiency of his reasons for judgment.
[64] As a corollary to this jurisprudence, the trier of fact must be certain that they do not engage in a “credibility contest” as per R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (Ont. C.A.) at para. 5:
W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
[65] In situations where an accused testifies and the accused’s evidence is tantamount to a confession that criminal activity occurred, the classic W.(D.) analysis may not suffice. As was stated in R. v. Ibrahim, 2019 ONCA 631 at para. 37:
The classic W.(D.) formulation will not always be appropriate; it depends on the context: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13. For example, it may be inappropriate to give the instruction when the accused person's testimony, even if believed, does not negate criminal liability: R. v. McClenaghan, 2010 ABCA 222, 258 C.C.C. (3d) 1178, at para. 31, leave to appeal refused, [2010] S.C.C.A. No. 353. In other situations, the instruction must be modified. For example, in R. v. Thiara, 2010 BCCA 415, 79 C.R. (6th) 259, it was held that the trial judge did not err in modifying her W.(D.) instructions in light of the fact that the appellant's evidence was partially inculpatory and partially exculpatory.
Sexual Assault
[66] In R. v. Barton 2019 SCC 33, the Supreme Court of Canada discussed the nature of consent in sexual assault allegations as it pertained to both the actus reus and mens rea at paras. 87 to 89:
A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault "if he touches another person in a sexual way without her consent" (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of the "intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched" (R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 42).
"Consent" is defined in s. 273.1(1) of the Code as "the voluntary agreement of the complainant to engage in the sexual activity in question". It is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter" (J.A., at para. 31), and it must be freely given (see Ewanchuk, at para. 36). This consent must exist at the time the sexual activity in question occurs (J.A., at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); J.A., at paras. 40 and 43). Further, as s. 273.1(1) makes clear, "consent" is not considered in the abstract. Rather, it must be linked to the "sexual activity in question", which encompasses "the specific physical sex act", "the sexual nature of the activity", and "the identity of the partner", though it does not include "conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases" (R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57).
Consent is treated differently at each stage of the analysis. For purposes of the actus reus, "consent" means "that the complainant in her mind wanted the sexual touching to take place" (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant's state of mind, and the accused's perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent - plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see J.A., at para. 37). [emphasis added]
[67] In R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, the majority of the Supreme Court discussed how to assess consent as it impacts the actus reus element of sexual assault at paras. 29 and 30 of its reasons:
While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.
The complainant's statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct is consistent with her claim of non-consent. The accused's perception of the complainant's state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [Emphasis added.]
Application to This Case
Credibility
[68] Like many sexual assault cases, credibility and reliability are crucial issues in this matter.
[69] It must first be stated that the accused lied to police. His evidence has fundamental frailties as a result. Compounding this issue is the fact that the accused’s attempts at explaining his untruthfulness to police did not have the ring of truth. For example, the accused stated that he lied to police because he was afraid to admit that he committed sex trade offences. This statement is belied by the fact that the accused stated in his cross-examination that he took the complainant to an area where he knew there were cameras. It is quite possible that someone who actively seeks to have a sexual encounter with a sex trade worker on camera is unlikely to be concerned about admitting same to police when he knows he is being investigated for sexual assault. Accordingly, this explanation seems contrived.
[70] The accused submitted through counsel that he was less likely to have committed sexual assault upon the complainant because he knew that the area was being filmed. Again, one questions whether the same risk-taking behaviour that would arguably lead someone to knowingly have sex on camera could also suggest that that person would not be deterred by committing sexual assault on camera. This is especially the case when I note that the accused’s family had control of the tapes. Although I make no specific finding in this regard, this submission also fails to adequately explain the accused’s actions.
[71] The accused also testified that he did not engage in anal sex with the complainant. The forensic evidence suggests that the accused’s semen was found inside the complainant’s anal cavity. Although it was accepted by both counsel that the presence of semen in the anal cavity does not prove that anal sex in fact occurred, the presence of the accused’s DNA in the complainant’s anal cavity is nonetheless consistent with same. The accused’s evidence must therefore be viewed with some caution on this point.
[72] When I note all of the accused’s relevant evidence, it cannot be said that the accused’s version of events is entitled to any meaningful credibility, unless it is corroborated in a weighty fashion. Simply put, the accused lied to authorities, and his evidence before me is sufficiently tenuous that I largely reject it. His evidence is not such that I am left in a state of reasonable doubt as a result of same.
[73] By way of contrast, the Crown submitted that the complainant’s evidence had powerful indicia of credibility. She was clear that she had been “raped”. Her evidence in this regard was clear and powerful. The Crown also submitted that the complainant’s tone in the 911 call suggested that she was, at some level, a person in crisis. She was upset and did not seem to know where she was, even though she was familiar with downtown Sault Ste. Marie. I note that Sault Ste. Marie has a relatively small downtown which suggests that she would know where she was. The fact that she did not know her location is thus consistent with the complainant being a person in crisis which in turn would corroborate the fact that the complainant had recently undergone a traumatic event like a sexual assault.
[74] I do not accept the Crown’s submission in its entirety. I note that the complainant admitted that she had attended “detox” prior to meeting the accused. She admitted to being a recovering alcoholic. That evening, she was looking for drugs and alcohol. It is therefore possible that attending “detox” may have been a traumatic environment in and of itself. Given the foregoing, the complainant’s demeanor in the 911 call may not be consistent with being sexually assaulted. This issue was not fully flushed out at the preliminary hearing and, because the complainant did not testify, I cannot be confident that the complainant’s demeanor in the 911 call corroborates her evidence that she was sexually assaulted.
[75] Ultimately, the complainant’s evidence was sufficiently inconsistent regarding important aspects of the case such that I am uncertain as to what happened on the night in question. Ergo, I am in a state of reasonable doubt with respect to both instances of alleged sexual assault as captured by the indictment.
The Touching of the Complainant’s Breast
[76] The Crown submitted that the accused’s touching of the complainant’s breast constituted a sexual assault. It is accepted by both the complainant and the accused that the accused reached over while the accused was driving and touched the complainant’s breast. As noted earlier, para. 89 of Barton is clear that the actus reus of sexual assault demands that the accused touched the complainant for a sexual purpose without the complainant’s consent. The accused’s perceptions do not matter. Rather, the complainant’s mindset is crucial: “if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent - plain and simple”. However, “[i]t is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.”
[77] In this case, the complainant gave competing evidence with respect to her consent. She indicated in her preliminary hearing evidence that she told the accused “no” when he fondled her breast. From that evidence, I could infer that the complainant did not consent to the sexual touching.
[78] That position, however, does not capture the entirety of the complainant’s evidence. The complainant testified that the accused touched the complainant’s breast before the pair attended the drive-through. This is important evidence because the complainant was asked why she did not exit the vehicle when the pair were at Tim Horton’s. She replied that, at that point, the accused gave her no “red flags”. If the accused had engaged in non-consensual sexual touching prior to attending the Tim Horton’s, her explanation makes no sense. Non-consensual touching would surely have raised a “red flag”.[^3] The “red flag” evidence is made more confusing because the complainant testified that she did not drink the coffee for fear it was “spiked”.
[79] Given this material inconsistency, I am left in a state of reasonable doubt as to the complainant’s version of events. Put another way, I have a reasonable doubt as to whether the complainant, in her own mind, consented to the touching of her breast because her evidence contains important inconsistencies related to this material issue.
The Parking Lot Incident
[80] The “red flag” evidence is not the only important inconsistency in the complainant’s evidence. Other aspects of her evidence contain inconsistencies that generate a reasonable doubt regarding what happened on the night in question. For example, the complainant was inconsistent with respect to when she grabbed the accused’s identification. Several times in her evidence, she indicated that she grabbed the accused’s identification after the sexual assault. This is important because the identification card was the complainant’s sole means of identifying the accused. In her preliminary hearing evidence, however, she also testified that she grabbed the identification prior to the sexual assault. She was firm about this latter fact. She also testified that she took the identification “for some strange reason” which further confuses the issue. This muddled testimony is therefore meaningful and causes me to question the complainant’s truthfulness.
[81] The defence further submitted that since the complainant wore glasses, and since the card had “smallish” printing, the complainant could not have read the card and her credibility thus ought to be called into question. This submission is of no moment. I have no evidence about how close the complainant got to the card, or whether she was near-sighted, or far-sighted. As such, I do not place any reliance upon this concern.
[82] Of greater significance, the complainant initially told police that the accused gave her an “alias”. At the preliminary hearing, she blurted out that “Phil” picked her up in the truck. She did not clarify how she knew “Phil” was the driver of the truck, or how she knew that the accused’s name was “Phil”. This evidential vacuum diminishes the power of the complainant’s evidence because she did not initially offer the accused’s name to police, but she knew his name by the preliminary hearing. I am left to wonder if this is a potential inconsistency.
[83] I also note that S.Y. indicated that she could not remember whether she “willingly” pulled her underwear down upon exiting the vehicle in the parking lot of K.C. Roofing. S.Y. also testified that the accused took her pants down. This evidence therefore appears to be material, confused, and possibly inconsistent.
[84] Courts have long wrestled with the fact that victims of traumatic situations can “block out” important details of the traumatic incident. However, courts typically have the benefit of hearing the complainant’s viva voce evidence as means of determining if the complainant is innocently “blocking out” evidence or if some other explanation exists for the inconsistency and/or loss of memory.
[85] S.Y. did not testify before me. Accordingly, her evidence does not have the benefit of being adequately contextualized. She did not have to opportunity to explain inconsistencies and/or illogical items arising in her testimony. She did not have the opportunity to fill in areas of concern that were not captured by her previous statements. I did not have an opportunity to review her testimonial demeanour and assess its impact upon overall credibility. She was not able to explain the “red flag” evidence. She could not give insight into the identification card evidence. She was not able to explain the knowledge of the “alias”. She was not able to explain whether she remembered who pulled down her pants, and the circumstances that inform the inconsistency in her evidence. Rather, I am left with material inconsistencies on important details of the case without the benefit of any explanation therefor. This phenomenon undermines the complainant’s credibility and reliability in a material fashion.
[86] Thus, when I consider the whole of the evidence including the complainant’s evidential frailties, and I consider the fact that I did not have the benefit of her viva voce testimony, I am not satisfied beyond a reasonable doubt that the accused committed sexual assault in the parking lot (or by grabbing her breast in the truck) because the complainant’s evidence leaves me confused as to what happened on the night of June 16, 2018. Her evidence is too confusing to be accepted beyond a reasonable doubt.
CONCLUSION
[87] The accused is hereby acquitted of the charge before the court.
Varpio J.
Released: February 14, 2024
COURT FILE NO.: 8086/19
DATE: 2024-02-14
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
PHILIP RENNER
REASONS FOR JUDGMENT
Varpio J.
Released: February 14, 2024
[^1]: This statement that the complainant was not a prostitute effectively describes prior sexual activity, which is prohibited under s. 276 of the Criminal Code. I asked for submissions from counsel on this issue and I agree that I may not consider any prior sexual history evidence. However, both counsel concede that I may use this statement as a denial that the complainant engaged in the sex trade on the night in question. I accept that submission because that interpretation of the complainant’s statement relates to the subject-matter of the indictment and is a permissible use of that statement.
[^2]: The Bushplane Museum shares a parking lot with K.C. Roofing. The Algonquin Hotel is a very short walk from that parking lot. This is the kind of evidence about which I may take judicial notice as per R. v. Find, 2001 SCC 32, in so far as it is notorious in Sault Ste. Marie and can be verified online and in maps, I will thus use that statement for that sole purpose.
[^3]: That is not to say that I make any finding with respect to what the complainant ought to have done had a “red flag” been raised by the accused’s alleged non-consensual sexual touching. Any such finding would clearly involve forbidden “twin myth” reasoning as per Seaboyer et al., effectively indicating what a “normal” complainant ought to have done.