Crown:  R. Young, Assistant Crown Attorney, Toronto
Defence:  Craig Penney, Criminal Defence Lawyer, Toronto

¶ 1  THE COURT:  Mr. P., the defendant, is facing one count of sexual assault. It is alleged that he, on or about the 13th day of October in the year 2007 in the City of Toronto, did commit a sexual assault on [the complainant]. contrary to the Criminal Code. Upon his arraignment, the Crown elected to proceed by way of indictment. Mr. P. elected to be tried by me, waiving his right to be tried by a judge and jury, and entered a plea of "not guilty."

¶ 2  The trial took place over a period of about three and a half days, and was relatively straightforward. And aside from the trial proper, only one application was dealt with. That was an application by the defendant, pursuant to s. 276.1 and s. 276.2 of the Criminal Code, to determine whether evidence of the complainant's prior sexual activity with the defendant was admissible under s. 276.2. I ruled that it was, and granted the application. On behalf of the Crown the following witnesses testified: [the complainant,] [the complainant's brother], [the bartender]. Mr. P., the defendant, testified both on the s. 276 application and the trial proper.

¶ 3   Identity is not an issue at this trial. The fact that there was physical contact and that it was of a sexual nature is not in dispute. The primary issue at this trial is that of consent. The subject matter of the sexual activity is that of intercourse. It is the position of [the complainant] that the sexual activity took place without her consent. And it is the position of the defendant, Mr. P., that the two of them engaged in consensual sexual activity at the relevant time. Alternatively, Mr. P.'s position would be that he had an honest but mistaken belief that she consented to the sexual activity that is the subject matter of the charge.

¶ 4  The offence of sexual assault is found in s. 271 of the Criminal Code, and it reads as follows: "Sexual Assault — Every one who commits a sexual assault is guilty of: (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years."

¶ 5  For the purposes of this trial, the definition of assault is contained in s. 265(1)(a), and that reads as follows: "Assault" — A person commits an assault when: (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly."

¶ 6  The definition of consent is found in s. 273.1(1) of the Criminal Code, and it reads as follows: "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."

¶ 7  And in particular, for the purposes of this trial, s. 273.1(2)(b) is relevant, and it reads as follows: "No consent is obtained, for the purposes of sections 271, 272 and 273, where: (b) the complainant is incapable of consenting to the activity."

¶ 8  Under s. 273.2 of the Code, a defendant cannot rely on the defence of honest but mistaken belief, where the defendant believed that the complainant consented to the sexual activity, and that belief arose from: (i) self-induced intoxication; (ii) recklessness or wilful blindness; or (iii) the defendant did not take reasonable steps in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

¶ 9  In granting the defendant the s. 276 application, I ruled that the evidence of prior instances of sexual activity engaged in by the two parties was relevant to the issues raised at this trial, and was of significant probative value in determining the issues to be raised at this trial.

¶ 10  At the end of the case for the Crown, a motion for a directed verdict of acquittal was brought by Mr. Penney, counsel for the defendant, but that motion was dismissed. The relevancy of the evidence adduced at the trial, as a result of my ruling on the s. 276 application, was that it better explained and described the history and nature of the relationship between [the complainant] and Mr. P. It would have been grossly unfair and not proper to view the sexual activity in question in isolation and devoid of any context. Evidence of alcohol and the role it played in each of their lives and their relationship, the pattern that evolved over the course of their relationship, and the fact that they were not strangers, and not merely acquaintances, assisted in determining various issues raised at this trial.

¶ 11  In order to attempt to ascertain what occurred between Mr. P. and [the complainant] on the night in question, one had to have a more complete picture of the nature of their relationship, and the role of alcohol. Any of the evidence adduced as a result of the successful s. 276 application during the trial cannot and will not be used by me to perpetuate and/or invoke the twin myths line of reasoning that is now prohibited both by statute and case law. The Crown, Ms Young, concedes that there was no direct evidence of non-consent adduced at this trial, but takes the position that there is circumstantial evidence that can be relied upon by this Court. The position of the Defence is that there is direct evidence of consent by the unequivocal actions of [the complainant] at the relevant time, while in a fully aware and voluntary state such that she had the capacity to consent.

¶ 12  The evidence introduced through the various witnesses is as follows. Both [the complainant] and Mr. P. are single, about thirty years of age, very well-educated persons, who have for the most part resided in Toronto. At present Ms [the complainant] is a legal editor, having completed a four-year philosophy degree at York University, then a law degree; and, at the time of this incident, had just commenced an LL. M. Mr. P. is a Harvard graduate, and is presently working as a management consultant in Toronto, for a Boston-based consulting company. Based on my observations of each during this trial, I have no hesitation in concluding that each is intelligent, well-spoken, with far better than average analytical skills.

¶ 13  It is common ground that they met in 2002, when [the complainant] began dating a good friend of Mr. P., Jerry. At the time Mr. P. had a girlfriend, Jessica. At times the four of them would go out as a foursome, and at times they would end up at the same social gathering and spend time together. They were together with their respective mates up until 2006. By 2007 neither had a long-term permanent relationship with another person. Between 2002 and 2007, each was away from Toronto for considerable lengths of time for various reasons, but they did keep in touch via e-mail. As well, over that period of time, and starting from August 2004 up to October 2007, they did get together approximately half a dozen times in various social gatherings; and each time ended up in hers or his bedroom at their respective apartments.

¶ 14  There is not total agreement as to the exact nature or extent of the sexual activity that took place between them. But at the bare minimum there is agreement that it would take place on a bed, with kissing and hugging, with some conversation including references to sex, but fell far short of activity including sexual intercourse. Mr. P.'s recollection of the events tended to include more sexual activity than that of [the complainant]. There is no disagreement between the two of that on virtually every occasion vast quantities of alcohol were consumed; for the most part, wine and liquor. And each maintained that the alcohol had very little effect on their bodies, or mental process.

¶ 15  Mr. P. also acknowledged that as time went on he became more hopeful and expectant that the level of sexual activity would increase and expand; and expressed some degree of frustration and regret that that appeared to be not the case. Both testified that they could hold their liquor. [The complainant] was adamant that the somewhat large intake level of alcohol in no way lessened her inhibitions, affected her memory, impaired her judgment, caused her to suffer blackouts, or altered her perception of what was going on around her. It was also her position that a louder voice, more laughter, increased social interaction were really the only outward signs that one might observe of her, as her alcohol consumption increased as the evening wore on.

¶ 16  Mr. P. expressed a similar opinion in describing his own situation. [The complainant's brother] confirmed her testimony in that regard. The last time they were together before the October 12 and 13, 2007 incident was the week prior, on October 5 and 6, 2007; when, after an evening of drinking with friends, they ended up at Mr. P.'s apartment in his bedroom on his bed, engaged in, at a minimum, hugging and kissing.

¶ 17  This brings us to the evening of Friday, October the 12th, 2007 and the early morning hours of Saturday October 13th 2007. [The complainant]'s version as to what occurred is as follows. At the time she had a new boyfriend; and, after a day of school, she had met up with him, spent some time together, had a couple of drinks with him, and then parted ways about 7:30 p.m. Over that period of time she had some food, a glass of wine, a martini and a beer. Originally she had planned on attending a party she had helped organize, and to which she had invited many friends, but she decided not to go as she was tired from a day of classes, and had to get up early on Saturday morning to attend classes. She did some work around the apartment and then called the defendant, and invited him to come over for a drink and a movie. He accepted her invitation and arrived about 9:00 p.m.

¶ 18   At the time she was residing alone in an apartment on the 14th floor of the Hotel/condo complex on Various Street in downtown Toronto. From this point on she does not recall a lot, but what she does recall is that upon his arrival she gave him a beer and she poured herself a bourbon. They sat down talked of school, politics and other small talk. Normally she would pour a double, but she could not recall if she did so this time, nor could she recall if she finished the drink. About a half an hour after the defendant arrived, [the complainant's brother] called and asked if they could meet. She agreed to meet him and his friend Randy in the bar, in the lobby area of the apartment.

¶ 19  At about 10:00 p.m., she and Mr. P. met her brother and Randy in the bar area. All four sat at the bar and ordered drinks. She recalls ordering a martini and eating some olives, but eating no other food. She recalls very little of what occurred at the bar over the next couple of hours. She does however recall feeling weird or strange when she first came to the bar. She maintained that that feeling had nothing to do with alcohol consumption. She had no idea how long she spent in the bar. What she could recall next is a couple of "snippets or vignettes." She recalls awakening, lying on her bed with her hands to her side, with the defendant having intercourse with her, on top of her. Another memory is of him saying "that was a waste of a condom," or words to that effect. The next thing she recalled was waking up Saturday a.m. around 7:00 to 7:30, alone in her apartment. She was wearing a tank top and no underwear, which she did find elsewhere in the apartment. Her door, which locked via a deadbolt, was not locked. As well, there appeared to be a couple of drinks that had spilled, sitting on a table, with the liquid on the table and floor. She had no recollection of what she had worn to the bar, but a set of clothes was on a drawer in her closet, located as she would have expected.

¶ 20  The situation that existed when she awoke in the morning frightened her, so she at first tried to contact her parents. Then she got in touch with a friend, T., who came over to her apartment. They looked all over the apartment for evidence of a condom, but found none. She became aware of some soreness to parts of her body, and over the next couple of days some bruising appeared. A friend of hers took photos (Exhibit 2) of the bruising. On October 14th the back of her head was sore, and there was some bruising to her legs, shoulder blades, inner thighs. Her apartment was cleaned up, her clothes and dishes washed. She attended the hospital, but no tests were conducted due to the time lapse. The police were not contacted until October the 17th, at which time a video statement was taken. She was adamant that never before had she not locked her apartment door, and, once locked from the inside, one would need a key to unlock the door from the outside. She had the only key.

¶ 21  Although she has no memory of what led up to the sexual activity, she maintained that she did not consent to having intercourse with the defendant. Her position is that she never consented in the past and would not have consented this time. But she agreed, under cross-examination, that it is possible that she did consent, that she has no memory one way or the other. She has no explanation for her almost total lack of recall of what occurred between the time she and Mr. P. went down to the bar to meet her brother and the time she awakened the next day. She did not recall Mr. P. bringing with him, or leaving behind in her apartment, a blue bag (Exhibit 3).

¶ 22  [The complainant's brother] testified that when he first observed his sister that evening at the bar she seemed intoxicated, as she was louder than normal, and outgoing. He noticed something strange about her, but not enough for him to be concerned. Mr. P. seemed fine, although it is the first time he had met him. He described what the four of them did over the next couple of hours, where they sat, and the three or four rounds of drinks they shared. From what he observed, his sister's level of intoxication seemed to increase as the evening wore on. But her motor skills were still okay, she walked okay, and communicated without any problem.

¶ 23  Near the end of the two hour period, [the complainant] got up from a couch that the four of them were seated on, and went to the washroom. About fifteen minutes later she walked by the couch, and without looking at them or saying anything, she continued on over to the bank of elevators that would take her up to her apartment. He had no further contact with her that night. Shortly after that, the three — i.e. Mr. P., Randy T. and he — split the tab and left. The defendant indicated that he had to go up to the apartment to get a jacket, or possibly a wallet, he wasn't sure, and Mr. P. went towards the elevators. He acknowledged that despite the fact that several rounds of martinis or gin and tonics were ordered, he could not swear that he actually observed [the complainant] consuming the drinks. It was his opinion that Mr. P. was not in a state of intoxication by the end of the evening. [The bartender] is, and was, the head bartender at the P.M. Bar, and he was on duty on the night in question. He recalled that night, and he confirmed that several rounds of liquor were ordered and served to the four of them. He has his Smart Serve certificate. He did not recall observing anything about [the complainant] that would have given him any cause for concern with respect to her state of sobriety.

¶ 24  The defendant Mr. P. was the final witness to testify at this trial. Unlike [the complainant], he recalls in great detail the night in question from the time he received her telephone call inviting him over for drinks and a movie to the time he left her apartment, after the sexual activity between the two of them. He agreed that the invite held a sexual component for him, and, although he did not expect something would occur, he was hopeful. With that in mind he placed two condoms, along with his IPOD, an umbrella and some dinner food in a bag (Exhibit 3), and headed over to her place. He left the bag in her apartment when the two of them went down to the martini bar to meet her brother and his friend. He testified as to what clothes both he and she were wearing, the number of rounds, the types of drinks and where they were consumed in the bar area. In his opinion, despite the quantity and type of alcohol that was consumed all seemed relatively sober, although he did not have much contact with [the complainant] while they were at the bar.

¶ 25  Around midnight he noticed that she was no longer on the couch, and was told she had gone to the washroom. He never did notice her go by the place where they were seated. And at about 12:15 to 12:30, some fifteen to twenty minutes later, it was decided that the three of them would split the tab and leave. He recalled paying approximately $60 each, and he identified Exhibit 4B as being the tab from the evening. [The complainant's brother] and Randy T. said they were going home, and he told them he was going upstairs to check on [the complainant] and get the bag he left behind. He acknowledged that in addition to retrieving his bag, he was somewhat hopeful that he and [the complainant] would end up having sex together. In his mind, the invitation to her apartment was still open. And the fact that nothing had been said in that regard while at the bar, nor had she come over to tell him she was leaving to go upstairs, did not change his opinion. He rationalized her not coming over to do so; it would be awkward to do such a thing in front of her brother and his friend.

¶ 26  He then proceeded up to her apartment on the 14th floor, knocked on and opened the door at the same time. The door was unlocked. He could see her fully clothed, lying on the bed on her back. He came over to the bed, touched her shoulder and asked if she was okay. She responded that she was fine, just a little tired. He lay down beside her. There was some small talk, he kissed her forehead, and then they began kissing. He moved to other parts of her body, and engaged in oral sex on her. Clothing was removed by each, and after five to ten minutes he got up and took one of his condoms from his bag. He placed the wrapper in his bag. He then got back on top of her and started to have intercourse with her; all the while she was moaning, participating in, and facilitating the sexual activity. Then after three or four minutes of sexual intercourse she said "no, this is not a good idea." He stopped, got up, took off the condom, put it in a piece of tissue and threw it in the garbage. She remained on the bed and deemed to be falling asleep; so he kissed her, said goodbye and left the apartment without locking the door.

¶ 27  In his mind there was no doubt whatsoever but that she consented to the sexual activity by her actions and moaning; that she was fully awake and aware from the outset of what was occurring; and she had her full faculties during this period of time. He acknowledged being left sexually frustrated yet again. But when she said "stop" he respected that as being her decision to make, so he did. It was his opinion that the consumption of alcohol had little if any impact on his perception of what was taking place in the bedroom.

¶ 28  The position of the Crown, Ms Young, is that [the complainant] did not consent to the sexual activity that took place the night of October 12 and 13, 2007, in the legal sense of that word. She acknowledges that there is no direct evidence of lack of consent, but maintains there is circumstantial evidence from which one would conclude that there was a lack of consent. She acknowledges quite properly that nothing can be made of the fact that [the complainant] had not engaged in this type of sexual activity with the defendant in the past. But she points to other circumstantial evidence that would lead one to conclude that she did not consent as she was not capable of doing so at the relevant time. She submits that the consumption of alcohol or something else rendered her incapable of consenting, or that she was asleep, and only awakened once Mr. P. started to have intercourse with her.

¶ 29  In support of her submissions she refers to such evidence as the presence of alcohol, her expressed intention in inviting him over earlier that evening — i.e., for a movie and a drink — her leaving the bar area without going over to him, her not expressly inviting him up to her apartment when she left the bar, her leaving the door unlocked and the apartment in a messy condition, her inability to recall much of the evening, her state of undress when she awakened the next morning, and the missing condom. As well, she submits that Mr. P. is lying when he states that she was awake when the activity started, that he left the condom behind, that he used the excuse of going back up to get his bag as a pretext or excuse, just to get back up to the apartment in order to get the sex that had been denied him in the past.

¶ 30  The problem for the Crown, of course, is that there is no evidence to support the theory that she ingested anything but alcohol. To suggest otherwise is nothing more and nothing less than speculation and conjecture. As well, much of the evidence adduced at the trial suggests that in general both [the complainant] and Mr. P. had a high level of tolerance for alcohol, and that night was no different than any other night in that regard. Also, her clothes were where "they should have been" next morning. She was adamant she never left her door unlocked. Perhaps she left it unlocked on purpose. [The complainant] is not able to say what she did or did not say that evening, prior to, during or after the sexual activity. According to her, she, even one year later, has no recall of the event other than the two snippets. She has no idea how they were linked in time. She did testify that she was awakened to find Mr. P. having intercourse with her.

¶ 31  However, Mr. Penney, on behalf of his client, submits that her evidence is not to be accepted on that point. He submits that she is only assuming that she awakened, as she cannot accept the fact that she did consent to the sexual activity, or perhaps she was misleading the police and the Court in the same way that she downplayed her prior relationship with the defendant. (That submission has some merit.) He submits that the version of events, observations, and opinions as testified to by Mr. P., at a bare minimum might reasonably be true, but more than that "are the truth." He submits that either [the complainant] after the fact regretted what she did, or perhaps the consumption of alcohol impacted on her ability to recall the events. He submits that one can conclude that at a point in time, for whatever reason, she brought a halt to what was going on and told him to stop, and he did.

¶ 32  That is Mr. P.'s evidence, and it seems to be supported by her evidence, that she recalls him saying "that was a waste of a condom." He also stated that he did not ejaculate, and there was no evidence to the contrary. So Mr. Penney argues that if she had the capacity to say "no" she also had the capacity to say "yes." (And again there is some merit to this submission.) He points to the many other voluntary acts performed by her over the course of the evening as well. He also submits that simply because one does some thing while intoxicated, that one would not do sober, does not mean that it was not done voluntarily and knowingly — i.e., in this case, consenting and being a willing and voluntary participant in the sexual activity between her and Mr. P.

¶ 33  At the end of the day the onus rests with the Crown to prove its case beyond a reasonable doubt. This applies to both the actus reas (the act) and mens rea (the intent). It is not for the defendant to prove or disprove anything. As far as the actus reas is concerned, the Crown in this case must prove beyond a reasonable doubt; (1) the touching, (2) the sexual nature of the touching, and (3) lack of consent.

¶ 34  As was stated in the Supreme Court of Canada decision of Ewanchuk, "The absence of consent is subjective, and to be determined by reference to the complainant's subjective internal state of mind towards the touching and sexual activity at the time it occurred. A complainant's statement that she did not consent is a matter of credibility and reliability to be weighed in the light of all the evidence admitted at the trial."

¶ 35  In order to prove the mens rea of the offence of sexual assault, the Crown must prove beyond a reasonable doubt on the part of the defendant: (1) an intention to touch, and (2) knowing of or being reckless or wilfully blind to the lack of consent.

¶ 36  The defendant does not have to prove honest but mistaken belief, but there must be established an air of reality to such a defence, supported by admissible evidence. Then it is for the Crown to prove beyond a reasonable doubt that the defence is not viable under all the circumstances.

¶ 37  The real issue in this trial is whether the Crown has been able to prove beyond a reasonable doubt a lack of consent on the part of [the complainant]. In reality Mr. P.'s position is quite clear: she consented, plain and simple — "there was no mistake on my part." All that she did up to the instant she said no was done willingly, voluntarily, with full knowledge as to what she was doing, while participating in and facilitating the sexual activity.

¶ 38  Due to the nature of this trial, the Supreme Court of Canada's decision in W.D. must also be considered. The Defence concedes that: (1) there was touching, and (2) that it was of a sexual nature.

¶ 39   Mr. P. took the stand and stated unequivocally that [the complainant] consented to and engaged in that activity. The best [the complainant] can say is "I have no memory of the event, except for the two snippets, but I know I did not consent because I would not have done so." Ms Young, on behalf of the Crown, accepts that this is improper reasoning, but asks the Court to conclude that she did not consent, based on both the circumstantial evidence and a disbelief of the defendant's testimony on that issue.

¶ 40   With respect to the testimony of Mr. P., I find that at a bare minimum it might reasonably be true on the issue of consent. And I might even go so far as to say that I believe him and accept his testimony as being truthful. He had a very good and detailed recollection of past events and the night in question. His testimony was consistent and he was not shaken in cross-examination. Explanations and opinions offered by him were logical and met the test of common sense. He was prepared to make admissions and concessions that could be harmful to his case. He was responsive to questions, not evasive or argumentative, and he very seldom responded with "I don't know" or "I don't recall."

¶ 41  I accept his version of events as they unfolded when he re-entered [the complainant]'s apartment. His explanation as to why he felt he could go back up to her place makes perfect sense. These two were not strangers. They were more than simply acquaintances. His behaviour was not unexpected or abnormal. He went back up to get his bag, and with the hope that something more could occur. He was not just some guy that met her for the first time an hour or so in the bar. There is no reason not to accept his evidence.

¶ 42  The problems for the Crown in this case are several: the total lack of recall on the part of [the complainant]; the lack of any explanation for that lack of recall; the evidence suggesting that she — although perhaps to some extent under the influence of alcohol — was far from being incapacitated by the consumption of alcohol. And in fact the evidence suggests that this was not the case. The evidence points to Mr. P. as being far from intoxicated; his telling the other two where he was going; the door being left unlocked. Any evidence that might have existed was either destroyed or unavailable due to the lapse in time. So even on the Crown's case alone I would have concluded that there was a reasonable doubt on the issue of consent.

¶ 43  I therefore conclude that, based on all the evidence that I do accept, the Crown has failed to prove beyond a reasonable doubt a lack of consent on the part of [the complainant] on the night in question, and Mr. P. is therefore acquitted of the charge.