Crown: J. Mannen, Assistant Crown Attorney, Toronto
Defence: Craig Penney, Sexual Assault Lawyer, Toronto
¶ 1 THE COURT: Mr. M. is charged with sexually assaulting [the complainant]. It is alleged that on August the 24th, 2012, they, along with some colleagues from work, went for drinks at Jack Astor's, a bar close to their office, after which Mr. M. and [the complainant] walked together from the bar to the local rapid transit or LRT train station, a walk of some five to seven minutes.
¶ 2 The Crown alleges that during that walk Mr. M. sexually assaulted [the complainant] by kissing her, placing his hand down the front of her pants and putting her breast in his mouth, all without her consent.
¶ 3 Mr. M. testified and, while agreeing with some aspects of [the complainant]'s version of events, disagreed on the fundamental nature of the alleged assaults. According to him, there was a brief sexual encounter, but it was one initiated by [the complainant] and was therefore fully consensual.
¶ 4 I also heard evidence from [the complainant]'s sister and her common-law partner, both of whom testified briefly about [the complainant]'s condition on the night in question after she arrived home.
¶ 5 In order to succeed on this prosecution, the onus falls on the Crown to displace the presumption of innocence which attaches to Mr. M. throughout these proceedings, unless and until the Crown proves his guilt beyond a reasonable doubt. That is a heavy burden of proof and it never shifts.
¶ 6 The accused has no obligation whatsoever to establish his innocence.
¶ 7 Mr. M. is charged with sexually assaulting [the complainant]. In order to establish this offence, the Crown must prove all of the following essential elements beyond a reasonable doubt: first, that he intentionally touched [the complainant] in circumstances of a sexual nature that compromised her sexual integrity; second, that [the complainant] did not consent to this touching; and, third, that Mr. M. knew that [the complainant] was not consenting to the touching or was reckless or willfully blind in relation to whether or not she was consenting. See R. v. Ewanchuk  1 S.C.R. 330; R. v. Lutoslawski  3 S.C.R. 60; R. v. Chase  2 S.C.R. 293.
¶ 8 The parties agree that there was an intentional touching of a sexual nature, satisfying the first element of the offence.
¶ 9 The single issue to be determined on this trial is whether the Crown has proved beyond a reasonable doubt that the sexual context that occurred happened without [the complainant]'s legally valid consent.
[The Judge's detailed analysis of the evidence has been edited out.]
¶ 10 I am left, therefore, with a version of events described by [the complainant] tainted to a certain extent both by the evidence of the amount of alcohol consumed, its impact on her, her explanation of her conduct, her concessions that she may not have recalled several things and by what I view to be a significant prior inconsistent statement to [her boyfriend]. Set against that, I have Mr. M.'s evidence, which was not undermined to any appreciable degree in cross-examination and which was not flawed by any particularly incredible or problematic version of events.
¶ 11 In saying that, I am not finding that Mr. M.'s account of what happened was exactly how things unfolded, nor am I saying that I believe [the complainant] has been deliberately untruthful in relating her version of events under oath. I am simply unable, on this record, to be satisfied that the Crown has proved the non-consensual touching beyond a reasonable doubt.
¶ 12 I return to the principles I articulated at the outset of my reasons. There are inconsistencies in the evidence. It is not my task to resolve every factual mystery presented in this case or to decide on which version of events is an accurate description of what actually happened that evening. Sometimes, as in this case, that determination is simply elusive. My task is to decide on all of the evidence whether the Crown has proved its case beyond a reasonable doubt.
¶ 13 Second, I am obliged to apply the principles in R. v. W.(D.). Doing so can only lead to one conclusion. Mr. M.'s evidence raises a reasonable doubt in my mind. Having done so, he is entitled to the benefit of that doubt and must be found not guilty.
¶ 14 I am grateful to both counsel for your skill and your professionalism in this case.