Crown: J. Chaffe, Assistant Crown Attorney, Toronto
Defence: Craig Penney, Sexual Assault Defence Lawyer, Toronto
MR PENNEY: Ladies and Gentlemen of the Jury. It now becomes my duty, as well as my privilege, to address you on behalf of Mr. D. As we chose to call evidence, I must speak to you first, giving what you might call "the last word" to the Crown.
I don't say that to complain, but merely to explain. I may not agree with some of the things that the Crown will say to you. I want you to know in advance that I cannot reply. It is not permitted by our rules. I must attempt, as best as I can, to anticipate the Crown's arguments. If I fail to anticipate his arguments, it is because of my own shortcomings. I trust that your recollection and interpretation of the facts will provide the answer.
After the Crown and I address you, Her Honour will explain the law. You must accept the law as directed by her. If what I say about the law conflicts with what Her Honour says, you must accept the law as explained by Her Honour, and not by me. She is the judge of the law.
You, however, are the judges of the facts. While I might comment on the facts as I remember them, nothing is a fact unless you find it to be so. If your recollections or findings of the facts are different from what I say, or from what the Crown says, or even from what Her Honour says, you will ignore what we say and rely upon your own findings of the facts, as that is your role, not ours.
After Her Honour explains the law, Mr. D.'s fate will pass into your hands. That is not an easy task. It is an awesome task to cast judgement upon a fellow human being. But you have a guide — the presumption of innocence.
Your starting point is that Mr. D. is innocent. He remains innocent unless you — each and everyone one of you, individually and collectively — are convinced beyond a reasonable doubt that the Crown has proved its case.
What does this mean? It means that after the anxious and careful consideration I am confident you will give this case — the evidence that you have heard, the addresses of myself and the Crown, and Her Honour's explanation of the law — you will arrive at some conclusions. And there are several degrees that you may arrive at.
You may decide that there is nothing reliable in these allegations once you examine them, or that you fully accept the testimony of Mr. D. In either case, there is no doubt about your verdict. It will be "not guilty."
On the other hand, each of you may, again after an anxious and careful consideration of the evidence, decide that maybe — just maybe — Mr. D. did the crime. If you reach that conclusion, you must return a verdict of "not guilty." You will not have been persuaded beyond a reasonable doubt.
If, contrary to my expectations, you actually get to the stage where you say to yourself, "I think the accused probably did it," then again, in law you would be duty bound to return a verdict of "not guilty." Because, again, you will not have been persuaded beyond a reasonable doubt of the Crown's case.
There is no question that Mr. D. and [the complainant] had sex at that party. What, then, is the issue? The issue is consent. Or, more correctly, lack of consent. The defence does not have to establish consent. The Crown must prove lack of consent. In other words, you must determine whether the Crown has proved beyond a reasonable doubt that [the complainant] did not consent to the sex that she had with Mr. D.
To determine facts, you must examine the evidence. To examine evidence, you must assess witnesses. Before I make specific comments about the evidence called at this trial, I first want to comment on the witnesses. And, in hearing me, keep in mind that nothing I say during this address is evidence. I only offer you a lens through which to view the evidence.
[The complainant], the alleged victim: My first and primary submission to you is that [the complainant] fabricated this allegation against Mr. D. She made it up on November 18th, Year 1, three-and-a-half months after she and Mr. D. had consensual sex. Although she had talked about her encounter before — first with [her friend], the morning after, and next on September 10th when she told the Doctor she had unprotected sex — she never said she was raped. She never said that anyone forced her to have sex without her consent. The first time anyone hears about the rape allegation is on November 18th, at the Doctor's office, and after the mother is told that [the complainant] is pregnant. It is only then that [the complainant] utters words to the effect "Mom, don't get mad, I was raped." You will arrive at the conclusion that the November 18th allegation was false, I suggest, by four means.
First, by examining [the complainant]'s demeanour in the witness stand. I ask you to use your common sense in determining whether this young woman's demeanour, especially when describing the details of the alleged rape, suggested that she was in fact raped.
Second, by analyzing how [the complainant]'s evidence conflicts with the evidence of other witnesses. If you accept the evidence of the Doctor, for example, you may use any inconsistency between her evidence and [the complainant]'s evidence to conclude that [the complainant] is not being truthful.
Third, by examining the improbability of her evidence. Here, again, you use your common sense. Simply ask yourself does a particular fact make sense? Does it have a ring of truth about it? I will say more about that in a moment.
And, fourth, by examining the passage of time between the night they had sex and the date of the allegation, November 18th — a period of three-and-a-half months. You may consider the failure of [the complainant] to report this rape in determining whether the allegation is false. And, in considering [the complainant]'s failure to make the allegation, I ask you to also consider the absence of any threat or coercion.
[Her friend], the second Crown witness: I ask you to review her evidence very carefully. She was not, I suggest, eager to provide you with details. Her answers were kept to a minimum, even carefully guarded.
There is a conflict between her evidence and [the complainant]'s evidence concerning what happened on the morning after. It is not clear, I suggest, exactly what [the complainant] said that morning. You even heard how [her friend] told the police on November 27th that [the complainant] said something to the effect, "Oh, my God M***, what did I do? What did I do?" To the extent that that statement is inconsistent with [her friend]'s testimony before you, you may use it in assessing her credibility. All that can be said for certain, I suggest, is that [the complainant] did not tell [her friend] that she had been raped, or that she had told [her friend] that Mr. D. had forced himself upon her. If [her friend] had heard such an allegation, I suggest that she would have acted upon it — if not for [the complainant]'s benefit, then at least to protect herself.
There is also conflict between [her friend]'s evidence and between Mr. D.'s evidence. That conflict concerned whether [her friend] had attended the bedroom while [the complainant] and Mr. D. were in bed. In that regard, the Crown may ask you to accept [her friend]'s evidence, and to reject Mr. D.'s evidence. When assessing the differences, however, I ask you to consider [her friend]'s state of mind in late November when she first learned of these allegations from the Detective. She learns for the first time that there is an allegation of rape at her party. The allegation concerns rape upon a young woman in her care. Now, consider for a moment that [her friend] did come into that bedroom just as Mr. D. said she did. Consider whether [her friend] would admit to that fact. Consider whether she would simply tell the Detective, yes, I saw them in bed together. I suggest she would not. She is too concerned about herself for that.
Consider, for example, how she describes her role at the party. She said she was responsible for all the models. But remember, this is not summer camp. This is a party. There are young adults. Young adults involved in the adult world of modelling. They are young adults interacting with modelling-industry people. Alcohol is available. There are 40-45 people present. [Her friend] is drinking. Others are drinking. People are eating. I suggest that for a party that large one person is going to have limited control, especially since this was a party with alcohol that went into the wee hours of the morning.
I now turn to [the complainant]'s mother, the Crown's third witness. You would not be human if you do not feel sympathy for her, and what she has gone through in the past couple of years. I ask you to accept her as a truthful witness. Despite her obvious frustration and distress, she did her very best to truthfully answer all questions. She wore her emotions openly, and that, I suggest, is to her credit as a witness.
Let's look at the Doctor, the first defence witness. She did her best to provide you with the evidence that she had concerning this matter. Her answers were considered and truthful. I ask you to accept her as a credible witness.
And, finally, let's look at Mr. D. I ask you to accept Mr. D.'s evidence as a straightforward and sincere attempt to provide to you as many details as possible concerning the events in this case. Now, in assessing his evidence, you may be thinking that Mr. D. did not make a great witness. He is not articulate. You might not hire him as an employee. You certainly would never have him to do a presentation at your school or place of work. He just does not present well. I ask you to remember that not everyone makes a good witness. Some of us are good speakers and present well, sometimes naturally, sometimes by training. Many of us do not. I ask that you not judge him on his presentation skills. Assess his evidence in light of who he is.
The Crown might suggest to you that Mr. D. is lying. But I ask you this: Why would he implicate [her friend] in a lie that a liar would find unnecessary and even dangerous? [Her friend] says she did not see Mr. D. and [the complainant] together in the bed. Mr. D. says she did. A liar would quickly realize there is nothing to be gained from telling a lie involving [her friend] that [her friend] would contradict. A liar would never expose himself like that. Mr. D. told you what he did because that is what happened. It was not a lie. It was the truth. He cannot tailor his evidence to make sure it sounds good in light of what [her friend] told you. He had to tell you the truth of what happened. And that is exactly what he did.
In your final analysis, you might reach the conclusion that you do not like Mr. D. You may think him an opportunist. Just look at his behaviour that night. You may even think him a buffoon. I suspect that you would never invite Mr. D. into your home, nor would you introduce him to a female friend. You may never want to see him or anyone like him for the rest of your life. I am not trying to convince you that Mr. D. is a nice person. I ask you to accept him for who he is — with his human faults, his character flaws, his limited speaking skills, and his inarticulate manner — and to assess him and his evidence in that light.
Now, I would like to select seven key areas of evidence with you, and to critically examine them.
First, consider the interaction at the party between Mr. D. and [the complainant]. [The complainant] says she didn't even see Mr. D. I suggest that she did. In doing so, I also ask you to reject her evidence that she went to bed around 9:45 p.m. I ask you to accept the evidence of her mother who testified that she spoke to [the complainant] after midnight. That meant that [the complainant] had been at the party for a considerable period of time when Mr. D. was also there. Now, consider the layout of the apartment, and the limited rooms available for socializing. I suggest that those considerations support Mr. D.'s evidence that he did, in fact, speak with [the complainant] at the party.
Second, consider [the complainant]'s state of sobriety at the party before going to bed. Both [the complainant] and [her friend] testified that [the complainant] was highly intoxicated. [the complainant] says she drank two glasses of wine. According to [the complainant], she went to bed around 9:45 p.m., and by 4:45 a.m., 7 hours later, the alcohol was still having a considerable impact on her. I ask you to use your common sense in examining that evidence. Mr. D. admits that [the complainant] was drinking, but denies, at least when he saw her, that she was intoxicated. In assessing Mr. D.'s testimony in this regard, I ask you to consider the mother's testimony. You will recall sometime after midnight that [the complainant]'s mother telephoned [the complainant] and spoke to her. The mother notices nothing — either in [the complainant]'s tone of voice or in the words [the complainant] used — which would have suggested to her that [the complainant] had been drinking. This, in my submission, supports Mr. D.'s testimony.
I'm not suggesting that alcohol had no role in these events. I suspect that you may find that alcohol clouded everybody's judgement. I suggest to you that, in considering the alcohol issue, you consider whether the consumption of alcohol caused [the complainant] to act out of character — by having sex with Mr. D., something she would not have done in the brightness of the morning light.
Third, consider what happened in the bedroom according to [the complainant]. She testified that she awoke to find Mr. D. raping her. Without waking her, he had climbed into bed. Without waking her, he had climbed on top of her. Without waking her, he had put his penis inside her. Without waking her, he commenced having sexual intercourse. Apply your common sense. Does that have the ring of truth about it? I suggest not. It just doesn't make sense. And, when considering that issue, remember that — according to [the complainant] — she had stopped drinking almost seven hours before. Her consumption of alcohol earlier in the evening cannot, I suggest, provide an explanation for why she failed to notice this highly invasive act until it was well under way.
Fourth, consider [the complainant]'s evidence about how, in the middle of a brutal rape, she is asked whether she is on the pill. Why would a rapist ask such a question? Again, use your common sense. Even if you conclude that it's probable that a rapist might be carrying condoms in his back pocket as a courtesy to his victim, there's no evidence that a condom was used. In fact, the pregnancy would suggest otherwise.
Fifth, consider [the complainant]'s evidence about the events immediately after the alleged rape. She has just suffered a brutal rape. The rapist kept his hand over her mouth, presumably because he was afraid that [the complainant] would yell for help. But what happens after the rape. The rapist simply gets up and walks out the door. Despite his aggressive measures during the attack to avoid detection, and despite the fact that the rapist knows he can be identified by [the complainant], he does nothing to protect himself. He makes no threats. He doesn't tell her not to tell anyone. He doesn't warn her in any way. Again, use your common sense. Would a brutal rapist who, during the rape, had taken control so aggressively by placing his hand over the victim's mouth simply get up and walk casually out the door. According to [the complainant], Mr. D. does nothing to protect himself after the rape. No, what does he do. He volunteers, yes, volunteers, to give a DNA sample. You will recall that that was one of the facts which was kindly read to you at the very start of the trial by the Crown. Again, use your common sense in evaluating this evidence.
Sixth, consider [the complainant]'s evidence that she told the Doctor about the rape at the September 10th appointment, which was the first Doctor's appointment after August 2nd. Remember the Doctor's evidence. The word "rape" wasn't even mentioned by [the complainant] until November 18th, just after the Doctor told [the complainant]'s mother that [the complainant] was pregnant. In my submission, the Doctor's evidence establishes that [the complainant] lied under oath. You may be tempted to believe that [the complainant] was mistaken about that. But I invite you to ask yourself the following. This young woman had suffered a rape, a personal violation of the worse kind. How probable is it that she would be mistaken about whether she had confided in another human being about that experience. Also, remember that [the complainant] thought that everything she told the Doctor would be confidential. She never knew that both her and the Doctor could be asked questions here in Court about what they told one another. You can infer that she never knew that you, the jury, would hear the Doctor called upon to contradict what she told the Detective.
Seventh, consider the evidence of what happens at the November 18th appointment between the Doctor, [the complainant], and [the complainant]'s mother. The Doctor tells the mother about the pregnancy. The mother is shocked. [The complainant] says something to the effect "Mom, don't get mad, I was raped?" [the complainant] says that she was concerned about her mother's health. Use your common sense. Was this a young woman concerned about her mother's health? Or, was this a young woman concerned about her mother's wrath? Again, use your common sense.
With those comments in mind, I suggest to you that what really happened went something like the following.
[The complainant] and Mr. D. knew each other through [her friend] in the summer of Year 1. They both attended [her friend]'s party on August 2nd, Year 1. [The complainant] was there early. She's bored. She begins to drink alcohol. She meets Mr. D. They engage in small talk. They mingle with the other guests.
Sometime after midnight, [the complainant] telephones her mother. She tells her mother that she is not ready to come home yet. She is hungry, and she says that the party is just getting good? She continues to party. She eventually gets tired, and goes to bed. That was well after midnight. The party winds down. People leave. Mr. D. also goes into the bedroom. He finds [the complainant] there. He gets into bed. They have a conversation. They begin mutual touching. This leads to mutual sex.
The next morning [the complainant] is stone sober. In the brightness of the morning light, she regrets her actions. She has a conversation with [her friend]. She does not say she was raped. She does not say she was forced in any way.
About a month later, she attends the Doctor's office. [The complainant] is concerned she might be pregnant. [The complainant] tells the Doctor that she had unprotected sex. She does not say she was raped. The Doctor takes samples for testing. [The complainant] is also concerned about confidentiality, specifically, about her mother finding out. The Doctor assures her their discussion and the results of the test will remain confidential.
Afterwards, [the complainant] learns that she is pregnant. Later she experiences spotting, and misinterprets this as her period. She also has no morning sickness. She believes she is not pregnant.
On November 18th, she again attends the Doctor's office. This time she is with her mother. Her mother waits in the reception area. The Doctor tells her she is in denial. The pregnancy is confirmed. The reality of the situation sets in. [The complainant] indicates that she wants to terminate the pregnancy. To do that, she must act quickly. There is urgency. Decision time has arrived. She decides to tell her mom about the pregnancy. It's a difficult decision, but a necessary one given the urgency. The Doctor goes to get her mother.
[The complainant] is then left alone. She is worried. The tension mounts while she waits. I'm not allowed to have sex! I'm not allowed to have a boyfriend! I'm not even allowed to have boys call the house! How will I explain this? There's going to be a lot of questions. Mom will want to know exactly how this could have happened. She watches me closely. She will want to know exactly how her system of control broke down.
[The complainant] is in obvious distress. Not only does she have the immediate problem of terminating the pregnancy, but she's about to face unpleasant questions by her determined mother. The answers won't be easy. In fact, there will be answers that will lead to more unpleasant questions.
[The complainant] needed a solution. She wanted her mother's support. She wanted her mother's help in terminating that pregnancy. The last thing she needed, at that moment, was a critical assessment of her behaviour. She needed the focus on the real problem — terminating the pregnancy.
Back to reality. The Doctor brings the mother into her office. [The complainant]'s mother sits down. The three of them are alone. Again, it's decision time. The Doctor takes control. She tells the mother that [the complainant] is pregnant. Her mother is shocked. [The complainant] sees the expression change on her mother's face. She reacts. She blurts out, "Mom, don't get mad, I was raped," or words to that effect. Her mother is overwhelmed. She collapses. She is revived minutes later.
[The complainant] knew that her mother would not be angry with her for being raped. No loving mother would. Does the situation change? You bet. No unpleasant questions; instead, supportive reassurances. No judgemental eye; instead, a sympathetic one expressing concern. No critical examination; instead, a loving mother attending to the needs of her daughter.
Before I conclude, I would like to comment on the brief expert evidence you heard from the Doctor. Her expert evidence comprised two parts.
The Doctor first testified that [the complainant] was in denial about her unwanted pregnancy when she first saw [the complainant] at the November 18th appointment. I suspect that some of you might have reached that conclusion without the assistance of the expert evidence.
I want to emphasize, however, the importance of the second part of her expert evidence. That testimony concerned whether [the complainant]'s denial about the unwanted pregnancy could be used to help you determine if [the complainant] had been the victim of a sexual assault. It cannot. According to the Doctor's expert evidence, the presence of denial in connection with an unwanted pregnancy does indicate whether the sex was consensual or non-consensual. I ask you to consider, of course, the fact that [the complainant] was in denial in assessing her state of mind on November 18th. However, the Doctor's evidence, I suggest, clearly demonstrates that the mere presence of denial cannot be used as an indicator of whether a sexual assault did, in fact, occur.
Now, you may be tempted to ask yourself who's version you prefer, Mr. D.'s or [the complainant]'s. I'm sure Her Honour will tell you that this would be a mistake. This is not a contest between two competing versions. You don't have to choose or prefer one person's over the other's. Remember the burden is always on the Crown.
In conclusion, I ask that you keep the following in mind when reaching your findings on the facts. If you believe Mr. D., you must acquit. If you do not believe Mr. D., but his evidence raises a reasonable doubt, you must acquit. If you do not believe Mr. D., but you remain unsure about [the complainant]'s evidence, you must acquit. If you cannot decide who to believe, you must acquit. If you decide that [the complainant] and Mr. D. are both worthy of belief, you must acquit. If you decide that neither is worthy of belief, you must acquit. Because, in each case, guilt will not have been proven beyond a reasonable doubt, leaving you with one and only one verdict — Not Guilty. Thank you.