Case Name:

[REDACTED] v. [REDACTED]

IN THE MATTER OF the Youth Criminal Justice Act,

S.C. 2002, c. 1

Between

Her Majesty the Queen, and

[REDACTED]

[REDACTED]

Ontario Court of Justice

Youth Justice Court - Newmarket, Ontario

Judge: [REDACTED]

Oral judgment: [REDACTED].

(33 paras.)

Charges: Sexual Assault.

Counsel:

[REDACTED], Counsel for the Crown.

[REDACTED], Counsel for the Accused.

JUDGMENT

1 Judge: [REDACTED] (orally):-- All right, this is a judgement in the matter of [REDACTED] and he's charged with committing a sexual assault on [REDACTED] on or about March the 16th, of 2006.

2 The issues in the case are credibility and reliability. The Crown called [REDACTED], the complainant and [REDACTED] The defence called [REDACTED], the grandmother of [REDACTED] and [REDACTED]

3 The evidence which is not in dispute is that which indicates [REDACTED], [REDACTED] and [REDACTED] were at the home of [REDACTED] on the morning of March 16, 2006. These three young people were friends and while there is some dispute as to whether [REDACTED] was invited, it is not material. He was certainly a welcomed visitor in the home of [REDACTED] Upon [REDACTED] arriving sometime between 8:00 a.m. and 8:30 a.m. on that day, she watched T.V. with [REDACTED] and her younger brother attended with her at that time.

4 Evidence also not in dispute is that [REDACTED], [REDACTED] and [REDACTED] commenced drinking vodka shortly after arriving at [REDACTED]'s residence. The evidence is that over the course of the ensuing period of - of time, perhaps within a half hour of the three of them arriving there, or being there, the bottle of vodka, that's 26 ounces, was consumed. [REDACTED] testified that she had not eaten prior to drinking the alcohol and had ingested 10 to 12 shots of the alcohol, which caused her to become drunk. She indicated that she and [REDACTED] were just taking shots and [REDACTED] was drinking the vodka mixed with the juice. Her evidence is that [REDACTED] and [REDACTED] seemed to be affected by their consumption of the alcohol as well. She testified this was the second time in her life that she drank alcohol and her first experience with hard liquor. She was uncertain whether she smoked marijuana that morning.

5 The drinking took place in the living room and possibly in the bedroom of [REDACTED]'s father. She watched the two young men play a computer video game that required two computers. One computer was in the living room and the other was in the bedroom of [REDACTED]'s father. She went into the bedroom with [REDACTED] to watch him play the computer game in that room. She testified that she thinks she locked the bedroom door after she went in. She indicated that she and [REDACTED] were on the bed.

6 What follows is in dispute. [REDACTED] testified that she did not ask [REDACTED] if she could go into the father's bedroom. There'll be reference to that later. [REDACTED] testified that she did ask permission to go into the bedroom. While in the bedroom on the bed with [REDACTED], she testified that he asked her for oral sex. Although in cross-examination, it is not certain, due to the affects of alcohol, if he in fact did ask for oral sex. She agreed in her evidence that during the act of oral sex, he took off her clothes. She testified that she performed the oral sex willingly and did not see any problem with the removal of her clothing. She testified that [REDACTED] suggested to her to call [REDACTED] into the bedroom for a threesome. She refused to do that. She went on say that [REDACTED] said no one would remember, "we're all drunk." She testified that [REDACTED] did call out to [REDACTED], who was in the living room, but there was no response. The discussion about the threesome did not go farther. Even after the suggestion of a threesome, she agreed that she continued to perform oral sex on [REDACTED] She rejected the suggestion that she performed oral sex on [REDACTED] while he was sleeping. She denied she was planning any sexual activity when she went into the bedroom, although she agreed the door was locked because something sexual was going to happen.

7 She told the court that [REDACTED] asked her to get on top of him to which she replied no. She agreed that she did not tell the police that [REDACTED] told her to get on top of him. In the videotaped interview, it was pointed out that she told the police [REDACTED] said, "Okay, I'll do it then." There was no reference to this comment in her evidence in-chief. She was reminded she told the police in her videotaped statement that [REDACTED] said, "Too bad" after rolling her over, although she did not testify to this in her evidence in-chief. She indicated that she cannot recall word for word what [REDACTED] said. She agreed that there are things she forgot about that morning. She recounted that while she was sitting, he then rolled her over, grabbed her shoulders, pushed her onto the other side of the bed and got on top of her, put his penis in her vagina. She indicated at one point he pulled it out too far, she moved her leg in an effort to prevent him from doing it and again he put it back in. She went on to say that he then jumped off and said, "[REDACTED], what did we just do?" In the videotaped interview, she told the police that [REDACTED] said he cannot get it to stay in, but she did not recount that comment to the court. He left the room, she testified, and went to the washroom.

8 She testified, while still in-chief, that when he asked her to get on top of him, she was wearing her bra, her zip up sweater and her underwear. She also testified that all her clothes came off while she was performing oral sex on him. She testified that the intercourse lasted 10 to 15 minutes. Her evidence in-chief was that she did not think [REDACTED] ejaculated. She disagreed that she told [REDACTED] he ejaculated inside her, but agreed that she told the police she did not know if he ejaculated inside her because she was not paying attention. Her evidence on this point is that she was not sure if he ejaculated inside her because she would not know what that felt like. She agreed she did not tell the police she did not know what it would feel like. [REDACTED]'s evidence is that she told him that [REDACTED] "had blown his load" inside her. She stated that she never thought they would ever go that far.

9 They then went into the living room after the episode in the bedroom, where [REDACTED] was situated. [REDACTED] testified that he did not hear anyone calling him, nor did he hear any commotion or noise emanating from the bedroom. [REDACTED] thought [REDACTED] and [REDACTED] left sometime around three-thirty or four o'clock p.m. that day. [REDACTED] was not certain whether there was another story circulating about [REDACTED] and [REDACTED] after the event. Once in the living room, [REDACTED] testified [REDACTED] said to her, "This did not happen. Don't tell anyone." In cross-examination, she maintained that he did say this to her.

10 [REDACTED] received a phone call shortly after from his friend [REDACTED] and he left within an hour. She and [REDACTED], according to her testimony, then fell asleep, he on a chair, she on the couch. She stated she slept off the alcohol. She awoke and went home at about two or 2:30 p.m. and had a shower.

11 She testified that she does not think she told anyone that day, but the next day told her grandmother. She is unclear if she told [REDACTED] that day, but at some point in the next few days, she testified she did tell him. She relayed to [REDACTED] that she performed oral sex on [REDACTED] and that [REDACTED] wanted a threesome to which she said no. She also said [REDACTED] would not take no for an answer. Her evidence is that when she did tell [REDACTED], she's 80 to 85 percent sure that she did not tell [REDACTED] that [REDACTED] had ripped off her clothing, but it's possible that she said that. [REDACTED] did confront [REDACTED] after he was told what happened by [REDACTED] [REDACTED] said that he did not do it and offered no specifics.

12 The police were called after she told her grandmother. A formal report was made to the police about 10 days later because her father found out. Both her grandmother and father encouraged her to report the matter to the police on a formal basis.

13 [REDACTED] testified that she went to [REDACTED]'s house on the Monday after the event because she had heard that [REDACTED] had told someone about what had happened. She stated she was concerned about people finding out. In her view, the only ones who should have known about the incident was her, [REDACTED] and [REDACTED] She agreed she went to [REDACTED]'s house to confront him about what he had told [REDACTED] She agreed she was upset by what [REDACTED] had told [REDACTED] The essence of what she understood was that [REDACTED] told [REDACTED] she did everything to [REDACTED], that is, she took advantage of [REDACTED] The evidence is that she stopped at [REDACTED]'s house on most days enroute to school and was familiar enough to let herself into the premises.

14 There is also some dispute as to when she told her grandmother about the incident. The videotape reflects it was not the next day. She denied that she told her grandmother about going to [REDACTED]'s house, necking with him there, things getting out of hand, at which time he had sex with her after she told [REDACTED] to stop, to which he responded, "It's too late. I've already gone inside." She testified this is not what she told the police and is not what she told her grandmother. [REDACTED] was unable to offer any explanation as to why her grandmother would say that, stating that she told her grandmother the same thing she told [REDACTED] The grandmother was present when [REDACTED] gave her statement to the police.

15 [REDACTED], [REDACTED]'s grandmother, gave evidence. She testified she was with [REDACTED] when [REDACTED] gave her statement to the police. [REDACTED] testified her statement to the police reflected the following. [REDACTED] went to [REDACTED]'s house, things got out of hand, [REDACTED]'s pants were pulled down. She told [REDACTED]ark to stop, he replied to her, "It's too late. I'm inside." [REDACTED] stated that this is what [REDACTED] related to her and this is what [REDACTED] told the police. She stated that she was being honest with the police. The witness also testified that [REDACTED] told her about the incident on Tuesday or Wednesday following. According to this witness, it was her understanding the incident referred to occurred two or three days prior. She agreed with the proposition that it would have happened on the weekend. She said, as well, she told the police what she recalled and to the best of her memory.

16 The witness also allowed that she might have mixed up certain details of what [REDACTED] had related to her. Her final comment on the matter was that [REDACTED] had sex with [REDACTED] when [REDACTED] did not want to engage in such an activity.

17 [REDACTED] testified. He told the court after being out until about 2:30 a.m. that morning, he went to [REDACTED]'s house at [REDACTED]'s invitation at about 8:00 a.m. or 8:30 a.m. [REDACTED] told the court that he drank vodka, about four shots, with [REDACTED] and [REDACTED], watched T.V. and played a video game with [REDACTED] He went to the bedroom of [REDACTED]'s father to play the video game. His evidence is that [REDACTED] was able to play the video game, notwithstanding his consumption of alcohol. [REDACTED] followed [REDACTED] into the bedroom sometime later. After looking at some pictures on the computer in the bedroom, he did lie down on the bed.

18 [REDACTED] was at the computer in the bedroom, according to [REDACTED]'s testimony, looking at pornography. Before he fell asleep, he stated [REDACTED] asked him to look at some pictures, which he did and then he fell asleep. He said he was tired from the night before and the alcohol he consumed that morning left him with a buzz. He did testify that the alcohol would not make him feel tired, although he was an inexperienced drinker. He stated he needs about eight shots to get drunk. He stated that the room - that the door to the bedroom was open when he went in and it was not locked at first, but locked later, after [REDACTED] came in. He stated that she asked him to lock the door, which he did. His evidence is that [REDACTED] and [REDACTED] were drunk, slurring their words and stumbling. He awoke after falling asleep to find [REDACTED] sucking his penis. She was on her knees on his right side. He testified he had not asked for this. His pants were undone and his zipper was unzipped. His boxers were on, with his penis sticking out of the fly in the underwear. He stated he had a partial erection. He shoved her off with his left arm. He testified she was never disrobed. He rejected the suggestion that it makes no sense that he would push her off while she was performing oral sex on him. He said in response to the question, "It makes sense to me." He did not say anything. He testified he went to the bathroom, thinking why did she do that?

19 He denied the suggestion that once he awoke to [REDACTED] giving him oral sex, he would have just gone along with it. Although they had dated, he testified, it was a long time ago. He also told the court that nothing of a sexual nature occurred between them after they had broken up. He rejected the suggestion that he was possibly too drunk to recall what happened. He rejected that the - the testimony that he suggested a threesome, that he wanted sex and she said no. He testified he went to the living room where [REDACTED] was at the computer, sort of sleeping. [REDACTED] came into the living room, sat on the couch and did not speak. He noted that she too was angry, he did not know what to say. He testified that he watched T.V. and he left 10 or 15 minutes later. He next saw [REDACTED] on the Monday following, but did not see her in the days between. He testified that he did tell [REDACTED] about what happened later on that same day. He did not think it would get around. He rejected the suggestion that he told the story about [REDACTED] taking advantage of him for damage control purposes. He stated he just wanted to get the story straight. He was not concerned about his reputation or did he think he would get into any trouble for what happened in the bedroom. He never told [REDACTED] not to tell anyone about it. He was not concerned about a story that he had sex with her without her consent. He denied uttering the words, "Too bad, I'll do it anyway", "[REDACTED], what have we done?", "Don't tell anyone."

20 He agreed that only after she went to the police, he told other people she, took advantage of him. He told [REDACTED] he did not want it to happen and it was a complete shock to him. On the Monday, he testified that [REDACTED] came to his house about 7:30 to 8:00 a.m. He was in the living room, sewing his pants. It was unexpected by him that she would visit because of what she had done. She sat down beside him and explained how they had sex on Thursday. She said it did not happen. He testified that if it happened, he would remember. He was confused, he testified, about why she was saying that. He had not engaged in sex with her and there was no agreement. He testified he fixed his pants, she then went to the washroom, they walked to school. In his testimony, he denied he had sex with [REDACTED] on March the 16th. He testified he has not spoken with her since that day.

21 In analyzing the evidence of the complainant, there are inconsistencies. While perfection is not the standard, there are certain hallmarks in the evidence that assists a trier of fact. I have found the evidence on the issue of who initiated the request for oral sex a key in making certain findings. At best, I conclude the complainant was uncertain as to who first suggested this. There was included in her evidence facts that were not related to the police, such as a suggestion by [REDACTED] that they call [REDACTED] for a threesome, an important fact in my view. At trier of fact must look at this type of evidence in terms of its reliability. There was nothing in the videotaped interview with the police indicating [REDACTED] asked her to get on top of him, although she testified to this in her evidence in this proceeding. In reviewing this material, I ask myself whether these are minor or insignificant facts. These facts were significant enough to relate to the police, but not to the court. I conclude these are significant facts.

22 In reference to the subject matter of ejaculation, [REDACTED]'s evidence is not consistent. She indicated to the court she did not think he ejaculated, to [REDACTED] that he did, although there was some backtracking by him in re-examination. She stated at one point she was not paying attention so she was not sure. At another point, she indicated she would not know how it felt so she could not say. I find a major inconsistency in this area of her evidence.

23 On this evidence, it will be an impossible task to make any kind of determination. She told the court that during the sexual intercourse, he said nothing. Yet she told the police he said, "I can't get it in to stay." At one point in her evidence she stated her clothes were removed during the act of oral sex. At another point, she indicated she was wearing her bra, her underwear and zip up sweater when he asked her to get on top of him.

24 In respect of the [REDACTED] evidence, this evidence relates to an event separate in time and place to the one complained of by [REDACTED] and yet, this witness testified that what she - that is [REDACTED] told the police is what [REDACTED] told her. She agreed that she could have been confused about some details. I find the evidence of [REDACTED] to be important, not for the truth of its content, but as a factor that must create questions about the reliability of [REDACTED]'s evidence. The phrase that is of such significance is, "I told the police what [REDACTED] told me."

25 I find several other inconsistencies in the evidence of [REDACTED] Did she or did she not ask for permission from [REDACTED] to go into his father's bedroom? [REDACTED] did not confirm [REDACTED]'s evidence that he was called by [REDACTED] from the bedroom in reference to the suggestion about a threesome. Having made that observation, I ask what reliance can a trier of fact place on her or [REDACTED]'s evidence, given their states of impairment by alcohol. I cannot place reliance on that evidence and to a greater extent, it bears on other evidence.

26 As to where she told her grandmother about the incident, her evidence is that she told her grandmother enroute to her aunt's house. Her grandmother stated that she told her about it while at home.

27 An important consideration in this matter is whether there was motive to fabricate. I find [REDACTED] would have motive to fabricate. As the story began to circulate amongst her friends, she needed to create a foil that would protect her, either from gossip about having had sex with [REDACTED] and further, from being seen as a girl who took advantage of [REDACTED] as he slept.

28 There is no forensic evidence in this case, nor are there any injuries.

29 The defence of [REDACTED] is one of denial. He testified on issues that could be seen as being against his interest. He told the court that he did not expect to see [REDACTED] at his house, especially after what had happened. His version is before the court. He ultimately told the court that he did not sexually assault [REDACTED] In analyzing his evidence, I find there are issues that negatively impact on his credibility. He refused throughout to acknowledge the affect of alcohol on his deportment that morning. While the others were drunk, all he would admit to is that he had a buzz and fatigue from the previous night. I would have found his evidence more credible had he simply agreed that the alcohol had more of an affect. Is it a matter of being macho or some other motivation for him to tell the court that he needs eight shots of alcohol for him to become drunk, being an inexperienced drinker? This is not an impressive area of his evidence. However, I cannot, as well, accept at face value that a 16 year old male would, in these circumstance, always succumb as was suggested by the Crown.

30 I find the evidence of [REDACTED], employing the test in R. v. W.D., [1991] 1 S.C.R. 742, to be at times troubling, but on balance, combined with the evidence of [REDACTED], leaves me in a state of reasonable doubt. His responses in cross-examination were certain and he maintained his position. Contrasted to the evidence of [REDACTED], she was vague and uncertain in many areas of her cross-examination noted above. It is the second prong of the test in R. v. W.D. that I find applies in this case where Cory J. enunciated as follows. "Secondly, if they do not believe the evidence of the accused, but are left in a reasonable doubt by it, then again the jury must acquit."

31 I do find, on the evidence, that all three people in [REDACTED]'s residence on March the 16th were quite affected by the consumption of alcohol. I find this factor, amongst others, has great impact on the assessment of the evidence by this court. The quality of the evidence has been such that this court cannot make findings other then those of uncertainty, either on the evidence of the complainant or the accused. The court would not be discharging its mandate if it was to accept that the complainant was, and that the Crown suggests, upfront in her evidence. Her evidence was anything but certain. As noted, she was inconsistent and her memory was affected by the consumption of alcohol. One of the clearest examples of inconsistency and inability to recount is the evidence relating to ejaculation. It is not an exaggeration to say that she altered her answer in response to each question relating to ejaculation. Did [REDACTED] suggest she perform oral sex on him or not? She is not certain. What was the state of her clothing during the acts she describes? She is not certain in her evidence.

32 The [REDACTED] evidence is not as the Crown suggests, that she only got some things mixed up and she assumed it happened at [REDACTED]'s place. I find this evidence is more then just being mixed up and assumptions. She stated she told the police what [REDACTED] told her. I conclude it is but yet another area of evidence that casts doubt on the position of the Crown.

33 [REDACTED], stand up, please? I acquit you on these charges or on this charge. Thank you.


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