R v Mosa, 2016 ABQB 394

Court of Queen’s Bench of Alberta Citation: R v Mosa, 2016 ABQB 394 Date: 20160714 Docket: 131114662Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Ahmad Mosa, Geoffrey Enrique Gonzales and Harold Alberto Gonzales Accuseds Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the victims must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] Harold Gonzales is charged with sexual assault of S. His brother, Geoffrey Gonzales, is charged with sexual assault of T. Ahmad Mosa is charged with sexual assault of S and of T. All of the charges arise from alleged occurrences on October 19, 2012 in Calgary.

[ 2 ] Each of the three accuseds gave statements to the police on September 18, 2013 (some 10 months after the occurrence date). Those statements were video recorded and both the video recording and a transcript of the interview have been admitted into evidence as part of the crown’s case. [ 3 ] A substantial Agreed Statement of Facts was presented in evidence by consent. The Agreement establishes continuity of forensic evidence. It admits into evidence the reports of the Calgary Sexual Assault Response Team (“CSART”) regarding each of S and T. That team found some bruising on S’ neck.

It found abrasions on T’s forehead, near her collar bone, near her left shoulder blade, and on her legs, knees and left shin. [ 4 ] S had redness, swelling and tenderness to her genitalia, but the CSART doctor could not say it indicated non-consensual sexual activity. [ 5 ] T had swelling and tenderness to her labia, and a superficial abrasion near the labia minora; she had swelling to her posterior fourchette and introitus, with swelling and a “tiny” abrasion to her hymen; and a 2.5 cm linear red abrasion near her anus.

The CSART doctor could not say the injuries to T’s genitalia indicated non-consensual sexual activity. [ 6 ] Swabs were taken from each of the complainants. From S they took a vaginal swab, an anal swab, two right ear swabs, and two chin swabs. From T they took a vaginal swab, a cervical swab, a labial swab, an oral swab, and two body swabs. Blood samples were also taken from the two complainants. The swab samples were sent for DNA Testing. The blood samples were sent for DNA testing and for toxicology analysis. [ 7 ] Blood samples were seized from each of the accuseds for the purpose of DNA analysis.

Harold and Geoffrey Gonzales admitted their samples were properly seized pursuant to warrants. Ahmad Mosa challenged the admission of his DNA into evidence, but I ruled it was properly admitted, with reasons given during the trial. [ 8 ] The end result of the DNA Testing was placed into evidence by Kenneth Hunter. I qualified Mr. Hunter as an expert forensic scientist capable of giving expert opinion evidence in the

interpretation of exhibits, regarding the presence of human biological materials, and

interpretation and comparison of forensic DNA “typing profiles”. Mr. Hunter’s conclusions can be summarized as follows: (

a) Harold Gonzales’ DNA is on S’ vaginal swab. That DNA comes from semen. In addition, on that swab is a trace component of DNA, not from Harold Gonzales or from S. It is unidentifiable, even as to the sex of the DNA donor. (

b) The two right ear samples from S have Ahmad Mosa’s DNA upon them, and that DNA comes from semen. (

c) The vaginal swab from T contains DNA from Geoffrey Gonzales, and it is from semen. (

d) The cervical swab from T discloses DNA from Geoffrey Gonzales, and it is from semen. (

e) T’s underwear has DNA of Geoffrey Gonzales on it, and the DNA comes from semen. (

f) The two body swabs from T contain DNA of Geoffrey Gonzales, and at least some of it came from semen. [ 9 ] It should be noted that not all of the submitted samples (swabs) were tested by the RCMP lab for DNA. Exhibits from S’ cervical swabs, S’ vulva swab and S’ underwear were not examined (apparently because of a need for efficient use of RCMP lab resources). [ 10 ] In short, then, the DNA Analysis performed showed Harold Gonzales’ semen in S’ vagina; Geoffrey Gonzales’ semen in T’s vagina, and on her underwear; and Ahmad Mosa’s semen on S’ right ear.

There is an unidentifiable trace of DNA from a third party found on S’ vaginal swab. [ 11 ] With some variances in detail, the evidence of the complainants and of the Gonzales brothers is that Geoff Gonzales and T arranged for the four of them to meet at Joey’s Restaurant on Barlow Trail for drinks. The two complainants were only 16 years old although the Gonzales brothers thought they were older. The complainants say they had no fake identification, but were not asked for identification to get into the pub area at Joey’s Restaurant.

Geoff Gonzales gives evidence that he saw a woman checking something the complainants provided; he assumed it was an identification check. [ 12 ] The four of them drank jugs of draft beer: two jugs according to S, three jugs according to Harold Gonzales. Some say there was also tequila consumed at Joey’s while others denied it. [ 13 ] S had not previously met either of the brothers. T knew Geoffrey Gonzales and had been introduced to Harold Gonzales before.

The complainants’ evidence, and that of Geoff Gonzales indicate that Geoff and S spoke mostly between them, while T and Harold held their own discussion. [ 14 ] Geoff Gonzales suggested the four of them go to a house party at the home of a friend, H.H. T knew H.H. The four of them decided to attend the house party. T travelled there with Harold Gonzales, while S travelled with Geoff Gonzales. All four arrived at H.H.’s house. There was a gathering of people there, variously described in terms of numbers, both male and female. Ahmad Mosa was there, with at least two other males.

T knew one of these males as H.H. and another as “Ehab”. T also knew Ahmad Mosa. [ 15 ] There are varying accounts as to who drank what alcohol at the party, and whether drinks were mixed, or shooters, or straight out of the bottle. To me, these inconsistencies are not of particular concern, given the passage of time before statements were taken, and given that people at a party are seldom able to recall what or how much other people were drinking. [ 16 ] Against that background, I now turn to evidence of the complainants.

Trial Evidence of S [ 17 ] S gave evidence that she had only tried alcohol once before this evening. She said they were at Joey’s Restaurant for a couple of hours and believed that on a drunkenness scale of 1 to 10, with 1 being sober and 10 being totally drunk (the “1-10 Scale”), she was a 6 or 7 when she left Joey’s Restaurant and went to the party. By her observation, she put T at about an 8 on the 1-10 Scale as they arrived at the party. [ 18 ] S said that she drank no more alcohol at the party. [ 19 ] S said she started to have a bad feeling at the party and she phoned her friend, Billal, to pick her up.

Because she didn’t know the address, she suggested he pick her up at a Shopper’s Drug Mart parking lot, which she knew was nearby. She asked Billal to call her again on her cell phone when he was there. [ 20 ] S said she went looking for T. She was told that T was downstairs, so she went downstairs to look for her.

She said she was told by “the 19 year old from Joey’s” not to worry about T, she was fine. [ 21 ] She indicated that she was not clear about names, but she distinguished the two brothers as the “bearded one” whom she identified as Harold Gonzales (page 9, line 6); and “the 19 year old” who she identified as Geoff Gonzales. [ 22 ] S said that an encounter with the 19 year old occurred in the basement. He picked her up and put her on a table. She tried to push him off. He took off her pants while she tried to push him away. She heard him unzip his pants. He pushed her underwear aside as she kept telling him “No”.

He told her she was beautiful. He stuck his penis into her vagina, while she continued to try to push him away. It didn’t last long and she didn’t know if he ejaculated. [ 23 ] She said that the lighting was dim, but that she could still make out her assailant and his features. [ 24 ] (I pause here in the narrative to say that Geoff Gonzales has not been charged with this alleged assault, nor was his DNA found on or about S’ person). [ 25 ] When this event ended, S said that she was afraid and she wanted to find T and get out.

By that time she describes her drunkenness as an 8 on the 1-10 Scale. [ 26 ] She said she got off the table and put on her pants. She was looking for her phone. She said “the brown guy” had her phone. He told her to come into the bedroom to get her phone. He lit the phone up to show her it was hers. She wanted her phone to contact Billal. She followed “the brown guy” into the bedroom. He got on the bed and said that if she “sucked his dick” she would get her phone back. She said she told him “No”. Just give me my phone”. She tried to grab the phone and fell onto the bed on her back.

He got on top of her, with “his butt on my boobs and his knees on my shoulders”. She said that her hands were pinned but that she was trying to push against his stomach. She said he undid his pants, took out his penis, and put it on her cheek. She said she kept saying no, but he put his penis in her mouth. She tried to move her head to get it out but he kept it there and kept pushing it in and out of her mouth.

She doesn’t remember him using a condom. [ 27 ] (I pause here again, to say that Ahmad Mosa gave evidence to say he received a “blow job” – oral sex – from S that evening but maintains that it was consensual; I conclude that when S refers to “the brown guy” it is, by his admission, Ahmad Mosa to whom she is referring). I am supported in that conclusion by the fact that Mosa’s DNA was found on S’ ear. [ 28 ] S said she then went upstairs to the bathroom. While she was there, “the other brown guy” entered the bathroom and started lifting up her shirt.

She told him to stop and he did so. [ 29 ] She contacted Billal and learned that he was near the Shopper’s parking lot. S said she located “the bearded guy, Harold”, who told her T was outside at the back of the house. S said she went there and saw T laying down with a guy; her legs were up and it looked like they were having sex. She said she grabbed T and they left. [ 30 ] She said the bearded guy “drove us to Shoppers” but then says she doesn’t remember if T was with them or not. She said she got out of the bearded guy’s car and he left. [ 31 ] Billal was at the Shopper’s parking lot.

She told Billal they had to go back and get T. She directed Billal back to the house. While en route, she said she told Billal she had been raped. She said that she and Billal went in the house, got T, and then they drove back to the Shopper’s parking lot. She did not know why they went there. T got out of the car and was laying on the pavement, crying. She said T was a 10 on the 1-10 Scale. The next that S remembers, she was on the paved parking lot as well. [ 32 ] S said the police and an ambulance came. S told a female police officer she had been sexually assaulted.

S left Shoppers in an ambulance with T. [ 33 ] S said she did not want to have sex with anyone that night; not with Geoff Gonzales, not with Ahmad Mosa and not with Harold Gonzales. [ 34 ] In cross examination it was suggested to S that one of the males found her phone for her and that she hugged him in thanks; then they started “making out”, which led to her consensually performing fellatio.

She denied such an occurrence took place. [ 35 ] S did admit that her memory of the evening’s events was poor, which, in part, she attributed to a brain injury since suffered by her as a result of an attempted suicide, which occurred after the events of October 19-20, 2012. [ 36 ] S acknowledged some inconsistencies in her statement and her testimony at preliminary inquiry and at trial. She

acknowledged telling the police that the individual involved with the oral sex act was not wearing a condom, whereas at trial she couldn’t remember. [ 37 ] She acknowledged that in her statement to the police she estimated her oral sex assailant to be about 15 years old. She said in that statement that the assailant did not ejaculate, but at the preliminary inquiry she said he did; and at trial she said she didn’t know.

She said her evidence changed when she learned about pre ejaculate and learned “something about the DNA results”. [ 38 ] At preliminary inquiry she had said Billal picked her up at the house; at trial she said it was at the Shopper’s parking lot. [ 39 ] In her statement to the hospital team she stated that Geoff Gonzales had sex with her, then six other people came in and had sex with her. At trial she did not recall saying that.

She made no complaint of oral sex in the statement to the hospital: the only recording by the hospital team is in the CSART report, where it is recorded that she reported that sex in her mouth was attempted but she does not know if it was completed, she doesn’t know if a condom was used and she doesn’t know if there was ejaculation. [ 40 ] S said that T’s mother was a “bitch”; T’s relationship with her mother was dysfunctional, and T was afraid of her mother. [ 41 ] S acknowledged discussing matters with T before giving her interview with the police. [ 42 ] S said to the police that the rapes had occurred 2 hours before the police arrived.

In redirect she estimated it was less time than that. Trial Evidence of T [ 43 ] I now turn to T’s direct evidence. She said that she was “past tipsy” when she left Joey Tomatos and went to the party. She was having difficulty walking straight. [ 44 ] She knew H.H. and had been to his house before. She encountered H.H., as well as Ehab at the party. Ehab was a friend of her ex boyfriend. She also knew Ahmad Mosa. [ 45 ] She said both she and S drank at the party. She doesn’t know how much S had to drink. For her own part, T was drinking mixed drinks. She was dancing at the party.

She said she was “pretty much drunk, falling a lot, blurry, but still aware of what was going on”. She described herself as “not completely wasted, but drunk”. [ 46 ] She recalled going to the bathroom with S. She recalled seeing on her phone that her mom had been calling. Not wanting to speak with her, she turned her phone off. [ 47 ] She said that, during the party, she felt as if she was “going in and out, passing out”. She recalled laying on the porch in the back yard, and everything was spinning.

She said Ehab and Geoff Gonzales were whispering to each other. [ 48 ] She said she got off the porch, and she, along with S, Ehab and Geoff, walked downstairs into the basement. She lost track of S. She said that she and Ehab went into a small dark room. Her speech was affected; the room was spinning. [ 49 ] She said someone opened the door and gave something to Ehab. [ 50 ] She said Ehab took her shorts down and then took her underpants down. He put on a condom and started putting his penis into her vagina. She said that after he was done and had ejaculated, she got up and they walked upstairs together.

She gave no evidence as to consent or lack of consent, just that he did these things while she was laying there, drunk. [ 51 ] She said Ehab helped her up the stairs and he walked her towards outside. She said she wasn’t feeling well. She said either Ahmad Mosa or Geoff Gonzales took her to a vehicle. [ 52 ] She said she and Geoff Gonzales entered the vehicle. She said it was a white two door car. She doesn’t remember if they drove anywhere. She lay down in the back seat.

She said that, as she was laying there, she felt pressure on her neck, but she wasn’t sure why; and then she remembers Geoff Gonzales having sex with her. [ 53 ] She said Geoff Gonzales had vaginal sex with her. She cannot remember if he used a condom. She was just laying there. There was no conversation between them. [ 54 ] She next remembers Ahmad Mosa getting into the vehicle and having vaginal sex with her. She said she couldn’t breathe, her heart was racing and she felt claustrophobic. She said she was very drunk and was not able to say anything.

She gave no evidence that anything was said between her and Ahmad Mosa. [ 55 ] She next remembers that somehow she got out of the car and went back into HH’s house, through the front yard. [ 56 ] She said when she got into HH’s house she started yelling “They raped me, they raped me”. People at the party, including Geoff, tried to calm her down. [ 57 ] She remembers Billal arriving and taking her out of the house. They got into Billal’s car but she started panicking so Billal stopped in the Shopper’s parking lot. [ 58 ] T has no memory of dealing with the police that night.

She remembered seeing the ambulance there. She remembered being in hospital.

[ 59 ] She stated that she did not want sex with Ehab or with Geoff Gonzales or with Ahmad Mosa that night. [ 60 ] T said that before this night, she and Ahmad Mosa had been Facebook friends while he was out of the country. When he returned, they got together to watch a movie in his parent’s basement. She said that Mosa started hugging and kissing her and she angrily told him to stop. He stopped and she left.

She had not seen nor spoken to him since that occurrence, until arriving at the party. [ 61 ] T acknowledged in cross examination that there were a lot of blanks in her memory, and she finds it hard to put it all together. At the hospital, her initial election was not to involve the police. She said at that time she didn’t want to talk about it with anyone. She later changed her mind. [ 62 ] It was suggested to T that the vehicle she went into, after the basement incident, was black, not white as she had earlier stated.

She said it was hard for her to say. [ 63 ] T acknowledged that at the Shopper’s parking lot, she was on her knees for part of the time (where she may have cut or scraped them). [ 64 ] T acknowledged she was having problems at the time with her mother, who was very strict. She said they had normal mother- daughter arguments. [ 65 ] She stated that she does not remember if she went outside with Geoff Gonzales for a smoke. She said she doesn’t have any memory at all of kissing Geoff Gonzales. She denied that she ever said “Geoff please fuck me”.

She denied that she agreed to go into the back of the car and have sex with Geoff Gonzales. [ 66 ] T acknowledged that she doesn’t know where Harold Gonzales was during the party.

She acknowledged that Harold Gonzales played no role in relation to her. [ 67 ] She acknowledged that, while the basement was dark, you could see that faces of people there. [ 68 ] T acknowledged that at one point during the party she saw Geoff and S kissing. [ 69 ] T said that she did not recall whether she talked to S about the night’s events before her interview with the police; but she acknowledged telling the police “the same thing happened to her”, meaning S, and that S “didn’t know who did it”. [ 70 ] At trial, T initially denied discussing things with Billal before her interview with the police, but she was shown where, in the interview, she had acknowledged speaking with Billal. [ 71 ] At trial T said Ehab used a condom, in her interview she said she didn’t know. [ 72 ] At one point, T indicated that it was Geoff Gonzales who opened the door to the basement room and passed something to Ehab; in her statement to police she said “someone” did that, not identifying Geoff Gonzales. [ 73 ] At trial T said, at one point, that either Geoff or Ahmad took her to the car.

In cross examination, she said Geoff took her to the car. But in an interview with the crown and police before the preliminary inquiry, the officer’s notes state that Ahmad took her to the car. In the end, she said she is not 100% sure. [ 74 ] T did not remember Ahmad Mosa driving anywhere. T did not remember them being in the front seat, then moving to the back.

She confirmed that when she started panicking and feeling claustrophobic, she got out of the car. [ 75 ] T acknowledged that, in a conversation with Detective Patzwald, following the review of a photo line up, Detective Patzwald told her that only one male DNA profile showed up from the swabs taken from her; and that therefore the case against Ahmad Mosa was not particularly strong. She asked Detective Patzwald if getting more witnesses would help in prosecuting Mosa. [ 76 ] It was suggested to T regarding the earlier event in Mosa’s basement that she and Mosa had been kissing consensually.

T denied this suggestion. She did acknowledge that, on that previous occasion when she told Ahmad Mosa to stop, he stopped. [ 77 ] It was suggested to T that on the night in question, she and Mosa were talking outside and then went to his car, where they started “making out”; that she then removed her own underwear; that Mr. Mosa drove away from the house; and then that the two of them got into the backseat, where consensual sex took place.

T did not agree with these suggestions. [ 78 ] T did acknowledge there were some parts of the evening that she did not remember. [ 79 ] At trial, T denied having a conversation with Geoff Gonzales about going for a drive; yet, in her statement to police, she said they did have such a conversation. [ 80 ] In her trial evidence T said there was no drive taken by her and Ahmad Mosa; yet in her statement to police, she said that Ahmad Mosa drove the car somewhere. [ 81 ] I now move to the evidence of witnesses other than the complainants.

Billal Hakim [ 82 ] Billal Hakim said that after midnight (making it October 20, 2012) he got a call from S asking him to pick her up right now and stating that she was at Shopper’s with a friend.

[ 83 ] He said that he got to Shopper’s, where he picked up S. She said they had to go to the house to pick up T. [ 84 ] He said S called someone to get the address of the house and they went there. He confronted one of the males at the house about their treatment of S and T. He said that person was talking back to him, showing a lot of attitude and trying to start something. [ 85 ] Billal said that T then came out of the bathroom of the house. Her mascara was dripping, she was shaking, and she was drunk. They found her shoes, but not her purse. They left the house.

T laid down on the back seat, and threw up on the floor of his car. Billal drove back to Shoppers to get water for T. [ 86 ] Billal said S was in shock. Both girls got out of the car in the parking lot. They both told Billal that they had been raped. [ 87 ] Billal said a guy from Shoppers called the police. Billal had to accompany the police back to the party house. While at the house, the same guy with whom he had the confrontation was brought out to the police car by the police, where he was patted down and asked questions. [ 88 ] After this night, Billal spoke with S many times, as they were friends.

He said he did not speak to T again. [ 89 ] In cross examination Billal confirmed that at Shoppers, T was calling out that she had been raped. He confirmed that both of them told him they had been raped. Amrinder Sandhu [ 90 ] Amrinder Sandhu was the employee at Shoppers who called 911. He and his supervisor were just closing up the store when he noticed a girl walking in the parking lot, in front of the store, crying heavily and slurring her words. There was another teenage girl and a teenage male to Sandhu’s right. The first girl, wearing a white shirt and a blue skirt, walked without direction.

He asked her what was happening and she said she had been raped. She did not communicate further. The teenage male and the supervisor suggested there was no need to call the police but Sandhu disagreed and he called 911. The girl in blue threw up in the parking lot. The girl in blue appeared as though she might be drunk. The other girl did not display signs of intoxication noticeable to Sandhu. Constable Geoff McLaughlin [ 91 ] Constable McLaughlin was the first officer on the scene at Shoppers. He noticed that T seemed to have blood on her arms and legs. She was wearing a tank top and a blue flowing dress.

She was scared, crying, shivering and confused. She said she was raped by four guys, that they kept coming even though she was saying no. Due to her upset state he did not press her for details. He escorted her to the ambulance. Constable Barrett told him that the other female was also complaining that she had been sexually assaulted. Constable McLaughlin rode with the two females in the ambulance. He spoke to S who seemed to be less intoxicated. She appeared to have red marks on her neck, which she said occurred while having non consensual sex.

S told him that Harold had a beard; Geoff was wearing a striped shirt. [ 92 ] Constable McLaughlin indicated that, at the hospital, the two complainants were taken to separate rooms. No one mentioned an occurrence of oral sex to him. [ 93 ] Constable McLaughlin did not ask for nor did he receive, names of any alleged assailants. He was told that the events complained of had happened two hours before the police were called. Constable Geoffrey Hoover [ 94 ] Constable Geoffrey Hoover responded to dispatch for a sexual assault and attended the Shoppers parking lot. He spoke to Billal Hakim.

He asked Billal to show him the house where events had transpired. Billal travelled with him to the house and then waited in the police car. At Constable Hoover’s request a second police car arrived. [ 95 ] Constable Hoover went to the front of the house while Constable Ryan went to the back. Inside they took names of the people present: H.H., Geoffrey Gonzales, Ehab, Ahmad Mosa, J.T. (described as oriental) and three females. [ 96 ] Geoffrey Gonzales could not provide any identification so Constable Hoover took him out to the police car. He was wearing a striped sweater.

It was confirmed through police information services that he was Geoffrey Gonzales. Constable Hoover said most of the occupants were cooperative. He said that Geoffrey Gonzales and Ehab were “standoffish” but eventually they cooperated. He was given permission to look around the house for evidence. He came away with none. [ 97 ] He said that while it was a party and people had been drinking, there was “nothing obvious” in terms of drunkenness. [ 98 ] Geoffrey Gonzales made the following statement to Constable Hoover: Those bitches were all over me.

I had to pick them up all over the house till they got sick and their buddy came and picked them up. Constable Jason Ryan [ 99 ] Constable Ryan attended at HH’s house with his partner Constable Hildebrand. Constable Hoover was there and he took the

lead. Constable Ryan looked around the premises. In the basement he found a bedroom in which there were two mattresses stacked one on the other with sheets scattered on top. He saw nothing out of the ordinary and seized nothing from the house. He did not deal with any of the occupants. Constable Nicole Barrett [ 100 ] Constable Nicole Barrett arrived at Shoppers with Constable Hoover. Constable McLaughlin was there taking care of T. Constable Barrett went to the assistance of S, who was lying on the ground in her own vomit, and whom she described as inconsolable.

Constable Barrett noted indicia of impairment by alcohol. S was visibly upset, crying, rambling, dry heaving, hyperventilating and unable to get words out. Constable Barrett could smell alcohol on S’ breath. She needed assistance to walk. She said she had been raped. [ 101 ] Constable Barrett followed the ambulance to the hospital. She confirmed that the two complainants were placed into separate rooms at the hospital. She noted red markings on the left side of S’ neck that appeared to be fresh. [ 102 ] Constable Barrett contacted each complainant’s parents.

She collected clothing from S. [ 103 ] Constable Barrett said S continued crying the entire time Constable Barrett was there, which was 5 or 6 hours. [ 104 ] Constable Barrett was not involved with T at Shoppers. Her observations of T at the hospital were that she was very intoxicated and kept passing out. There was a strong smell of alcohol on her breath. She was often incoherent and didn’t answer questions put to her.

She had a fresh cut on her forehead, some fresh cuts on her knees, with some dried blood on the cuts. [ 105 ] In cross examination, Constable Barrett said that S told her she had been raped by Geoffrey Gonzales. S then said that other men kept coming and took turns having sex with her. She did not tell Constable Barrett how many men. She described Geoff Gonzales as a 20-year old wearing a striped shirt and Lebanese. S did not describe Harold Gonzales. S made no specific allegation against Harold Gonzales.

S made no mention to Constable Barrett about oral sex having occurred. [ 106 ] Constable Barrett’s notes make no mention of an odour of liquor from S or that S was impaired. Lori Campbell [ 107 ] I qualified Lori Campbell as an expert in forensic toxicology. She was in charge of the testing of blood taken from each of S and T. She determined that at the time the samples were taken, S had a blood alcohol level of 87 mg% and T had a blood alcohol level of 146 mg%. [ 108 ] As S’sample was taken at 3:40 am on October 20, 2012, Ms.

Campbell calculated that, as at 12:46 am on October 20, 2012 (the time the police arrived and beyond which time no further alcohol was consumed) S’ blood alcohol level would have been in the range of 117 to 147 mg%. [ 109 ] As T’s sample was taken at 2:22 am October 20, 2012, as at 12:46 am that day Ms. Campbell calculated that her blood alcohol level would have been in the range of 162 to 178 mg%. [ 110 ] To broadly understand these levels, 80 mg% blood alcohol content is the level at which an individual is deemed to be impaired to drive a vehicle. [ 111 ] The calculation performed by Ms.

Campbell, going back in time from the time the sample was taken, rest on the assumption that every hour, the body eliminates between 10 to 20 mg% of alcohol from the bloodstream. So, for example, if neither of the complainants had consumed any alcohol for an hour before 12:46 am (i.e. 11:46 pm), S’ range would become 127 to 167 mg% and T’s range would become 172 to 198 mg%. [ 112 ] These ranges can be further affected if the subject drank alcohol in the half hour immediately before the time chosen or if the individual had been “bolus” or “binge” drinking.

As such the ranges are not perfect, but they are generally accurate. [ 113 ] Ms. Campbell was asked to provide her opinion as to how intoxicated an individual would be at these ranges. She was quick to point out that it would be quite dependent on the individual and in particular, how accustomed that individual was to drinking alcohol and handling its effects. An unseasoned drinker would be expected to be affected much more than an experienced one. [ 114 ] Speaking generally, a person with a blood alcohol content of greater than 100 mg%, up to 200 mg% is past the point of functioning normally.

That person’s motor coordination, mental function and the senses (most notably vision) will be affected. As a result that person will likely have trouble walking and will likely have slurred speech. Memory deficits may also occur. [ 115 ] Typically, the smaller the person, the less the alcohol volume required to get to these blood alcohol percentages. Also, a female more easily reaches these blood alcohol content percentages than does a male. [ 116 ] Ms.

Campbell opined that given S’ size and body weight and her evidence that she had only drank alcohol once before, the range of blood alcohol content at 12:46 am being 117 to 147, she would expect that S would have been affected quite significantly to the state of intoxication, which she describes as advanced impairment; and that gross observable signs would be apparent to an observer at 12:46 am. Ms.

Campbell would expect overwhelming sleepiness, difficulty speaking, difficulty paying attention, some potential lapses in consciousness, and gross impairment of her ability to perceive things around her. [ 117 ] Going back an hour to 11:46 pm, and assuming no alcohol was consumed since then, there is a good possibility that these

effects would have been even greater. [ 118 ] Turning to T, given her size and body weight, her lack of familiarity with alcohol, and her range of blood alcohol content at 12:46 am of 162 to 178 mg%, Ms. Campbell would expect very pronounced intoxication with impaired consciousness and motor control, exaggerated emotional response and maybe vomiting. Her speech would be affected; she may be falling; she would quite likely want to lie down. The impairment can be expected to be greater than that of S because her blood alcohol content was higher. [ 119 ] In cross-examination, Ms.

Campbell confirmed that subjects who consume alcohol have lower inhibitions and become greater risk takers. The subject’s ability to accurately recall events may be affected by drinking to the point of intoxication. [ 120 ] The toxicology testing included testing for so called “date rape” drugs. None were detected. . . . . [ 121 ] The crown’s case included videos and transcripts of interview of each of the accuseds.

Geoffrey Gonzales Video Statement [ 122 ] Geoffrey Gonzales is charged with sexual assault of T. [ 123 ] In his recorded statement, Geoffrey Gonzales stated he had known T for a year or two prior to the night in question. She messaged him that night, and they agreed to meet at Joey’s Restaurant. The 4 of them – Geoffrey, his brother Harold, T and her friend S – met there. From there they went to a party at the house of a friend, H.H. Geoffrey was 19 at the time. He thought T was 17. [ 124 ] Geoffrey Gonzales acknowledged that he had sex with T in his car after having driven to the alley.

Afterward, the two of them walked back into the party. [ 125 ] Geoffrey Gonzales acknowledged T had been drinking but said he didn’t know how drunk she was. He said “I was intoxicated as well”. He said “everyone was hammered”. [ 126 ] Geoffrey Gonzales maintained in the interview that the sex was consensual. He said “she did say yes; she could have said no”. He said “I asked her, I said ‘do you wanna fuck?’ she said Yeah.” Later in the interview, he said that T said, word-for-word “Geoff please fuck me”. [ 127 ] Geoffrey Gonzales maintained, that soon after penetration, T complained that it hurt, so he stopped.

He maintained that he did not ejaculate. Ahmad Mosa Video Statement [ 128 ] Ahmad Mosa is charged with one count of sexual assault of each complainant. His video recorded statement, and transcript were entered into evidence by the crown. In his statement, Mr. Mosa was told at the outset that he was accused by each of the two complainants, T and S that he had sexually assaulted them. He was told that the police had statements from each of them. [ 129 ] Mr. Mosa acknowledged that he knew T before the evening under discussion.

He had never had sex with her before that evening, but he had hung out with her before, at his house. [ 130 ] Mr. Mosa was asked whether he had ever had sex with S. He said he didn’t even know her other than that she came over to H.H’s house with T. He said he didn’t really talk to S on the night in question. He was asked whether he had sexual intercourse with S and he said no. He was asked whether he had “any type of sexual relationship with any other girl that night, other than T” and he said “no, not with anyone”.

It was suggested to him that he had lured S into a dark room and forced her to “perform oral sex on her” to which he replied “that’s bullshit”. He was asked “so you’re saying with S or some other girl, other than T, you didn’t have oral sex with a girl that night?”, to which he shook his head; Then, when asked, “Not at all?” he replied, “No. I think I’ve said enough”. Later he said that he did not have oral sex with any girl that night. The DNA results, showing his semen upon S, were then disclosed to him by Detective Pazwald. He declined to comment. [ 131 ] Later in the interview, Mr.

Mosa acknowledged that he had sex with T. He said she didn’t seem like she was drunk such that she didn’t know what she was doing. No direct questions about consent were asked or answered in the interview. [ 132 ] Mr. Mosa said he thought T was two years younger than him, which would make her 17 on the evening in question. Harold Gonzales Video Statement [ 133 ] Harold Gonzales is charged with sexual assault of S. [ 134 ] Harold Gonzales was guarded in his interview, having been advised by a lawyer not to answer questions. [ 135 ] At the time of the interview, Harold Gonzales was 24 years old.

Harold Gonzales spoke of meeting the girls. He guessed the four of them consumed 3 pitchers of beer and some shots of tequila at Joey’s Restaurant before going to the house party. He knew H.H. from before but he didn’t know the other guys.

[ 136 ] He was told he was under arrest for sexually assaulting S. He admitted that he had sexual intercourse with S. He said he was the second person to have sex with her that night. He maintained that the sex was consensual: “that’s the way I feel”. He noted that afterwards she came to him for a ride from the party. [ 137 ] Harold Gonzales denied that he grabbed S in the basement and had sex with her on a table. He declined to provide further details on the advice of his lawyer. [ 138 ] Harold Gonzales said the girls were not drunk until the party. He said at the party “they were sleeping with everybody”.

S and T were dancing and kissing each other, as well as kissing other guys. One of them was kissing Harold (it is unclear from the transcript which one he is referencing). [ 139 ] Harold Gonzales said he is not sure who had sex with T. Harold Gonzales confirmed that he drove S to Shopper’s where she met her friend. Harold Gonzales then went home, so he was not at the party when the police arrived. . . . . [ 140 ] Mr. Ahmad Mosa gave trial evidence for his defence. Mr. Harold Gonzales called no evidence. Mr. Geoffrey Gonzales gave evidence for his defence. Ahmad Mosa Trial Evidence [ 141 ] Mr.

Mosa gave evidence that he arrived at the party, sober, at around 9:00 p.m., some 20 minutes or so before Harold, Geoff, T and S arrived. He had known Harold and Geoff for around 5 years. He had known T for about 1.5 years. He had never met S. [ 142 ] At the party, people were playing cards and drinking, mostly shots of vodka. People would go outside the house to have a smoke. There was dancing at the party, and Mosa said he danced with S. [ 143 ] Later, S came up from downstairs and said that she was looking for her cell phone. Mosa rang the number for the phone and he and S located it in the basement.

He picked it up and gave it to her. He said S was grateful to him for finding the phone and she hugged him. She didn’t let go, and she started to kiss him. She took his hand and led him into the bedroom and started kissing him on the bed. She got on top, kissed his neck, his chest, his stomach, then took off his pants and gave him oral sex. She encouraged him to ejaculate in her mouth and he did so. [ 144 ] Mosa said that S was talking dirty when she was performing oral sex. She was the aggressor.

She never pushed him away nor said no and she was on top of him the whole time; in other words, he maintained that the oral sex was voluntary and consensual on her part. [ 145 ] Later that evening, Mr. Mosa saw T smoking outside. He went out and talked to her. She said “Let’s get out of here”. They went to Mosa’s car. She took her underpants off. He told her about having oral sex with S. T said she didn’t care. Mosa drove one house down. T got into the back of his car. Mosa grabbed a condom from his glove compartment. The two of them had sex in the back seat of Mosa’s car.

He said that T never said no, nor did she tell him not to touch her. He described that she was on top of him, having sex, when she said she needed to throw up. She got off, and then threw up. He and she then went back into the house. She was holding her stomach. [ 146 ] Mr. Mosa denied that either of the complainants was stumbling or slurring, or having trouble communicating. He denied that either of them was emotionally distraught. [ 147 ] As to his previous involvement with T, Mr. Mosa acknowledged they had been Facebook friends while he was out of Canada visiting his homeland.

He acknowledged that when he returned, the two of them hung out in the basement of his parent’s house, where they consensually hugged and kissed and made out while watching a movie. He said they did not see each other socially after that (prior to the subject evening), largely because her boyfriend was his friend. [ 148 ] In both direct and cross examination, Mr. Mosa attempted to explain why, in the recorded interview with Detective Patzwald, he had denied having oral sex with S or anyone else at the party. He said he thought Patzwald was referring to him giving cunnilingus to one of the women at the party.

He claimed that the confusion was caused by Detective Patzwald’s question at page 24 of the transcript referring to “performing oral sex on her”. [ 149 ] In other cross examination, Mr. Mosa was challenged on his recollection of such events as to who was drinking what. He was challenged as to whether the sexual encounters with each of the complainants were consensual. He was challenged as to the stated intoxication of the complainants and about T’s emotional state as described by others. He was challenged with T’s recollection of their earlier encounter in his parent’s basement.

Geoffrey Gonzales Trial Evidence [ 150 ] At trial, Geoffrey Gonzales said when the two complainants showed up at Joey’s Restaurant, they were stopped and then they produced something to a woman, which he assumed was identification. He acknowledged that they drank beer at Joey’s Restaurant then headed to H.H.’s house for a party. S went with him in his black Honda, while T went with Harold. [ 151 ] He said that S sat with him at the party and that they were each having drinks while playing a card game. He said T started dancing and he danced with her for a couple of songs.

At the party S was sitting on his lap and he and she were kissing. [ 152 ] Geoffrey Gonzales said that at some point in the evening he and T went outside for a smoke. He offered that they sit in his car

and T agreed. He sat in the driver’s seat and she in the passenger’s seat, beside him. He said they started kissing, then T unbuckled his pants and started performing oral sex on him. He said he suggested that they go elsewhere, and she said, “Geoff, please fuck me”. He drove out of the cul-de-sac into the alley. T got into the back seat and so did he and he took off his pants. She was lying on her back. Again he maintained that T said, “Geoff, please fuck me”. He commenced intercourse with her.

About one minute in, she complained that it hurt and so he stopped. [ 153 ] He drove his car back in front of the house and the two of them got out and walked into the house together. He resumed his game of cards. He then saw T leave the house with Ahmad Mosa. When she came back in she was holding her stomach and not looking well. She started to cry and fell to the floor. Geoff Gonzales picked her up and asked her if she wanted to lie down. She said no, and went into the bathroom. He could hear that she was crying in the bathroom. [ 154 ] Geoff said Billal arrived. He was previously unknown to Geoff.

Geoff got irritated with Billal, who was accusing him of mistreating the complainants. Geoff says T came out of the bathroom, and then she and Billal left together. [ 155 ] Geoff said that during the evening T was talking, dancing and laughing. At the car with him she seemed to be just fine. [ 156 ] He was surprised that T asked him to have sex with her. His interest that evening was more towards S. [ 157 ] Geoff Gonzales acknowledged that he said to the police that evening that, “Those bitches were all over me. I had to pick them up all over the house”.

He maintained that, while he used the plural, he was referring to T, who he had to pick up off the floor. [ 158 ] Geoff Gonzales acknowledged telling Detective Patzwald in his interview that he was drunk that night, but maintained at trial that he was not falling down drunk. [ 159 ] In cross examination by other defence counsel he denied having sex with S.

He said that, when T came back into the house after going outside with Mosa, she looked to be sick, not drunk. [ 160 ] In cross examination by the crown, Geoff Gonzales acknowledged that he had tried to set up a date with T a week earlier, but that she had not been available. He acknowledged that, while he was quite slender, his brother Harold was larger and beefier and 4 years older. He acknowledged that he was experienced at drinking alcohol. He said, on the 1-10 Scale, he was 4 or 5. He was challenged on his previous statement to Detective Patzwald where he said that almost everyone was hammered.

He denied perceiving T to be “very drunk”. He was challenged on his statement made at the scene in comparison to his trial evidence. [ 161 ] He maintained at trial that he was surprised by T’s request for sex, but denied exercising bad judgment. He denied knowing that he was the second one to have sex with T that evening. [ 162 ] He acknowledged that when T returned from going outside with Mosa she was freaking out and crying loudly, but he denied that she was yelling that she had been raped.

He denied telling her to “settle down, it’s not what you think it is”. [ 163 ] He was challenged with two versions of consent that he had described. He had said at one point in the interview that he had asked T “if she wanted to fuck and she had said yes”. Later in the interview, and then again in his trial evidence he said it was T who brought it up, saying, “Geoff, please fuck me”. He maintained in cross examination that the latter description was the correct one.

The Applicable Law [ 164 ] The crown provided a brief and case law to the Court, and each defence counsel agreed that the crown had accurately summarized the applicable law. The date and place of the occurrence were admitted. [ 165 ] With respect to each count of sexual assault pursuant to s.271 of the Criminal Code the crown must establish beyond a reasonable doubt: the identity of the perpetrator; that there was intentional sexual contact; that the complainant did not consent to the sexual contact; and that the accused did not reasonably believe the complainant consented to the sexual contact. [ 166 ] In

section 273.1(1) of the Criminal Code consent is defined as “the voluntary agreement of the complainant to engage in the sexual activity in question”. [ 167 ]

Section 273.1(2) provides:

(2) No consent is obtained, for the purposes of sections 271 , 272 and 273, where (

a) The agreement is expressed by the words or conduct of a person other than the complainant; (

b) The complainant is incapable of consenting to the activity; (

c) The accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) The complainant expresses by words or conduct, a lack of agreement to engage in the activity; or (

e) The complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. [ 168 ]

Section 273.1(3) provides:

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

[169]

Section 273.2 provides: It is not a defence to a charge under

section 271, 272 or 273 that the accused believed that the complainant consented to the activity thatforms the subject matter of the charge, where (

a) the accused’s belief arose from the accused’s (

i) self induced intoxication; or (ii) recklessness or wilful blindness, or (

b) the accused did not take reasonable steps in the circumstances known to the accused all the time, to ascertain that thecomplainant was consenting. [170] Section 265(1) of the Criminal Code defines when an assault occurs and section 265(2) says the definition applies to all formsof assault including sexual assault. Section 265(3) and (4) discuss consent in the context of any assault, and provide: S. 265(3) For the purpose of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or a person other than the complainant; (

c) fraud; or (

d) the exercise of authority.

S. 265(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of thecharge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence,shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to considerthe presence or absence of reasonable grounds for that belief. [171] The Supreme Court of Canada (SCC) discussed consent as a defence to sexual assault in R. v Ewanchuk, (SCC), [1999] 1 SCR 330 [Ewanchuk].

There the court laid to rest the concept that there was such a defence as “implied consent”. [172] In R v A(J), 2011 SCC 28, [R v A(J)], the SCC commented further on the application of sections 271, 273.1 and 273.2, atparagraphs 23 and 24: 23. A conviction for sexual assault under section 271(1) of the Criminal Code requires proof beyond a reasonable doubt of the actusreus and the mens rea of the offence.

A person commits the actus reus if he touches another person in a sexual way without her consent.Consent for this purpose is actual subjective consent in the mind of the complainant at the time of the sexual activity in question:Ewanchuk. As discussed below, the Criminal Code

section 273.1(2) limits this definition by stipulating circumstances where consent isnot obtained. 24. A person has the required mental state or mens rea of the offence, when he or she knew that the complainant was not consenting tothe sexual act in question, or was reckless or wilfully blind to the absence of consent. The accused may raise the defence of honest butmistaken belief in consent if he believed that the complainant communicated consent to engage in the sexual activity. However, asdiscussed below, ss. 273.1(2) and 273.2 limit the cases in which the accused may rely on this defence.

For instance, the accused cannotargue that he misinterpreted the complainant saying “no” as meaning “yes”. (Ewanchuk at para 51). [173] R v A(J), supra, the SCC also provided (paragraph 24): Any sexual activity of an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensualwithin the meaning of the Criminal Code. [174] In the instant case, the crown stipulated to the defence and to the court that in relation to all charges before the court, the crownwas not alleging that either of the complainants was so intoxicated as to render them incapable of consciously evaluating whether theywere consenting; The defence tailored their case based upon that stipulation.

Therefore,

section 273.1(2)(

b) is not in play in the casebefore me. [175] With respect to the lack of consent forming part of the actus reus of the offence, the SCC in Ewanchuk, supra held that absenceof consent is determined on a subjective standard by reference to the complainant’s internal state of mind.

Therefore, if I believe that thecomplainant did not consent then the crown has discharged its obligation to prove the absence of consent, as part of the actus reus of theoffence. [176] Turning to the mens rea of the offence, there are two elements; first the accused’s intention to touch in a sexual manner, andsecond the accused’s knowledge that the complainant did not communicate consent; or being reckless or wilfully blind to the absence ofconsent. [177] In Ewanchuk, supra, Major, J adopted the words of L’ Heureux-Dubé, J in R v Park (SCC), 1995 2 SCR 836where she stated at para 45:

The mens rea of sexual assault is not only satisfied when it is shown that the complainant was essentially saying “no” but it is alsosatisfied when the complainant was essentially not saying “yes”. [178] The accused’s speculation as to what was going on in the complainant’s mind provides no defence (Ewanchuk, supra, at para46). [179] With regard to the defence of honest but mistaken belief in consent regarding the mens rea, consent means that the complainanthad affirmatively communicated by words or conduct, her agreement to engage in sexual activity with the accused. (Ewanchuk, supra, atpara 49)(underlining added). [180] In R v Flaviano, 2013 ABCA 219 at para 40, the ABCA followed R v A(J), supra, stating: Consent is to be communicated to the accused.

It is not sufficient for the accused to have believed the complainant was consenting; hemust also take reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in thesexual activity in question. [181] The SCC in Ewanchuk, supra, stated at para 51: For instance, a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law and provides no defence. [182] As per McLaughlin, J as she then was, in R v Osolin (SCC), [1993] 4 SCR 595 at para 139: The bare assertion by the accused that he believed in consent is not enough to raise the defence of honest but mistaken belief.

Theassertion must be “supported to some degree by other evidence or circumstances”: R v B(E.H.), (SCC), [1987] 1 SCR782 at p.790. The support may come from the accused or some other sources; on this point I agree with Cory J’s resolution of theconfusion which existed in the earlier cases. But the support must exist.

As Lord Morris of Borth-y-Gest put it, a “facile mouthing ofsome easy phrase of excuse will not suffice” (citation omitted). [183] In R v Flaviano (supra), aff’d at the SCC, the ABCA stated that where there are two irreconcilably opposed versions offered bythe complainant and respondent as to whether the complainant consented, there is then no room for the court to find a third version, thatthe accused had an honest but mistaken belief in consent. So if the accused gives evidence that the complainant consented by words oraction, he cannot say in the alternative, that he believed she had consented.

The issue then becomes credibility, not honest but mistakenbelief. [184] Regard is to be held to s.273.2(b), set out above.

It is not a defence to a charge of sexual assault, “that the accused believed thatthe complainant consented to the activity that forms the subject matter of the charge, where the accused did not take reasonable steps, inthe circumstances known to the accused at the time, to ascertain that the complainant was consenting”. [185] In R v James, 2014 SCC 5 , 2014 SCC5, at para 5, the SCC criticized the trial judge for not considering that thecomplainant was in a distraught condition a short time after the sexual contact, when assessing the issue of consent. [186] The burden of proving all of the elements of the offence, including disproving consent or an honest but mistaken belief inconsent, remains at all times with the crown. [187] The statements of each accused have been placed into evidence.

In addition Geoffrey Gonzales and Ahmad Mosa each gave trialevidence. The statements and the trial evidence bring into play the requirements that an analysis be conducted pursuant to the directionprovided by R v W(D), (SCC), [1991] 1 SCR 742. If the accused gives trial evidence which is exculpatory at law, or ifthe accused’s statement is introduced into evidence and the accused’s statement is exculpatory, then if the court believes the accused, theaccused must be acquitted.

If the court does not believe the accused, but is left by the statement or evidence of the accused, with areasonable doubt as to the guilt of the accused, the court must acquit the accused. Even if the evidence or statement of the accused doesnot leave the court with a reasonable doubt as to the accused’s guilt, the court must assess all of the evidence to determine if it leaves thecourt with a reasonable doubt as to the guilt of the accused. If it does, the court must acquit. [188] Each of the charges before me relates to separate occurrences, and I must consider each charge separately.

The Charge against Harold Gonzales [189] Harold Gonzales is charged with sexual assault of S. [190] Harold Gonzales has admitted having sexual intercourse with S; that is corroborated by DNA evidence. [191] However, S has given no evidence of having had sex with Harold Gonzales. She gave evidence of a sexual assault committedagainst her in the basement on a table; but she was clear that was perpetrated by Geoffrey Gonzales, not Harold Gonzales.

While she mayhave been unclear, at times, as to the Gonzales brothers’ names, she clearly distinguished the “the 19 year old” from the “bearded one”.It must be that the two brothers look nothing alike; Geoffrey is slim and clean shaven, while Harold is much stockier and wears a fullfacial beard.

Witnesses noted that they looked the same on the night in question as they did in court before me. [192] While it was somewhat dark in the basement, S acknowledged she could see her assailant, including his facial features. [193] In those circumstances, the crown has failed to prove that Harold Gonzales was the person who S has said sexually assaulted heron the table in the basement. [194] In Harold Gonzales’s statement to the police, he admitted having sex with S but says it was consensual, or at least that is how

he felt. He gave no further details of the event in that statement, following legal advice. [ 195 ] I am not sure that I believe Harold Gonzales on this score. However his evidence that he felt that he had S’ consent, together with the absence of any evidence from S as to this sexual encounter, leaves me with a reasonable doubt as to his guilt. [ 196 ] I recognize that S has given evidence that she did not want sex with anyone that evening; thereby providing some evidence as to her subjective intent, which forms part of the actus reus of the charge.

However, S did not maintain that she was unconscious or that, from the time of the event until her complaint to the police, she had entirely forgotten having sex with Harold Gonzales. She simply gave no evidence at all as to what happened between them. [ 197 ] In such circumstances the crown has failed to make out the lack of consent needed to ground the charge, nor has it disproved that Harold Gonzales had an honest but mistaken belief that S consented to sexual intercourse. [ 198 ] In the result, I acquit Harold Gonzales of the charge against him.

The Charge against Geoffrey Gonzales [ 199 ] Geoffrey Gonzales is charged with sexual assault of T. [ 200 ] He acknowledged having sexual intercourse with T, but he maintained that T overtly consented to sex with him, saying, “Geoff please fuck me”. In those circumstances, and following the rationale in R v Flaviano , supra, the defence of honest but mistaken belief in consent is not in play.

The charge succeeds or fails on whether T actually, explicitly consented to sexual intercourse as asserted by Geoffrey Gonzales or whether consent was never given. [ 201 ] I did not find Geoffrey Gonzales to be believable in much of the evidence that he gave, especially when compared his trial evidence to his recorded statement to the police. [ 202 ] He has put forth two versions of descriptions amounting to consent.

At first he told Detective Patzwald that he had asked T “if she wanted to fuck” and that she said yes; but later in that statement, and again at trial, he maintained consent was provided by T when she said, “Geoff, please fuck me”. [ 203 ] Geoff Gonzales acknowledged telling Constable Hoover that “those bitches were all over me. I had to pick them up all over the house till they got sick and their buddy had to come get them”. At trial, however, he made no such allegation about S and said he was only referring to T.

That makes no sense to me. [ 204 ] In his statement he maintained he and T had been drunk at the time of having sex. At trial, however, he downplayed the level of intoxication of both of them. [ 205 ] He denied that T came back into the house distraught, or claiming “they raped me”. That is belied by T’s evidence; and also by Billal’s evidence that she was crying, her mascara was running, she was upset and drunk. It is belied by T’s condition as described by Constable McLaughlin. [ 206 ] Does the evidence of Geoffrey Gonzales nevertheless raise in my mind a reasonable doubt as to whether T gave her consent?

It does not. I say this particularly because he has given two different versions of a conversation regarding consent that he maintains occurred. His inconsistency on this critical point creates no reasonable doubt in my mind arising out of his testimony. [ 207 ] Turning now to the evidence as a whole; I must evaluate the evidence of T. T said that she and Geoffrey Gonzales got into his car. She said she felt sick and got into the back seat. She then said Geoffrey Gonzales had intercourse with her.

She did not indicate that she objected or said no; but she said she did not wish to have sex with Geoffrey Gonzales. [ 208 ] T was intoxicated; that is clear from her evidence, S’ evidence, Geoffrey Gonzales’ recorded statement, her toxicology readings, and the evidence of Lori Campbell. [ 209 ] With T in such state of intoxication it was incumbent upon Geoffrey Gonzales to obtain her consent to sex. Belief in consent is not a defence where the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting: Criminal Code s. 273.2(b).

Here the circumstances known to the accused were that T was significantly intoxicated. In those circumstances he was required to take reasonable steps to ascertain that the complainant was consenting. [ 210 ] There are some problems with T’s testimony. Many times her response to questions was that she did not remember. She acknowledged she was piecing together the events of the evening. Her drunkenness at the time of the events, likely accounts for her memory deficits. [ 211 ] While the memory lapses give me concern about the reliability of T’s evidence as to details, they do not reflect on T’s credibility.

I found her evidence to be credible, particularly with respect to her description of sex with Geoffrey Gonzales and her evidence that she did not consent. [ 212 ] T did not say she ever told Geoffrey Gonzales that she did not want to have sex with him. She gave no evidence of resisting or of attempting to stop him from having sex. While those are relevant considerations for the court, they are not determinative of consent.

The mens rea of sexual assault is not only satisfied when it is shown that the accused knew the complainant was essentially saying “no” but it is also satisfied when the complainant was essentially not saying “yes”. Ewanchuk , supra , at para 45 . [ 213 ] I do not accept the evidence of Geoffrey Gonzales that the complainant verbally consented to sex or that she requested sex from him. I accept that the complainant did not want sex to occur. I find that the accused did not take reasonable steps to determine that the

complainant was saying yes. [ 214 ] I find the accused, Geoffrey Gonzales, guilty as charged. The Charges against Ahmad Mosa [ 215 ] Ahmad Mosa is firstly charged with sexual assault of S. [ 216 ] Ahmad Mosa gave evidence at trial. I found his evidence to be wholly unbelievable. I find it highly unlikely that S, in thanks for him finding her phone, would perform oral sex upon him. Secondly, Mosa was informed at the outset of his recorded interview, that the police had complaints from each of S and T about sexual assault.

With that background it is inconceivable that he did not realize Detective Patzwald was referring to S when questioned about oral sex. Yet in his recorded statement to Detective Patzwald he repeatedly denied involvement in any oral sex on the evening in question or oral sex with S. That flew in the face of the DNA evidence, of his semen being found on her ear.

Then, at trial, he admitted oral sex with S, giving the story that she took him to the bedroom, got on top of him, kissed him from head to waist, pulled out his penis and performed fellatio; something he had wholly failed to describe in his recorded statement. His excuse at trial was that he thought Detective Patzwald was referring to some other girl and was suggesting that Mosa had performed cunnilingus, because of an obvious misstatement of Detective Patzwald, at page 24 of the transcript of Mosa’s Statement above. But on other occasions during the recorded statement he denied being involved in oral sex.

He made that denial both before and after Detective Patzwald’s misstatement. The questions begged an open answer; he wholly failed to give one. [ 217 ] It is clear to me that he lied to Detective Patzwald. Then in an effort to explain away that lie, he invented his story at trial that, by her actions in getting on top and being the aggressor, S had consented. [ 218 ] I do not believe Mr. Mosa’s evidence, nor does it raise, in me a reasonable doubt as to his guilt. [ 219 ] Mosa has given evidence that, by her actions, S consented to performing oral sex.

There is no room then, for the alternative, of an honest but mistaken belief in consent. [ 220 ] I turn now to the evidence of S. Her evidence has frailties because she had been drinking and was not an experienced drinker. The toxicology results and the evidence of Lori Campbell support that some memory loss may have occurred as a result of her level of intoxication. S acknowledged that her memory of the evening is impaired, and noted that she has suffered a brain injury since these events occurred [ 221 ] S denied that she drank alcohol at the party.

In that, she was contradicted by every other witness who was in attendance at the party, including T. [ 222 ] The CSART report regarding S has been put into evidence by consent. In it the record keeper noted that S maintained that she was assaulted by six men at the party. This is inconsistent with her evidence at trial. [ 223 ] The CSART report also indicates that a perpetrator had attempted but not completed, oral sex upon her. That is somewhat inconsistent with her evidence at trial, depending on the meaning one attributes to “not completed”.

The record keeper was not called at trial to explain what she had been told that led her to fill out the form in that way. [ 224 ] S could not name the person who required her to provide oral sex, just that he was one of “the brown guys”. [ 225 ] She could not identify him in a photo line up. It should be noted that S did not know Mr. Mosa before the evening in question. However DNA from Mr. Mosa was found on her right ear and Mr. Mosa has now admitted that S performed fellatio on him. [ 226 ] S told the police that this assailant appeared to be 15 years old, whereas Mr. Mosa was actually 19 at the time.

However, little turns on this discrepancy since Mr. Mosa acknowledged S performed oral sex on him. [ 227 ] S gave different versions as to whether the assailant had ejaculated. It is suggested by defence counsel that she tailored her evidence to conform with the DNA evidence. I think it is more likely that she has never been entirely sure. [ 228 ] S’ evidence as to Billal picking her up varies from the preliminary inquiry, where she said he picked her up at the party, to trial, where she said he picked her up at Shopper’s. That demonstrates some lack of consistency in memory.

There is no reason for her to be deceptive on such a point. The discrepancy arises from an inconsistent memory. [ 229 ] S’ frailties of memory raise some questions, not of credibility, but of reliability, with respect to some collateral matters. [ 230 ] Notwithstanding these various discrepancies I accept S’ evidence that she did not want sexual contact with Mr. Mosa, but that Mr. Mosa forced her to perform oral sex upon him. The crown has proved this beyond a reasonable doubt. [ 231 ] I find Ahmad Mosa guilty of sexual assault upon S. [ 232 ] I now turn to the second charge against Mr.

Mosa, that he sexually assaulted T. [ 233 ] Mr. Mosa acknowledged in his recorded statement, and again at trial, that he had sexual intercourse with T. He provided details in his trial evidence. He said she was outside smoking and he went to join her. She said “let’s get out of here”. They went to his car and she took off her underpants. He told T he had oral sex with S but he said T didn’t care. They got in the back seat of his car. She never said no. She got on top of him and had intercourse. [ 234 ] He related an earlier occasion in his parent’s basement.

Contrary to the evidence he heard T give as to what had happened on

that occasion, he said that they had consensually hugged and kissed. He said that they had not seen each other between then and the party, because T’s boyfriend was also Mr. Mosa’s friend. [ 235 ] I do not believe Mr. Mosa. The story about his history with T does not have the ring of truth when compared with her evidence, and given that they discontinued communication after that event. His story, that T was outside having a smoke and suggested they leave together; then when they got into the car, she removed her underpants, again has no ring of truth.

His story that T got on top of him and had sexual intercourse with him is, to my mind, a made up story designed to connote consent by T. [ 236 ] I have already detailed some inconsistencies in T’s evidence. I also am aware that, she has not said in evidence that she said “No” to Mr. Mosa or that she communicated resistence. [ 237 ] However, I accept from T that she was on the bottom, not the top, and that she was laying there. I believe she did not want sexual relations with Mr. Mosa. I see Mr.

Mosa as having availed himself of what he saw as an opportunity; a drunk girl in the back of the car who had already had sex with one or more men at the party; and he sexually assaulted T, having done nothing to ascertain that she consented. [ 238 ] Again, his version that she got on top of him and was the aggressor is a statement that she consented. Therefore, the alternative of honest but mistaken belief in consent does not arise. [ 239 ] Accordingly, I find that the crown has proven, beyond a reasonable doubt, that Mr. Mosa is guilty of sexual assault of T, and I find him guilty as charged.

Heard on the 6 th , 7 th , 8 th , 9 th , 10 th , 13 th , 14 th , 15 th , 16 th , 17 th , 20 th and 21 st days of June, 2016. Dated at the City of Calgary, Alberta this 14 th day of July, 2016. R.J. Hall J.C.Q.B.A. Appearances: Pam McCluskey for the Crown Katherin Beyak for the Accused Ahmad Mosa John Hooker for the Accused Geoffrey Gonzales Victor Russell for the Accused Harold Gonzales