r v. JUSTIN CHAN, 2019 QCCQ 564

R. c. Chan 2019 QCCQ 564 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-130279-158 DATE: January 31, 2019 ______________________________________________________________________ BY THE HONOURABLE CHRISTIAN M. TREMBLAY, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

JUSTIN CHAN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Restriction on Publication By Court Order, information that may identify the person described in this judgment as “the complainant” may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.4 . Introduction [ 1 ] Mr.

Justin Chan is charged with sexual assault on Mrs. C. P., the complainant, between August 17 and August 18, 2012 ( s. 271 (

a) Cr.C .). [ 2 ] Mr. Chan does not dispute having sex with Mrs. P. after he met her at the bar she was on August 17, 2012 [1] , but it was with her consent, according to him. [ 3 ] The main issue here is whether Mrs. P. had the capacity to consent to the sexual intercourse. Mrs. P.’s memory of the events is seriously affected due to alcohol intoxication. According to the Crown, the black-out shows that Mrs. P.’s consent was vitiated and thus, that she was not capable of giving a valid consent. I. The facts [ 4 ] Most of the facts are not disputed.

Nevertheless, the credibility or the reliability of some testimonials will have to be analysed. Consequently, the Court considers that the narrative of the facts must be as accurate as possible. [ 5 ] On August 17, 2012, Mrs. P. is invited for dinner at Mr. G. S.’s apartment. She went there with an old friend of hers, Mr. J. N.. Mr. S. was a new acquaintance for Mrs. P. and Mr. N.. [ 6 ] The dinner started at around 6 pm.

Before dinner, everyone drank one or two aperitifs [2] and during the dinner, they drank the bottle of wine they had brought. [ 7 ] In the course of the evening, they decided to go dance at the bar Sky Pub. Considering they were under the influence of alcohol, Mr. N. and Mrs. P. planned to sleep at Mr. G.’s apartment. They left around 10:30 pm, according to Mrs. P. or around 11 – 11:30 pm according to Mr. N.. [ 8 ] They took a taxi to go to the bar. In the opinion of Mr. N., he presumed they were drunk, but he does not remember. [ 9 ] At the Sky Pub bar they went on the second floor.

They danced together and they continued to drink. They had fun. It was the first experience at that place for Mrs. P.. [ 10 ] According to Mr. N., Mrs. P. was having trouble walking straight. When she was dancing, she clung to people. He remembers she had a drink or a beer in her hand when she was dancing. [ 11 ] At a certain time, Mr. N. went down to the first floor to smoke a cigarette. When he returned upstairs, Mrs. P. was gone. Mr. S. said she was probably using the bathrooms. After a certain period of time, they worried because they did not see her again. They tried to call her on her cell phone.

They also sent her text messages. She never answered. [ 12 ] They left the bar around 2 am.

[ 13 ] The day after, Mrs. P. phoned Mr. N.. They discussed about the previous night. [ 14 ] Mrs. P.’s memories of the evening are rather vague. She has many memory lapses. They can be summarized as the following. [ 15 ] Her memory problems start when they were in the taxi and headed for the Sky Pub. [ 16 ] She sees herself dancing with a stranger and also with Mr. S. and Mr. N.. At some point, she fell off a speaker box. [ 17 ] When she was dancing, her friends left. She does not know if they came back. [ 18 ] She remembers walking on a side walk with an Asian man (Mr. Chan). She was talking to him.

She was thanking him but she does not know why. She told him he was a good man. He told her he was a student from New York. She does not recall if they talked in English or in French. [ 19 ] She also sees herself in a room. She recalls the lights or the walls being red. She does not know where she was. [ 20 ] In her memory she heard someone who said: “Not on the mouth…” She believes it comes from Mr. Chan but she is not sure. Mr. Chan denied having said that. [ 21 ] She has no recollection of having sexual intercourse with Mr. Chan nor having given her consent.

She suffered from an alcohol blackout and, consequently, she has no memory of what happened at the Sky Pub and in Mr. Chan’s room. The only exception to her memory loss was what the complainant described as very brief flashes. She had these flashes after she talked with Mr. N.. [ 22 ] At one point , the man placed her in a taxi. She remembers she was being down and she was crying. Her shoulder was hurting. The driver offered to go to the hospital and she refused. Considering she did not know Mr.

S.’s address, she gets off the taxi near Carrefour Frontenac . [ 23 ] She has no memory of whether she paid the taxi driver or not, although she said the opposite in the statement she gave to the police. [ 24 ] She remembers she was walking in the street. She was physically unstable. People were looking at her. She was still crying and holding her shoulder. [ 25 ] She cannot say how she got her vehicle back, but she also remember that she was driving on Route 132 next to Brossard and La Prairie. She recalls that she drove from one side to the other. She thinks she drove slowly but she is not certain of it.

She remembers she was very close to the divider. [ 26 ] Mrs. P. has no memory how she got out of the parking lot at Mr. S.’s condo. It was complicated when she parked her car because she drives a big vehicle (Grand Cherokee ) and she had to turn to an angle of 90 o to park. Also there was other vehicles parked on either side. She was parked from the front. [ 27 ] To join Route 132, she crossed the Jacques-Cartier Bridge, but she has no memory of how she did that. [ 28 ] She does not know how and when she arrived at home. But around 8 am, she woke up in her bed. She was all dressed [3] .

She experienced pain in her anus. [ 29 ] When she was in the bathroom, she noted blood and white secretions on her panty liner and there was white secretions coming from her anus. [ 30 ] Mrs. P. affirmed she has never practised anal sex. [ 31 ] She thought she had been sexually assaulted. [ 32 ] She saw a text message on her cell phone sent by Mr. N. around 3 am. [ 33 ] She also inspected her vehicle to make sure there was no damage since she did not remember driving to go home. There was no damage. [ 34 ] In her purse, she found keys. She had no idea to whom these keys belonged to. These were the keys to Mr.

S.’s apartment. [ 35 ] After she called Info Santé in order to see where she should go, she went to the hospital. [ 36 ] When she was out of the hospital, she communicated with Mr. N.. They discussed about the events of the night before. [ 37 ] Justin Chan testified. Here is his version of the facts. [ 38 ] Mr. Chan was 26 years old at the moment of the events. He was born in Toronto, where he lives today.

He has an undergraduate degree in computer engineering from the University of Toronto (2009) and a Master Degree in computer and Biomedical engineering from the University of Toronto (2011). [ 39 ] He started working in New York in January 2012, in software engineering. He worked there for three years. [ 40 ] While he was in New York at the time, he came by bus to Montreal for the Gay Pride weekend. He reserved a room at Hotel St- André. He was with his friends.

[ 41 ] August 17, 2012, he went to Sky Pub at approximately midnight. He consumed three beers at the bar with his friends. [ 42 ] After a couple of hours, he noticed the presence of Mrs. P.. He approached her because he found her attractive. He asked her if she was “gay” or “straight”. She said she was “straight”. He told her that he found her attractive and they talked together for a while, then things progressed to the point where he would be interested to have sexual activity with her. [ 43 ] Because it was quite loud in the pub, they went outside walking arm in arm. For him, Mrs.

P. was acting pretty normal, pretty friendly, like energetic. He did not notice if she was highly intoxicated. She appeared to him to be like any other person at the bar. She did not fall in his presence. [ 44 ] During the conversation, he asked her in French: “Tu veux baiser?”. He did not recall what she responded, but they walked in the direction of the hotel he was staying at. While going outside with Mrs. P., he did not notice she had difficulty walking. For him, she was walking normally. He used to walk arm in arm when he found a woman attractive.

While walking she was not holding her shoulder, although she told him it was hurting. [ 45 ] There was no kissing, no sexual contact whatsoever in the bar prior and while they were walking towards the hotel. [ 46 ] Once they reached his room, they started kissing for a while. They both got undressed and they moved on to the bed. He does not recall how clothes came off gradually. They performed male to female oral sex and after they had sexual intercourse. He presumes they did more than one position. He asked her if he could come inside her and she said “Yes”.

He did not wear a condom. [ 47 ] He denies that he had anal sex with her. It is not something he is generally interested in. He does not enjoy anal sex. He confirms he did not use sex toy during the sexual activity. [ 48 ] There were no complaints from her during the sexual activity. He knew her shoulder was hurting and he was being careful not to touch it while they had sex. He did not notice if she had bruises on her body. [ 49 ] Soon after they got dressed, she took on her purse and she pulled out her wallet. She offered to pay him money. She thought he was a gigolo. He refused her money.

She seemed happy at the moment. [ 50 ] Because her shoulder was hurting and he was worried about her, he suggested her to take a taxi. They went out to the street to have a taxi. He did not know she had friends with her at the bar. After putting her in a taxi, he went back to the Sky Pub to meet with his friends again. [ 51 ] When Mrs. P. got in the taxi, she was not crying. She never cried in his presence. She was more energetic and looked affectionate. [ 52 ] After putting her in the taxi, he never had any contact with her.

The video [ 53 ] For approximatively three minutes (between 0:30 and 0:33) we can see Mrs. P. on a video. The camera captured customers’ activity around the bar on the second level of the Sky Pub (exhibit P-2). Although the quality of the DVD filed by the Crown is not perfect, we can see Mrs. P. with Mr. S. and Mr. N. at the bar. It should be noted that Mrs. P.’s image is sometimes hidden by someone else’s image. Mrs.

P. walks around the bar and she does not seem to have any particular difficulties, except at some point when standing and motionless she has a loss of balance that she recovers without much difficulty. The right sleeve of her dress is lowered. She does not seem to notice. She searches in her purse and pulls out a cell phone. She manipulated the cell phone to read or transmit a text message. There are many people coming and going. The dance floor is not far from the bar. She moves around the bar. She put her purse on the top of the bar. She waits for her turn for a shooter.

She takes her wallet in her purse and pays for her drink. She put her wallet inside her purse. She has pulled up the sleeve of her dress. She seems smiling and she talks with people around her. A man invites her on the dance floor. Medical Report and Expertise [ 54 ] The Medical Report of Mrs. P. following the event that took place in August 18, 2012, including the Sexual Assault Kit is admitted (exhibit P-3). [ 55 ] The Biology Report written on May 8, 2014, is also admitted as evidence (exhibit P-4). [ 56 ] The medical report reveals, in particular, that Mrs.

P.’s genital area was normal but near the anus there was a small whitish secretion and a small ecchymosis. She also had bruises on her right shoulder, on her left thigh and on her left knee. There is also other ecchymosis, but it is impossible to know where because the hand-writing is difficult to read. Finally, she had an abrasion on her left heel. [ 57 ] As for the Biology Report, it is specified that the samples on the panty liner and in the vagina are indicative of the presence of sperm. Concerning the samples from the anus and the rectum, no male DNA has been found.

On the panties the genetic profile of sperm matches the sperm sample from Mrs. P.’s vagina. On the bra, there was no sperm, but inside the bonnet the genetic profile of Mrs. P. has been obtained. Traces of DNA from someone else were also present, but it was impossible to make a valid comparison. Outside of the bonnet, there was no male DNA. On the dress, there was no sperm or blood. II. Analysis

A) Basic principles [ 58 ] My former colleague, Patrick Healy J., now on the Bench of the Quebec Court of Appeal, summarized the key guiding principles regarding the presumption of innocence contained in s. 11(

d) of the Charter in R. c . Zoumpoulias :

[3] The presumption of innocence ensures that no person may be found guilty unless the offence charged is proved beyond reasonable doubt. Whether a reasonable doubt arises from the prosecution evidence, evidence led by the defence or an assessment of all of the evidence taken together, the accused must be acquitted if there remains a reasonable doubt on the whole of the evidence at the end of the case.

In this respect, the credibility of a witness is of central importance because if the testimony of a witness raises a reasonable doubt as to its reliability, it might as well raise a reasonable doubt with respect to an essential element of the offence or a matter of defence. If there is a conflict in the evidence, the trier of fact is not obliged to make a choice in favour of one version or another.

This might well be the result in a given case if the judge is led to this conclusion by the force of the evidence, but conclusions of fact must always reflect an examination and evaluation of the whole of the evidence. [4] The Supreme Court has given guidance on these principles in W.(D.) The Court has reiterated that the presumption of innocence and the assessment of evidence, including the credibility of witnesses, are not matters of form but of substance.

Whether a judge follows textually and schematically the criteria set out in W.(D.) or assesses them in some other manner, the presumption of innocence requires that there be a careful evaluation of all the evidence before the court determines whether the charge is proved or whether there remains a reasonable doubt. [5] W.(D.) does not impose a mechanical formula to be followed in the evaluation of evidence. The Supreme Court has repeated this caution on several occasions.

This jurisprudence reminds us that the presumption of innocence requires the prosecution to prove the guilt of the accused beyond reasonable doubt. It lies with the trier of fact at the end of the trial to examine all of the evidence presented before the court and to evaluate it so as to determine whether the prosecution has discharged its burden. The accused has nothing to prove and the prosecution is not required to prove guilt beyond all possible doubt but beyond all reasonable doubt.

If there remains a reasonable doubt at the end of the trial and after a careful examination of all of the evidence, including questions of credibility, the accused must be acquitted. It does not matter whether a reasonable doubt touches a matter of defence or an element of the offence. If a reasonable doubt subsists after an assessment of all the evidence, an acquittal is required. [4] [references omitted]

B) The essential elements of the offense [ 59 ] As set out by the Supreme Court of Canada in R. v. Ewanchuk , the external circumstances of sexual assault are: i. Touching ii. Sexual nature iii. Absence of consent. [5] The mental element in sexual assault has two components: i. The intention to touch; and ii. Knowledge, or recklessness of, or wilful blindness towards lack of consent. [6] [ 60 ] In the case at bar, the first two elements of the actus reus are not contested, except for the possible anal sex contact. The central issue of this trial is the complainant’s capacity to consent.

C) Consent [ 61 ] In approaching the consent issue, it is essential to bear in mind the burden of proof when the complainant does not recall anything. In such a case, it does not change the fact that the Crown must prove beyond a reasonable doubt that the complainant did not consent to sexual contact or that she was incapable of consenting. Mr. Chan bears no burden of proving that she did [7] . [ 62 ] Parliament has enacted s. 273.1 of the Criminal Code that defines consent for sexual assault cases . As set out by the Supreme Court in R. v.

J.A. , consent to sexual activity is entirely subjective and requires an operating mind [8] . Professors Julie Desrosiers and Geneviève Beausoleil-Allard, in the second edition of their book L’agression sexuelle en droit canadien, explain how a free and informed consent can be expressed through different forms: Un consentement libre et éclairé peut s’exprimer par des paroles ou par des gestes, par un sourire ou une certaine attitude.

S’il n’est pas nécessaire de verbaliser expressément son consentement, s’il est entendu que le message peut passer par la gestuelle, il n’en demeure pas moins qu’en matière sexuelle, le consentement doit être extériorisé d’une manière ou d’une autre, puisque la possibilité d’un consentement tacite ou implicite a été clairement rejetée par la Cour suprême dans l’arrêt Ewanchuk. [9] [ 63 ] It is possible for a person to give his or her consent to a sexual activity, yet that this consent is vitiated and, therefore, invalid.

It is the case when the complainant is so intoxicated that he or she no longer has an “operating mind” [10] . [ 64 ] Two defences, namely the defence of consent and the defence of honest belief, aim to raise a reasonable doubt on the absence of consent of the complainant. In the former, the accused attempts to raise a reasonable doubt on the actus reus of the offence, which is the absence of consent.

Usually, this defence coincides with competing versions : the complainant unequivocally claims he or she expressed her lack of consent, whereas the accused maintains that the complainant participated and was enthusiastic during the sexual intercourse [11] . In the latter, the accused attempts to raise a reasonable doubt on the required mens rea of the offence, which is the knowledge, or recklessness of, or wilful blindness towards lack of consent. In this case, the complainant and the accused’s versions are essentially similar: the accused does not claim that the complainant is lying.

Instead, one argues that he or she misinterpreted the complainant’s wording or gestures, thereby sincerely believing that the complaining consented to the sexual activity [12] . [ 65 ] Parliament has restricted the use of the defence of honest but mistaken belief in consent in s. 273 .2 of the Criminal Code . In R.

c. Oum , my colleague Lori Renée Weitzman J. summarized the limitations of this defence in her reasons: [59] La croyance de l'accusé au consentement ne fournit aucune défense valide si elle provient soit de son insouciance ou de son aveuglement volontaire, ou encore si l’accusé n'a pas pris les mesures raisonnables, dans les circonstances dont il avait connaissance, pour s'assurer du consentement. [13] [ references ommited ] [ 66 ]

Section 274 of the Criminal Code makes it clear that when the accused is charged with sexual assault, corroboration of the complainant’s testimony is not required for a conviction.

D) The credibility vs the reliability of a witness [ 67 ] The distinction between credibility and reliability has been addressed by the Ontario Court of Appeal in R. v . Morrissey : The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony.

Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable . [14] [emphasis added]

E) Submissions of the parties i. Authorities submitted by the Crown [ 68 ] The Crown’s position is that the complainant was so intoxicated on the night of the event that she does not recall giving her consent to Mr. Chan and even if she did, it would not be a valid consent at law because she did not have the required operating mind. [ 69 ] Regarding the notion of consent, the Crown invites the Court to look closer at the principles established in perhaps one of the most cited decisions of the Supreme Court of Canada in sexual assault cases, R. v. Ewanchuk .

Major J., writing for the majority, highlighted how the absence of consent should be evaluated in the light of the subjective mental state of the complainant: 26 The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred […]. [15] [ 70 ] As determined by the Supreme Court of Canada in R. v.

J.A. [16] , Parliament viewed consent as requiring a “conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act”. [ 71 ] When it comes to assessing whether the complainant had the required “operating mind ” to give a valid consent, the Crown submits a decision from the Nova Scotia Court of Appeal, R. v. Al-Rawi .

The following method is used by the Court: [66] Therefore, a complainant lacks the requisite capacity to consent if the Crown establishes beyond a reasonable doubt that, for whatever reason, the complainant did not have an operating mind capable of: 1. appreciating the nature and quality of the sexual activity; or 2. knowing the identity of the person or persons wishing to engage in the sexual activity; or 3. understanding she could agree or decline to engage in, or to continue, the sexual activity. [17] [ 72 ] It is therefore the duty of the trial judge to determine if it has been established beyond a reasonable doubt that the complainant did not consent or, like the case at bar, lacked the capacity to consent [18] . [ 73 ] Ultimately , the Crown reminds the Court that expert evidence regarding the level of intoxication of the complainant is not required as a matter of law [19] . ii.

Authorities submitted by the accused [ 74 ] Counsel for Mr. Chan argues that loss of memory does not mean incapacity to consent to sexual activity.

He submits that looking at the evidence as a whole, the complainant was able to do several activities that required an operating mind. [ 75 ] In the event that the Court concludes that the evidence shows beyond a reasonable doubt that the complainant’s consent was vitiated, counsel argues that the defence of honest but mistaken belief in consent applies here. [ 76 ] On the notion of memory loss, counsel for the accused submits several cases in which courts have said that a memory loss from alcohol intoxication does not mean that the complainant did not act consciously during the time of the events [20] .

[ 77 ] A similar decision to the case at bar submitted by the accused is R . v. Meikle [21] . There, the complainant had been intoxicated with alcohol in a club where the accused was working as head of security. She testified that she was so intoxicated that she blacked out and does not recall most of the events, only to wake up naked on her stomach in the accused’s apartment after feeling some pressure in her vagina. She remembers leaving the apartment and going back shortly after realizing that she forgot her cell phone.

Trotter J., as he then was, was unable to find that the intoxication of the complainant made her incapable of giving her consent: [52] This still leaves the question of whether N.T.’s intoxication rose to the level of incapacity. I cannot be satisfied beyond a reasonable doubt that it did. In reaching this conclusion, I look not just at N.T.’s evidence, but also to the other evidence of surrounding circumstances. First, I reiterate Ms. Indart’s evidence that N.T. was intoxicated towards the end of the evening, however not so much so that Ms.

Indart was overly concerned with her friend’s condition or circumstances. Although, I do note that Ms. Indart attempted to reach N.T. after she got home. [53] I also note N.T.’s behaviour immediately after she reported regaining consciousness. Her evidence, and that of Mr. Meikle, seemed to converge at this juncture. At a time, shortly after the event, N.T. described getting up, getting dressed and leaving Mr. Meikle’s apartment on her own steam. Unable to locate her cell-phone, she came back to his apartment and they looked for the phone, both in the apartment, and back at the Drake.

She was even able to provide her name and phone number to the concierge at the Drake. These actions seem inconsistent with someone who was supposedly intoxicated to the point of incapacity just a little while earlier. Again, expert evidence might have assisted on this issue. [22] [ 78 ] The Court will know apply these principles to the case at bar.

F) Case at bar [ 79 ] The Crown must prove beyond a reasonable doubt the absence of consent to fulfill the requirements of the wrongful act. [ 80 ] In the case at bar, it is very important to recall that the evidence does not show that at the time of sexual activity, the complainant was unconscious. As Malloy J. wrote in R . v.

Nyznik [23] : “ The fact that a complainant does not remember engaging in sexual acts, or has a complete blackout of the time in question, is not the same thing as lacking mental capacity to consent ”. [ 81 ] It is an error to conclude that the incapacity to consent equals unconsciousness. [ 82 ] Due to the lack of memory of the complainant at the moment of the sexual activity, the Court has to rely on circumstantial evidence to determine the absence of consent [24] . [ 83 ] The complainant has no recollection of the sexual activity she had with Mr. Chan. It does not mean she did not consent.

When a person suffered from memory loss, it does not mean that this person has not acted consciously during the sexual activity. [ 84 ] Except for anal sex, she never affirmed she did not give her consent or that she would never have consented to a sexual relationship with a stranger in such a situation.

She never said she would have insisted on using a condom if she had consented to sexual intercourse with someone she just met. [ 85 ] Memory loss, without more, is not sufficient proof of incapacity [25] . [ 86 ] The real issue here is to determine if the complainant was so impaired by alcohol that she was incapable of consenting. [ 87 ] The evidence demonstrates that the complainant drank one whisky (with or without Coca- Cola ) and a bottle of wine between 6 pm and around 11 pm [26] . She also ate at the same time. About what she drank at the bar, the Court has no clear idea of her consumption .

On the video (P-2) we see the complainant buying a shooter around 0:30 am. She seems affected by the effect of alcohol but she is far from completely drunk. She is rather energetic. She returns to dance. [ 88 ] The testimony of Mr. N. is not helpful to determinate the quantity of alcohol the complainant drank at the bar. He has no recollection of these specific facts. He said she was not walking straight; she tended to cling to people; she had trouble standing on her legs. However , this is not what we can see on the video (P-2). He believes she was dancing with a drink in one hand. Mr.

N. admitted that his memory of the events was vague because of the effect of alcohol and the time that has elapsed since. His testimony is not reliable. [ 89 ] On the other hand, the Court has no evidence concerning Mrs. P.’s drinking habits. It is difficult to evaluate the effect of the alcohol on her behavior. [ 90 ] It is true that an expertise is not necessary in such matters [27] , but maybe in this case it would have been helpful . There is no independent nor objective evidence on Mrs. P.’s level of intoxication, such as blood-alcohol readings.

There was no expert evidence called to assist the Court in putting the evidence of intoxication in its proper context, likely because the evidence of Mrs. P.’s actual consumption was imprecise and vague when she was at the bar. [ 91 ] Other uncontested evidence shows that the complainant was able to make decisions despite her state of drunkenness. [ 92 ] After she was in the taxi, she refused the driver’s suggestion to go to the hospital. Instead, she instructed the driver to go to Carrefour Frontenac.

She probably paid the taxi driver, although she does not recall. [ 93 ] From there she walked and she found where her car was parked even though she did not know Mr . S.’s address. She decided to return home instead of sleeping at Mr. S.’s apartment. She pulled back her SUV. She came out of the parking lot. She found her way to return home on the South Shore. She parked her SUV in her driveway and after she woke up she found that the vehicle had not suffered any damage.

[ 94 ] She was intoxicated but it is unlikely that it was an extreme intoxication since she was able to drive her car and return home without a scratch on her car. [ 95 ] Her judgement was affected by the alcohol she drank.

Nonetheless, she engaged in decisions that required skills and an operating mind. [ 96 ] Based on all the evidence, the Court is unable to conclude that the complainant was so impaired by alcohol that she was incapable of consenting to sexual intercourse with the accused . [ 97 ] The Court agrees with the defence argument that the Crown has not proven beyond a reasonable doubt the absence of capacity to consent. [ 98 ] Now the Court has to consider the evidence surrounding the meeting with Mr.

Chan to determine if the complainant has not given consent to sexual activity or if there is a reasonable doubt about that consent. [ 99 ] Considering that Mr. Chan is the only one to explain what happened, the Court will carefully consider his version of the facts as well as the other evidence on the record. [ 100 ] Mr. Chan testified that he drank approximately three beers before meeting the complainant. There is no evidence that he was drunk or that his recollection of the events were affected by his alcohol consumption. [ 101 ] It seems obvious that things went rather quickly between Mr.

Chan and the complainant. The Court has difficulty to believe Mr. Chan did not noticed that Mrs. P. was drunk. Her inhibitions appeared to be gone due to alcohol. Perhaps he took advantage of the situation to invite Mrs. P. to have sexual activity with him. He exaggerated when he said she was walking straight and she was not drunk. The reason why he put his arm under Mrs. P.’s arm is most likely because he helped her to walk. [ 102 ] He probably gave this version to the Court to give a better impression of his demeanor.

But it is not because a witness is not credible concerning one aspect of his testimony the Court has to set aside all the testimony [28] . [ 103 ] It would have been easier for Mr. Chan to say that Mrs. P. said “Yes” when he asked her: “Tu veux baiser?”, but he said he did not recall what she answered. [ 104 ] He never said Mrs. P. took the initiative to undress him when they were in the room. He said he did not recall how they got nude. The Biology DNA Expertise (P-4) says there is no male DNA on the exterior of the bra. It is compatible with the possibility Mrs.

P. undressed herself. [ 105 ] Many times, when he did not recall, he said so. He did not try to give the Court so many details regarding the discussion he had with the complainant or regarding the sexual activity. The opposite would have been more suspicious considering that the event occurred on August 2012 and he has been deported to Canada in October 2015 and charged more than three years after the event. He gave his version in May 2018, almost six years after the event. [ 106 ] Mr. Chan said Mrs.

P. seemed happy after they left each other, whereas the complainant testifies that she was crying in the taxi few minutes later. She had pain in her shoulder. Mr. Chan also affirmed Mrs. P. did not complain of pain nor cried in his presence . During the sexual activity, he took care of her shoulder because she told him about it when they walked. Mr. Chan version is not contradicted and it is plausible. Maybe the pain got worse while Mrs. P. was in the taxi. We have no explanation and no reason not to believe Mr. Chan’s version of facts. [ 107 ] The Medical Report (P-3) indicates Mrs. P. had bruises on her body.

Mr. Chan testified he did not notice these bruises. It does not mean he lied. Except for the right shoulder, the evidence does not determine when these bruises occurred. Moreover, we have no details about the importance of these bruises. No picture has been filled. Mr. Chan’s version is then possible. [ 108 ] There is another important element that leads the Court to believe that Mr. Chan’s testimony is credible on several aspects. He said Mrs. P. thought he was a gigolo because she offered him money. In her declaration to the police, a few days after the event, Mrs.

P. said she asked herself if the man she was with could have been a sex worker. This is an important detail. [ 109 ] The evidence shows that Mr. Chan asked Mrs. P. to have sexual intercourse with her. He does not recall her answer, but she continued to walk with him in the direction of his hotel. She believed he was a student coming from New York. [ 110 ] When they were walking together, Mrs. P. recalls she said he was a good man. She thanked him, but she does not know why. It could be because he held her arm and help her to walk , or for another reason.

In the room they kissed each other, they performed oral sex at the same time and he asked her if he could come in her vagina and she said “yes”. She did not cry in his presence, she did not complain about her shoulder.

She seemed happy after the sexual activity and she offered him money because she thought he was a gigolo. [ 111 ] Alcohol is a disinhibiting substance and it may very well have affected the way she behaved that night. [ 112 ] In the light of all the evidence combined, the Court is left with a reasonable doubt concerning the incapacity to consent to sexual activity with the accused. [ 113 ] A few words regarding the hypothesis of anal sex. [ 114 ] The complainant affirmed she would never give her consent to anal sex because it is not in her habits. [ 115 ] The accused denied that he touched Mrs. P.’s anus.

He did not introduce any object or body parts in her anus. [ 116 ] The Biology /DNA Report (P-4) reveals that no male DNA has been found in the sample from the anus and the rectum. The

nature of the substance is not identified. [ 117 ] The Medical Report (P-3) does not specify if her anus was dilated or not normal. There is an ecchymosis but we do not know the origin of this injury. [ 118 ] The Court has no reason not to believe Mr. Chan’s version.

The presence of the substance and the blood can be explained by other hypotheses. [ 119 ] The Crown did not meet its burden of proving beyond a reasonable doubt the actus reus of touching the complainant’s anus. [ 120 ] The subsidiary question of honest but mistaken belief in consent need not to be addressed here considering the conclusions of the Court about the absence of consent. FOR THESE REASONS THE COURT: ACQUIT the accused Justin Chan of the offence. __________________________________ CHRISTIAN M. TREMBLAY, J.C.Q.

M e Geneviève Rondeau-Marchand Crown attorney M e Giuseppe Battista Defence attorney Dates of hearing: May 9, 10 and October 30, 2018 [11] Desrosiers and Beausoleil-Allard , supra note 8 at 131.