r v. LESLIE ADJEI, 2022 QCCQ 2471

R. c. Adjei 2022 QCCQ 2471 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-210399-207 DATE: May 4, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE CHRISTIAN M. TREMBLAY, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. LESLIE ADJEI Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ Restriction on Publication By Court Order pursuant to

section 486.4 (2.1) of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way . OVERVIEW [ 1 ] The accused is charged on one count of sexual assault (s. 271

a) Cr. C.) committed on D. H. (the complainant). [ 2 ] This offence concerns two different events. The first one occurred on October 23, 2012, and the second one about three weeks later. [ 3 ] The complainant suffers from bipolar disorder.

She had sexual intercourses with the accused whom she did not know before the first incident. [1] [ 4 ] For the Defence, the complainant’s behaviour should be scrutinized and affects her credibility. [ 5 ] This case requires the careful avoidance of myths and stereotypes regarding how we might expect victims of sexual assault to react and to behave. [ 6 ] The accused did not present a defence. The Court has only the complainant’s version of facts to appreciate.

SUMMARY OF THE EVIDENCE

A) The first event [ 7 ] On October 23, 2012, Mrs. H. was waiting outside the apartment of a family she knew. It was too early in the morning to knock at the door. The apartment is part of a building with several other apartments. [ 8 ] She was sitting on the floor sleeping when a man approached her. The man was getting out of the elevator. After waking up, she recognized the man. It was the delivery man from the Journal de Montréal . Although she did not know him, she recognized him because she was familiar with the place and she had seen him before. [ 9 ] She has bipolar disorder.

She was then in a manic phase, which means that she has a lot of energy, sleeps very little, often engages in risky behaviour, has poor judgment and exhibits uninhibited behaviour. [ 10 ] The man took her by the hand and led her into the elevator. She was then semiconscious. She was not responsive, not alert. When she was in the elevator, she has lost her sense of reality for few minutes. She believes they stopped at the fifth floor. [ 11 ] They went to the laundry room. Without being able to explain how, she found herself sitting on the counter. She had no more pants and underwear.

The man was looking at her vagina. He penetrated her with his penis. She felt she had no control over the situation. She was unable to resist or react. She felt no pain. She did not realize what was happening. She felt as if she was under the influence of narcotics.

[ 12 ] When he finished, she came down from the counter and asked him his name and where he was from. He showed her his health insurance card. She noticed that the name was different from the one he had given her. [ 13 ] After he left, she washed her body. Then she went down to the second floor and went to her friend’s apartment. It was then about 6 a.m. She told her friend what had happened to her. [ 14 ] The next day, she was hospitalized because of her mental health problem. After disclosing that she had had sex with a stranger, she was provided with a contraceptive (Plan

B) and tested for sexually transmitted diseases (STD). She was hospitalized for three weeks. When her mental health was stabilized, Mrs. H. was discharged.

B) The second event [ 15 ] The next day, around 5 or 6 a.m., she returned to the same building hoping to meet the man with whom she had had a sexual relationship on October 23. She had questions for him. She wanted to understand what had happened. It did not make sense to her. [ 16 ] She met the man near the main entrance. He was delivering newspapers. They talked together. He wanted to have sex with her. She said she was not there for that. She said she wanted to pray. She had a prayer book with her. [ 17 ] She is unable to explain how she finds herself with the man in the laundry room of the building.

Once there, they had standing sex. When she felt pain, she asked him to stop. He asked her if his penis was too big for her. She did not answer. Then he continued until he was done. She did not say anything. She froze. [ 18 ] Mrs. H. does not recall what happened after that, except that she went to the pharmacy to get birth control and get tested for STD. [ 19 ] In 2018, she lived in the area of Toronto. She then made the decision to talk to the Toronto police about the first incident. [ 20 ] After the file was transferred to the Montréal police, she proceeded to identify the accused (exhibit P-1). ANALYSIS

A) Submissions of the parties [ 21 ] The Crown is of the opinion that the complainant is credible. Her testimony was not contradicted. [ 22 ] For the first event, the Court has to appreciate what her state of mind was at that time. She did not give her consent. She was not able to do so.

And the accused never verified that she had given her consent. [ 23 ] Concerning the second event, we do not have a clear explanation why she followed him, but it is not relevant according to the Crown. [ 24 ] It is not clear whether or not she consented at the beginning of the sexual intercourse, but it is certain that she did not consent when she asked him to stop. [ 25 ] The Defence does not dispute the fact that the accused had two sexual relationships with the complainant, but that on each occasion there was consent.

She knew what she was doing. [ 26 ] Concerning her bipolar disorder, there is no medical report to explain the mental state of the complainant. That is why we cannot know if what the complainant says is true. [ 27 ] The Defence lawyer did not believe the complainant’s version of facts. According to the lawyer of the accused, it is not because a woman files a complaint that she should be believed. [2] If she had not consented the first time, she would have knocked on a door, and asked for help.

Furthermore, she did not file a complaint after the incident. [ 28 ] For the Defence lawyer, there is no corroboration to support the complainant’s version of facts that she was in distress. [ 29 ] As for the second event, the Defence lawyer affirmed the complainant did not tell the truth. She said she was there to pray, which is not logical. [ 30 ] The complaint is not able to give details. [ 31 ] Everything shows that she was consenting.

The Defence lawyer does not believe she said “stop” to the accused. [ 32 ] Once again, there is no evidence to support the complainant’s version. [ 33 ] There is here a reasonable doubt for both events.

B) Basic principles [ 34 ] 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 Canadian Charter of Rights and Freedoms ( 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. [3] [references omitted]

C) The essential elements of the offense [ 35 ] 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. [4] 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. [5] [ 36 ] In the case at bar, the first two elements of the actus reus are not contested. The central issue of this trial is the complainant’s consent.

D) Consent [ 37 ] In approaching the consent issue, it is essential to bear in mind the burden of proof. The Crown must prove beyond reasonable doubt that the complainant did not consent to sexual contact or that she was incapable of consenting. Mr. Adjei bears no burden of proving that she did. [ 38 ] 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. [6] 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. [7] [ 39 ] That consent must be present at the time the sexual activity in question takes place (s. 273.1(1.1) Cr. C.).

As the authors Julie Desrosiers and Geneviève Beausoleil-Allard wrote: « Le consentement est une frontière; d’un côté, le crime et de l’autre, le plaisir et l’affection partagés. C’est dire son importance fondatrice.» [8] [ 40 ] There is no consent if the complainant is facing one of these situations [9] (s. 273.1(2) Cr.

C.): • the agreement is expressed by the words or conduct of a person other than the complainant; • the complainant is unconscious; • the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph; • the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; • the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

• 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. [ 41 ] There is no such thing as “tacit consent”. [10] [ 42 ] The complainant has no obligation to prove she/he communicated her/his non-consent to the accused. [11] [ 43 ] The victim has no obligation to report the aggression promptly (s. 275 Cr. C.). [ 44 ] 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. [12] 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 the case at bar, the accused did not present a defence. [ 45 ]

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.

E) The credibility and the reliability of a witness [ 46 ] To provide a basis for conviction or proof beyond a reasonable doubt, testimonial evidence must be both credible and reliable. [ 47 ] 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 . [13] [emphasis added] [ 48 ] The credibility of a witness depends on his sincerity, that is, a willingness to tell the truth as he believes it to be true. [14] [ 49 ] The reliability of the witness’s testimony depends on the accuracy (exactitude, precision) of the testimony and the witness’s ability to accurately observe, recall and recount the events in issue. [15] [ 50 ] The complainant’s credibility cannot be affected in any way because she waited several years before filing a complaint to the police (s. 275 Cr.

C.) [ 51 ] It is also important to recall that the complainant’s testimony alone may lead to a guilty verdict. Corroboration is not necessary ( s. 274 Cr. C.) [ 52 ] Testimony is assessed globally. Never in a vacuum. [16]

F) Did she give her consent to sexual activities? [ 53 ] In the case at bar, it is crucial to determine the credibility and the reliability of the complainant. She is the only witness to the events. [ 54 ] Even though the accused did not give his own specific version of the events described by the complainant, he is presumed innocent. The burden is still on the Crown’s shoulders to prove, beyond reasonable doubt, that he is guilty of the offence. [ 55 ] During the examination in chief, the complainant was able to give a detailed version of main facts for both events.

She seemed fairly candid, although her version was sometimes rather curious. The cross-examination did not reveal any significant contradictions or new facts that she had not previously revealed. She never exaggerated the situation. It must be taken into account that the real issue at stake here is consent to sexual intercourse. The accused does not question the actus reus . [ 56 ] The Court does not expect a perfect version of facts from the complainant. It is perfectly normal that after nine years the complainant has forgotten certain secondary details.

But she was able to reveal how sexual contacts with the accused took place. [ 57 ] The fact that she waited many years to make a complaint to the police is totally irrelevant here (s. 275 Cr. C.) [ 58 ] Just because her account of the facts is sometimes bizarre does not mean that she is not telling the truth. Mrs. H. suffers from bipolar disorder. For the first event, she explained to the Court how her behaviour could be affected by her illness.

With respect to the contrary opinion, it is not necessary to obtain the opinion of a psychiatrist here to appreciate the merits of the complainant’s testimony. [ 59 ] It is also erroneous to claim that it is abnormal that the complainant allowed herself to be dragged away by the accused without shouting, without asking for help, without trying to alert the tenants, if she did not want to follow the accused into the laundry room. We have to recall she said she was in a manic phase, which means she had poor judgment and she often engaged herself in risky behaviour.

She also said she was not responsive, not alert. [ 60 ] It is not because she followed him that she consented to have sex with him. To believe this is a myth or a stereotype.

[ 61 ] Contrary to what the Defence claims, the complainant’s version does not need to be corroborated (s. 274 Cr. C.). This argument is surprising. [ 62 ] The main issue here is whether or not the complainant consented to the sexual relationship with the accused. [ 63 ] During the first incident, she had difficulty explaining how she ended up sitting on the counter. She was not fully aware of what was happening. She did not have an operating mind. She felt like she had no control over the situation. [ 64 ] Doing or saying nothing does not imply consent.

Consent must be externalized in some way, since there is no tacit or implied consent. [17] [ 65 ] Her reaction after the sexual intercourse does not mean that she had given her consent.

To believe otherwise is a myth or a stereotype. [ 66 ] Considering she was in a manic phase, her version of facts concerning the first event is credible and sufficiently reliable. [ 67 ] The Court considers that the Crown has proven beyond reasonable doubt that the complainant did not consent to sexual relationship initiated by the accused on October 23, 2012, and that the accused demonstrated recklessness or wilful blindness to the lack of consent. [ 68 ] Now, let’s move on to the second event.

The Crown acknowledges that she is not in a position to state the complainant did not consent to the second sexual encounter with the accused at least until she told him to stop. [ 69 ] After the complainant told the accused to stop, the accused asked her if his penis was too big and continued the sexual relationship. He ignored the clear message that the complainant was giving him.

She did not want to continue. [ 70 ] If she gave consent initially, after saying “stop” meant that she no longer consented to the sexual relationship. [ 71 ] Once again, the Crown has proven beyond reasonable doubt that the complainant withdrew her consent during the second sexual intercourse and that the accused was knowledgeable and reckless as to the lack of consent. [ 72 ] The evidence considered as a whole does not raise a reasonable doubt as to the guilt of the accused. FOR THESE REASONS, THE COURT: [ 73 ] FINDS Mr. Leslie ADJEI guilty of sexual assaults against Mrs. D.

H.. __________________________________ CHRISTIAN M. TREMBLAY, J.C.Q. Me Anna Levine Director of Criminal and Penal Prosecutions Attorney of the Prosecutor Me Louis Morena Attorney of the Accused Dates of hearing: December 14 and 15, 2021 [12] Julie Desrosiers et Geneviève Beausoleil-Allard , supra , note 7, at p. 131.