2023 ONCJ 605, 2023 ONCJ 605

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction.

CITATION: R. v. Dunlop-Dewar , 2023 ONCJ 605 DATE: March 9, 2023 Information No. 21- 15005970 ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING v. EVAN DUNLOP- DEWAR R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE M. BLOCK on Thursday, March 9, 2023, at TORONTO, Ontario APPEARANCES : D. Silver Counsel for the Crown M. Savard/K. Ho Counsel for Mr. Dunlop- Dewar Table of Contents

ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S 5 ON PAGE REASONS FOR JUDGMENT 1 10

15 20 Transcript Ordered. ........................... March 10, 2023 Transcript Completed .......................... March 15, 2023 Transcript Approved by Block, J. ................ June 12, 2023 Ordering Party Notified..........................June 13, 2023 25 30

THURSDAY, MARCH 9, 2023 R E A S O N S F O R J U D G M E N T 5 BLOCK, J. (Orally): There were a number of preliminary rulings I made which I gave in the absence of reasons at the time. I’ll supply my reasons before I get 10 to the determination of the merits of the charges themselves. Before the trial commenced, I granted the defendant’s application of severance of counts and these are my reasons.

15 Mr. Dunlop-Dewar was charged with two counts of sexual assaults. One that proceeded the matter that I dealt with, which is alleged to have 20 taken place on October 16th, 2021. It was clear from the perusal of the alleged facts that there was no factual nexus between the two counts, or the two different sexual assault allegations, other than the fact that the complainant 25 disclosed the first alleged assault in time during her interview regarding the October 30th, 2021 charges.

Not only was there very little factual connection, the two allegations have very dissimilar features. 30 The October 16th, 2021 count involves an alleged act administered to the defendant to the complaint’s buttocks.

The October 30th allegation, as we all know, regards a complaint of penetrative intercourse. 5 At the time of the application the identity of the October 30 sexual partner was in doubt. As well, the voluntariness of the defendant’s largely exculpatory statement was in play. Very distinct legal issues as a result were 10 contemplated in the two sets of allegations. The October 16th allegation raised the issue of consent and was both legally and factually very simple. The October 30th allegation promised to involve forensic evidence from two proposed 15 witnesses.

Litigation over medical records was anticipated, required and, in fact, took place. The defendant gave a statement to police in relation to the October 30th incident. And there 20 can be no reasonable question that the latter incident in time was much more factually complex than the October 16th allegation. The proposed similar act application was without 25 merit. There were no distinct similarities between the two allegations.

The most that could be said of the alleged nexus between the two complaints was the suggestion that the defendant was attracted to the complainant and 30 had touched her in a sexual manner while she was unconscious.

The defendant indicated an intention to testify in relation to the October 16th allegation but not the October 30th count. 5 In consideration of the factors listed in Durant 2, 2019, ONCA 74 at Paragraph 73, it is my view that the case for severance was met by the defendant. 10 In the ultimate balancing that I was required to make, there were virtually no economies that would be made by a common trial as there was no overlap other than the complainant testifying about two unrelated acts. 15 There were no striking similarities that would make it more likely that the alleged perpetrator of one act was the author of the other.

The October 30th allegation had markedly different 20 legal issues as I have indicated, and it was in the legitimate interest of the defendant that he testify on one matter and less likely to be in his interest in respect to the other.

25 I also indicated that the Crown had not established the voluntariness of the November 3rd, 2021 statement given by the defendant to the Toronto Police Service, and that the defendant had established that his right to counsel, guaranteed 30 by

Section 10(

b) of the Charter , had been infringed and that the admission of the statement would bring the administration of justice into disrepute. Mr. Dunlop-Dewar was arrested at 3:55 p.m. on November 2nd, 2021. He’s arrested at his place of 5 work. He was arrested by officers not central to the investigation but detailed to arrest him as the arrest took place at a time when the detectives concerned with the investigation of the October 30th, 2021 allegation were either off work 10 or about to leave work at 4:00 p.m.

Almost immediately on arrest, the police seized the defendant’s phone. This proved to be significant as it gave him no access to call his brother who had contact information for Mr. 15 Dunlop-Dewar’s lawyer of choice, and no thought was given by the police, apparently, to allow him to contact counsel from the police car although there was the opportunity to afford him 20 privacy for that call. Transport to 52 Division began at 4:08 with an arrival there at 4:17 and, ultimately, Mr. Dunlop-Dewar was paraded at 4:41. There was no 25 effort at all to call counsel until 5:18 p.m. Mr.

Dunlop-Dewar asked a second time for a lawyer who he knew to be employed or a partner at Torkin Manes, a prominent Toronto law firm. He did not know the name of the individual 30 lawyer. He told this police that his brother would have her contact information and that his brother’s number was in his phone. He was not provided access to his phone which was at all relevant times actually at 52 Division.

Police looked up Torkin Manes. They made a call 5 and since it was 5:18 they just got a recorded message. They looked at the website and they did not see criminal law indicated as being in the firm’s areas of practice and assumed that they didn’t do criminal law. In this they were 10 in error given that the individual lawyer that Mr. Dunlop-Dewar wanted to speak to did, in fact, have some criminal law practice. Police made the assumption that the defendant would not want to speak to a lawyer from this 15 firm as they were not criminal lawyers.

This was an incorrect assumption and one that they were not entitled to make for Mr. Dunlop- Dewar. 20 He testified that he did not trust duty counsel and he would have waited for his own lawyer, one recommended by his brother if he knew that was an option. It is notable that when checking the firm’s directory, the police did not check for 25 the hyperlinks that were in fact embedded in the firm directory which would have permitted them more of an explanation about the individual lawyer’s practice areas. 30 As a consequence, Mr. Dunlop-Dewar ultimately was provided with a call to duty counsel.

At 5:24 duty counsel was called and a voice mail

left. Nine minutes later they returned the call, were initially told that Mr. Dunlop-Dewar was unavailable and, ultimately, at 6:10, Mr. Dunlop-Dewar spoke with duty counsel. 5 At several points during his contact with the police, there were suggestions that he could influence the charge-making decision by giving a statement. 10 I happen to agree with Ms. Savard’s submission that the police contributed to the defendant’s misunderstanding that he was not yet charged with an offence.

They repeatedly used the term allegations to describe the defendant’s legal 15 jeopardy and suggested that he could escape being charged if he gave an exculpatory account to the police. Sergeant Goray told the defendant that he was under arrest for a 20 complaint and that he was at the station for further investigation. Another officer, the

name is unavailable to the court but he was apparently the officer detailed to take Mr. Dunlop-Dewar for his photograph, apparently told 25 Mr. Dunlop-Dewar that the detectives would decide whether to release Mr. Dunlop-Dewar after they spoke to him. A significant element in my judgment is the fact 30 that Mr. Dunlop-Dewar was held for a significant period of time in a hard cell before he was eventually interviewed. While it is possible that the police did not contemplate the effect of an overnight stay prior to the interview the effect on Mr.

Dunlop-Dewar was obvious. 5 He was in police custody for at least 13 hours before being interviewed. He spent a long night in an uncomfortable environment left to wonder about his legal jeopardy and, as we know, without access to his lawyer of choice. Mr. 10 Dunlop-Dewar was kept in a cell with no blankets. He testified to being cold, hungry, and thirsty. He got very limited, if any, rest.

I had the opportunity to view the cell video, much of it was occupied with Mr. Dunlop- Dewar either pacing or changing position repeatedly on 15 the stainless steel, horizontal surface provided for his rest. He was provided with no food or water while in police custody until the point of the interview. 20 The interview itself was remarkable for the following fact. There were 38 separate indications by Mr. Dunlop-Dewar that he did not want to answer questions. There was nothing 25 more, in my view, that he could have done to indicate his intention to exercise his right to silence.

The interview continued with a switch in detectives near the end, and I noted a switch to a more aggressive questioning style. Mr. 30 Dunlop-Dewar eventually broke down shortly after the second questioner took over. It was hinted that there was a lesser course, cooperate in order to avoid investigation for multiple offences of this nature.

There was disparagement of the advice given by 5 duty counsel, that Mr. Dunlop-Dewar not provide a statement. Ultimately Mr. Dunlop-Dewar broke down. In the vernacular, he had a melt down. The message from the police conduct was quite clear to Mr. Dunlop-Dewar, which is that the 10 police did not give any consideration, were not concerned and did not care what his decision was in terms of exercising his right to silence. I have to say that, short of the use of brutality, and there was no use of brutality, 15 this may be one of the most egregious breaches of the right to silence in my recent experience.

It is no accident, in my view, that at the time of the interview the police had no evidence of 20 the identity of the perpetrator and no direct evidence of sexual contact between the defendant and the complainant in the October 30th, 2021, incident. My determination is that Mr. Dunlop- Dewar’s will was overborn by the police 25 misconduct and that the Crown has not met its burden in relation to the voluntariness of that statement. In relation to the Charter issue, it is quite 30 clear that there was no diligent search for counsel of choice. The whole issue of counsel was dealt with in a very slow and ineffective

matter. It would have been very easy to provide Mr. Dunlop-Dewar with his phone which would have provided the contact information for his brother who knew the name of the lawyer. The police 5 have no business determining that a chosen law firm was not appropriate for criminal law advice. They ignored a subsequent further request for legal advice and instead simply took Mr. Dunlop-Dewar into that extremely delayed 10 interview.

Advice of the rights to counsel was given initially and repeated during the course of the parade, but only token application was given to the implementation of that right to counsel. 15 I will now proceed to judgment on the merits of the matter of the October 30th sexual assault and the related counts. 20

Ms. R. was 24 at the time of these events. She worked at Kelly’s Landing which was, and may still be, a restaurant/bar located at Front and University in this jurisdiction. 25 She worked as a server and bartender. She testified she usually did the 4:00 p.m. to 1:00 a.m. shift. She described an after-work culture in which it 30 was common to drink after work with work colleagues and friends in the industry. She met the defendant, Mr. Dunlop-Dewar, at his work place, referred to as Union Chicken, which was across the street from her own.

She said that she met him approximately five to ten times before the incident on October 30th, in company 5 with other friends, sometimes in a bar, sometimes at her restaurant. She described him the nature of their association as friendly. He was easy to talk to. They had mutual friends who worked in the same industry. My conclusion in-chief 10 was that she considered her relationship with the defendant to be one of essentially a mere and casual

acquaintanceship. On October 29th, the complainant attended a Hallowe’en party at a business in the junction. 15 I did not note the name of the business and it is of little importance. It appears to have been a combination retail bike establishment and coffee shop. Before she attended at the 20 Hallowe’en party she went to a pre-party and drank two Jack Daniels tall boy coolers.

She estimated their size at 300 millilitres a piece and their alcohol content of five to six percent. 25 It may be of note that there is actually no such thing as a 300-millilitre alcohol container but there is a 325-millilitre alcohol container. 30 In any event, Ms. R. attended the main event at about 10:30 p.m. and drank the four remaining coolers while at this establishment. She testified she had an easy time making conversation at the party. It was her plan to attend her shift at work the next afternoon.

She testified she had an easy time making conversation at the party. It was her plan to attend her shift at work the next afternoon. The real reason for Ms. R. attending 5 this particular Hallowe’en party was that she had been dating the owner of the business premises at which the party was located, and at about 2:00 a.m., she had a conversation with him regarding the state of their relationship. It 10 was an unhappy conversation. He told her that he sought no more than a casual connection with her. It was clear, and Ms. R. was quite frank, that was not the outcome she sought.

She sought a more committed and serious connection with this person. 15 By this point, she’d drank a significant amount of alcohol. She testified that she was “disappointed, upset, and confused” and she made 20 a decision to leave the party. Her plan had been to go home so that she could sleep prior to her shift at her employment but she made a decision to go to another bar so that the evening didn’t end on this note of 25 disappointment, and she made a decision to contact the defendant. She knew enough about Mr.

Dunlop-Dewar that she knew he would be up late and almost certainly at some form of bar or after-hours club. The contact with Mr. Dunlop- 30 Dewar was successful. I don’t recall whether it was text or telephone conversation, but he indicated that he was at an after-hours bar

called, Yoga or the Yoga Bar. Now this bar was apparently notorious for crowds, cocaine use, and uninhibited conduct by 5 a large number of younger adults who tend to gather there. In-chief, Ms. R. told the court that she had not previously been to the bar. She arranged to meet Mr. Dunlop-Dewar there and did so. Evidence of a call log 10 indicated she called the defendant approximately 4:00 a.m. She took an Uber to the Yoga Bar. She said that she was “buzzed” and not drunk. She directed the Uber driver to the Yoga Bar. She told the court that she had consumed no 15 illicit drugs that night, at least not voluntarily.

At the Yoga Bar, she had to pass down a long, 20 dark and very crowded hallway to get to the defendant at the back of the bar. The text message traffic between Ms. R. and Mr. Dunlop-Dewar indicates that she had to make use of texting to actually locate where he was 25 within the very crowded establishment. When she found him, he was chatting with mutual friends. They spoke and caught up with each other’s lives. She confided in him her romantic disappointment. He offered to get her a drink. 30 She asked for rye and ginger and it arrived in a large paper cup brought to her by Mr. Dunlop- Dewar.

I believe the evidence indicated that this happened twice. She told the court in chief that after sipping the beverage things went very 5 dark. She had no sense of what was happening to her; no feeling, no movement, no conversation, and no memory. She woke up, she told the court, the next evening and other than one fleeting episode, she had no memory of what transpired 10 between drinking the rye and ginger and waking up on her bed in her condo. The fleeting episode was a few seconds in which she said she

saw Mr. Dunlop-Dewar half naked sitting on the edge of her bed in the condo. 15 Her evidence was, she woke the next evening on October 31st, 2021. She said she experienced an alcohol blackout and remembered nothing from the bar until the next day. She told the court that 20 there were apparent blood stains, smears on the wall in the vicinity of her bed, and blood stains on her sheets. She located a jar of coconut oil which was normally in her shower, was located close to the bed. It was not a 25 place where it was typically stored. Her head ached.

She found numerous messages on her phone from her parents, from her employer, from friends. It was apparent that there was a flood of concern regarding her well being. She had 30 also missed her shift at their employment. She attempted to recall the evening’s events in her evidence. She had no memory of any aspect of sexual contact with the defendant or anyone else and she ultimately reached the conclusion that sex had taken place with the defendant

5 while she was in no position to consent to it. It seems that, on her evidence, she reached that conclusion not only after contemplating the events and contemplating her very late arousal, that is, awakening from sleep. She reviewed the 10 events, first with a friend and that friend suggested that she attend on the hospital given the suspicion that an unwanted sexual act had taken place. Now, I am satisfied that some form of sexual 15 contact took place between Ms. R. and Mr. Dunlop-Dewar. Of course, that does not determine the issues in front of me. I reached that conclusion on the basis that Mr.

Dunlop- 20 Dewar’s DNA, or extremely high probability that it is his DNA, a very persuasive degree of scientific evidence was that his DNA was deposited on her breasts and on her anus. And male DNA not sufficient to identify a person of 25 origin was found in Ms. R.’s vagina. On the totality of the evidence before me, I believe the only reasonable conclusion is that there was some form of intimate sexual contact 30 with the defendant. As I’ve indicated that in no way determines the case before me, and the Crown’s difficulty in this case is that there is

no direct evidence of the essential element of this sexual assault allegation which is the lack of consent. 5 Now, as we know, that’s not necessarily an insurmountable road block to proving lack of consent but the court must turn to the circumstantial evidence available to it to determine whether the Crown has in fact proved 10 the absence of consent. That includes the forensic records of the complainant’s state at the time proximate to the events.

It includes the entry video of the complainant, and the defendant’s arrival at her condo, and of course, part of the circumstantial evidence that the 15 court must review is the complainant’s assertion that she was not attracted to the defendant and would not have had sex with him. 20 Ms. R.’s assertion that she was not attracted to Mr. Dunlop-Dewar and did not consider him to be a potential sexual partner does not provide a definitive answer to the necessary credibility assessment that I must

25 make in respect of her evidence. In the J.R. and J.D. case, Justice Ducharme found persuasive the fact that the complainant had an abortion a few days before the sexual 30 conduct and was instructed by her physician to abstain from sex. He also found persuasive her assertion that she was in love with another man and would not have been willing to have sex with any other male.

He also found persuasive the fact that the complainant was an admitted racist and that tended to reinforce her evidence that 5 she would not have consented to have sex with the defendant as he was of a race that the complainant was bigoted towards. I found that there was significant difficulties 10 with the credibility and reliability of Ms. R.’s evidence.

The first is that she seems to have pieced together her belief, or her stated belief, that non-consensual sexual contact took place on the 15 basis of her stated lack of memory on the basis of her finding stains and coconut oil in proximity to her bed or on her bed, and also based on the fact that her genitalia were sore. 20 As I’ve indicated, I accept the fact that some form of intimate sexual contact took place at some point while Mr.

Dunlop-Dewar was present in the condo unit with the complainant, but the 25 complainant’s pieced-together observations or beliefs do not supply evidence that consent was not in fact provided. I took pains to review the demeanour of the 30 complainant while she gave evidence in both chief and in cross, and I allow that the complainant in- chief appeared to be an extremely impressive witness. I’ll get to that in a bit. One of the features of her evidence that I noted was that she appeared to take pains to

impressive witness. I’ll get to that in a bit. One of the features of her evidence that I noted was that she appeared to take pains to suggest that the defendant was a very casual, distant 5 acquaintance through their common work in the restaurant environment. But before me in evidence is evidence of text traffic between the two that covers a period of approximately one month. It’s my view that the text traffic 10 between the two indicates a higher degree of familiarity and friendship between the two in that they discuss where they are going out; they discuss their partying habits; in it, Mr.

Dunlop-Dewar had, on another date, a much earlier date, I believe in late September 2021, 15 expressed a concern for her well being after a night of hard partying and wonders if she made her shift on time. 20 The fact that in the early morning hour of her romantic disappointment, Ms. R. changed plans and didn’t go home and in fact, sought out the defendant indicates that she was reaching out for somebody who could provide her profound 25 emotional support.

I was somewhat disturbed that she appeared to take pains, that I think artificially express a lack of familiarity with the defendant when both the text traffic and her activities on October 30th, 2021 indicated the 30 probability that, in fact, they were good friends and that Mr. Dunlop-Dewar was exactly the kind of person she would seek out for

emotional support. I am not prepared to find and I am not prepared to exclude the reasonable possibility that 5 despite her expressed lack of sexual interest in Mr. Dunlop-Dewar, in a vulnerable emotional state, she may have sought him out for exactly that purpose or was open to that suggestion. 10 There were additional difficulties involved in the credibility assessment of Ms. R. She seems to have deliberately under reported her alcohol consumption. That may be the least of the problems that I’ve identified. She told the court in-chief that she had not consumed 15 cocaine that night.

As we know from the evidence of Ms. Gabriela Tse, the very experienced toxicologist employed at the Centre of Forensic Sciences in Toronto called by the

20 Crown in this matter. The tests that were conducted after Ms. R. came forward with her complaint indicate that cocaine was, in fact, present in her blood stream and a derivative of both cocaine and alcohol, a 25 substance that forms when somebody has been consuming both at the same time was also found in her bloodstream. That being a substance called Benzoylecgonine. It was detected in trace amounts in her blood and it would appear 30 more significant amounts in her urine. There are other items that were found in her urine, codeine, a prominently known opiate derivative. Barbiturates were not detected.

Dextromethorphan, which is a substance found in cough syrup was detected, and I will get back to 5 what I think the significance of the chemical analysis of the blood and the urine of the complainant is in a moment.

I want to stress though that the complainant’s 10 suggestion in her evidence was that she may have been the unwitting victim of surreptitious adulteration of her drinks at the Yoga Bar by the defendant. Now, there’s no direct evidence of adulteration. Nobody actually sees Mr. Dunlop-Dewar do anything with these drinks other 15 than get them at the bar. Of course, it’s certainly possible that adulteration can take place in that kind of crowded environment without anybody noticing it. But my view is 20 that the complainant told a falsehood to the court when she said she had not misused cocaine.

I think it’s highly unlikely that cocaine was surreptitiously added to her drink because 25 cocaine is a notorious stimulant. If the defendant’s plan was to essentially obliterate the complainant’s ability to withhold consent or even attend to the issue of consent so that he could have his way with her sexually, it seems 30 to me that cocaine would be the last thing that he would administer to her as it would increase her awareness of her circumstances and not

decrease it. I am not giving expert evidence here. I derived these conclusions from the evidence of an expert, Ms. Tse, who had extensively testified before this court in this 5 matter. The lie is significant and there were other lies concerning what was apparently a hard partying lifestyle on the part of the complainant. 10 Now I want to make it absolutely clear, the hard partying lifestyle is not in itself significant to the issue of consent. Being a hard partier is meaningless in relation to that issue.

No court can find or hint or draw a conclusion that the complainant was more likely to consent 15 because she partied hard. The significance of the use of cocaine is two-fold. First of all, the complainant’s falsehood told to the court that she had not consumed cocaine and, secondly, 20 the presence of the complainant’s parents throughout her evidence suggested to defence counsel, and I think that suggestion has merit, that the complainant essentially censored parts of her evidence that might be found offensive by

25 her family. There is no hard evidence for that conclusion other than the fact that the complainant, in my view, an intelligent, articulate, poised, adroit, confident individual somehow found it necessary to tell a falsehood 30 in relation to this particular issue. But there were other issues that inspire the court’s concern. First of all, the complainant in her text messages indicated a concern for missing work on previous occasions, concern not to miss work. On the day in question, she 5 indicated her intention to leave the bicycle shop coffee bar in time to get enough sleep to go to work the next day.

And that her change in plan to meet Mr. Dunlop-Dewar at the Yoga Bar essentially set her up for a situation in which 10 she might find herself either too inebriated or otherwise exhausted to attend work in a timely way. There is an indication in the evidence, on the basis of the many calls the complainant received

15 in the late afternoon and early evening of October 31st, 2021 that a lot of people were concerned about her state, concerned about her whereabouts, and concerned including her employer 20 that she had missed work. Another issue is that the complainant in the text message traffic in late September with the accused man indicates that she had attended the 25 Yoga Bar, and in her statement given to the police on November 3rd, 2021 also seemed to indicate that she was both familiar with the hard partying, cocaine-consuming environment of the Yoga Bar but had also been there on a 30 previous occasion.

Her denial of ever having previously attended the Yoga Bar, uttered first in-chief and repeatedly in cross-examination, may well have been because of the presence of her parents in

the body of the court. But, whatever the reason 5 for it, it undermines her credibility as a witness in these significant matters that are before me. I turn to the issue of demeanour. Courts must 10 always be extraordinarily careful in determining credibility based on the demeanour of a witness. First of all, witnesses are stranger to the trier of fact in court.

There have been numerous studies indicating that police detectives, criminal lawyers, and judges are not 15 much better than any member of the general population in determining the credibility of a particular person based on demeanour alone or on the attempt to determine by the way of body 20 language, whether somebody is telling the truth. These are significant difficulties and trial courts are cautioned by the appellate courts to be extremely cautious in using demeanour.

But 25 there are several tools that stand out in the use of demeanour to determine whether the evidence of a particular person might be relied on. If a witness essentially attacks the process by attacking the questioner, and I do 30 not necessarily mean the use of vulgarity or shouting, but if they question the role of the – of the questioner, including by questioning

whether a particular question is relevant or appropriate when asked that question, the court necessarily contrasts that behaviour with the behaviour of the witness in-chief. As I’ve 5 indicated, Ms. R. was a most impressive witness; poised, articulate, cooperative. Not so under cross-examination. Now, I had the benefit of seeing Ms. R., subject to a pointed, appropriate cross-examination. Her 10 behaviour under cross-examination was considerably different than it was in-chief. In cross, Ms. R. was frequently evasive and indirect in her responses.

As I have hinted, she also responded to questions with either non- responses, that is seeming to respond to a 15 question not asked by Ms. Savard as if she misunderstood the question. She was also frequently combative. She counterattacked by questioning the relevance of proper questions. 20 This attitude became particularly marked when the questions focused on the credibility issues I’ve already indicated, such as whether she was familiar with the Yoga Bar and had attended it on prior occasions. 25

I want to make it clear while the cross- examination was pointed, terse, focused, unapologetic in tone, it was also entirely proper. Crown Counsel was Mr. Perry, who is a 30 very experienced criminal lawyer. My exposure to him since his appointment to the Crown Attorney has impressed me with his trial skills. Other than one legal issue which came up and was resolved by counsel themselves without this judge needing to make a ruling on it, Mr. Perry did not rise to object to any portion of the 5 cross-examination.

This indicates that the conclusion that I drew was likely one that he drew, which was that it was an entirely proper cross-examination. 10 It must be obvious by now that I was unimpressed with Ms. R.’s performance under cross and it persuaded me that the complainant was not to be trusted to give candid evidence. I need not determine the precise reason for this. I am very suspicious that it was because of the 15

presence of her parents. I may be entirely wrong on that issue but the performance under cross gives rise to my inability to trust the credibility or reliability of her account. And 20 the Crown’s case depends on her veracity in as there is no direct evidence on the issue of consent. Now, the court has to turn to the other evidence 25 which has been presented and see if it’s capable of supporting the Crown’s contention that Ms. R. was incapable of effective sexual contact.

Now, it is trite law to say that evidence of alcoholic blackout does not equal 30 evidence of the absence of volition or free will or the ability to exercise free will, and I’m going to turn to the very oft quoted and approved by appellate court comments of Justice Duncan in the case of Cedeno , 2005, 195 Canadian Criminal Cases, Third Edition 468 at page 475. And His Honour commented:

5 Cases where the complainant is said to be incapable due to [the] consumption of alcohol or drugs are less clear-cut. Mere drunkenness is not the equivalent of 10 incapacity...Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibition or self control...A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at times. 15 Expert evidence may assist and even be necessary, in some cases...though it is not required as a matter of law. I turn then to the other evidence.

As we know, 20 the complainant had no memory of the use of the coconut oil or whether in fact it was used and there was no evidence of unusual genital entry of evidence of badly swollen labia minora. There is no evidence that her physical state was 25 indicative of any unusual or non-consensual activity. And there’s no basis to conclude from the state of Ms. R.’s genitalia that any sexual activity was non-consensual. 30 While there was relatively little comment on the alleged blood stains and the coconut oil, I

think the reason they arose in the testimony of the complainant was the implicit suggestion that the coconut oil was there to be used as a lubricant in sexual activity and the blood 5 stains were some consequence of sexual activity that took place without the complainant’s consent. And I cannot reach this conclusion. First of all, there is no evidence, forensic 10 evidence, that any lubricant, let alone coconut oil, was applied to the complainant in any manner.

There was no forensic evidence that determined what the stains were and while they were described by the complainant, as blood stains that were widely present proximate to the 15 bed on the wall and on the sheets themselves, the photographic evidence did not bear out the alleged large quantity of blood distributed around the area of the bed and on the bed

20 itself. What I saw in the photographic evidence, was a few relatively faint stains. I have no evidence, as I’ve said, that in fact the stains were blood stains and I have no evidence which might suggest when they were applied. It 25 would be foolhardy in my view to give any weight to the presence of the coconut oil or the alleged blood stains. As I have already indicated, there is no 30 question that cocaine was consumed in some manner by the defendant.

My determination is that her credibility has been negatively impacted by her refusal to admit that she consumed it on the early morning in question, and I’ve also commented that it’s most unlikely that this drug would have been surreptitiously 5 added to her alcohol in order to make her an inert or compliant victim of sexual assault. I think it’s also circumstantial evidence that both negatives the suggestion that she was drugged into submission, but also on the 10 evidence of Gabriela Tse, indicated that combined with a fairly high level of alcohol consumption, lends itself to the possibility

that an alcoholic blackout in fact took place. There was not only a high level of alcohol 15 consumption but a rapid consumption of alcohol just before leaving the bar and, in combination with the crash effect that takes place after the cocaine-induced high, may have resulted in a 20 alcohol blackout and loss of memory by the complainant. The Crown has turned to the video evidence, I believe, 45 seconds of entry in the complainant 25 and Mr.

Dunlop-Dewar into her building, and then on the corridor leading to her apartment, as objective evidence which is significant in the determination that she was incapable of consent. In my view, nothing in the video of the entry of 30 the complainant and the defendant confirms the absence of capacity to consent. I could certainly determine from that evidence, for

instance, if there was a drink-driving charge in front of me, it would evidence capable of corroborating other evidence that the complainant was impaired by some means. She is 5 inept in the use of her key and she seems to be – her walking displays some evidence of impairment. And that is about as far as I’ll go. 10 Ms. Tse was cross-examined on this point. And I think it is significant to repeat that she was qualified as an expert on the consumption and metabolism of alcohol and illicit narcotics and also qualified to give evidence on their effect on the human body.

And, in my view, it was 15 entirely proper for her to give you the evidence that she gave in relation to the video as well as the rest of her evidence. And her evidence was that she could not make a determination on 20 the basis of that video that the complainant was so impaired that she had no ability to consent to sexual contact, and that is persuasive evidence that this piece of circumstantial evidence does not assist the Crown.

25 To sum, I am not confident that any sexual activity between the defendant and the complainant after they left the Yoga Bar on October 30th, 2021 and the defendant’s departure 30 from her unit later that day was not consensual. I have no evidence whatsoever that the defendant interfered with the complainant’s drink or drinks at the Yoga Bar with any contaminant, and I find that the Crown has not proven either the alleged contamination, a sexual assault, or the illegal entry of Mr. Dunlop-Dewar into the 5 complainant’s unit.

I did indicate at the last occasion that we met that it was appropriate in these circumstances, if I acquitted Mr. Dunlop-Dewar, to impose upon 10 him a common-law peace bond forbidding him to have contact with Ms. R. The only thing I did not review with counsel was the length of this bond. I am sure that counsel is familiar with this decision of Mister Justice Duncan in – I am sorry. I am drawing a blank on

15 the name. It wasn’t Duncan. It was a prominent Superior Court Judge in Peel. You all know the name. MS. SAVARD: Ducharme? 20 THE COURT: No. Peel. It will come to me. MS. SAVARD: Durno? Justice Durno? THE COURT: Thank you. Full points. Okay. Mr. Dewar [sic] decided a case called Musoni back in 2010, M-U-S-O-N-I, in which he determined 25 amongst other things, that there was no necessary temporal limit to a common-law peace bond. They existed before Canada existed. They existed before the Criminal Code . They existed before any of us.

It is a device used by 30 magistrates of old to separate people when there is a problem and I am going to use it here. I have no intention of imposing a bond for the rest of your life. I think the Court of Appeal might have something to say on that issue but my view is that a five-year bond is appropriate. Do either counsel have submissions or want to 5 change my mind on that issue?

MS. SAVARD: No, Your Honour. The only concern Mr. Dunlop-Dewar would have would be the – the physical space limit which can sometimes make it difficult to navigate downtown particularly if 10 the complainant, as in this case, changes work places frequently. So, if it just a no-contact, no- communication order then there’s no difficulty with that. The other thing I’ll say is he does continue to be bound by the same undertaking conditions that he’s always been on 15 because of the... THE COURT: Other place. MS. SAVARD: ...October 16, allegation which is still before the courts, and I do have to speak 20 with Mr.

Perry about that. So, I’d say the two should – should not be inconsistent with each other. THE COURT: Understood. What is it – remind me, what does that provide for? The terms of – is 25 there a geographic prohibition? MS. SAVARD: Sorry? THE COURT: In the – in the recognizance that Mr. Dunlop-Dewar is still bound by is there a geographic prohibition or is there just simply, 30 remain away? MS. SAVARD: There was. It’s been varied and removed after the conclusion of the evidence in

this trial. THE COURT: Yeah. MS. SAVARD: So, the last several months there hasn’t been a geographic restriction. Now, it’s 5 simply... THE COURT: Yeah. MS. SAVARD: ...a no-contact order and I believe a restriction on possessing prohibitive weapons but I don’t think that concerns us. 10 THE COURT: Ms. Silver, what were you going to say? MS. SILVER: Well, I wasn’t prepared for... THE COURT: No. MS. SILVER: ...this submission and I don’t know anything about bail variations and reasons for 15 them. THE COURT: Yeah.

MS. SILVER: Certainly, a small geographic boundary could certainly be imposed such that 20 it’s a distance, if seeing the person, to have restrictions. THE COURT: That may be a problem because they - this is a – I’ll use the expression, community, this is a community of restaurant workers who 25 seem to be employed in a very small geographic area in downtown Toronto, centred basically where we are and so, I’m reluctant to impose any condition particularly in a five-year bond which may have significant employment consequences on 30 Mr. Dunlop-Dewar. Do you need to be heard further? MS.

SILVER: Again, I’ll - I just reiterate something maybe within 10 metres is – to give her some sort of sense of security and as well that if he finds himself in her presence, that he immediately leave the area. 5 THE COURT: All right, thank you. MS. SILVER: Those are things that could be addressed. THE COURT: All right. So, I’m now going to make an order in relation to the common-law

10 peace bond, would you stand please, sir? EVAN DUNLOP-DEWAR: Yes. THE COURT: Okay. Five hundred dollars, no deposit, okay? That’s fairly standard. You are going to remain at least 10 metres away from any known home, school, or place of worship of Ms. 15 R. and remain off the premises of anywhere she happens to work. I realize that that is an imposition but I think it highly unlikely that even after the other case is 20 disposed of, that you would want to work in the same establishment as Ms. R. You’ll also be forbidden from having communication with her by any means or association. And I know that Ms.

Savard is going to spell that out but 25 I’m going to do it on the record here. Communication is anything, word or gesture, a wave across the street. It’s – it also includes any form of third-party communication, Facebook message, any form of social media. It also 30 includes telling a mutual friend to say hi, I hope you’re doing okay. That’s indirect communication. That’s forbidden to you. Association means this, if you find yourself in the same place she is, by accident, you leave. That’s your job. Now, it used to be

thought that common-law peace bonds were unenforceable, 5 and I’ll tell you there’s a lady who insists on attending free-standing abortion clinics and making her views known and impeding people going into those establishments and leaving them. And she’s still doing time for repeated violations 10 of common-law peace bonds. So, the fact that it’s a judicial order should carry a lot more punch than the nominal financial penalty which is involved.

Breaking a judicial order is, itself, a criminal offence. 15 In relation to Counts 2, 3 and 4, on the Information before me, the finding is you are not guilty on all of these counts. I thank Ms. Silver for coming in, no doubt at 20 late notice. Thank you, Ms. Savard, Ms. Ho. Mr. Dunlop-Dewar you can leave. Anybody connected with this matter is free to go. MS SAVARD: Thank you, Your Honour. MS. HO: Thank you, Your Honour. 25 MS. SAVARD: If Count 1 could be adjourned to set date court two weeks from now, I’ll have some conversations with Mr. Perry about how to deal with that. THE COURT: Yes.

I know that at an early stage, 30 counsel indicated that they had no problem with me doing the second trial but, given the comments I’ve made about Ms. R., it would be inappropriate. Two weeks from today brings us to the 23rd, is that a reasonable date for the Crown? MS. SILVER: Sure. 5 THE COURT: Okay. Are we talking 101? MS. SAVARD: I believe so but I am out of the loop on this. CLERK REGISTRAR: 101 at 9:00 a.m. So, that’s a – it’s normally a Monday, Tuesday matter but 10 I’ll just see - what’s the – what’s the holiday? THE COURT: Easter is somewhere around there, right? CLERK REGISTRAR: Yeah, so, 2021 is fine.

MS. SAVARD: The 21st of March, then, please, Your Honour, in 101 at 9:00 a.m. 15 THE COURT: The 21st it is, 9:00 a.m., 101. Thank you. MS. SILVER: Thank you, Your Honour. MS. SAVARD: Thank you, Your Honour.

20 ...MATTER ADJOURNED 25 30 FORM 3 ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act 5 I, Tracy Thompson, certify that this document is a true and accurate transcript of the recording of R. v. Evan Dunlop- Dewar, in the Ontario Court of Justice, held at TORONTO taken from Recording 4811_122b_20230309_093747 6_BLOCKM.dcr has been certified in Form 1. 10 June 13, 2023 (Date) Authorized Court Transcriptionist Tracy Thompson, ACT (226)600- 8820 ACT ID #2682416791 15 Ontario, Canada

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