R. v. W., 2015 MBPC 11

Cite # 2015 MBPC 11 THE PROVINCIAL COURT OF MANITOBA Portage La Prairie BETWEEN Her Majesty the Queen ) C. Owens for the Crown ) - and – ) ) John Charles Roulette ) D. Kreklewich for the Accused ) ) Judgment delivered: February 20, 2015 ) CORRIN, P.J. Introduction [ 1 ] This is a case involving allegations of sexual assault. The complainant and the defendant both testified, each describing very different descriptions of the incident. It was Mr. Roulette’s position that the complainant both initiated and consented to sexual intercourse. It was the complainant’s (Ms.

B.) position that the intercourse was unequivocally non-consensual. [ 2 ] Ms. B. testified that she met Mr. Roulette for the first time after a wedding social in Amaranth, Manitoba. Court was told that such meeting took place at the residence of A.M., the father of her then boyfriend R.M.. It was her testimony that there had been an after-party at the M. residence and that around three or four in the morning she left the party, got into bed with R.M., and fell asleep. Ms. B. informed the Court that she was wearing a t-shirt, jeans and underwear when she went to sleep. She further recollected that she and Mr.

R.M. were sleeping in a double bed as opposed to a queen or king sized bed. It was her testimony that she awoke at approximately 7:00am to find Mr. Roulette having sexual intercourse with her. Mr. R.M. was described as being nine to twelve inches away. Ms. B. told Court that her jeans and panties had been completely removed. She testified that she had almost immediately told Mr. Roulette to stop what he was doing to her. As she put it, “to get off”. In this regard she recollected that she had pushed him and employed words to the effect of “What the fuck” and “Get the fuck off”.

Court was told that these words were spoken quite loudly. According to Ms. B., Mr. Roulette almost immediately disengaged and left the bedroom. Ms. B. then described leaving the bedroom and walking throughout the house alone without further incident. Upon returning to the bedroom she claimed to have unsuccessfully tried to wake Mr. R.M. by pushing him and speaking to him. It was her evidence that she then went back to bed but couldn’t fall asleep. According to her she remained in bed for four hours, tossing and turning. Indeed it was Ms. B.’s testimony that she even stayed in bed for an hour after Mr.

R.M. arose later in the morning, before getting up and telling him what had occurred. [ 3 ] Mr. Roulette denied ever being in Ms. B.’s bedroom. It was his testimony that he had felt ill during the house party and that his cousin, R.M., had provided assistance to him by offering the spare bedroom as a place where he could lie down and recuperate. He recollected that this was around 3 to 4a.m., about one to two hours after Mr. R.M. had testified that he’d gone to bed. It was Mr. Roulette’s testimony that approximately 15 minutes later Ms.

B. had entered the room and got into bed with him, initiating sexual contact which culminated in her removing her pants and engaging in sexual intercourse. According to Mr. Roulette, Ms. B. changed her mind and withdrew her consent when she noticed a shadow pass the slightly opened room door which according to him, was left about five inches ajar, when the complainant entered the room. It was Mr.

Roulette’s evidence that he immediately ceased sexual intercourse at such time and that he’d left the house shortly afterwards, between 4 and 4:30a.m.. [ 4 ] Both witnesses agreed that they had never met each other prior to the evening in question. Mr. Roulette described himself as being an 8 on an intoxication scale of 1 to 10 (10 being extremely intoxicated) while he was at the M. residence. He estimated consuming nine beers at the wedding social and as many as fourteen more at the after-party in the residence. Ms.

B. acknowledged that she had told investigating police officers that she’d had about twenty cans or bottles of beer between the wedding social and the after- party. Ms. B. didn’t deny being intoxicated, stating that she “...wasn’t like ridiculously drunk. I did not black out” (line 22, page 53 of transcript). [ 5 ] Both Ms. B. and Mr. Roulette agreed that Mr. Roulette had been arrested across the street from the M. residence several hours after the alleged incident. According to Ms. B. she had pointed Mr. Roulette out to RCMP Constable Todoroff.

In this regard she recollected having had to identify Roulette by the color of his shirt as he was in the company of her boyfriend R.M., R.M.’s father A.M., and a fellow named Woody, another person who had been at the after-party at the M. residence. R. v. W.(D.)

[ 6 ] The outcome of this trial is largely dependent on the Court’s assessment of the evidence. That assessment requires the Court to make findings of credibility inasmuch as the evidence of the accused and complainant as to what actually happened is, for the most part, diametrically opposite. [ 7 ] Both parties agreed that the governing framework of analysis set out in the case of R. v. W.(D.), ( 1991) 1SCR 472 is apropos in this case. That framework boils down to the following guidelines: ... If the evidence of the accused is outright believed the accused must be acquitted; ...

Even if the Court does not believe the testimony of the accused but is left in reasonable doubt by it, the accused should be acquitted; ... Finally, even if the Court is not left in doubt by the evidence of the accused, it must ask itself whether, on the basis of the evidence which it does accept, it is convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 8 ] The Court notes that it is bound to follow the holistic or integrated approach described by the Manitoba Court of Appeal in R. v. Menow,

(2013) MBCA 72 in relation to its R. v. W.(D.) analysis. A quote from Menow elaborates on the appropriate approach to be taken by a trial Judge conducting a W.(D.) analysis: “To assess the evidence of the accused in a vacuum ignores the fact that the whole purpose of the trial is to determine whether or not the accused is guilty of the offence for which he or she is charged. It is impossible for an accused’s evidence to be considered without a factual or contextual backdrop for the charge itself.

Furthermore, such a method of analysis would effectively prevent the Court from considering evidence favorable to the accused when deciding whether or not to believe him or her. To ignore evidence favorable to an accused person in assessing his or her credibility is contrary to principles of fundamental justice”. (See para. 23) Analysis [ 9 ] This is a case where the Court has reason to be very careful with respect to the reliability of both witnesses evidence. This is because of the amount of alcohol each had to drink that night.

There’s no question in my mind that the evidence suggests that all three civilian witnesses were highly intoxicated at the time of the incident, whether same occurred at 4, 5 or 7am. [ 10 ] It was the Crown’s contention that the accused’s description of events defies common sense and reason and as such lacked an air of reality, suggesting that Mr. Roulette’s testimony wasn’t credible. In this respect, Ms. Owens was of the view that it was highly unlikely that Ms.

B. would choose to have sexual relations with a man she had only met a few hours prior during a party at her boyfriend’s father’s residence where her boyfriend, his family and other people were present. Ms.

Owens also argued that the accused’s evidence should not be found to be credible for other reasons as well: - The accused relied solely on his memory when giving his testimony as he hadn’t made a statement or any personal notes respecting the incident; - The accused, while on the stand, had agreed with her that his memory may have been affected by his consumption of alcohol and the time that had passed since the incident date; - The accused had maintained that he had consumed exactly nine beers at the wedding party, suggesting that he was gilding the lily with respect to his sobriety and ability to recollect, so to speak; - The accused’s testimony that he was introduced to the complainant during the wedding party by the complainant’s boyfriend R.M. was not consistent with or corroborated by the evidence of R.M. at the trial; - The accused’s testimony that there were exactly eight people present at the M. residence after-party was not consistent with or corroborated by the evidence given by R.M. or the complainant; - The accused’s testimony that at the after-party, he’d became ill and was provided assistance by R.M. was not consistent with or corroborated by the evidence of R.M. or the complainant; - The accused’s testimony that R.M. showed him to the spare bedroom was not consistent with or corroborated by R.M.’s evidence; - The accused testified that everyone was still drinking when he went to bed, a situation that was not consistent with the testimony of or corroborated by the evidence of R.M. or the complainant; - The accused told Constable Todoroff that “I didn’t do it” which was contradicted at trial by his admission that he did in fact have intercourse with the complainant; - The accused “misled” Constable Todoroff with respect to how his lip came to have blood on it i.e. he told the officer that he’d bitten himself but had testified that R.M. had struck him when confronting him respecting the allegation just prior to his being arrested;

- The accused “misled” Constable Todoroff with respect to how much he had had to drink prior to the incident; - The prosecution also regarded Mr. Roulette’s comments regarding self-harm in cells post-arrest as being consistent with a person upon sobering up found himself remorseful about events that had earlier occurred while he was intoxicated. [ 11 ] The Court has considered the Crown’s concerns in this regard and has concluded that the accused’s version of the incident is certainly unworthy of being believed in its entirety for some of the foregoing reasons.

The Court is consequently of the opinion that the accused’s evidence does not in and of itself raise any reasonable doubt in the context of the first or second prong of W.(D.). [ 12 ] I now turn to the third step of W.(D.) in an effort to determine whether I am convinced beyond a reasonable doubt on the basis of evidence which I do accept, of the guilt of the accused. In this regard the evidence is problematic in a number of respects. [ 13 ] Defence counsel drew the Court’s attention to inherent inconsistencies in Ms.

B.’s evidence respecting her alcohol consumption on the evening and early morning of the incident date. Defence observed that her initial evidence had suggested that she did not have very much to drink prior to leaving the house party to go to sleep. Court was reminded that prior to cross-examination Ms. B. had described her alcohol consumption as being about two regular sized bottles of beer before the dance and about two more at the dance itself. When Crown counsel had asked her whether she recalled how much she had had to drink during the after-party she replied that she was drinking beer but didn’t remember.

On cross-examination, when confronted by defence counsel with her statement to police wherein she stated that she had consumed twenty bottles of beer that night, she acknowledged that “After the dance I had drank quite a bit...” (line 5, page 46 of transcript). When asked whether she recalled how much she had had to drink during the after-party during direct examination she had stated “... I don’t remember” (see line 8, page 37 of transcript). I agree with defence counsel that Ms.

B.’s vagueness in this regard certainly suggests the reliability of her evidence may be problematic due to her state of inebriation notwithstanding that Ms. B. asserted on cross-examination that she “... wasn’t, like, ridiculously drunk” (line 22, page 53 of transcript). I also concur with defence counsel that someone who had twenty regular sized bottles of beer in the period of time described in Ms. B.’s testimony would certainly have to have been more intoxicated than Ms. B. was willing to acknowledge. Given her inferred level of intoxication it is the Court’s opinion that Ms.

B.’s testimony must be given careful scrutiny in order to determine its reliability. Of course, the discrepancy between Ms. B.’s statement and her testimony in Court with respect to her drinking also gives rise to credibility issues. [ 14 ] Defence counsel also reminded the Court that Ms. B.’s testimony that she had got up and walked around the house after the assault was inconsistent with her police statement. When asked on cross-examination why she hadn’t disclosed that detail to the police Ms. B. responded “must have forgot” (line 20, page 50 of transcript).

Defence counsel argued that there was no air of reality to Ms. B.’s description of events in this regard. He questioned whether any victim of a sexual assault such as this, essentially an outright rape scenario perpetrated while her partner was sleeping in the same bed, would leave the room and walk alone through a darkened house in these circumstances? Given that Ms. B. couldn’t have known whether Mr. Roulette was still in the residence, I am inclined to agree that one would think that she would have been afraid to leave the bedroom alone at this particular point in time.

Indeed, one would expect that she would have immediately sought to awaken her sleeping partner for protective and supportive purposes. Of course, this was exactly what Ms. B. had told police in her statement... that she went back to sleep after being unable to wake up Mr. R.M.. Defence counsel observed that this was another significant inconsistency in Ms. B.’s testimony... that she told police that she went back to sleep and she told the Court that she had been unable to go back to sleep after the assault (see page 51 of transcript).

Defence counsel submitted that her inconsistency on that point suggested that she wasn’t being entirely forthright in her testimony insofar as she had either prevaricated to the Court or to the police. Defence counsel also questioned whether a victim of the assault she had described would or could go back to sleep in such circumstances. [ 15 ] The Court can only conjecture as to why Ms. B. would choose to wander aimlessly around the house in the presenting circumstances as she related same.

I concur with defence counsel that one would have reasonably expected her to have sought refuge with or assistance from someone in the house in the immediate aftermath of the alleged assault. The Court is also of the view that the complainant’s statement to police lacks an air of reality in this respect. This is most problematic from the standpoint of credibility assessment as the statement was given a relatively short time after the alleged incident, at a time when the incident would assumably have been very fresh if not etched in the complainant’s memory. [ 16 ] Defence counsel also took issue with Ms.

B.’s description of the alleged incident. It was his position that the scenario she described i.e. a rape perpetrated on a double bed in the presence of her boyfriend seemingly defied credulity. That to attempt sexual intercourse in these circumstances would have entailed extreme risk-taking as it would be so highly unlikely that Mr. R.M. would or could have slept through events of this description. Defence counsel also queried how Mr. Roulette could have removed Ms. B.’s pants and underwear and then engaged her in sexual intercourse without Ms. B. awakening? He also challenged the likelihood of Mr.

R.M. remaining asleep at such time and even after Ms. B. claimed to have uttered, if not shouted, words of protest. Court was reminded that it was Ms. B.’s evidence that she tried to wake Mr. R.M. up but was unsuccessful notwithstanding that she recollected that she had exclaimed “What the fuck” and “Get the fuck out” (see line 4, page 52 of transcript) when she awoke to find the accused engaged in intercourse. If what she said was true, it is seemingly inconceivable that Mr. R.M. wouldn’t have wakened during the consequent uproar.

The Court shares defence counsel’s concern with respect to the reliability and/or credibility of the complainant’s evidence in this respect. There simply does not appear to be a sufficient air of reality associated with the complainant’s description of the sexual assault. The Court observes that high levels of alcohol consumption can certainly effect the reliability of memory and that it is conceivable that Ms.

B.’s inconsistencies and seeming credibility issues are associated with extremely high levels of inebriation. [ 17 ] It is trite to say that in a case such as this it is not a matter of whether one believes the evidence of the accused as opposed to the evidence of the complainant. My task is to decide whether the complainant’s evidence is so compelling such that it persuades me of the accused’s guilt beyond a reasonable doubt. If I accept her evidence I must certainly convict the accused of sexual assault because all elements of the offence would have been proved.

However, because of the concerns I have discussed respecting her testimony, her evidence does not satisfy me beyond a reasonable doubt that the accused performed the act as she described it. After considering all of the evidence, including that which I do accept, I am not persuaded of the accused’s guilt to the necessary degree, beyond a reasonable doubt. I must therefore accordingly acquit the accused of the charge before the Court.

[ 18 ] The Court thanks counsel for their able assistance in this regard. CORRIN, P.J.