R. v. W.B., 2013 ONCJ 836

CITATION: R. v. W.B. , 2013 ONCJ 836 DATE: September 20, 2013 Information No: 11-10507 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. W.B. R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE MR. JUSTICE P.C. WEST ON SEPTEMBER 20, 2013, AT NEWMARKET, ONTARIO. APPEARANCES :

A. Barkin Counsel for the Crown E. Shaw Counsel for W.B. FRIDAY, SEPTEMBER 20, 2013 R E A S O N S F O R J U D G M E N T WEST, J. (Orally): W.B. was charged that on or about the 14th day of October, in the year 2010, in the Town of Newmarket, in the Regional Municipality of York did commit a sexual assault on J.W. contrary to s. 271(1) of the Criminal Code . A trial in this matter was commenced on April 29th and then continued on September 16th and 20, 2013, evidence completed today. I have heard submissions from counsel.

I have reviewed a transcript that I obtained from April 29th, and I have reviewed my notes with respect to the evidence that was taken on the 16th and 20th of this week. The allegation is relatively simple in this matter and perhaps before I get to the facts I will just put out what I think are the positions of counsel. This is basically a “he said, she said” sexual assault and an allegation between two friends. The one difference is the exhibit, Exhibit Two, which is a series of e-mail messages between the complainant and Mr.

W.B. that take place on October 14th and October 15, 2010, the same day as the sexual assault is alleged to have taken place and the day after. It is Ms. Shaw’s position on behalf of Mr. W.B. that the Crown has not proven the charge beyond a reasonable doubt, and that based on the principles in R. v. W.D. , I should be acquitting Mr. W.B.. It is the Crown’s position initially that Ms. J.W. was a credible witness and with the addition of the e-mail messages, the Crown has proven the charge beyond a reasonable doubt. There are some minor variations between Mr. W.B.' version and Ms. J.W.' version. It is Ms.

J.W.' evidence that on the evening of October the 13, 2010 she was present at Mr. W.B.’ house where she had been renting a room for about two weeks, and her boyfriend who is Mr. W.B.' best friend, T.W. was also present. They were consuming beer and watching television. At some point, mid-evening Mr. T.W. left to go home. He lived in Durham, in Ajax I think it is, and he left via GO train or GO bus because he had work the next day. Mr. W.B.’ evidence as it relates to the evening of October 13, 2010 into the early morning hours of October 14, 2010 is that although Mr.

T.W. may have been at the residence until about 7:00 p.m., he was not there when Mr. W.B. and Ms. J.W. were partying. It was Mr. W.B.’ evidence that he and Ms. J.W. went out to dinner together; he then went with her and purchased cocaine. I think what was referred to as an 8 ball, which is about one and three quarter grams of powder cocaine. It cost about $150. They also stopped at an LCBO, and wine and beer was purchased for Ms. J.W.. It was Mr. W.B.’ evidence that Ms.

J.W. drank an entire bottle of wine, which I am assuming although it was not specifically said, but I think there is a reasonable inference it is a bottle of wine, which would be 750 millilitres. And there was some mention about of six bottles of beer also consumed by Ms. J.W., and they shared the cocaine so that each of them would have received about .85 grams of cocaine. It was his evidence that their partying went on into the wee hours of the morning and that he did not go to bed until about 5:00 a.m. even though he had to work at 6:30 a.m. A number of the aspects of Mr. W.B.’ evidence were not put to Ms.

J.W. in her cross- examination by Ms. Shaw. I do not believe that it is essential to determine exactly what happened between Mr. W.B. and Ms. J.W. in terms of their partying on October 13th and October 14th in terms of how it relates to the allegation of sexual assault that occurs at some point during the morning hours of October 14, 2010. Ms. J.W. had only recently begun to rent a room in Mr. W.B.' home. She had fallen on hard times; that was her evidence. She was

not working, she did not have very much money, she needed a place to stay, and he rented a room to her for a very small sum. She apparently paid for the first two weeks and Mr. W.B.’ evidence was she did not pay for any of the other time that she stayed. It was Ms. J.W.’ evidence that after the incident, she never went back to her residence. It was Ms. J.W.’ evidence that when she went to bed some time in the wee hours of I think maybe the late hours of October 13th or just past midnight on October 14th. She went into her room, closed her door and got into bed.

She said she put on pyjamas and that she went to bed and went to sleep. It was Mr. W.B.’ evidence that at 5:00 a.m. they both went to their respective bedrooms, and he slept for an hour and a half, and his alarm went off at six thirty and he got up to have a shower. It was the evidence of both Ms. J.W. and also the evidence of Mr. W.B. that Mr. W.B.’ son who was 18 was in the house with a friend. It was Ms. J.W.’ evidence that there were three bedrooms in the home. She was renting one. Mr. W.B. had the other, and Mr. W.B.’ son had the third bedroom. And according to the evidence I heard today from Mr.

W.B. as to the layout of the house, it was Mr. W.B.’ evidence when he left his room, he had to turn to the left to go to the washroom, which was on the same level as the bedrooms, where he was going to have his shower at 6:30 a.m. and that as he was walking to the left, almost immediately would be Ms. J.W.' bedroom and then beside that would have been his son’s bedroom. It was Ms. J.W.’ evidence that she closed her door when she went to bed that night. It was her evidence that she knew that Mr. W.B.’ son and his friend were in the house that night. It was Mr. W.B.’ evidence that when he walked by Ms.

J.W.’ bedroom that the door was open, and he saw her lying in bed asleep. She had consumed and Mr. W.B. knew she had consumed an enormous amount, on his evidence, of alcohol the night before and into the wee hours of that morning. Ms. J.W.’ evidence was that she had consumed maybe two or three beers. She did not agree with the suggestions that were put to her by Ms. Shaw that she had more to drink, that she drank a full bottle of wine and six beers. The first finding of fact that I make in respect to this matter is that it makes no logical sense for Ms.

J.W. to have left her door open given that her bedroom was so close to Mr. W.B.’ bedroom as well as Mr. W.B.’ son’s bedroom, where the son was staying with a friend, and so I do not accept Mr. W.B.’ evidence that the door was open when he walked by and he saw her lying in the bed. It was Mr. W.B.’ evidence that during the course of the partying the night before and into the wee hours of the morning when they had taken the cocaine and consumed alcohol, his evidence was that he had consumed maybe he thought four, it could have been as high as five rye because he had rye at his home.

He didn’t purchase that when they went to the LCBO. He would not agree that he had possibly six drinks of rye, but he admitted as well to consuming the .85 grams of cocaine. Mr. W.B. was not asked at any time as to what his condition was in respect to the consumption of alcohol or the ingestion of the cocaine and its combined effect on his ability to appreciate things; nor was he really asked in terms of Ms. J.W., but I think it was clearly his evidence that she was intoxicated and under the influence of alcohol when she went to bed, which on his evidence would have been at 5:00 a.m. Ms.

J.W.’ evidence was that at some point in the early morning hours of October the 14th she woke up to find Mr. W.B. naked in her bed and beside her, and he had both of his hands between her legs. It was her evidence that she asked him what he was doing and then told him to get out of her room. Mr. W.B.’ evidence was that when he walked by, he saw the open door and went in and, I have already indicated I do not accept his evidence with respect to the door being open, but it was his evidence that he went into the room, he testified he wanted a hug from Ms. J.W..

His evidence was that throughout the course of their partying in the late hours of October 13th, early morning hours of October 14th, she had sat on his lap on his bed. They had had lots of conversation and on a couple of occasions, they had hugged because they were both going through difficult times. Mr. W.B. denied that the two of them kissed or that there was anything sexual that occurred between the two of them during their partying other than what he described as hugs. It was Mr. W.B.’ evidence that when he went in to Ms. J.W.' bedroom, he went to the bed and lay beside her on top of the covers.

He is not sure how she woke up. When it was put to him that he may have put his arm around Ms. J.W., he indicated that was a possibility and in fact I think at one point he admitted that it might have been probable that he did that since he went into the room to get a hug. And that is probably what woke her up.

His evidence is that Ms. J.W. immediately said to him that she was thirsty and needed a glass of water to drink and before he could leave to go get the glass of water, she then indicated she had a kink in her back, she had been covered by the bedclothes but when she turned onto her stomach, he became aware that she was at least naked from the waist up because her back was exposed, and he indicated that he rubbed her back to get rid of the kink. It was Mr. W.B.’ evidence that when he rubbed her back that Ms. J.W. then said to him, “get out”. She said it once or twice. She was not upset according to Mr.

W.B. in his cross-examination. She did not raise her voice. She was not screaming, and he asked her when he got off the bed, ‘Do you still want the glass of water?’; she said, ‘Yes’; and he went down and got her a glass of water and brought it back for her and then went and had his shower. The two positions between Ms. J.W. and Mr. W.B. are diametrically opposed. There are still aspects given the circumstances of where Ms. J.W. was, the fact she was sleeping in bed and Mr. W.B. got onto the bed with the intention to giving her a hug, which in my view, the circumstances described by Mr.

W.B. come very close, if not crossing the line, to being sexual in nature in terms of the hug. She is in bed sleeping. As I say, the allegation made by Ms. J.W. and what she describes occurred is very different from what Mr. W.B. described in his evidence. It was Mr. W.B.’ evidence that he had his shower, got dressed and around seven or seven fifteen, he left his residence and went to work.

During the course of the morning, it was his evidence that he received a phone call from his best friend, T.W. who indicated to him that he had received, T.W. that is, had received a phone call from J.W., his girlfriend, who was very upset with Mr. W.B. because of an incident that occurred in the early morning hours of October 14th. It was Mr. W.B.’ evidence that he told Mr. T.W. the same thing he had told the court, namely he and Ms. J.W. had partied the night before into the wee hours of the morning on October 14th, he had got up at six thirty, was going to have a shower, saw Ms.

J.W. lying in bed, the door was open, wanting a hug, going in to get a hug, lying on her bed, her asking for water, asking for a back rub and then telling him to get out and then him ultimately getting her a glass of water. When he asks if she still wants the water, and she says, ‘Yes’. The implication in Mr. W.B.’ evidence is that his good friend, Mr. T.W., accepted what he told him and was no longer upset with him. In my view, this evidence is significant because it put Mr.

W.B. on notice that there was a complaint that had been made against him of a sexual nature and although it was not indicated in the evidence what Mr. T.W. told Mr. W.B., the fact that Mr. T.W. called and was very upset with Mr. W.B. because of what he had done to Ms. J.W. the night before, the reasonable inference is that Ms. J.W. had told her boyfriend, Mr. T.W. that Mr. W.B. had his hands in her private area. Now, as I have indicated, this is a “he said, she said” sexual assault and if that had been the end of the evidence, while I might have had strong suspicions that Mr. W.B. had gone into Ms.

J.W.’ room for more than a hug, they would not have amounted to more than suspicions and under the analysis of W.D. and Starr and Lifchus, all Supreme Court of Canada decisions, suspicion is not sufficient for proof beyond a reasonable doubt. This is not that case though because Ms. J.W. sent an e-mail to Mr. W.B. on October 14, 2010, which according to the e-mail was a Thursday at 17:50:39 seconds, which would be five fifty in the evening. This is considerably after Mr. T.W. had put Mr. W.B. on notice that an allegation of sexual misconduct had been made by Ms. J.W. against him.

The e-mail reads as follows: “W.B., I had to leave the house today because I’m very upset (“an understatement large”) by what you did. You are my boyfriend’s best friend. You are the last person I thought would ever do what you did to me last night. I trusted you. I haven't even been living at your place for two weeks yet. Don’t you at least respect your best friend if not me? Why would you come to my bed last night with no clothes on, and I wake up, you're on top of me, and you had your hands in private places while I am asleep. Couldn’t you have at least asked me if that is what I wanted? How dare you.

I feel very violated. Explain yourself. I don’t know what to do now.” I find that Mr. W.B. was aware that Ms. J.W. was making an allegation that he had his hands in her private places of her body as a result of his phone call with Mr. T.W. earlier that day in the morning. Mr. W.B.’ response I find is an admission as to the allegation that

is contained in Ms. J.W.' e-mail because at 20:09 on October 14, 2010, which would be 8:09 p.m., a little over two hours after Ms. J.W. had sent her e-mail, he responds saying, “J.W...... I am so” with at least 10 or 12 “o”s; “sorry” with numerous “o”s, numerous “r”s and numerous “y”s; “...having such a hard time lately... I’m not well mentally... so lonely and depressed... I went for help today at my doc... I hope so bad some day you can forgive me... I hope”. In my view, the e-mail sent by Mr. W.B. is an admission by him that what she was alleging in her e-mail took place.

He was apologizing, asking her to forgive him and providing explanations of why the conduct had occurred. I do not accept Mr. W.B.’ evidence as it relates to his response to Ms. J.W.’ e-mail. He was not asked in detail about his response to Ms. J.W.’ e-mail in his evidence in-chief, and his evidence in-chief was basically that he remembered the e-mail; he sent a reply; in his reply he said he was sorry, he was sorry for going into her room and getting on the bed. When his attention was drawn to the portion of Ms.

J.W.’ e-mail where she indicates that she found him naked on top of her with his hands in private places, his response was that he must not have read the e-mail carefully. I do not accept his evidence in that regard. And in cross-examination, he as much admitted that he had read the e-mail, knew what the allegation was, but he was apologizing not for what she was alleging but for the fact that he had gone into her room and lay on her bed. In my view, his explanation as to why he went in her room does not make logical sense.

Finding her asleep, one would have thought that he would have wakened her to ask her for the hug if that is in fact why he went. The response that he provided in his e-mail on October 14th at 8:09 p.m. only makes sense, only makes logical sense if it's an apology for the behaviour that she describes in terms of him getting into her bed with no clothes on, her waking up finding him on top of her and his hands in her private parts of her body. There is a further exchange of e-mails the next day in the afternoon, October 15, 2010 at 2:07 p.m. where Ms. J.W. writes, “W.B., I read your apology.

Right now for obvious reasons I just can’t handle going back to your house. I can’t look at you right now. I am having a hard time handling this. You were someone I trusted. I may come back on Monday. I don’t know. I have little choice given I can’t afford to move right now. I am worried about my cats though; can you feed them? Their food is inside my bedroom and also just give them some fresh water.” Mr. W.B.’ response at 2:22 p.m., 15 minutes later is, “Okay. I’ll feed the cats. So” with two “o”s, “sorry”. Another apology. In my view, Mr.

W.B. would have had nothing to apologize for if all he had done was get Ms. J.W. a glass of water and rub her back, and I do not accept his evidence. Under the W.D. analysis, I then must ask whether or not even though I do not accept his evidence, I am still left in a state of doubt as to the proof of the charge necessary for the Crown, I am not left in a state of reasonable doubt as it relates to Mr. W.B.’ evidence. I do not accept his evidence, it does not leave me in a state of reasonable doubt. When I look at the evidence of Ms.

J.W., there are some difficulties with her evidence, but the corroboration of the e-mails that were sent by Mr. W.B. in response to her allegation that he had got into her bed with no clothes on, on top of her or beside her and with his hands in her private parts, which she later describes to be her vagina. His responses in my view make absolutely no sense unless they are an admission, which I find they are. Despite the fact that there are some difficulties with Ms.

J.W.’ evidence in respect of the allegation of sexual assault, I find that I am satisfied beyond a reasonable doubt considering all of the evidence, and there will be a finding of guilt in respect to that charge. * * * * * * * * *