r v. Todor, 2014 QCCQ 3027

R. c. Todorov 2014 QCCQ 3027 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-034132-099 DATE: 15 April 2014 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Todor TODOROV Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] The sole count in the indictment charges that on 15 December 2009 Mr. Todor0v broke and entered into the complainant’s apartment and therein committed the offence of sexual assault upon her. [1] In formal admissions, the defence concedes that Mr.

Todorov entered the apartment and that underpants seized in the apartment were his and left by him at the time of the alleged offence. [2] [ 2 ] As there are conflicts in the evidence, I remind myself that I am not to choose between conflicting versions of events. The accused is presumed innocent and must be acquitted unless at the end of the case and on the whole of the evidence his guilt is proved beyond reasonable doubt. The accused has nothing to prove. If I believe his testimony, or if it raises a reasonable doubt, he must be acquitted.

If I do not believe his testimony, or if it raises no reasonable doubt, he can only be found guilty if an assessment of the whole of the evidence proves his guilt beyond reasonable doubt. If on the whole of the evidence there remains a reasonable doubt the accused must be acquitted. [3] Undisputed facts [ 3 ] Some points are not disputed. The accused and the complainant did not know each other before the alleged offence. Early in the morning Mr. Todorov entered the complainant’s [4] basement apartment through the back door in the staircase, which was open. [5] He did not enter with the complainant’s consent.

In the apartment, he made his way to the complainant’s bedroom, which was illuminated by a lamp. In her bed, the complainant was caressed and stimulated herself in a sexual manner. Mr. Todorov asked the complainant, in English, what was going on and whether she wanted someone to have sexual relations with her. In response to her reply Mr. Todorov formed the intention to have sexual relations with the complainant. He removed all of his clothing except a t-shirt. Not long thereafter Mr. Todorov left the complainant’s apartment but left his underpants there.

Some minutes later, he returned to the apartment and told the complainant to shut the front door of her apartment. [ 4 ] At the time of the alleged offence Mr. Todorov was the custodian in the apartment building. He lived with his wife and children on the ground floor. The complainant occupied one of two apartments in the basement. Between these two apartments was a room that housed water heaters for each of the eight apartments in the building. At about 03h00 Mr. Todorov told his wife that he would go to this room to empty a container of water that was leaking from one of the heaters.

For this purpose he opened doors leading to the exterior of the building and then fetched the container to empty it. Thereafter he returned to that room to replace the container. At that point he noticed that the interior door leading into the complainant’s apartment was open. There was light from a room down the corridor and away from the door. Although the light was dim, it was sufficient to illuminate the kitchen at the front of the apartment. The kitchen was in complete disorder with strewn rubbish, unwashed dishes, scattered papers and other clutter. Mr.

Todorov then entered the apartment and made his way to the complainant’s bedroom. [ 5 ] The facts in the foregoing paragraph are not contested. The two questions before me are whether the remainder of the evidence proves that Mr. Todorov broke into the complainant’s apartment and therein committed a sexual assault upon her. I will consider first the question of the entry and then whether a sexual assault was committed. Break and enter [ 6 ] Mr. Todorov admits that he entered the complainant’s apartment through an open door. It is clear that he entered through this opening without her consent.

Having entered without invitation or consent,

section 350 of the Code provides that Mr. Todorov broke

and entered the apartment unless there is proof on a balance of probabilities that he did so with a lawful justification or excuse. [6] [ 7 ] Mr. Todorov explains that he entered the apartment after seeing the kitchen in a state of disarray. He was concerned, as custodian of the building, that there might be or have been a burglary or some other form of foul play. He heard nothing and observed no movement. He did not call emergency services but deliberately entered the apartment with the intention to make no noise. He then made his way to the bedroom.

Apart from apparent disarray, at the moment of his entry into the apartment Mr. Todorov had no tangible reason to believe there was an emergency. It is self-evident that by the time Mr.

Todorov arrived at the bedroom and observed the complainant in her bed there was no emergency of any kind. [ 8 ] In the absence of a lawful justification or excuse a person who intentionally enters a dwelling-house through an opening breaks into those premises. [7] The break-and-enter occurs at the moment when any part of his or her person is within that place. [8] In Quebec protection against such invasions of privacy is reinforced by the Charter of Rights and Freedoms [9] and by the Civil Code . [10] I do not accept that a custodian’s observation through an open door of disarray in a tenant’s apartment is, without more, a lawful justification or excuse intentionally to enter that dwelling.

In this case there was nothing more. There was no sound and no movement. Even if the text of the Code did not require proof on a balance of probabilities, the evidence gives no air of reality to a claim of lawful justification or excuse. [11] Mere curiosity or unfounded suspicion will not suffice. I am therefore satisfied beyond reasonable doubt that Mr. Todorov broke and entered the complainant’s apartment. Sexual assault [ 9 ] Mr. Todorov admits that in the complainant’s bedroom he was sexually aroused, removed his clothing and intended to have sexual relations with her. These points are not in question.

The question is whether he committed a sexual assault upon her. This requires consideration of three questions: Did Mr. Todorov at any time touch the complainant in a sexual manner? If he did, did she at any time consent to the sexual activity in question or withdraw consent to the sexual activity in question before or during its occurrence? If she did not consent or did not withdraw her consent, did Mr. Todorov honestly believe that the complainant consented to the sexual activity in question before it occurred? To answer these questions requires a more extensive review of the evidence. Mr.

Todorov’s evidence [ 10 ] Mr. Todorov says that when he saw the complainant in her bed she was nude and exposed above the waist. He says that she was awake, her eyes were open and she was looking at him calmly. He did not introduce himself and says that he had never previously spoken with her but had once seen her, inadvertently, nude in her apartment some ten days before the alleged offence. He then asked her, in English “What is happening here?” and “What is happening? Do you want someone to fuck you?” [12] He says that she replied, “Yes, you.” He says she then removed the cover and began to caress herself.

He says he then undressed but did not touch the complainant. He says that he picked up a vibrator that was beside her and put it aside because he thought that she wanted to have sexual intercourse with him. He says that he was sexually excited at this moment and formed the intention to have sexual relations with her. As he approached her, he says, he heard his wife calling his name and left the apartment without touching the complainant. The complainant’s evidence [ 11 ] For her part the complainant says that she was asleep around 4h00 when she felt a hand on her vagina and a tickling sensation.

She opened her eyes and saw a shape under the bedcover. As she had been asleep, she was confused and believed that she was having an erotic dream or that the person touching her was her lover, with whom she spoke French. She says that the accused then emerged from the bedcover and took one of her nipples into his mouth and embraced her. She says he then asked her if she wanted to have sexual intercourse with her. She says that she might have said “Yes” and says further that she was not entirely awake at this moment and was somewhat confused.

She says that she was not wearing the glasses she needs for myopia but nevertheless saw the accused. She says that he took the vibrator next to her and penetrated her with it for about a minute. After some thirty seconds she says that she realised that the man in her bedroom could not be her lover for several reasons: that he did not have keys for her apartment; that he was not in Montr é al at that time; that she had not invited him to her apartment that night; and that they spoke French together. [ 12 ] The complainant says she then asked the man who he was and how he had entered the apartment.

At first, she says, he did not answer. She asked him to stop touching her and repeated her questions. She says the accused then said he was the custodian, that he lived on the floor above and that he had entered through the kitchen door. (The complainant says that she often left that door unlocked.) She says that she then raised her voice and repeatedly told the accused to leave. She continued to tell him this when she realised that he was undressed and again told him repeatedly to leave as he began to dress himself again. She says the accused told her that he had seen her with her lover the previous weekend.

He then left the apartment but returned fifteen minutes later to tell her to lock her door. [ 13 ] The complainant made a report to police later in the day. Other witnesses [ 14 ] The narratives of the accused and the complainant converge on some points and conflict on others. There were no other witnesses to what occurred in the complainant’s bedroom. But there were other witnesses. [ 15 ] Ms. A.D., an owner of the apartment building, testified that the complainant’s father telephoned on the morning of the alleged offence.

He asked whether she knew that the custodian had been in the complainant’s apartment and that he had also touched her. According to her testimony, Mr. Todorov told A.D. that he had entered the complainant’s apartment when he observed the disarray there

and was concerned about the possibility of foul play. She says that he told her that he went to the bedroom and that when he saw her partially undressed he was attracted to her. A.D. acknowledged that the complainant’s father asked her whether she knew that the accused had touched his daughter when he entered her apartment. [ 16 ] Ms. R.T. is Mr. Todorov’s wife. She testified that some days after the alleged offence the accused told her what happened. He said that he saw disarray in the complainant’s apartment and believed that there might have been foul play.

He entered and saw a nude woman, which began to excite him. His wife says that he told her that he then undressed but left the apartment when he heard his wife’s voice. Issues [ 17 ] The evidence proves beyond reasonable doubt that the accused broke and entered the complainant’s apartment before going into her bedroom. It proves beyond reasonable doubt that in her bedroom he was sexually excited, undressed and intended to have sexual relations with her. He says this himself in his testimony and there is no contradiction of this in any of the evidence provided by any witness.

Indeed, it is confirmed in important particulars by the testimony of Ms. A.D. and by that of his wife. [ 18 ] The theory of the defence is thus that Mr. Todorov did not touch the complainant in a sexual manner, after asking her if she wanted to have intercourse with him, because he heard his wife’s voice and left the apartment.

It is further part of the defence theory that the complainant accepted his invitation, when she said “Yes, you,” removed the bedcover and began to caress herself, and for this reason he believed that the complainant consented to sexual activity. [ 19 ] The theory of the prosecution is that on 15 December 2009 the accused touched the complainant in a sexual manner more than once without her consent and that the accused could not have believed that she consented to any sexual activity. [ 20 ] The critical question is what occurred between the moment the accused entered the bedroom and the moment that he left the apartment.

The complainant says that he touched her in a sexual manner more than once without her consent before and after he asked her whether she wanted to have sexual intercourse with him. Mr. Todorov says that he did not touch her at all. Assessment [ 21 ] The testimony of the complainant was clear, fluid and detailed. When her recollection was uncertain she said so. In particular she asserted that she might have said “Yes” when the accused asked her whether she wanted to have sexual intercourse with him.

She in no way attempted to conceal unflattering details such as her use of the vibrator, the state of disarray in her apartment and her carelessness in leaving the door unlocked. There is no reason to suspect any animus toward the accused. There is no basis upon which to impugn her credibility or the reliability of her testimony. [ 22 ] Quite apart from any difficulty that Mr. Todorov might have had at trial in expressing himself in English or French, his testimony was not entirely fluid and not entirely clear. This is not by itself a reason to impugn his credibility or to reject the reliability of his testimony.

But there are grounds to call his evidence into question. The most obvious is that his account of events is inherently improbable. His testimony is to the effect that he entered the apartment of a woman he did not know, went into her bedroom and without introducing himself or saying anything else proceeded to ask the complainant in English if she wanted to have sexual intercourse with him.

He thereafter disrobes with the intention to have sexual relations with her but desists because he hears his wife calling his name, whereupon he dresses himself and leaves the apartment without having touched her in any way. [ 23 ] I do not believe the Mr. Todorov’s account of the sequence of events in the bedroom. I therefore consider two further questions: whether his evidence raises a reasonable doubt and, if it does not, whether the whole of the evidence is sufficient to prove his guilt beyond reasonable doubt.

A reasonable doubt is not merely a possible doubt in purely logical terms, because virtually any case is capable of alternative explanations that raise a formal logical possibility, but a plausible doubt that arises from a thorough assessment of all of the evidence concerning the circumstances of the case. [ 24 ] The possible instances of sexual touching by Mr.

Todorov, as revealed in sequence by the evidence, are these: manual touching of the complainant’s vagina by the accused; kissing her breast; other kissing and fondling; penetration of the complainant with the vibrator; replacing the vibrator after undressing, forming the intention to have sexual relations with the complainant, and approaching her person with the intention to have sexual relations. The first four of these are affirmed by the complainant who says that some occurred before and some occurred after Mr. Todorov asked her whether she wanted to have sexual intercourse with him.

The last, which is acknowledged by Mr. Todorov, conforms not to the definition of assault by actual touching [13] but attempted or threatened touching. [14] The complainant says that the accused touched her sexually and without her consent before asking her if she wanted to have sexual intercourse. She says that he continued to touch her sexually after she demanded that he stop and that he leave the apartment. [ 25 ] I have no reasonable doubt that Mr. Todorov touched the complainant in a sexual manner. Quite apart from the improbability of Mr.

Todorov’s account, in which he effectively admits all relevant facts except sexual touching of the complainant, the complainant’s account is strikingly unusual on its face. She describes clearly the manner in which she felt being touched on her vagina by a strange hand, being kissed on one nipple and being penetrated by the vibrator. She describes the sequence without contradiction and she describes the sequence from sleep through diminished consciousness towards greater consciousness and alert rejection of the intruder

and attacker. The precision of her account is entirely credible and reliable and her evidence, taken with all the other evidence presented, proves beyond reasonable doubt a sequence of sexual touching by Mr. Todorov. [ 26 ] Whether she consented to this touching must be considered with regard to her state of mind. [15] As she was asleep or in a state of diminished consciousness when she felt a hand on her vagina, there was no consent to this sexual touching.

Later, when she was fully aware that the intruder was not her lover and the accused continued to touch her in a sexual manner, she expressly told him to stop and to leave. This is enough to conclude that the whole of the evidence proves beyond reasonable doubt the commission of distinct acts of sexual assault, within a continuous transaction, against the complainant in her bedroom and without her consent. [ 27 ] This conclusion is not compromised by her testimony that she might have said “Yes” when the accused asked if she wanted to have sexual intercourse.

To begin, as just noted, sexual touching began before she was conscious and therefore by definition was not accompanied by the complainant’s voluntary agreement to the sexual activity in question. There was no such consent when she told him expressly to stop. In the interval the possibility that she might have said “Yes” in a semi-conscious state, while dreaming that the man might be her lover, is not a voluntary agreement to sexual activity by a person capable of giving such agreement.

In short, through the entire sequence there was no voluntary agreement to the sexual activity in question because it could not be given by an unconscious or semi-conscious person [16] or because it was expressly refused when she was alert. [17] [ 28 ] The possibility that the complainant might have answered “Yes” in no way supports a mistaken belief in consent. Such a claim is plainly without foundation from the moment she told him to stop touching her. She never gave a voluntary agreement to be penetrated with the vibrator and no sexual intercourse with the accused occurred.

More to the point, however, the accused cannot claim the he took reasonable steps, in the circumstances known to him at the time, to ascertain that she was consenting to any sexual activity. Those circumstances include that at 4h00 he was a stranger in the bedroom of a woman he had not met and did not know, and without her consent to be there, asking if she wanted to have sexual intercourse. This is not a reasonable inquiry into the existence of a voluntary agreement to sexual activity. [18] Accordingly there is no foundation for a belief in consent.

FOR THESE REASONS, the evidence proves beyond reasonable doubt that Mr. Todorov broke and entered the complainant’s apartment and therein committed sexual assault upon her as charged. ____________________________________ PATRICK HEALY, J.C.Q. M e Roxane Laporte For the prosecution M e Robert Brankin For Mr. Todorov Date of hearing: 2 – 3 May, 3 September and 16 October 2013.