R. v. C.M., 2022 ONCJ 438

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the conse​quences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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. C.M., 2022 ONCJ 438 DATE: July 29, 2022

O N T A R I O C O U R T O F J U S T I C E B E T W E N : HER MAJESTY THE QUEEN — AND — C.M. (A Young Person under the Youth Criminal Justice Act ) Before Justice F. Javed Heard on May 30, 31, June 1, 2, 20, 2022 Reasons for Judgment: July 29, 2022 [1] M. Tait.................................................................................................... counsel for the Crown L. Liscio............................................................................................................ counsel for C.M. A.

Overview [ 1 ] This is a case involving two young people in our community who had sexual intercourse in the backseat of a motor vehicle and whether the sexual activity was consensual. It raises challenging issues of consent and capacity to consent because one of the participants to the sexual activity consumed drugs (marijuana) and alcohol (vodka) and claimed to have little memory of the event. The parties involve a male accused, C.M. and a female complainant, T.B.

Both were young persons as defined by the Youth Criminal Justice Act (YCJA). [ 2 ] At the time of the sexual encounter, T.B. was 15 years old while C.M. was 17. In Canada, the legal age of consent is 16 years which means any sexual activity with a person under 16 is illegal but the Criminal Code provides “sexual exploration” exceptions to this rule which says that if a party is 14 or 15 years of age and the accused is within 5 years of the age of the complainant at the time of the activity, consent can be a defence to a charge of sexual assault.

In this case, C.M. falls within this sexual exploration exception and argues the sexual activity with T.B. was consensual. T.B. says the sexual activity was not consensual because she was not able to communicate consent or have the “capacity to consent” because she smoked a marijuana joint and had three shots of vodka which was on top her prescription medication for depression.

She claims C.M. knew she could not consent and took advantage of her by having unprotected vaginal intercourse with her. [ 3 ] C.M. was charged with the offences of sexual assault contrary to s.271 and sexual interference contrary to s.151 of the Criminal

Code . The alleged date of the offences is January 20, 2020. [4] The Crown elected to proceed by

summary conviction on both counts. B. The Trial Proceedings The Prosecution Case [5] The Crown’s case consisted of the account of T.B. which included her video- recorded statement to Detective Constable Jelinda Hancock of the Durham Regional Police Service, which was admitted under s.715.1 of the Criminal Code [Exhibit 2(a)] as well as her in court testimony. The videotaped evidence was admitted subject to the Crown editing some details from the recording which were not admissible. As a result, the Crown also filed an edited transcript of the video-recorded interview: Exhibit 2(b).

T.B. was extensively cross-examined by the defence. [6] In the courtroom, T.B. was 17 years old, which the criminal law treats as a young person under the YCJA . C.M. was 19 at the time of testifying which the law treats as an adult. However, since the criminal allegation arose when C.M. was 17 and therefore a young person under the YCJA , he too is afforded the protections of the YCJA .

T.B. testified via closed circuit television (CCTV) and with the assistance of a support person from the Victim Witness Assistance Program. [7] The parties tendered various items of electronic evidence which included: i. text messages between T.B. and C.M. after the sexual activity: Exhibit 6 ii. a call log of their phone calls on the night in question: Exhibit 3 iii. two Snapchat videos created by T.B. of herself shortly after the event in question which she shared with a friend, R.D. to whom she first disclosed the alleged sexual assaults: Exhibits 4 and 5 including a screenshot of one video that she shared with the police: Exhibit 4(

b) iv. screenshots of Snapchat posts created by T.B. which were sent to R.D. and preserved him by her friend R.D. to whom she first disclosed the alleged assaults: Exhibits 14 and 15; and v. a cellphone video where a group of eight (8) people confronted C.M. the day after the alleged assault: Exhibit 13 and vi. a Snapchat post from C.M. to T.B. after the group confrontation: Exhibit 7. [8] The most pertinent electronic evidence includes text messages between C.M. and T.B. which were exchanged the following day (Exhibit 6).

They contain utterances from C.M. which are admissible against him and are of mixed evidentiary value in the sense they may be interpreted as incriminating because he stated he was sorry (“the apology texts”). C.M. explained what he meant by these apology texts in the courtroom as they were not apologies for a non-consensual sexual assault but instead were response to confusion after being confronted by the group of peers who alleged he raped her.

C.M. said he was trying to comfort T.B. [9] All of the electronic evidence was admitted on consent of the parties without a formal voir dire under s.31 of the Canada Evidence Act. In other words, the parties agreed the records were authentic and satisfied the best evidence rule. The parties also agreed on the substantive admissibility of the electronic evidence and how they could be used by the court, as pure narrative, with the exception of item (iv) which relate to the Snapchat screenshots shared between T.B. and R.D.

The Snapchat screenshots are out of court utterances exchanged between T.B. and R.D. and are a form of hearsay and therefore inadmissible unless an exception applies. The law says repetition of a statement does not make it true so what was said by T.B. and R.D. outside the courtroom cannot be used by the court to bolster or strengthen what either said in the courtroom unless it is in the context of a permitted use. [2] If a party seeks to use the hearsay for its truth (or a different non-hearsay purpose), it must define the purpose and its route of admissibility.

The parties agree the Snapchat posts could be used as pure narrative to explain the unfolding of how T.B. disclosed the events to R.D. (a non- hearsay purpose) but disagree about the full scope of its use. As an overview, the Crown argues the Snapchat posts and in particular the comments of T.B. could be used for their truth to rebut an allegation of recent fabrication and/or as additional circumstantial evidence of narrative which will provide the court with context in which to evaluate T.B.’s credibility and in particular her evidence that she was intoxicated: R. v.

D.C ., infra. [3] The defence argues the Crown’s argument only has merit depending on the courts’ findings of fact including the timing of when T.B. made the disclosure to R.D. The defence urges the court to find as a fact that T.B. only claimed she had sex while intoxicated after R.D. told her about C.M.’s troubled past and therefore this is not a case of recent fabrication so T.B.’s utterances to R.D. cannot be used to add weight to her credibility.

[10] The Crown called R.D., also a young person under the YCJA , who was previously a close friend to T.B. and an acquaintance of C.M. T.B. disclosed the sexual encounter to R.D. through electronic messaging in the early morning hours after the encounter. This prompted T.B. to post some Snapchat messages on her account which R.D. preserved by taking screenshots. R.D. was also involved in a group confrontation with C.M. the following day which was recorded by another young person on a cellphone who did not testify.

The Crown submits R.D. presented credible evidence that T.B. disclosed the event to him without any influence. The defence argues R.D. gave unreliable evidence because he didn’t preserve the original communication with T.B. and is biased because of his dislike of C.M. [11] The Crown also some forensic evidence through Ms. Galiena Tse which is not controversial. She is a forensic toxicologist employed with the Centre of Forensic Sciences and authored a toxicology report and toxicology letter of opinion.

The defence waived the requirement of a formal voir dire and I received a copy of her resume and reports as Exhibits 10 and 11. In

summary, Ms. Tse confirmed an analysis of T.B.’s blood and urine detected her prescription medication but not alcohol or drugs. Ms. Tse could not opine on whether T.B. was incapable of consenting or withholding consent as this would depend on the person’s tolerance to alcohol, drugs and prescription medication.

On a hypothetical set of facts with T.B.’s alcohol consumption on the night in question, her blood alcohol concentration would have been approximately in the range of 70mgs of alcohol in 100mls of blood, thus below the legal limit of 80mgs. [12] Finally, the parties filed an agreed statement of facts pursuant to s.655 of the Criminal Code in relation to a sexual examination kit performed on T.B. on January 20, 2020: Exhibit 1. This resulted in two biology reports which prove a fact which is not controversial namely that C.M.’s DNA was found on swabs taken from T.B.’s external genitalia and vagina.

The Defence Case [13] C.M. testified in his defence. He too was extensively cross-examined. His position is clear that he did not sexually assault T.B. and solicited and secured T.B.’s consent with her words to all their sexual activity. He says T.B. was an enthusiastic participant as she initiated the sexual activity, suggested sexual positions and never said or did anything to suggest the sexual activity wasn’t consensual. [14] The main issue in this case whether T.B. consented to having sexual intercourse with C.M. or stated differently whether T.B. agreed to have sex with C.M.

In legal terms, the question is whether the Crown has proven beyond a reasonable doubt that T.B. had the ability (or capacity) to consent to sexual activity and if so, whether she actually consented to having sexual intercourse with C.M. The parties agree that the resolution of this issue requires the court to make some findings of fact which are subject to a credibility and reliability evaluation. C.

The Legal Principles [15] Before I turn to the credibility and reliability evaluation, I will briefly explain the legal principles underlying the two criminal allegations that the Crown must prove beyond a reasonable doubt. This will provide some context to the discussion that will follow. Sexual Assault [16] Count 1 alleges the crime of sexual assault.

A sexual assault is an assault that is committed "in circumstances of a sexual nature, such that the sexual integrity of the victim is violated". [4] The Crown must prove performance of the act ( actus reus ) and a corresponding mental component ( mens rea ) beyond a reasonable doubt. As noted above, given the age differences between the parties, the defence of consent is available to C.M. as a sexual exploration exception to the law which usually bars consent as a defence. [17] The actus reus of sexual assault is established by proof of three elements: (

i) voluntary touching (ii) of a sexual nature and (iii) done without the consent of the complainant. [5] The touching element is determined objectively and can be established by any direct or indirect application of force to another person. [6]

[18] Proof of absence of consent is determined subjectively by reference to T.B.’s state of mind toward the touching at the time it occurred. I must ask: Did T.B., in her mind, want the sexual activity to take place? [7] [19] C.M.’s intention or mens rea would be established by proof of (

i) an intention to touch and (ii) knowing of, or being reckless of or wilfully blind to, lack of consent. [8] Sexual assault is a crime of general, not specific intent, thus a person’s intention in committing the act is usually inferred from the performance of the act. Sexual Interference [20] Count 2 alleges the crime of sexual interference. This offence is different from a sexual assault because it’s aimed at protecting sexual contact with adults. This offence requires the Crown to prove: (

i) C.M. used his body or an object, (ii) to touch the body of T.B. directly or indirectly and (iii) while T.B. was under 16 years of age. [9] [21] Unlike the crime of sexual assault, the crime of sexual interference is a crime of specific intent, and the touching must be done for a sexual purpose, that is for C.M.’s sexual gratification. [10] The defence of consent only provides a sexual exploration exception under s.150.1(2.1) of the Criminal Code where the complainant is 14 or 15 years old and the accused is (

a) less than five years older than the complainant and (

b) is not in a position of trust or authority towards the complainant and is not a person with whom the complainant is in a relationship of dependency and is not in a relationship that is exploitative of the complainant. In this case, the parties agree none of the factors mentioned in subsection (

b) bar the defence of consent which means the defence of consent is available to C.M. much like it is for the offence of sexual assault in count 1 given their difference in age when the activity took place. Consent and Capacity to Consent [22] This case raises challenging issues about consent and capacity to consent. In R.G.F . [11] , the Supreme Court of Canada held there are two aspects to the overarching concept of consent and provided trial judges guidance on how they are to be analyzed.

The first aspect is “subjective consent” and relates to proof of whether T.B. subjectively (in her mind) and voluntarily agreed to the sexual activity in question. If there is proof beyond a reasonable doubt that there was no such agreement, the actus reus of sexual assault will be established: G.F . at paras. 31 to 33. This is a question of fact and evidence may include T.B.’s direct evidence as to her state of mind at the time which can be accepted or rejected by the court and other relevant evidence including her “words or actions before and during the incident”: Barton , supra at para. 89. i.

Subjective consent [23] The Crown argues T.B. did not give ‘subjective consent’ because she was incapable of consenting due to impairment by alcohol and/or drugs.

Section 273.1(2) of the Criminal Code provides that ‘no consent is obtained if “…. ( a.1 ) the complainant is unconscious [or] (

b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph ( a.1 )”. T.B. testified she was intoxicated and in and out of consciousness and impaired by both alcohol and/or drugs, so s.273.1(2) (a.1) and (

b) must be considered. In R. v. J.A . the Supreme Court held a person cannot consent to sexual activity that is expected to take place while unconscious. Rather, “an individual must be conscious throughout the sexual activity in order to provide the requisite consent”. In G.F ., the Supreme Court held incapacity short of unconsciousness can flow from intoxication or mental impairment.

The Court set out four positive requirements for capacity to consent to be found: at paras. 57-58: 57 In sum, for a complainant to be capable of providing subjective consent to sexual activity, they must be capable of understanding four things: 1. the physical act; 2. that the act is sexual in nature; 3. the specific identify of the complainant’s partner; and 4. that they have the choice to refuse to participate in the sexual activity.

58 The complainant will only be capable of providing subjective consent if they are capable of understanding all four factors. If the Crown proves the absence of any single factor beyond a reasonable doubt, then the complainant is incapable of subjective consent and the absence of consent is established at the actus reus stage. There would be no need to consider whether any consent was effective in law because there would be no subjective consent to vitiate. ii.

Effective consent [24] The second aspect to the law of consent is “effective consent” which concerns whether any subjective consent that is given was effective ‘as a matter of law’. A different way of asking this question is: If the Crown proves beyond a reasonable doubt T.B. gave subjective consent to C.M., was this subjective consent vitiated or stated differently void? G.F ., supra at para. 34. Incapacity to consent and withholding consent are not mutually exclusive.

Capacity to consent requires a higher level of understanding than the capacity to withhold consent: G.F ., supra at para. 62. [25] The Supreme Court held in G.F. that only if subjective consent exists or if there is a reasonable doubt as to subjective consent, does a judge need to go on to ask whether the consent was vitiated. In other words, if the Crown does not prove that T.B., in her mind, gave consent to C.M. to have sex with him, there would be no need to consider if she actually consented to having sex with C.M. E.

Summary of the Evidence [26] I will now summarize the conflicting accounts which will provide further context to the arguments. The Parties [27] C.M. is 20 years old. At the time of the sexual activity, he was 17 years old. As a child, he was diagnosed with Attention Deficit Hyperactivity Disorder, (“ADHD”) and dyslexia and has a fear of public speaking. He graduated from high school and is enrolled at Ontario Colleges for Trades which is affiliated with Seneca College. He previously attended Fleming College for Graphic Design but didn’t finish the program due to the challenges of online learning.

He is currently employed. [28] C.M. volunteered he has a youth record for a finding of guilt for the offence of sexual assault in 2018. He pled guilty to the offence because in his words: “I was guilty”. This evidence was elicited by counsel in examination-in-chief and is arguably prior discreditable conduct but bears importance because C.M. explained as part of his youth sentence, he was placed on probation and one of the terms of his probation order was to take sexual boundaries counselling which taught him how to secure consent with sexual partners.

He testified on this occasion, he secured T.B.’s consent to the sexual activity relying on the sexual boundaries training by “making sure” she was agreeing to having sexual intercourse with him. He also explained the finding of guilt impacted him and his family as he was bullied at his previous high school and his younger sister lost her friends.

This evidence was adduced to provide some context to his text messages to T.B. after the event explaining what he meant when he said he was sorry and “don’t do this” which he testified was in relation to the stress that would ensue to his sister. [29] C.M. met T.B. through their mutual friend, R.D., whom he knew for about 1 year. T.B. testified their mutual friend R.D. used to refer to C.M. as a “good guy”. C.M. was in the same class as R.D. so they connected over social media. C.M. added T.B. through Snapchat which is a social media platform, but R.D. didn’t know this.

C.M. suspected R.D. liked T.B. because he found her attractive, something R.D. testified was not true because he had a girlfriend. Indeed, R.D. explained his girlfriend didn’t like C.M. because of the 2018 sexual assault case and gave R.D. an ultimatum that he could either be friends’ with C.M. or be her boyfriend - but not both. R.D. chose to keep his girlfriend, so approximately 1 month before the alleged incident, he stopped talking with C.M. but knew C.M. was still talking with T.B. but didn’t know they were romantically involved. [30] T.B. was 15 years old at the time of the incident but 17 while testifying.

She is in grade 12 and hoping to attend St. Francis Xavier to study forensic psychology. She resides in Stouffville with her parents who are divorced. Her father is a police officer. She has

5 brothers including some stepbrothers who are 20, 18 and 13 years old. Prior to moving to Stouffville, she used to live with her father in Uxbridge with her younger brother who plays sports. While in Uxbridge she had a couple of friends and worked part time at a produce farm in Cannington. [31] At the time of the incident, T.B. was approximately 5’1 in height and weighed about 110 pounds. C.M. was 6’0 and weighed about 160 pounds. T.B. explained she was taking prescription medication for about 1 year.

This included Wellbutrin (Bupropion) and Cipralex, which are used to treat anxiety and depression and a separate medication as a means of birth control. [32] C.M. and T.B. had known each other for about 2-3 months prior to the incident in question. They had met previously on three (3) occasions with the first occasion in December 2018. They did not discuss their respective age or grade during their communication although there is some evidence that during the group confrontation, C.M. testified he didn’t know T.B. was 15 years old.

The last meeting prior to the incident involved C.M. picking her up in his father’s Buick SUV. They went to the parking lot of the Uxbridge High School and hung out. T.B. recalled it was a good date and there were no issues with C.M.’s conduct. [33] After the last meeting, they began to talk and text more often over Snapchat and Facetime. They were communicating multiple times a day and agreed to go out again. T.B. thought C.M. was a “cool guy” and “a little cute” but said she was not physically attracted to him. C.M. said he was attracted to T.B. and got the impression she liked him because how often they spoke.

According to him, T.B. told him he was “attractive” and “her type”. Both agreed they were not a couple nor dating. [34] Both C.M. and T.B. did not tell R.D. they were talking over social media and had gone out alone to hang out. However, this changed the morning after the incident in question when T.B. disclosed to R.D. they had gone out and she was intimate with C.M. after she drank alcohol and smoked marijuana. This resulted in R.D. disclosing to T.B. circumstances about C.M.’s past, including the sexual assault matter, something she did not about.

It also led to other events including C.M. being confronted by a group of 8 students at his high school. The defence argues the discussion between T.B. and R.D. after the incident was the catalyst that sparked the criminal allegation because T.B. was influenced by R.D. and fabricated her account that she was raped. The Crown argues otherwise. The Incident [35] The incident giving rise to the criminal allegations occurred on a Sunday. T.B. was home alone at her father’s house in Uxbridge. At around 3-4 pm, her father had taken her younger brother to a hockey game. They were expected to return around 8:30-9pm.

She was bored and posted a comment on Snapchat asking if anybody wanted to hang out. C.M. responded to her post and agreed to hang out. C.M. arranged to pick her up at the house between 5:30-6:00 pm. T.B. agreed it was possible C.M. told her he was at her grandma’s house and could meet later.

In cross-examination, she admitted her parents didn’t know she was going to hang with a boy as they were “not keen on it” and she sometimes she “kept her cards to herself”. [36] C.M. explained he visited his grandmother who lives in Scarborough earlier in the day when he responded to T.B.’s Snapchat post, confirming he could hang out. T.B. sent him a message asking if he had alcohol and weed. He said he would try to obtain both because he liked her and was trying to impress her. When he got home, he took a marijuana joint he bought off a guy he knew from school.

He also took some liquor, including three small bottles of Polar Ice Vodka from his parent’s liquor cabinet – without their permission. [37] At 6:03 pm, C.M. called T.B. and told her he was on his way. The parties filed a call log as Exhibit 3 which documents the timing of the phone calls. At 6:08 pm, he arrived at T.B.’s house. C.M. was driving his father’s Buick SUV. T.B. exited her house holding a juice box which she confirmed contained fruit punch. T.B. confirmed she had a carton of fruit punch which she used to “chase” the alcohol. I know this to mean mixing with alcohol.

She entered the front seat and the parties departed. T.B. was asked to describe the vehicle interior and said it had two rows and with black leather. She testified being “pretty sure” about these details which is incorrect because the defence contradicted her with photos of the interior which show the SUV having 3 rows with grey velvet fabric [Exhibits 12(a), 12(b]. In my view this is not an important contradiction but does have some bearing on T.B.’s evidence that she was “pretty sure” about a detail which turned out to be wrong.

The parties drove to the parking lot of Uxbridge High School which was about a 5-minute drive. In cross-examination, T.B. admitted she was not sure about this detail when interviewed on January 20 by the police and had to “think about it” later when she recalled on January 23 that it was indeed the parking lot of the high school – which was the same place the parties had attended in their previous date.

The Marijuana Joint [38] After arriving at the parking lot, the parties spoke for about 5-10 minutes and listened to country music. C.M. said T.B. asked him about the marijuana joint and he gave her a small joint, about 2 inches in diameter. C.M. didn’t know if he rolled the joint for T.B. or whether it was pre-rolled. In cross-examination, he said the joint was in a dispensary package which was not something he said in chief. T.B. testified she was surprised to see the marijuana because they had spoken about alcohol, not drugs.

T.B. explained after being offered the marijuana joint which she accepted, both parties exited from the SUV and went to the front of the vehicle as C.M. said it could not be smoked in the vehicle. It was windy so C.M. crouched down and helped her light the joint. T.B. testified it took her about 10-15 minutes to smoke the whole joint and she started to feel the effects of the marijuana about 15-20 minutes. She later testified she was not sure when she started to feel the effects as she wasn’t watching a clock.

After finishing the joint, both returned to the vehicle with C.M. returning to the driver’s seat and she sat in the passenger seat. There is no controversy in the facts that only T.B. smoked the marijuana joint. C.M. didn’t smoke any marijuana at all, explaining he had to drive home. [39] T.B. added that C.M. told her he grew the weed with his uncle. T.B. explained at the time of the incident she was smoking marijuana daily for about 6-7 months, mainly through a bong to alleviate her anxiety and depression. Her father knew about this and permitted her to smoke marijuana in the house under his supervision.

She admitted she would smoke marijuana without his supervision as well. She acknowledged the marijuana joint she smoked was a “typical amount” which had never previously impacted her memory, nor made her blurry or unconscious. On this occasion, she testified she did not consume marijuana or drink alcohol prior to meeting with C.M. [40] C.M. was a casual marijuana smoker, explaining he would smoke marijuana at parties but “that’s about it”. He denied telling T.B. that he grew the weed at his uncle’s house because that was not true. He bought the joint from his friend at school.

There’s no evidence before the court about whether C.M. knew about T.B.’s experience with marijuana. The Alcohol [41] After T.B. smoked the marijuana joint, the parties returned to the SUV. C.M. testified T.B. asked him if he brought alcohol and he responded by giving her three 50ml bottles of Polar Ice Vodka which she placed in the passenger console. She consumed one-and-a- half (1.5) bottles of vodka, chasing it with her fruit punch. C.M. did not drink any alcohol as he had to drive home. He testified he was surprised to see T.B. drink the vodka as it was a ‘school night’ (Sunday).

T.B. admitted drinking vodka but said C.M. offered her alcohol and she did not ask for it. In cross-examination, she admitted telling DC Hancock that there was a prior discussion over social media about alcohol and she told C.M. to bring some which is inconsistent with her trial testimony. The defence tendered a bottle of Polar Ice Vodka as an exhibit which contains 50ml of vodka. It is best described as a mini-bottle or one that is available in a hotel-room fridge. In total, T.B. admitted having 3 “shots” of vodka which she chased with her fruit punch over the course of 20-25 minutes.

She agreed she opened the bottles on her own and C.M. did not help her. [42] In cross-examination, T.B. confirmed at the time of the incident – and given her age – she was not allowed to drink or buy alcohol even under the supervision of her father but did do anyways, with friends or at parties. She drank alcohol about 1-2 times per month which was her drinking pattern for about a couple of years. In other words, she would have started drinking alcohol at 13. Her alcohol of choice was vodka or “Twisted Teas” which I know is a vodka-based cooler.

She admitted that in the past, drinking the amount of alcohol she drank on the night in question was “not a big deal” and “sometimes it was more”. T.B. also admitted being “cross-faded” several times before and after 2019, which she explained as being under the influence of both alcohol and marijuana at the same time. [43] T.B. testified after drinking the alcohol, “her memory was very blurry” because she was starting to feel the effects of the marijuana. She began to feel “woozy” while the two talked in the vehicle and she was already “woozy” when C.M. offered her the alcohol.

She added that she smoked weed very often and “never felt like that before”. C.M. testified otherwise and said T.B. did not present as “woozy” nor did she complain she felt “woozy” or sick. She never exhibited any signs of feeling woozy throughout their interaction in the SUV. It was only after he dropped her off at the end of the night and spoke to her on the phone that she was slurring her words and acting giddy. The Sexual Activity

i. Account of C.M. [44] There is a factual dispute about the circumstances of the sexual activity. In short, C.M. recalled several details while T.B. did not, often testifying: “I don’t recall” and “Yes, it’s possible” to suggestions that were put to her by the defence relating to C.M.’s version of events. [45] C.M. testified while they were listening to music and seated on the front seat, they were flirting with each other and T.B. grabbed him by the neck and began to kiss him on the mouth. He did not resist and kissed her back.

They began to touch each other and T.B. suggested they move to the backseat, and he agreed. They both exited on their own and moved to the middle row of the SUV, closing the doors behind them. [46] While on the backseat, C.M. testified they continued to kiss and touch each other and “things were escalating” when T.B. asked him if he wanted her to go down on him, which he understood to be an offer of oral sex or fellatio. C.M. replied “no thank you”. At this point, T.B. asked him “do you want to do it” which he understood sexual intercourse and he replied: “are you sure”. T.B. replied “Yes”.

He told her he didn’t have a condom and she responded: “that’s fine, don’t cum in me, I’m on birth control”. He understood this to mean not to ejaculate inside her.

In cross-examination, C.M. was challenged on his evidence of why he asked “are you sure” and explained the question arose from his past experience where he was charged with sexual assault and “it took me a long time to make sure … [so] I ask more than once… still to this day”. [47] C.M. testified after this conversation in which he believed he secured her consent to sexual intercourse, they took their clothes off on their own and he sat on the seat while T.B. straddled him and they began to have sexual intercourse.

T.B. assumed the dominant position and was controlling the intercourse by moving her body up and down on her own accord. He was holding her hips while penetrating her with his penis. This went on for a couple of minutes and he asked her if she was enjoying it and she replied yes. She also voiced her pleasure with audible moaning and groaning. According to C.M.

T.B. never said or did anything to tell him to stop or that she didn’t want to have sexual intercourse. [48] Further, C.M. testified it was T.B. who suggested “doing it from behind” which he understood was a different sexual position where he would assume the dominant position. He agreed and T.B. positioned herself on her stomach. He went on his knees because he could not stand given their positions in the vehicle. He began to penetrate her from behind with his penis but said it was brief because his legs began to hurt. He asked if they could return to their initial position and T.B. agreed.

The parties continued to have intercourse with T.B. straddling him and she told him to “go faster” and he agreed. C.M. added he was able to slide his penis away from her vagina before ejaculating. T.B. asked him if he had Kleenex or a paper towel so he gave her his t-shirt which she used to wipe herself off. He denied wiping her vagina as maintained by T.B. in cross-examination, he acknowledged holding her hips while having sex but denied lifting her body as T.B. was moving up and down on her own. ii.

Account of T.B. [49] T.B.’s account about the sexual activity was not materially different from C.M. but differed in how it started and progressed. She testified the parties had no conversation about sexual activity and she could not recall how they ended up in the backseat of the SUV. In cross-examination, she could not recall whether she initiated the kiss that resulted in the parties “making out” or passionately kissing and touching each other in the front seat. [50] T.B. testified she recalled being in the backseat but could not recall how she got there including whether she went on her own accord.

She recalled her clothing was removed but not how her jogging pants and hooded sweatshirt came off. Initially, her bra remained on her body but later came off and she couldn’t recall how this happened either. In cross-examination, the defence put to her C.M.’s version of events relating to the conversation preceding the sexual activity. Ultimately, T.B. testified she couldn’t recall having the conversation and “it could have [but] I don’t recall”. In other words, she did not say she remembered not speaking about the topic but rather not having any memory of it one way or the other.

Indeed, when it was put to her that she offered to “go down on him” and perform fellatio, she responded differently by stating “I don’t recall, but it’s possible”. Further, when it was put to her that C.M. brought up the topic of a condom by telling her he didn’t have one, she initially responded “it was possible” C.M. brought it up but she couldn’t recall. T.B. initially said she didn’t recall this conversation, then later testified “I recall the conversation a different way”.

She explained she brought up the word condom because “something was registering in her head” (about a condom) and she got scared and asked C.M. about it and he said don’t worry about it. C.M. denies this conversation and maintains he brought up the topic and she essentially told him don’t worry about it as she was on birth control. In cross-examination, the defence challenged her evidence that if she was limp and not able to move on her own, the only way they could have intercourse would involve C.M. lifting her upwards. She replied he was “bouncing” her but later admitted she didn’t recall this.

[51] T.B. did not recall straddling C.M. but did recall sitting on top of C.M. while naked and the parties having sexual intercourse. This was somewhat different from her police statement in which she told DC Hancock “… So there was a period of time where I was kinda falling all over the place with my clothes on and then I’m not sure how it got to the point of me being limp over his shoulder with my clothes off.” She testified C.M. was holding her up and recalled being able to feel what was going on “but [I] had no ability to say anything or lift myself up”.

In cross-examination, she agreed this was after the condom conversation. She recalled C.M. “kissing her boobs” at one point and she was “falling backwards and forward” with C.M. holding her by the side to prevent her from falling over. She was “limped” over his shoulder and was “in and out of consciousness” and “not able to say anything”.

She explained she was “mentally conscious" and could see what was going on but added: “my brain could comprehend who I was with, but I wasn’t able to speak or move my body”. [52] At some point, T.B. admitted the parties changed sexual positions and she ended up on her stomach and C.M. began to penetrate her vagina with his penis from behind. In examination-in-chief she explained she was aware of what was going on but was “not tuned in” to what was happening. She recalled being completely passed out and waking up, “being somewhat aware but not fully”. She testified she was not able to communicate her words.

She was “mostly conscious” when she had her clothes on but when her clothes were off, she was “mostly out of it”. In cross-examination, the defence suggested to her that she initiated the change in sexual positions and she was communicating her pleasure in the sexual activity by moaning and groaning. She testified she could not recall how it happened and it was possible she was enjoying the activity. She repeated: “I recall being unable to move and unable to open my eyes”. [53] Further, T.B. recalled the parties could have changed their positions again with her straddling C.M.

She did not recall if she told C.M. to “go faster” and moaning further expressing her enjoyment but it was possible. She did not recall how the sexual activity ended but did recall that C.M. wiped her vagina as there was ejaculate around it. C.M. maintains she wiped herself. [54] C.M. testified T.B. was a willing and conscious participant at all times and never lost consciousness or blacked out during any portion of the sexual activity. T.B. never told him to stop or convey to him she felt sick or drunk.

She never said or did anything before, during or after the intercourse to suggest she was not consenting to the activity. He specifically denied T.B. going limp or falling asleep during the activity. She was able to lift her body up and down and controlled the sexual activity. [55] T.B. maintained she was “limp”, “unresponsive” and “cross-faded” with drugs and alcohol. In cross-examination, it was suggested to her she could still be in a position to consent while cross-faded and she replied “Yes, if sober enough to do so”.

It was further suggested to her that that C.M. spoke to her about having sex before and during the activity. She responded: I don’t recall. In re- examination, T.B. clarified she was not sure if she was unconscious explaining “[I] was aware but not able to move”. “There are parts I can recall, including the feeling of limpness and not being able to move, [and] there are parts that are all gone”. The Aftermath [56] After the sexual activity, C.M. testified the parties returned to the front seat on their own accord and got dressed. T.B. didn’t recall how she got back in the vehicle or how she got dressed.

C.M. testified T.B. finished the bottle of vodka with her juice. He did not consume any alcohol. He noticed it was 7:30 pm and it was getting close to 9pm which is when he had to be home. He also recalled there was an impending snowstorm, and he had to fill the gas tank so after 15 minutes or so of listening to music, he dropped T.B. off at her house. There was little conversation during the ride home except C.M. asking her if he could call her on the ride home so he wasn’t lonely and stayed alert during the storm. She agreed.

In cross-examination, C.M. denied that T.B. appeared intoxicated or was slurring her words during the ride home. According to him, she was perfectly fine. Around 8pm, he dropped her off and said she was able to exit the SUV on her own accord and was able to walk up the front stairs without any issue. T.B. doesn’t recall much of the aftermath. [57] At approximately 8:11 pm C.M. called T.B. and the two spoke for about 6 minutes. This is confirmed by the call log in Exhibit 3. T.B. explained to him that she was getting ready for bed and was watching a movie.

He said T.B. began to slur her words and “act happy, energized and giddy”. He testified she did not present this way in the SUV or while during the sexual activity. The Snapchat Videos [58] T.B. recalled upon entering her house, she returned the carton of fruit punch to the refrigerator. She later forced herself to vomit

by inserting two fingers in her throat. She explained she either had to “play dead or sober up” to avoid getting in trouble by her father who did not know she went out and with whom. As a result, she went straight to bed after vomiting. T.B. testified she recalled entering her house with the help of two videos she recorded and uploaded on her Snapchat memories. These two videos were entered into evidence as Exhibits 4 and 5.

The two Snapchat videos were reviewed several times in the courtroom and are a significant plank in the Crown’s argument that T.B. was impaired on the night in question and therefore did not have the capacity to consent to sexual activity. The Crown argues the video clips show T.B. slurring her words and being incoherent. The defence argues the video clips portray T.B. as perfectly coherent and support a finding she was able to use her mental faculties in punching in the right door code which proves she was not impaired even if she was slurring her words. [59] Exhibit 4 is 27 seconds in length.

It depicts T.B. wearing a baseball cap backwards and recording herself as she walks into her house after she was dropped off by C.M. It is therefore a contemporaneous rendition of her state of mind and appearance relative to when the sexual activity took place. She states: “[g]uys I’m walking to my house and I can feel the snow on my feet … and … well [she pauses to input the code on her front door] look my door. I’m in my house, bye C.M. I’ve never been so cross-faded in my life, oh my god”. The video clip ends with her tilting her head backwards and smiling for the camera.

T.B. testified she didn’t recall making the Snapchat video but accessed it afterwards as it was in her Snapchat stories. After reviewing the video, she believed she was “intoxicated” given the way she was walking and talking which was unusual. In cross-examination, T.B. admitted she was able to use one hand to hold the phone and record herself while the other hand was used to accurately recall and input the code. She also admitted holding her juice container at the same time but didn’t recall how. She acknowledged that her post-event demeanor did not involve her being upset and indeed portrayed her as “happy”.

The defence also pursued questions to suggest she did not contact the police upon arriving home which did not generate an objection but when asked by the court, the purpose was not for advancing a sexual assault myth about how a person would be expected to behave after allegedly being raped, but to highlight the point that T.B. had access to her electronic devices, was able to use them without difficulty in recording videos, which was evidence the defence argued rebutted her claim that she was “intoxicated”.

C.M. agreed that T.B. was swaying, stumbling and slurring her words but maintained she did not appear this way when the two were in the vehicle and having sexual intercourse. [60] Exhibit 5 is 20 seconds in length. It was recorded hours after the first video clip, around 2 am. It depicts T.B. in her residence and recording herself stating: “I’m so good right now, I’m soo good right now, I’m feeling soo [indiscernable] I just got back home and I’m soo good, I’m feeling great right now”. The video ends with T.B. smiling into the camera. T.B. did not recall recording the video but found it in her Snapchat memories.

She testified she was falling all over the place and recalled “being there but not being there” even though she was starting to sober up. In cross-examination, T.B. acknowledged this video clip was made some time after the first because she was dressed differently, and she took steps to save it in her Snapchat memories. Disclosure to R.D. [61] At approximately 2:00 am, T.B. got up and toasted a bagel with butter and ate it to blunt the effects of the alcohol. By this point, she was feeling “a bit sick but sober”.

While up in the middle of the night, she began to communicate with R.D. over Snapchat as it was his birthday. She learned he was studying for exams. She recalled taking photos of herself when she was sick and sharing these photos as well as messages with R.D. Importantly, she disclosed to R.D. she had sex with C.M. after she smoked a marijuana joint and drank alcohol.

Ultimately, R.D. told her: “it wasn’t right” and also told her things about C.M. including his past and she should consider reporting the matter. [62] The parties tendered Exhibit 13 which depicts a photo T.B. took of herself accompanied with two messages to R.D. The messages read: I don’t remember where I was But C.M. took me out and rolled me a joint and brought me vodka and then he fucked me but I remember him having to hold me up cause I couldn’t hold myself up or walk or talk or anything [63] Exhibit 14 depicts an image of T.B. ostensibly in a bathroom and vomiting into a toilet.

The two messages read: Idk I just remember him holding me on him and me being like passed out on him w him fucking me.

It’s not a big deal though it’s probably my fault I’m the one who was fucked so it’s fine. In cross-examination, T.B. confirmed she also exchanged Facetime calls with R.D. and spoke with him for about an hour but did not preserve a call log of when this communication took place. She also spoke with him over Snapchat messenger but did not save these chats which can be done manually. In this case, R.D. took “screenshots of the two Snapchat images with the content and preserved them but she denied instructing him to do so, although she did admit that R.D. told her it could be useful and might be important.

At the time, she did not think much of the sexual activity with C.M. because she was not thinking about it but after speaking with R.D., she admitted arriving at the conclusion that the sexual activity was non-consensual based on what he explained to her about consent. She denied that he encouraged her to report the matter but rather suggested she think about her options. She also denied asking R.D. to “bring evidence” to court. The Confrontation of C.M. the Texts to T.B. [64] On the morning of January 20, C.M. went to school as usual but had to leave early because his mother was sick.

While walking to his vehicle parked in the lot, he was surprised to see a group of 8 people, including R.D. who confronted him. The group accused him of raping T.B. which left him very confused. The interaction was surreptitiously recorded by somebody within the group – and without C.M.’s knowledge. The cellphone video was later sent to R.D. who preserved it: Exhibits 4 and 5. [65] The cellphone videos were played in the courtroom. The parties helpfully reduced this interaction to writing and agree on the following facts that arise from this exchange [12] : FM: Why would she respond to you if you raped her?

CM: I didn’t rape her though. FM: Really, Really? CM: She literally, I called her afterwards too. I dropped her off at home. She literally said Yes. UK: She was drunk and stoned out of her fucking mind. CM: She wasn’t drunk and stoned out of her mind. … FM: She was intoxicated. CM: No she wasn’t intoxicated. FM She was intoxicated, you just said she smoked a joint and drank. CM: She drank a little booze. A tiny, tiny bit. … FM: [Yelling] Because you raped her. FM: Cause it wasn’t. CM: Yes, it was if she says yes before she drunk then yes it is. FM Did you hear what you just said?

If she says yes before she was intoxicated. It doesn’t count for shit. UK: That doesn’t mean shit. That is before. Have you not seen the fucking drinking tea video? CM: She drank after we had sex, so I don’t understand this. Can someone explain that to me? FM: No. No. she didn’t. She really fucking didn’t. UK: Either way she can’t consent fam she’s under the age. FM: Exactly. CM: I thought she was 16.

…. In cross-examination, C.M. was challenged on his evidence that he told the group: “Yes, it was if she says yes before she drunk then yes it is”. It was suggested to him that in using these words, he was communicating to the group that T.B. said ‘yes’ before she became drunk which means he knew she was drunk before the started to have sexual activity. C.M. testified even though he used the word “drunk” it was not meant to convey she was intoxicated.

He understood a person cannot give consent when one is impaired and he only used the word “drunk” in haste because the group was yelling at him and it was the first thing he uttered. He was not sure why he said that but in the courtroom he maintained she was not drunk nor intoxicated at any point before or during the sexual activity. [66] C.M. testified he began to text T.B. when confronted by the group because he didn’t know what was going on and was confused. T.B. preserved these texts and they were entered into evidence as Exhibit 6. They reveal the following exchange: 9:34 a.m.

Hi Can we plz talk plz I am sorry for last night You said yest it was okay plz don’t rewn my life plz like am spot sorry Plz 11:39 a.m. I am deleting all my accounts but I truly am sorry for last night I mean that with everything C.M. testified he texted he was sorry because he was scared because people were accusing him of raping T.B. which was not true. He got flashbacks of his previous ordeal and instantly wanted to make T.B. feel better. He explained he did not say sorry because he had sexually assaulted her or because he knew she didn’t consent to the activity. It was strictly to comfort her.

Further, he was hoping she would think about it and not ruin his life and in particular, his sister’s life who was negatively impacted by the prior event. [67] T.B. recalled receiving the above messages but did not respond to them. She did not know C.M. would be confronted nor did she instruct anybody to do so. Shortly thereafter, C.M. posted a message to his Snapchat account which was accessed by T.B. and preserved. It read: You will never hear from me again I promise like I am so sorry just plz for my sister don’t do this I am sooo sorry.

Again, C.M. testified he was not apologizing for an alleged sexual assault but instead wanted to convey to her that he would leave her alone and would erase his social media accounts. He was hoping to comfort her and hoped she would not “blow everything up” and thought he would be bullied again which he wanted to avoid. [68] In cross-examination, C.M. was challenged on the timing of his texts to T.B. He confirmed he did not know he was being videotaped and denied the suggestion that he sent his texts at 9:34 am and in particular “I am sorry for last night” after he was confronted.

The Crown put to him his apology text was before he knew what he was being accused of but C.M. maintained otherwise stating things unfolded quickly and he was confused and scared. He denied apologizing her for any wrongdoing because in his mind he did nothing wrong. He denied being angry or annoyed with T.B. Further, he added the apology text at 11:39 am was well after the confrontation and he denied apologizing because he knew he did something wrong.

He maintained he was trying to comfort her based on what others were alleging he did. [69] At 1:26 pm on Monday January 20, T.B. met with PC Chauhan while at school and was taken to Mackenzie Health Hospital in Richmond Hill where she completed a sexual assault examination kit (SAEK). The results were produced in Exhibit 1.

Evidence of R.D. [70] R.D. is 19 years old. He explained his memory was not the best as he suffered up to 9 concussions as a child playing sports. He attended high school with C.M. during Grades 10 and 11. During school, they were friendly until his then girlfriend told him not to speak with C.M. after he got involved in a sexual assault matter involving another person. After this, he didn’t think he was the nicest person around and didn’t like him based on how he interacted with women. He did not express his views about C.M. to T.B. R.D. met T.B. over Snapchat.

The two were friends for about 1 year prior to the incident but in early 2020 had a group falling out over “who liked who”. At the time of the incident, they were communicating every day. R.D. denied having any romantic interest in T.B. explaining he had a girlfriend at the time. [71] R.D. testified his birthday is on January 20th. At approximately 2:00 a.m. on January 20, 2020, he received a birthday Snapchat story (or message) from T.B. wishing him Happy Birthday. He began to interact with T.B. over Snapchat and learned she went out with C.M. earlier. He did not know they were romantically involved.

In cross-examination, R.D. testified when T.B. told him she went out with C.M., he found this alarming because of C.M.’s past encounter which led to his girlfriend giving him an ultimatum about their friendship. He chose to end the friendship. He admitted he was on “bad terms” with C.M. at the time and may have told T.B. what he learned about his past, including that he heard from the rumor mill that he had done “similar things in the past” meaning, being involved in a sexual assault.

In my view, it would be inconceivable that the two didn’t discuss C.M.’s past with each other and I find as a fact they did discuss his background which means T.B. became aware that C.M. had been charged with sexually assaulting a person when she disclosed the event to R.D. [72] R.D. testified he wasn’t sure the exact words T.B. used to initially express to him that she thought she had been raped by C.M. before she authored the message on Snapchat (Exhibit 13) that … ‘he (C.M.) fucked me’ – a message he decided to preserve.

He recalled speaking with her over Facetime after receiving this message but did not preserve a call log to establish a reliable and accurate timing of events. The chronology is important to evaluate a defence argument that the disclosure of an alleged rape was tainted. R.D. testified after he found out T.B. went out on a date with C.M. they could have discussed C.M. before he received the message on Exhibit 13 which he decided to preserve because it was a pretty quick conversation. He could not recall the exact conversation nor its order.

At some point, he told T.B. his girlfriend didn’t like him, and thought C.M. might be on a restraining order in relation to the other matter. He could not recall if he called C.M. a jerk or told her he didn’t like him. At some point, he explained to T.B. his understanding of the issues underlying the law of consent.

After hearing the whole story from T.B. and her believing it was her fault, he corrected her and said she couldn’t have consented because she was drunk and high on drugs. [73] The order of the conversation – which was not preserved in its original format – is important because R.D. said he preserved the Snapchat messages (Exhibits 13 and 14) between them after their discussion about C.M. and after T.B. told him she thought she was raped.

The evidence also establishes that while T.B. authored the messages on Exhibits 13 and 14 along with photos of herself, they were not necessarily authored at the same time along with the photos. Further, there may have been more conversation between R.D. and T.B. in between Exhibits 13 and 14 which was not preserved. R.D. explained he didn’t think to preserve it as nobody asked him to do so. Nor did T.B. preserve any communication and later learned R.D. decided to take “screenshots” of her messages to him.

In re-examination, R.D. confirmed his evidence that he did not know the order of the conversation with T.B. as it was pretty quick. However, he was clear in his mind that he told T.B. about C.M.’s past after she told him she was raped, not before. He recalled this order because it was while the two were talking over Facetime – again something that was not preserved in its original format. [74] R.D. testified after receiving the second message over Snapchat in Exhibit 14, they decided to speak on the phone. Around 2:40 am, they began a video chat over Facetime and T.B. “looked like a mess”.

He recalled T.B. was laying in her bed and stumbling around. She was slurring her words and not talking properly. She was very upset which made him worried. The call lasted about an hour. In the morning he checked in with her to make sure she was okay. T.B. told him she wasn’t sure what she should do so he explained it would be best to go to the police as it [the alleged sexual assault] should not be hidden. [75] Finally, R.D. confirmed that their mutual friend, M. approached him at school the following day and asked what’s going on with T.B. and he told her it wasn’t his story to tell.

He denied telling her what T.B. disclosed to her but she had found out by some means. There is some suggestion that M. was the person who was part of the group of 8 people who confronted C.M. in the morning but this was never confirmed with evidence. R.D. confirmed he was present during the confrontation. He did not know the confrontation would be recorded as somebody sent the video to him, so he decided to preserve it. In cross-examination, he denied the suggestion put to him by the defence that he expressly told C.M. to call and or text T.B. on this occasion so the conversation could be recorded.

Instead, he wanted them to simply “sort it out”. He was trying to protect his friend. [76] In cross-examination, R.D. added that he suffered several concussion as a child and his memory was not the best but he was sure

about the order of speaking with T.B. over Facetime after the disclosure. The Forensic and Biology Evidence [77] Ms. Galiena Tse is employed by the Centre of Forensic Sciences (CFS). She was qualified as an expert in forensic toxicology and gave opinion evidence on the analysis of biological samples relating to alcohol and drugs and its effects on the human body. She authored a Toxicology Report as Exhibit 10 and a Toxicology Letter of Opinion as Exhibit 11. Her resume was made Exhibit 9. [78] Ms. Tse testified the CFS received T.B.’s biological samples of her urine and blood on February 4, 2020.

She learned the alleged incident occurred on January 19 at about 7:30 p.m. and her blood and urine was collected by the hospital on January 20 between 3:30 and 3:55 pm on January 20. [79] Ms. Tse testified the analyses at the time of testing revealed the presence of two prescription medication in T.B.’s blood: Bupropion and Citalopram. Specifically, T.B.’s blood detected 0.062 mg/L of Bupropion and less than 0.050mg/L of Citropram. Both were consistent with therapeutic or prescription use.

The blood and urine did not detect any Ethanol (alcohol), Carboxy- tetrahydrocannabinol or Tetrahydrocannabinol (both substances related to cannabis and its derivatives). Given the time lapse, the CFS did not test for detection of GHB. [80] Ms. Tse explained Bupropion is medication commonly prescribed for depression and smoking cessation. Similarly, Citalopram is an anti-depressant drug prescribed by a doctor. She explained the other substances were not detected because it may be that at the time of testing, alcohol was eliminated from the body.

Further, barbiturates are a class of drugs capable of producing sedations but are not typically captured by drug screen methods. Therefore, a different method was used and did not detect its presence. She explained that it’s possible to consume a cannabis product with it not showing up in one’s urine. This would depend on how much cannabis is consumed and how frequently it’s consumed. In chronic users, it’s possible to abstain from cannabis use and still have detectable levels in urine for days to weeks. If the cannabis is used frequently, it may not detect small amounts.

In the case of T.B., she confirmed she was a regular user of cannabis through a bong. [81] Ms. Tse opined that the two prescription drugs that were detected in T.B.’s body were consistent with therapeutic use and would not normally have an adverse effect on a person. However, if the person started or changed the dosage, it’s possible the person might experience side effects, but the effects would dissipate with tolerance. Again, T.B. testified she was using the prescription drugs for about 1 year and was a regular user of cannabis for about 6-7 months. [82] With respect to alcohol consumption, Ms.

Tse testified if a person is not tolerant to the effects of alcohol and not an experienced drinker, the person may experience more pronounced effects of alcohol consumption. These include sleepiness, drowsiness and reduced level of consciousness but it would ultimately depend on person’s tolerance. In this case, the Crown posited a hypothetical set of facts involving T.B. with a height of 5’2 weighing 110 pounds who consumed about 50 mL of vodka which usually contains 40% alcohol.

She opined that T.B.’s projected blood alcohol concentration (BAC) would have been around 76mgs of alcohol in 100mls of blood, thus under the legal limit of driving which is 80mgs. She added if the person was a naïve drinker or less experienced, she could experience some sedating effects.

Relating it back to the driving scenario, she said while it would impact one’s ability to drive a motor vehicle, this person would not be intoxicated. [83] When asked to opine on combining a cannabis product with alcohol and prescription medication, she testified the potential effect of this would vary given the potency of the marijuana which varies considerably. This would also depend on the person’s smoking patterns, experience and tolerance level. If the person was smoking recreationally, it may result in euphoria.

If the person consumed marijuana with a bong and drank alcohol 2-4 times pers month, this would suggest an experienced user of cannabis. Adding alcohol to this would make the impact of cannabis more pronounced but it would depend on the strain of marijuana and known potency. In this case, this information is absent – that is, the strain of marijuana is unknown. In other words, it is unknown if the marijuana was more potent than a usual strain as the CFS would not be able to detect for this.

In a typical scenario, one would expect the onset of cannabis within 5-10 minutes, but it would depend on the person’s tolerance. The effects of alcohol would normally start within 10-15 minutes. [84] In cross-examination, Ms. Tse opined if the user was a regular cannabis user and taking medication as prescribed for 1 year and drank alcohol recreationally and smoked a joint of marijuana while consuming 50 mL of vodka, one wouldn’t expect the person to feel an adverse effect, but it would depend on the person. F.

Findings and Analysis [85] I will now undertake a discussion about my findings of fact and an analysis of the legal issues. i. Introduction [86] The broad issue is whether the Crown has proven the guilt of C.M. beyond a reasonable doubt. In other words, can I be sure of C.M.’s guilt on the two charges beyond a reasonable doubt. The narrow issue involves asking the following question: Has the Crown established the incapacity of T.B. beyond a reasonable doubt? Stated differently, has the Crown proven beyond a reasonable doubt that

T.B. was capable of consenting to the sexual activity in question with C.M.? [87] To review, capacity to consent requires conscious consent of an operating mind at the time the sexual activity occurs – notafterwards. An operating mind requires the ability to contemporaneously evaluate each and every sexual act that is committed. In thiscase, there is evidence of mutual kissing, touching and sexual intercourse in two different positions but on three separate occasions in thevehicle. Since the sexual activity was not particularized, I must evaluate all the sexual activity.

The burden is on C.M. to take reasonablesteps to determine whether T.B. is consenting to each and every sexual act. [88] In cases where alcohol and drugs are involved, capacity to consent becomes more challenging for courts because the influence ofthese factors will be relevant to the effect it has on T.B.’s ability to appreciate the nature and consequences of the sexual act(s). As areminder, there must be proof that T.B. was capable of understanding four things: (

i) the physical act(s), (ii) that the act was sexual, (iii)the specific identity of the complainant’s partner and (iv) that they have the choice to refuse to participate in the sexual activity. [89] The question of T.B.’s mental state and whether she was capable of granting, revoking or withholding consent is a question offact that must be determined on all the evidence.

This includes a consideration of T.B.’s direct and circumstantial evidence about hercapacity to consent, evidence (if it exists) of extreme intoxication, expert evidence, drug use (and its impact) and T.B.’s credibility andreliability that she did not consent to sexual activity. As the cases have revealed, intoxication can logically impact credibility because itimpairs one’s ability to observe and recall events and memory loss compounds the problem because the person may not be in a positionto say whether or not she consented.

I have kept in mind that memory gaps caused by alcohol/drug use may not necessarily bedeterminative and do not always undermine the credibility or reliability of a person’s evidence of non-consent.[13] Sometimes thememory gaps can be filled in by other direct evidence from others (i.e. C.M.) and circumstantial evidence. Each case will depend on thecircumstances, and I must review all of the evidence in arriving at my findings of fact on the issue of capacity to consent. ii. The Criminal Standard of Proof and Reasonable Doubt [90] The criminal law standard is proof beyond a reasonable doubt.

Reasonable doubt is a matter of common sense and humanexperience and must be grounded in the evidence. As a standard, it does not require proof beyond all doubt, nor is it proof to an absolutecertainty. At the same time, reasonable doubt lies far closer to absolute certainty that it does to a balance of probabilities. If I am not sureabout C.M.’s guilt, the law instructs me that I must find him not guilty. [91] There was no onus on C.M. to prove his innocence. The burden remains with the Crown to prove his guilt. The framework forassessing credibility arises from the Supreme Court’s test in R. v.

W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.). Ithas three distinct areas of inquiry. (

i) First, if I believe the evidence of C.M., I must acquit. (ii) Second, if I do not believe the testimony of C.M. but am left in reasonable doubt by it, I must acquit. (iii) Third, even if I am not left in doubt by the evidence of C.M., I must ask myself whether, on the basis of the evidence which Ido accept, am I convinced beyond a reasonable doubt about of the guilt of C.M.? [92] In considering the first two steps of the W. (D.) analysis, the evidence of C.M. must be considered in the context of the evidenceas a whole, including the Crown’s evidence.

In other words, the assessment is not simply whether C.M.’s evidence standing alone andwithout context is believed or leaves a reasonable doubt.[14] A criminal trial is not a credibility contest. [93] The second step of the W. (D.) analysis emphasizes the point that credibility assessments in a criminal case are not dichotomous.In other words, there is a third alternative between complete acceptance and complete rejection of a defendant's evidence.[15] If I amunsure about what happened based on the conflicting accounts, C.M. should be acquitted. [94] Reasonable doubt can also be assessed by the principle in R. v.

JJRD where the Court of Appeal for Ontario held: “an outrightrejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflictingcredible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified withthe way the accused testified or the substance of the accused’s evidence.”[16] When this analysis is pursued, the ultimate questionwould not be whether the evidence of T.B. is accepted as credible but whether the allegations are proved beyond a reasonable doubt.

Itwould be wrong to simply reject C.M.’s evidence “solely” by accepting T.B.’s evidence.[17] At the same time, an acquittal does notfollow simply because there are no obvious problems in an accused’s evidence.[18] This line of inquiry requires a court to explain thereasoned acceptance of the complainant’s evidence. [95] While demeanor evidence is one factor that a court must assess, it cannot be used to resolve a credibility dispute.[19]

Credibility assessments in sexual assault cases are notoriously difficult. As observed by the Ontario Court of Appeal, it is an error of law to rely on pre-conceived views about how sexual assault victims would or should behave. [20] [96] Credibility and reliability are different legal concepts. Reliability involves an assessment of the accuracy of the witness’ testimony which requires a consideration of the ability to observe, recall and recount an event. Credibility concerns the honesty of a witness. In simple terms, credibility addresses whether a witness is lying, whereas reliability is about honest mistakes.

In many cases, reliability may be a distinct issue from credibility. In many sexual assault cases, the two issues overlap. This case is no different especially because T.B. candidly acknowledged not being able to recall certain details. This requires a careful reliability assessment. [97] T.B. was 17 years old at the time of testifying which in the eyes of the law considers her to be a child. The law instructs me that I must approach her evidence with different considerations in mind.

The Supreme Court has held that a court should refrain from assessing the evidence of children using an adult standard. [21] A trier of fact must consider the credibility and reliability of the child witness in light of all of the evidence at trial, with reliability potentially being the more important focus. [22] Where there are potential problems with a child’s evidence, there is no fixed formulaic approach to the assessment of potential problems -- the trier of fact should assess both the strengths and weaknesses within the context of the evidence at trial. [23] iii.

The Positions of the Parties [98] The defence argues the Crown has not proven C.M.’s guilt on either offence and the court should accept his evidence that T.B. was not only capable of consenting but also provided free and informed consent to each and every sexual act. The defence argues C.M. was forthright and honest. Unlike T.B., he did not consume marijuana and or alcohol and therefore was more reliable in his memory of what happened. He gave a balanced and detailed account and it was supported by other evidence including the electronic evidence.

The defence says the Crown’s complaints about his testimony are not fatal to his credibility and there is ample room for reasonable doubt. He should be acquitted on step 1 or 2 of the WD analysis but even if there is some lingering doubt about his credibility, the evidence of T.B. was riddled with problems and cannot be trusted that she did not have the capacity to consent. The defence argues her complaint was tainted by her conversations with R.D. and therefore, even on step 3 of the W(

D) analysis, C.M. ought to be acquitted. [99] The Crown argues the court should reject the evidence of C.M. on steps 1 and 2 of the W(

D) analysis that T.B. had the capacity to consent and that he took reasonable steps to determine whether she was consenting. The Crown says whether she in fact consented to the sexual activity is not important because she wasn’t able to consent in the first place. The Crown’s position is premised on two main arguments: (

i) C.M.’s account that he knew T.B. had the capacity to consent to sexual activity is undermined by the timing and content of his text messages when he apologized to her and (ii) his evidence that she could consent and he secured her consent does not make sense because it is undermined by the electronic evidence which proves T.B. was “cross-faded” or extremely impaired. In contrast, the Crown argues T.B.’s evidence of non- consent was credible even if there are some reliability issues based on the consumption of drugs and alcohol.

She was a fair witness by maintaining she did not recall a lot of the events but it’s clear she was not able to understand the four factors in G.F. which means C.M. should be convicted of both offences. iv. Discussion [100] A credibility assessment engages a number of factors including: (

i) the plausibility of the witness’s evidence, (ii) any independent supporting or contradicting evidence, (iii) the external consistency of the evidence, (iv) the internal consistency of the evidence, (

v) the ‘balance’ of the evidence which includes the witness’s apparent willingness to be fair and forthright without any personal motive or agenda, (vi) the witness’ reliability and to a lesser extent (vii) the witness’s demeanor while testifying which means not what the person said but how it was said. [100] Courts have cautioned that in sexual assault cases, judges should avoid unconscious bias and drawing common sense inferences based on generalizations that are not grounded in the evidence or inappropriately supported by judicial notice. [24] The use of myths and stereotyping is to be avoided including assumptions about how a sexual offence complainant is expected to act to either bolster or compromise their credibility. [101] After a careful consideration of all the evidence and a reasoned application of the W(

D) analysis on steps 1 and 2 compels the court to the only logical conclusion that there is no compelling reason to reject the evidence of C.M. who said T.B. was capable of consenting to their sexual activity. Indeed, I find the evidence goes further and proves beyond a reasonable doubt that T.B. did in fact consent to all the sexual activity which means she understood she could withhold consent and made a conscious decision to engage in the sexual activity with C.M. In my view, the JJRD principle does not assist the Crown in this case because T.B.’s evidence was not strong enough to overwhelm C.M.’s evidence.

With respect, T.B.’s evidence was unreliable and was contradicted by other evidence. Even without C.M.’s evidence, it is my view T.B.’s own evidence negated any reasonable basis for finding a lack of capacity. [102] I begin by observing that C.M. presented as a balanced witness who gave a compelling and detailed account. I agree with the

defence that he was not shaken in cross-examination even when pushed on certain issues. I accept his explanations about what he said in his text messages and what he meant by them. I find as a fact that his apology to T.B. was not because he knew or thought he did something wrong because T.B. was intoxicated, but rather because he was trying to comfort her after being confronted by a hostile and misinform

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