R. v. R.B., 2018 ONCJ 79

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

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

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

i) to (iii).

(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 complainant of the right to make an application for the order; and (

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

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

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. R.B. , 2018 ONCJ 79 DATE: 2018-01-30 COURT FILE No.: Sioux Lookout 175034 BETWEEN: HER MAJESTY THE QUEEN — AND — R.B. Before Justice Sarah Cleghorn

Heard June 8, 9 and November 22, 2017 Reasons for Judgment delivered January 30, 2018 S. Burden and P. Larsh ………………………………………….. counsel for the Crown M. Van Walleghem ………………..………………….… counsel for the defendant R.B. Cleghorn J.: Introduction and Overview [ 1 ] R.B. is charged with two offences involving T.F.; sexual assault causing bodily harm, and assault causing bodily harm, both alleged to have been committed on June 12, 2016 contrary, respectively, to sections 272(1) (

c) and 267 (

b) of the Criminal Code . The Crown elected to prosecute both counts by indictment; R.B. elected to have the matter tried before me in the Ontario Court of Justice. [ 2 ] T.F. alleged that R.B., who was known to her, raped her. During the course of the rape, she alleged R.B. punched her a number of times in her face and forcefully dragged her by the ankles (when she attempted to escape from him) resulting in bruises on her forehead, arms and ankles. [ 3 ] R.B. testified on his own behalf. On his account, T.F. engaged in consensual sex with him.

Further, R.B. testified that the injuries sustained by T.F. resulted from her falling off of a bed and striking her head on the ground while she was intoxicated. R.B. categorically denies that he in any way assaulted T.F. [ 4 ] Tragically, T.F. unexpectedly passed away on July 17, 2016. At trial, the Crown sought to introduce a number of hearsay statements by T.F. As a result, a voir dire was entered into. [ 5 ] The decision on the voir dire was released on July 25, 2017.

In that decision I found that the following out of court statements by T.F. were substantively admissible: • Statements made by T.F. during a 911 call that she placed on the morning of June 12, 2016, when she initially summoned the authorities to her residence. • A statement that T.F. reportedly made to Constable Maure on the morning of June 12, 2016, after the officer attended in response to the 911 call. • A statement that T.F. reportedly made to Constable Maure while the two of them were at hospital on the afternoon of June 12, 2016. • A statement that T.F. reportedly made to Constable Maure on June 14, 2016, when the officer contacted her to make arrangements for a video-recorded interview. • A video-recorded statement that T.F. provided to police on June 21, 2016, ten days after the alleged assaults. [ 6 ] The parties agreed that the evidence elicited on the voir dire was to form a part of the evidentiary record on the trial proper.

The Case for the Crown [ 7 ] On the morning of June 12, 2016, at 8:46 a.m., [1] T.F. called 911. She called requesting assistance, advising that she had been assaulted. During the 911-call T.F. reported that the perpetrator had hit her, was still present, and was not her boyfriend. She reported that she was calling from outside of her apartment building. [ 8 ] The 911-call was played for the court. During the call T.F. sounds distressed; she may have been crying. T.F. informed the dispatcher that she had recently underwent throat surgery making it difficult for her to speak.

Despite her difficulty communicating, T.F. managed to request that police attend at her apartment, and she provided her address, 19 ½ King Street located in Sioux Lookout. She also advised the dispatcher that she lived alone. Finally, she asked that the police “hurry”.

[ 9 ] When Constable Boss arrived at the scene, T.F. was outside sitting on the front steps and an unknown male was close by. Constable Boss can be heard on the 911 recording asking who the unknown male was. The response from the unknown male was, “I’m R.B.”. (Constable Boss testified R.B. was also known to him through past interactions). [ 10 ] Constable Boss observed injuries on T.F.’s face, including what appeared to be blood. The officer proceeded to ask her if R.B. was responsible for inflicting her injuries, T.F. responded by nodding in the affirmative.

Constable Boss further testified that R.B. appeared to be intoxicated (noting that R.B. was unsteady on his feet, had glossy eyes, slurred speech and an odour of alcohol on his breath.) Lastly, he observed what looked like blood on the crotch area of R.B’s shorts. [ 11 ] A second officer, Constable Maure, arrived shortly after Constable Boss. Upon seeing a small cut between T.F’s eyes and dried blood underneath her nose, Constable Maure asked T.F. if R.B. had struck her. T.F. responded by pointing at R.B. [ 12 ] T.F. lived in a one-bedroom attic apartment.

One enters the apartment directly into the kitchen that then opens up to a living room, followed by a short hallway with the bathroom to the side and the bedroom at the far end from the kitchen. [2] On entering into T.F’s apartment, Constable Boss observed what appeared to be blood on the doorframe [3] leading into the bedroom and what he described as “a lot” of blood on the mattress. [ 13 ] After R.B. was arrested and during the lodging process police observed what appeared to be blood on his left hand, in his fingernails and on his right palm.

Police took samples from these areas and subsequent DNA analysis established that this was T.F.’s blood. [4] [ 14 ] Once inside her apartment, T.F. told Constable Maure that she had been sleeping when she awoke to find R.B. “fucking her in the ass”, and that R.B. had punched her in the face multiple times when she tried to call the police. [ 15 ] While at T.F,’s residence, she told Constable Maure that she had no idea how R.B. had gained entry into her apartment; she reported that she had not let him in.

Later that day, however, while at the hospital, T.F. altered that version and informed Constable Maure that R.B. had visited her earlier in the evening and that she had asked him to leave. She then went to bed for the night and woke up to find R.B. forcing himself on her. T.F. reported that she had tried to fight him off. In response, R.B. punched her a number of times in the face. At some point, T.F. ran to the bathroom and called 911.

T.F. recalled washing her hands in the sink because they were covered in blood. [ 16 ] When asked to describe if T.F. was displaying any signs of alcohol impairment, Constable Maure responded that she did not have the impression that T.F. was intoxicated. [ 17 ] T.F. was taken to the hospital by ambulance where she was initially examined by a doctor. Following that, a nurse, C.W., who is trained in administrating the sexual assault kit, took carriage of the matter around 10:00 a.m.

C.W. observed a “goose egg” on T.F.’s head, a bruise on her arm and noted that T.F. had a nosebleed. [ 18 ] Eventually, at around 5:00 p.m., a partial sexual assault kit was conducted. The delay occasioned in administrating the sexual assault kit was as a result of T.F. initially asking for time to rest and then leaving the hospital sometime in the afternoon. C.W., at around 2:30 p.m., noticed that T.F. was no longer at the hospital. As a result, she notified Constable Maure, who then proceeded to follow up with T.F.

Later that evening, T.F. returned to the hospital. [ 19 ] The sexual assault kit was described as partially completed as it was T.F.’s preference that she remain clothed and that no pictures be taken. Further, T.F. insisted that none of her injuries be noted on the chart. Constable Maure described T.F. as being agitated, crying and fearful about the prospect of completing the sexual assault kit. [ 20 ] T.F. reported to C.W. that R.B. had used his fingers to penetrate her. Constable Maure was present for the examination and overheard this comment.

T.F. further showed the officer a large bruise on her left forearm that she believed was the result of a grab from R.B. when she was trying to escape from him. T.F. reported that she was in a significant amount of pain, especially in her rectal area; she described having difficulty standing. [ 21 ] Constable Maure testified that while at the hospital she observed a cut between T.F.’s eyes and nose that caused some light bleeding.

During that same period, Constable Maure described T.F.’s face as starting to swell, and noted that it appeared to be more swollen than when Constable Maure first observed T.F. at her apartment. [ 22 ] When C.W. asked T.F. if R.B. had ejaculated, Constable Maure described T.F. as starting to shake, sob and dry heave. [ 23 ] At the hospital, T.F. told Constable Maure that the night before she had been drinking vodka and “cold shots”. [5] [ 24 ] A formal videotaped statement was taken from T.F. on June 21, 2016, ten days after the alleged offences (Constable Maure had made unsuccessful attempts to arrange a time for a statement on June 14, 2016).

Constable Maure testified that T.F. was simply not in a proper frame of mind to give a statement before June 21st. Although the statement was videotaped, T.F. did not swear an oath or make an affirmation to tell the truth, nor was she warned about the consequences of lying to police. [ 25 ] During her videotaped statement T.F. advised that she and R.B. were related to one another; explaining that they were cousins. She recalled knowing him as far back as grade school. She reported that from time to time as adults they would “hang-out” together.

She denied that they were ever in a relationship given their family connection. She was adamant in denying that she had consensually engaged in sexual activity with R.B. [ 26 ] In her videotaped statement, T.F. explained that R.B. attended at her home around 10:30 p.m. the night before she called police. The two drank some alcohol. (T.F. reported to C.W. that she had consumed four to five beers). [6] When she asked him to leave she noted that R.B. was asleep in an armchair. She decided to let him sleep, went to her bedroom, and then closed the door. T.F. reported that she woke up to find R.B. raping her.

She was unsure if he was vaginally or anally raping her as she experienced pain in both areas.

She described R.B. as being very rough during the sexual assault. When she attempted to get away by crawling on the floor he grabbed her by the ankles and pulled her back. He grabbed her cell phone and threw it when she tried to call for help. T.F. described trying to fight R.B. off but explained that she was unable to do so given his size. On her account he held her down, covered her face with his hand to keep her quiet, and hit her a number of times in the face.

He struck her so forcefully that she reported “seeing stars and my ears ringing.” [ 27 ] T.F. recounted during her videotaped statement that R.B. grabbed her around the throat, wrists and ankles during various points in the attack. At one point, while she was trying to escape, she recalled that she managed to make it to the kitchen but that R.B. then grabbed her ankles and dragged her back into the bedroom. [ 28 ] According to her videotaped statement, the attack ended when T.F. was able to crawl to her cell phone, hide in the bathroom, and hit the emergency button to call 911.

She had no recollection of how she was able to escape from her apartment. She next remembered the police and ambulance arriving at her home. She was outside her apartment when the police arrived. [ 29 ] In terms of physical evidence collected, samples of blood found on the mattress and samples from the bloody palm print on the doorframe were taken in order for a DNA analysis to be completed.

The blood on the mattress was that of T.F. and R.B. [ 30 ] On consent, the following photographs taken by the police were filed as Exhibits: • Photographs of the bathroom sink that show streaks of blood on the outside of the pedestal sink. [7] • A photograph of the bedroom wall, in a corner, with a blood like substance. [8] [ 31 ] On consent, a number of photographs taken by T.F.’s friend, S.P., were also entered as Exhibits.

These included: • A photograph of T.F.’s face showing a small cut on the bridge of her nose and two dark purplish bruises under each of her eyes; [9] • A photograph of a large bruise located slightly below T.F.’s left elbow; [10] • A photograph of a large bruise located on T.F’s right arm below the elbow but slightly above the wrist. [11] [ 32 ] In total, there were 5 DNA analysis reports that were filed in this proceeding. They can be summarized as follows: • The report dated July 12, 2016 [12] detailed the results from the samples taken from T.F.’s sexual assault evidence kit.

The same male DNA profile was generated from the external genitalia, as well as the vaginal and rectal swabs taken from T.F. With respect to the DNA from the vaginal and rectal swabs, the source could not be articulated (i.e. whether the DNA was from blood, semen, skin cells, etc.). Analysis of DNA from the external genitalia swab was determined to be blood. As of the date of the report R.B. had not been ordered to provide a sample of his blood for DNA analysis. • After a DNA sample was collected from R.B. a report dated October 19, 2016 [13] was prepared. It expanded upon the report of July 12, 2016.

According to this report, R.B. could not be excluded as supplying the male DNA profile that was sourced to the swab from T.F.’s external genitalia. • In a report dated November 15, 2016, [14] the results from the analysis of the mattress swabs was detailed. A male DNA profile was generated with the source determined to be from blood. The DNA testing did not exclude R.B. as the source of that blood. • A report dated December 2, 2016 [15] detailed the results of the two further swabs from the mattress. Analysis revealed a male DNA profile with the source determined to be from blood.

R.B. could not be excluded as the source of that sample. A female DNA profile was also generated, with the source also determined to be from blood. T.F. could not be excluded as the source of that blood. • A report dated March 20, 2017 [16] detailed the DNA results of the hand swabs taken from R.B., as well as from the cargo shorts he was wearing when arrested. Five out of the six hand swabs generated DNA profiles with the source determined to be from blood, the major contributor was R.B. T.F. could not be excluded as the source of a minor DNA profile that was detected.

The sixth swab contained one source, that being from R.B. With respect to DNA obtained from two swabs taken from R.B.’s cargo shorts, T.F. could not be excluded as a source. The Case for the Defence [ 33 ] As noted, R.B. testified in his own defence. He gave evidence regarding the events of June 11, 2016. He testified that on that day T.F. contacted him at his place of employment to ask if he wanted to get together later that day. Sometime after work, R.B. met T.F. at an agreed upon location, they drove around in his vehicle and stopped for a coffee.

He then dropped T.F. off at the Days Inn Hotel at her request to meet up with friends. He then went home. [ 34 ] According to R.B., at around 9:00 p.m. that evening, T.F. telephoned him to request a ride home. After waiting in the parking lot for some time, R.B. contacted T.F. who provided the room number she was in visiting friends. R.B. proceeded to the hotel room. [ 35 ] R.B. testified that when he knocked on the door, he saw T.F., Mr. Q. (who has since passed away) and an unknown female. R.B. testified that T.F. was quite intoxicated.

On his account, her level of impairment led T.F. to fall face forward off of the bed she was sitting on, landing on her face. The fall resulted in a small cut on her forehead. T.F. proceeded to run to the bathroom and fell down again once she was in the bathroom. [ 36 ] It was R.B.’s evidence that T.F. was so intoxicated that she could not walk. He recalled that as T.F. tried to leave the hotel room she “crashed” into the opposite side of the wall. He had to pick her up and carry her out of the hotel to his car. Once they arrived

at the apartment, R.B. had to assist T.F. up the stairs. He described this as a very difficult task. [ 37 ] After R.B. brought T.F. home he left her briefly in order to retrieve some alcohol as they were planning on drinking together. He testified that on his return T.F. was asleep in her bed. Rather than leaving, he decided to drink the vodka he brought over and to watch television. According to R.B., when T.F. eventually woke up, at around 2 a.m., the two started to drink. R.B. testified that they eventually engaged in consensual intercourse.

R.B. explained that while having sex, he tore his foreskin and began bleeding. He bled on the mattress and had blood all over his hands. He moved from the bedroom to the bathroom in order to clean the blood from his hands. [ 38 ] After he had cleaned himself up, R.B. then left the apartment a second time to purchase more alcohol from a bootlegger. Upon his return, R.B. testified that he and T.F. continued to consume alcohol to the point of extreme intoxication. [ 39 ] R.B. concedes that there is a timeframe during which he was in T.F.’s apartment and in an alcohol induced blackout.

He further conceded that he did not observe T.F. bleeding while at the apartment and he has no idea how T.F.’s blood was found on his cargo shorts or on his fingers. [ 40 ] R.B. categorically denies that he in any way assaulted T.F. On his account, there was no physical or sexual assault. An Independent Witness [ 41 ] R.D. is a tenant in the same apartment building as T.F. She testified that she was neither friends with T.F. nor with R.B. R.D. was sitting on the steps outside of the apartment complex on the evening of June 11, 2016 and saw R.B. drive up to the apartment complex with T.F.

It was necessary for T.F. and R.B. to walk past R.D. in order to gain entry to the apartment complex. R.D. described T.F. as appearing to be intoxicated and observed that R.B. had to assist T.F. in walking; he had to hold her up. R.D. did not see any apparent injuries on T.F. Analysis [ 42 ] I will begin my analysis by considering the evidence of R.B. As R.B. testified in this case I intend to follow the analytical framework set down by the Supreme Court of Canada in its seminal decision of R. v. W.(D.) . [17] In short, if I believe R.B. then I must find him not guilty.

Further, even if I do not accept his evidence but find that it leaves me with a reasonable doubt, then I must of course find him not guilty. Finally, even if I reject R.B.’s evidence and it does not leave me with a reasonable doubt, I must still consider whether or not on the whole of the evidence that I do accept that the Crown has proven both charges against him beyond a reasonable doubt. [ 43 ] I watched and listened to R.B. as he testified. Even more importantly, I have carefully considered the substance of his evidence. In the end, I am unable to accept his evidence. In other words, I do not believe him.

Nor does his evidence leave me in a state of reasonable doubt. I will outline some of the reasons why I have concluded that R.B.’s evidence is neither credible nor reliable. [ 44 ] To begin, I found R.B.’s evidence to be somewhat inconsistent. For example, he testified that he knew T.F. for “a long time”. As the questioning proceeded, however, he indicated that he had first met T.F. in January of 2016, some six months earlier.

This, by any objective measure, is a relatively short period of time. [ 45 ] A further example of inconsistencies in R.B.’s account involves his description of the events inside the hotel room that he attended in order to pick-up T.F. R.B. described T.F. sitting on the bed; when asked further what she was doing, he responded, “Nothing much, she was just sitting there. I didn’t really pay attention”. He then heard a loud thud while he was speaking to Mr. Q who happened to be standing in front of him. This is when T.F. apparently fell off the bed.

R.B. testified that T.F. then ran to the bathroom and “crashed” into a counter. He initially testified that she “slipped in the bathroom and fell down”, but later modified his testimony and explained that “she just well sat down on her bum on the ground.” At various points, therefore, he described T.F. as either crashing, slipping or simply sitting down in the bathroom. I have difficulty accepting that R.B. witnessed this “fall” when, on his own account, Mr. Q. was standing in front of him at the time.

And, even more importantly, he testified that he was paying no mind to T.F. [ 46 ] R.B. also provided an explanation of how his blood ended up on the mattress and why his bloody palm print was on the wall. I find it improbable that if he was in fact bleeding to that extent that as he rushed himself off to the bathroom that some of his blood would not have ended up on the floor. How he was able to contain what he described as a significant amount of blood to the mattress and the wall only, defies common sense. [ 47 ] R.B. initially testified that both he and T.F. disrobed before having intercourse.

However, he later testified to her being in a sundress. That said, he also explained that she had no underwear on. Based on his own account, it is less than clear if T.F. was naked or not throughout the evening and if she put her dress on while he was cleaning himself up in the bedroom. If T.F. put her clothes back on while he was in the bathroom, as he seemed to claim, one is left to wonder how he would know whether or not she had underwear on underneath her dress? [ 48 ] At times, as he testified, R.B. responded to his lawyer’s questions by saying “okay” or by asking a question.

The distinct impression created was of a witness who was struggling to get his “story” straight as it was being delivered rather than describing actual events that had taken place and that he had in fact experienced. [ 49 ] After the sexual encounter, R.B. testified that he left to purchase more alcohol from a bootlegger so that they could continue drinking. He maintained that it was at this point that he no longer has a recollection of what occurred. He does not recall T.F. calling 911. Nor, he claims, does he recall being arrested. His evidence is that both of them were “extremely intoxicated” by that point.

Given that R.B. was in a drunken blackout he would not have been in a state as to comment on T.F.’s level of intoxication. [ 50 ] On R.B.’s account, T.F. was grossly intoxicated, having consumed alcohol until the early morning hours of June 12, 2016. The evidence of Constables Boss and Maure is that T.F. was displaying no signs of impairment when they arrived at her apartment complex (at approximately 7:45 a.m. CST).

[ 51 ] My overall impression is that R.B. attempted to tailor his evidence to explain T.F.’s various injuries.

In the end, the account he provides is inconsistent on material points, highly improbable, and flatly contradicted by other independent evidence that I readily accept (including that of R.D. seeing no apparent injuries on T.F. and the police officers who dealt with both T.F. on the morning in question who did not observe her to be intoxicated). [ 52 ] These are but some of the reasons why I have concluded that I do not believe R.B. nor does his evidence leave me with a reasonable doubt. [ 53 ] I must now consider whether, on the evidence that I do accept, whether the Crown has discharged its burden of proving the two charges beyond a reasonable doubt. [ 54 ] T.F. provided a number of different statements to the police; verbal utterances at her residence and at the hospital, as well as the videotaped statement where she made reference to how R.B. entered her home on June 11, 2016 and how she came to call 911 on June 12, 2016.

There are inconsistencies as between the statements as they relate to how R.B. came to be at her apartment on the morning in question. [18] There are also inconsistences on where and how she dialed 911. [ 55 ] On June 11, 2016, in the immediate aftermath of the alleged assault and when T.F. was described as being in an emotionally distraught state, she told Constable Maure that she did not know how R.B. came to be inside her apartment.

Later that same day, while at the hospital, and in the videotaped statement given some ten days later, T.F. described R.B. attending at her apartment earlier in the evening for a visit, R.B. falling asleep in a chair, and T.F. then waking up to find R.B. on top of her, raping her. [ 56 ] In addition to the differing statements on how R.B. gained entry into the apartment, I am mindful that T.F. provided a number of different statements on the amount of alcohol she consumed. For example, she informed C.W. that she drank 4 to 5 beers that evening.

T.F. also told Constable Maure that she drank “cold shot” beers and vodka . The impression created by T.F. statements was that she was not intoxicated when the alleged assaults occurred. However, the evidence of R.D. would lead one to believe otherwise. R.D. testified that T.F. was in fact intoxicated to the point where she required assistance in walking. Additionally, T.F. did not provide any statements of where she may have been earlier in the evening. Again, T.F. created the impression that she was home for the entire evening and had asked R.B. to come over to keep her company.

It is clear, however, that T.F. and R.B. were out together earlier in the evening on June 11, 2016 and that R.B. drove her home as witnessed by R.D. [ 57 ] Without the benefit of cross-examination, the court is left in an impossible position of apportioning the appropriate amount of weight to the differing out of court statements that were given by T.F. Had T.F. been available to testify at trial, defence counsel would have been required to put the essence of R.B.’s account to her during cross-examination in order to comply with the rule in Browne v. Dunn . [19] .

The passing of T.F. made this an especially difficult case for both the defence and the Crown. [ 58 ] For example, the basic question of how long these two have known one another is not clear. R.B.’s evidence was that the two were not related, having just met a mere six months earlier. In contrast, T.F. indicated that they were cousins who spent time together as far back as grade school.

R.B. testified they were in a relationship and as a result professed his love for her; T.F. indicated that the relationship was little more than that of distant cousins. [ 59 ] The DNA evidence establishes that located on R.B.’s hands was both his blood and T.F.’s blood. [20] The DNA evidence further establishes that located on his cargo shorts was both blood belonging to him and T.F. [21] [ 60 ] On the swabs taken from T.F.’s external genital area and rectal area, DNA testing also revealed the presence of R.B.’s DNA.

His blood was also determined to be located on the mattress through DNA testing. [ 61 ] R.B. testified that he incurred an injury during consensual intercourse that led to bleeding. Without expert testimony, the court cannot assess the plausibility of that explanation. Bleeding of this nature may be a general occurrence or it may be consistent with a rape where lubrication is absent. I simply do not know, nor is it an area where the court can simply take judicial notice. [ 62 ] T.F. made a passing reference that she suffered from a blood disorder.

Likewise, without further evidence, the symptoms of such a disorder are unknown. For example, was T.F. prone to nose bleeds, uncontrollable bleeding, etc. I simply have no idea. [ 63 ] R.B. testified as to his own level of intoxication. Given his own description of what he consumed the evening prior and into the early morning hours of June 11, 2016, his evidence holds no weight given his level of impairment. I strongly suspect that he either has a very limited recollection or no recollection at all. [ 64 ] R.B. is fortunate that I am unable to credit his testimony.

I say this because based on his own account, T.F. was grossly intoxicated to the point where she could not walk on her own. If T.F. was in fact intoxicated as described by R.B., then I question whether she was in a state to consent to sexual intercourse. [22] [ 65 ] It is evident that something very likely occurred that resulted in harm to T.F. I think it rather probable that the harm was inflicted at the hands of R.B. However, that is not the test to be applied. I must be satisfied beyond a reasonable doubt that R.B. committed the offences charged.

Given the material inconsistencies as between some of the statements provided by T.F., coupled with the absence of any explanation for those inconsistencies, I am simply left in a state of reasonable doubt. R.B. is found not guilty of both counts before the court. Released: January 30, 2018

Signed: “Justice Sarah Cleghorn”