R v David, 2023 ABCJ 195

In the Alberta Court of Justice Citation: R v David, 2023 ABCJ 195 Date: 20230918 Docket: 210961447P1 Registry: Calgary Between: His Majesty the King - and - Simon Oluwagbem David Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim or the witnesses must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Judgment of the Honourable Justice B.R. Fraser Introduction [ 1 ] The accused is charged with committing a sexual assault on the complainant. The Crown proceeded by indictment and the accused elected to be tried in the Court of Justice. [ 2 ] The Crown called the complainant, and the three friends who were with her at a party at her residence.

In addition, they called the first responding police officer, the investigating officer who interviewed the accused on two occasions, both interviews having been found voluntary after a voir dire , and a DNA specialist from the crime lab who performed an analysis on a rape kit obtained from the complainant. They also produced a Statement of Admitted Facts that was entered as an exhibit. [ 3 ] The defence called the accused as their sole witness. Facts in Evidence [ 4 ] The complainant and four friends attended a going away party. All attendees were drinking alcohol and became intoxicated.

As a result she left the party and went to her own residence. Her four friends went with her and they continued to party at her place,

drinking, listening to music and conversing. Somehow the accused and his friend also came to the complainant's residence to continuepartying. Who, if anyone, invited him is unclear. At some point the accused left to get his car and drive his friend home. He may alsohave gone home. In any event, he returned to the complainant's residence to continue the party. [5] The complainant left her residence, it is estimated for 45 minutes, for reasons unknown. When she returned, she thought theaccused had left or at least she never saw him.

The party had ended and all five, the complainant and her four friends, went to bed in herbedroom. All were in varying degrees of intoxication. The complainant says she was out of it, intoxicated to the point ofunconsciousness. The last thing she remembers is falling asleep. [6] The accused returned to her residence and found the party had terminated. No one was in the living room or kitchen. Heheard talking upstairs in the bedroom and he went up and found everyone in bed. He stood at the end of the bed staring at them. At somepoint he joined them on the bed.

The complainant 's best friend, NB, felt uncomfortable with him staring at them and getting into bedwith her and her friends. She felt the accused touched her arm. As a result she got up out of the bed and went to a spare bedroom.Another female friend came with her. She tried to wake the complainant to come with her by shaking her shoulder but she wasunresponsive. She left her there. [7] The accused got up and followed her to the spare bedroom. NB closed the door on him and locked it as she didn't want himto come in. Another friend, TZ, also got up and wanted to come in. She let him in.

The accused went back to the main bedroom and laydown beside the complainant. [8] The unconscious complainant started to stir when she felt a body behind her. At some point she turned from her side to herstomach. She then felt her shorts being pulled down and a penis entering her vagina. She became fully awake when she realized whatwas happening, she jumped out of bed screaming and crying that he raped her. Her friends came out of the other bedroom and saw herholding her crotch area and screaming. The accused got up and ran downstairs. She told him to get out of her house.

He eventually left. [9] The accused said he got back into the bed beside the complainant. They were facing each other and they started kissing andhe had his hands on her body. She was aware and participating in what he called cuddling. He put his hands down her shorts, touchingher vagina and penetrating her with his fingers. He did not take his pants off and did not penetrate her vagina with his penis. [10] The complainant was hysterical and her friends stayed with her. All left accept NB. The police were called and a complaintmade.

The complainant was taken to the hospital where a rape kit was prepared including swabs from her vagina which was sent to thecrime lab for analysis. Two male DNA profiles were found. A DNA warrant was obtained for a DNA profile from the accused. Aspecialized process known as Y-STR was used which identifies male chromosomes only. One of the DNA profiles found in her vaginamatch the accused’s DNA profile. The complainant accounted for the other male DNA profile. [11] As a result of the match, the accused was charged.

The Issue [12] The only issue raised is the subjective consent of the complainant to the sexual acts that make up the actus reus of the offenceof sexual assault. Mistaken belief in consent is not raised by the defence and therefore the mens rea of the offence is not in issue, sincean intention to touch is acknowledged and he maintains consent was freely given by the complainant. The Law [13] There are two versions before me regarding consent. The complainant's version is she was incapable of consenting becauseshe was intoxicated, unconscious and asleep.

In any event she not only could not consent because she had no capacity to do so, she didnot and would not consent to sexual acts with the accused who she barely knows. The accused’s version is that he and the complainantwere making out, cuddling and kissing each other, as she was moaning and reacting and participating and she was fully awake, therebyconsenting even though she was not saying anything. [14] Clearly there are two very different versions before me as to whether the complainant consented to the sexual acts.

The Law of Credibility [15] When credibility is an issue it raises the Supreme Court of Canada case of R v WD, [1991] 15 SCR 742 (WD) and authoritiesfollowing. [16] In a case where the accused testifies and the issue is credibility, the rule of reasonable doubt applies to that issue. There aretwo situations where the court must acquit the accused. First, if the trier of fact believes the accused.

Second, even if they do notbelieve the accused but his evidence raises a reasonable doubt as to his guilt when considered in the context of the evidence as a whole. [17] The concept of reasonable doubt was explained by the Supreme Court in R v Lifchus, (SCC), [1997] 3 SCR320 (Lifchus). The standard of proof beyond a reasonable doubt is intertwined with the presumption of innocence. It is based on reasonand common sense. It is logically connected to evidence or absence of evidence. It does not involve proof to an absolute certainty. It isnot proof beyond any doubt, nor is it an imaginary or frivolous doubt.

On the other hand, more is required than proof that the accused isprobably guilty. If the conclusion is only that the accused is probably guilty, he must be acquitted.

[18] In 2019, the Alberta Court of Appeal handed down the case of R v Ryon, 2019 ABCA 36, (Ryon) where they reiterated notonly that the accused’s evidence must be considered in the context of the evidence as a whole but that R v WD does not stand for theproposition that the accused’s evidence must be considered first. They adopted the approach proposed by Doherty J.A. in R v Carriere,(2001) (ON CA), 151 OAC 115 (Ont.

C.A.) [19] They then referred to the Supreme Court case R v Dinardo, 2008 SCC 24 (Dinardo) as support for considering the accused’sevidence in the context of the evidence as a whole. [20] It is only exculpatory evidence the instruction of WD applies to. [21] In R v Achuil, 019 ABCA 299, the Court of Appeal clarified its wording in Ryon regarding the second prong of WD. [22] In assessing credibility there is no magic formula provided to triers of fact.

Instead, there are a number of questions to beconsidered, for example, whether the witness seems to have a good memory of the relevant events, whether the evidence provided by awitness seems reasonable and consistent and whether there is any reason why a witness would not be telling the truth.

When assessingthe evidence of the accused, it is impermissible to assume that the accused will lie to escape conviction, to do so would undermine thepresumption of innocence, R v Laboucan, [2010] 1 SCR 379, at paras 14-18. [23] In addition, there are several authorities dealing with a bare denial by the accused or a different version by an accused. [24] In R v Page, 2017 ABQB 33, Justice Renke, under the heading “Rejection of the Accused’s Account,” states that an accused’saccount need not raise a reasonable doubt, even if that account was plausible and unshaken in cross-examination.

He states a trier of factmay reject an accused’s plausible account wholly, because the trier of fact accepts the counter-account of the Crown’s evidence beyond areasonable doubt. That is if the trier is convinced beyond a reasonable doubt by the Crown’s evidence and no reasonable doubt arisesfrom the evidence that the trier accepts. He refers R v Vuradin, 2013 SCC 38 (Vuradin) as well as R v Gordon, 2015 ABCA 341; R v(S(T), 2012 ONCA 289 by Watt J.

A. [25] In Vuradin the Supreme Court stated the trial judge found the complainant’s evidence compelling and accepted her evidencewhere it conflicted with the evidence of the accused. They then stated at para 19: ...No further explanation for rejecting the appellant’s evidence was required. [26] In R v CLS, 2021 ABCA 147 the court stated the trial judge did not reject the accused’s evidence because it was a bare denial. He disbelieved his evidence because it conflicted with the balance of the Crown’s evidence, including the complainant’s.

It did notraise a reasonable doubt because it was inconsistent with the complainant’s evidence which he accepted as credible. He does not need tofind fault with the accused’s evidence in order to convict. [27] In R v TS, 2012 ONCA 289 (Ont. CA), Justice Watt stated at paragraph 79 as follows: As a matter of law, reasoned acceptance of a complainant’s evidence is a basis upon which a trial judge can reject the evidence of anaccused and find guilt proven beyond a reasonable doubt.

A reasoned and considered acceptance of the complainant’s evidence is asmuch an explanation for rejecting the contrary evidence of an accused as are problems inherent in an accused’s own testimony: [28] I have also reviewed the recent Court of Appeal decision R v Clarkson, 2023 ABCA 212 which verifies much of the above. The Law of Consent [29] A conviction for sexual assault requires proof beyond a reasonable doubt of two basic elements, that the accused committedthe actus reus and that he had the necessary mens rea. The actus reus of an assault is unwanted sexual touching.

The mens rea is theintention to touch, knowing of, or being reckless of or willfully blind to, a lack of consent, either by words or actions, from the personbeing touched. The actus reus of sexual assault is established by the proof of three elements: 1. touching; 2. the sexual nature of the contact; and 3. the absence of consent. [30] The first two are objective. It is enough that they were voluntary. The third, the absence of consent, is purely subjective anddetermined by reference to the complainant’s subjective internal state of mind towards the touching at the time it occurred.

If thecomplainant is believed that she did not consent, then the absence of consent is proven. The accused’s perception of the complainant'sstate of mind is not relevant in proof of the actus reus. No defence of implied consent to sexual assault exists in Canadian law. To belegally effective, consent must be freely given. [31] A belief by the accused that the complainant, in her own mind, wanted him to touch her but did not express that desire, is not adefence.

The accused’s speculation as to what was going on in the complainant's mind provides no defence. [32] For the purposes of the actus reus, “consent” means that the complainant in her own mind wanted the sexual touching to takeplace. (see R v Ewanchuk, (SCC), [1999] 1 SCR 330 (SCC)) [33] As to incapacity to consent, sec 273.1(2) of the Criminal Code states in sec 273.1(2)(a.1) no consent is obtained if the

complainant is unconscious. Subsection (2)(

b) states no consent is obtained if the complainant is incapable of consenting to the activity for any reason other than being unconscious. Intoxication and being asleep would fall into that category. [ 34 ] The Supreme Court in R v GF , 2021 SCC 20 , stated capacity to consent required the complainant to have an operating mind capable of understanding the physical acts, its sexual nature and the specific identity of their partner and that they have a choice whether or not to engage in the sexual activity in question.

It is open to a trial judge to find both that the complainant was incapable of consenting and did not agree to the sexual activity. Both findings go to a lack of subjective consent and do not need to be reconciled with each other. [ 35 ] Consent and the capacity to give consent are inextricably joined, as subjective consent to sexual activity requires both that the complainant be capable of consenting and does, in fact, consent. [ 36 ] There are two aspects to the overarching concept of consent.

The first is subjective consent, which relates to the factual findings about whether the complainant subjectively and voluntarily agreed to the sexual activity in question, and the second requires that subjective consent also be effective as a matter of law.

Major Sexual Assault [ 37 ] A definition of major sexual assault is found in R v Arcand , 2010 ABCA 363 (Alta CA) at para 171 : “A sexual assault is a major sexual assault where the sexual assault is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs. The harm might come from the force threatened or used or from the sexual aspect of the situation or from any combination of the two.

A major sexual assault includes but is not limited to non-consensual vaginal intercourse, anal intercourse, fellatio and cunnilingus. We are satisfied that assessing whether a sexual assault is a major sexual assault is well within the capacity of sentencing judges.” [ 38 ] The sexual activity described by the complainant, vaginal intercourse, is clearly a major sexual assault. The sexual activity described by the accused, digital penetration of the vagina, in my view, is also a major sexual assault if there is no consent.

The response by the complainant when she realized what was happening, the screaming and crying and jumping out of the bed and the room, and the accusation that he raped her, is evidence of serious psychological and emotional harm as a result of whatever sexual act the accused committed. Analysis [ 39 ] There was clearly a large quantity of alcohol being consumed by all witnesses at the time of these events, both at the original party and after at the complainant's residence where all witnesses went afterwards. All witnesses testified to being intoxicated and this affected their memory of certain details.

This must be taken into account in assessing their credibility and reliability. Credibility refers to a witness’s veracity or truthfulness. Reliability refers to a witness’s accuracy. A credible witness may be truthful but because of intoxication their evidence may be unreliable or inaccurate. Both affect the concept of reasonable doubt. A witness may be inaccurate about certain details because of intoxication but nevertheless credible in relation to the central event that makes up the offence, in this case a sexual assault. [ 40 ] The two most important witnesses for the Crown are the complainant and NB.

I will analyze their evidence first. [ 41 ] The complainant testified she was extremely intoxicated throughout the night including when she went to bed. She left the party because she did not feel well. The last thing she remembers is going to bed and falling asleep. She describes herself as passed out, blacked out, unconscious and intoxicated. The first thing she vaguely remembers is another body behind her, as she slept on her left side, touching her. She had no idea who it was. She turned on her stomach. She slowly became aware of her shorts being pulled down and then a penis being inserted into her vagina.

She felt it going in and out a couple of times. This woke her up completely and she jumped out of bed, screaming and crying and saw it was the accused in the bed. She screamed at him, “ You raped me. ” He ran out of the room. Her friends came to her from the other bedroom. [ 42 ] I find nothing unreliable about her description of this whole event from the time she went to bed until she jumped up screaming. That is the entire time of the offence.

In spite of her intoxicated state and being unconscious and blacked out just prior to the event, she appeared to have a good memory of the precise event, her description was coherent and clear as she began to become conscious. Her evidence was consistent each time she repeated the events and the manner of waking up slowly as each event occurred, the body behind her, turning over, shorts being pulled down and penis being inserted and then jumping up when she fully realized what was happening, all seems reasonable as she explained it.

I found nothing in her demeanor on the stand to give me any concern as to credibility. She withstood cross-examination and re-telling the event with consistency. I cannot conceive of any reason she should not be telling the truth or lying about the accused sexually assaulting her while she was unconscious.

I found her to be a credible witness and her evidence surrounding the specific event of sexual assault to be reliable. [ 43 ] There were certain things in the evidence that she could not clearly recall because of her intoxication such as how the accused came to be invited to her place (she thinks NB invited him), having any interaction with the accused at the party or her place, not knowing when he left and not being there when the group of friends went to bed and not being in the garage talking to NB and the accused. NB does not recall this either, only the accused says this happened.

None of her recall or lack thereof of those events has anything to do with the actual event of the sexual assault and does not affect her credibility or reliability in my view. [ 44 ] The evidence of NB is similarly affected by intoxication but she thinks she was sobering up by the time they went to bed as

she had stopped drinking about two hours before. The most important portion of her evidence is what occurred after they went to bed and the accused came into the bedroom. She described him standing over the bed staring at them. He made her feel uncomfortable. She is unsure of how he came to get into the bed, but she is sure he touched her arm. This made her want to get away from him and leave the bedroom and go to the spare bedroom.

She wanted the complainant to come with her and tried to wake her by shaking her by the shoulder but there was absolutely no response, corroborating the complainant’s evidence she was unconscious and blacked out. She left her there and went to the spare bedroom followed by her other female friend, K. The accused tried to follow her but she closed and locked the door to keep him out. She was obviously wary of him and his intentions.

Her evidence of trying to wake the complainant and being unable to do so, is crucial evidence given the accused’s evidence that the complainant was fully awake and responsive to his cuddling of her, having his hands on her and kissing her and her kissing him back. This is why he says she was consenting. [ 45 ] I find NB had a good memory of the events occurring from the time she and her friends went to bed to the time she heard the complainant screaming and crying and telling the accused to get out and what he had done while holding her hands over the area of her vagina.

These are the relevant events of her evidence. Her evidence of these events was consistent throughout her testimony including cross-examination. Her actions as described are reasonable. I cannot see any reason she would not be telling the truth or lying. I find her evidence to be reliable. She was a very credible witness. [ 46 ] There are things she may not have remembered accurately but not about events surrounding the complaint of sexual assault. For instance, she appears mistaken of exactly when the police were called and attended, whether it was that same day or the next day.

She does not remember being in a bedroom earlier with the accused or a picture being taken of them but when shown the photo, acknowledged that it was them and must have been that night. She was unsure of how the accused came to be at the complainant's residence. She said she hardly knew him except they had gone to the same school.

None of this lack of memory or inconsistencies have anything to do with the crucial event of the alleged sexual assault and does not cause me any concern for her credibility or the reliability of her evidence during the crucial time. [ 47 ] TZ is best friends with NB and also friends with the complainant. Besides being admittedly very intoxicated that night, he also suffers from PTSD and short-term memory. This contributes to his evidence being somewhat unreliable.

However, I find his memory of going to bed at the complainant's residence and following NB to the spare bedroom and being let in, reliable because it is corroborated by NB. He recalls seeing the accused staring at them in bed and may have asked him why he was staring at them. He heard the complainant screaming and crying and went downstairs looking for the accused. He told him to leave. He did not have a knife nor displayed one to the accused.

I accept that as true because it is corroborated by NB and the complainant. [ 48 ] I find his evidence to be credible as there is no reason for him not to be telling the truth but he is an unreliable witness. I accept his evidence where it is corroborated. [ 49 ] MS was the last civilian witness for the Crown. He was a friend of NB's but not close to the complainant. K was his best friend. He was also admittedly intoxicated. After he went to bed with the others, he fell asleep. When he woke up everyone was gone except the complainant and the accused. He was sleeping and facing next to the wall.

He heard sounds of someone getting “fingered” which he described as a “moisture sound.” He got up and went to the washroom and the complainant came running out of the room screaming, “ He just tried to put his dick inside me .” He described her as in shock, holding her crotch and crying. He felt he was not intoxicated by then. In cross-examination he said he heard moaning at the same time as the moisture sound. The moaning was described as “ uh. ” He did not see the position they were in and did not see them kissing.

He thought the complainant was conscious. [ 50 ] I find his limited but relevant evidence credible as there is no reason he would not be telling the truth. However, it is beyond my comprehension how he could interpret a sound as “fingering.” I believe that is what he thought was going on but did not see it and is speculation on his part. [ 51 ] The accused’s version of events is that the complainant was consenting to his sexual advances. The reason he gives is that she was conscious and participating by kissing him and moaning. Any moaning would occur during the sexual acts.

Consent must take place before the sexual activities, not during. The accused’s version is that they were facing each other and engaged in consensual kissing and he had his hands on her body. He did not take her shorts down but put his hand down her shorts and fingered her vagina. That is when she jumped up and screamed and cried and accused him of raping her. [ 52 ] This is in contrast to the complainant's evidence that he was behind her and she was on her left side and then on her stomach and that she was not fully conscious or awake until she felt his penis in her vagina.

The fact she was completely unconscious and asleep is corroborated by NB who could not wake her only a few minutes prior to this activity. [ 53 ] The accused testified from the time he got in bed with the complainant having been denied entry into the room NB was in, to the time the complainant jumped up and screamed, was 6 to 7 minutes. From the time NB tried to wake the complainant unsuccessfully to the time the accused got back into the complainant’s bed could only have been a few minutes.

In those few minutes one would have to believe she went from complete unconsciousness to fully awake and immediately consented to have sex with the accused whom she did not know in order to accept the accused’s version. [ 54 ] One question never answered by the accused is why he returned to the complainant's residence in the early hours of the morning. He said he left to get his vehicle from the first party, drive his friend home and it was my understanding that he also went home. Then he went back to the complainant's residence.

If it was to continue to party, he knew as soon as he entered her residence the party was over and everyone had gone to bed. So why did he not leave? It could only be he was there for some other reason. [ 55 ] He testified he thought the complainant was coming on to him or interested in him during the party. The complainant states she did not know him and hardly spoke to him. Yet he would have this Court believe she would consent to have sex with a person she hardly knew and didn't know he was even there when she was in an unconscious or semi-conscious state. [ 56 ] When Det.

Fitzgibbon first approached the accused, he was adamant his DNA could not be found in the complainant's vagina. It was only after he was told his DNA was found in her vagina during the second interview and the detective suggested he had fingered her vagina that he first admitted having done so.

[ 57 ] All of this makes his evidence suspect and unreliable. I am of the view he went back to the residence for the purpose of having sexual relations with NB. That is why he went to the bedroom, stared at them, got into the bed and touched NB. He followed her to the spare bedroom and was rejected when she closed and locked the door to keep him out. He then went back to the complainant's bedroom and climbed in with her and commenced sexual relations with her. [ 58 ] As was stated by the Supreme Court in GF , consent and the capacity to consent are inextricably joined.

Subjective consent requires both capacity to consent and de facto consent. The complainant must have an operating mind capable of understanding the physical act, the sexual nature, and the specific identity of the person.

They must understand they have a choice. [ 59 ] Given the unresponsive and unconscious state of the complainant that NB found when she tried to wake her only minutes before the sexual activity took place, I cannot see how she could have possibly been awake and responsive to any sexual activity and able to understand the physical act and its sexual nature or be aware of the specific identity of the accused who she barely knew and did not even know was in her house.

That is what I would have to find in order to accept the accused’s version as credible and reliable. [ 60 ] I have found both the complainant and NB to be credible and reliable. The complainant says she was incapacitated and never consented to activity of any kind with the accused who put his penis in her vagina. NB confirmed she was incapacitated and unresponsive minutes before.

I accept their evidence and find the complainant was incapable of consenting, could not consent, would not consent to sex with the accused and in fact did not consent. [ 61 ] I find the accused’s version suspect, unreliable and not credible. I do not believe the accused’s version. Nor do I have a reasonable doubt that it may be true. His evidence does not create a reasonable doubt as to the truthfulness of the evidence of the complainant or NB. Conclusion [ 62 ] I find the accused committed a major sexual assault on the complainant as she described and the accused has not raised a reasonable doubt in my mind.

I find him guilty as charged. Dated at the Calgary, Alberta this 18 th day of September, 2023. B.R. Fraser A Justice of the Alberta Court of Justice Appearances: M. Kostiuk for the Crown E. Ryland for the Accused