R v Sorza, 2022 MBPC 54

CITATION: R v Sorza , 2022 MBPC 54 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: His Majesty the King ) B. Rach ) for the Crown ) and ) ) ) James Sorza ) D. Wolson ) for the Accused ) ) ) ) Reasons for Decision delivered: ) November 4, 2022 Restriction on Publication: Pursuant to s. 486.4(1) of the Criminal Code , any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. Devine, P.J. [ 1 ] The accused Mr. Sorza was charged with the sexual assault of FS that occurred sometime between June 20 and 21, 2020.

He was 20 years old and the complainant was 17 years old at the time. There is no question that there was sexual contact between the two young people, but the complainant and Mr. Sorza testified to very different types of sexual activity. Ultimately, the only issue in this case is whether the Crown has proven the complainant did not consent to the sexual activity. [ 2 ] The Crown called two witnesses, the complainant FS and an acquaintance of both the accused and the complainant.

The Crown also filed DNA evidence, showing that the semen samples provided by the complainant after the alleged sexual assault belong to the accused. The accused testified in his own defence. Facts [ 3 ] FS was at home on her own on June 20 to 21, 2020, while her parents and sister were out of town at the cottage. She knew the accused through a mutual acquaintance, but had only met him one time in person until the night in question. [ 4 ] At some point that day FS received an invitation from the accused to come to a party that night. She agreed to go.

They made arrangements for her to go to his apartment downtown first to “pre-game”. She took a six-pack of vodka coolers for the night. She was a little nervous because she did not know anyone. The young people were playing beer pong and other drinking games and hanging out. She had consumed two or three of the vodka coolers by then and was feeling tipsy, but fine. [ 5 ] It appears that no one was doing any drugs or marijuana that night, only alcohol. [ 6 ] At some point the group headed over to the party.

She had three or four of the vodka coolers left in her backpack. [ 7 ] She testified that she drank another two or three of the vodka coolers, but she was not sure. She had told the detective in the statement she gave 10 days later that she drank more than usual. [ 8 ] She was at the party a couple of hours.

[ 9 ] The complainant testified that something happened to her at the party that did not involve Mr. Sorza. She called a girlfriend to tell her what happened and she told a few people at the party, including Mr. Sorza. Then she went to the bathroom. She heard there was a cab waiting out front to take her home. She had not called it. The accused and FS took a cab to her house. She believed the accused was present to make sure she got home safely. She did not ask him to accompany her. At the time she was feeling in shock and not very well, clarifying that she did not mean physically unwell.

She testified that she just wanted to go to bed and be alone. [ 10 ] She could not remember if there was any conversation in the cab; she did not think so. She told the Crown attorney when she met for trial preparation a few weeks ago that there was conversation, but she could not remember what it was about. [ 11 ] She could not remember who told the cab driver her address or who paid. [ 12 ] Mr. Sorza accompanied her to the front door and helped to find her keys in her bag.

She unlocked the door and the two of them went in together, although she testified that she had not invited him to come in. [ 13 ] She testified that she told him she wanted to go to sleep. She testified that she did not invite him to go with her to her bedroom. But he did go. [ 14 ] She changed from her jeans into shorts to sleep and crawled into bed; she did not change her top, which was a white tank top. She testified that she pulled the blanket up over herself. She could not remember whether the bedroom lights were on or off. [ 15 ] She testified that Mr. Sorza was in the bedroom when she changed.

She told the detective that she was not sure.

But at the trial she testified that she was sure he was there. [ 16 ] She told the detective in her statement that after she got into her bed there was a lot she did not remember. [ 17 ] She testified that she was feeling less effect from the alcohol by then, although she was “still in shock” from what had happened to her at the party. [ 18 ] The complainant testified that the accused then pulled down his pants and underwear, pulled down her shorts and panties and “proceeded to get on top of her.” In answer to the question, “What happened next?” the complainant testified, “He raped me.” When she was asked to unpack that, the complainant testified that, “He got on top of me and then, without my consent, he put his penis in my vagina.” [ 19 ] She did not recall either of them saying anything. [ 20 ] She recalled feeling pain in her vagina when his penis was inside of her vagina. [ 21 ] She could not remember his body doing anything. [ 22 ] She just froze. [ 23 ] There was no touching by her or him other than the penis in her vagina, then he ejaculated, got up, pulled up his pants and left.

He left a “puddle” of semen under her bum and back of her thighs. On cross examination, she agreed that he ejaculated partially onto her and partially onto the sheets. [ 24 ] She told the detective that she was not sure that Mr. Sorza ejaculated. [ 25 ] Other than the penis in the vagina, the complainant testified that there was no other sexual contact or any touching. [ 26 ] She testified that she did not want to have sex with Mr. Sorza.

She believes that she was not too intoxicated to be capable of consent; she could have consented, but she did not consent. [ 27 ] She denied inviting him to come and sit next to her on the bed. She denied kissing him on the lips. She denied that they kissed for a few minutes and that they touched each other. She told the detective she did not remember if there was kissing. [ 28 ] She did not recall him asking if she felt ok and her answering, “Yes.” She did not recall any conversation. [ 29 ] She denied that she took off her shorts and panties.

She does not recall whether they were completely off or if they were still around her legs. She could not remember if the accused’s shorts were off completely or partially on. [ 30 ] She had told the detective she did not know how her shorts and panties came off. [ 31 ] She testified that her memory had changed, and that is has improved on that point. [ 32 ] She denied that she asked the accused to put his fingers in her vagina and that he did that. She denied that while he did that, she touched his penis, giving him a “hand job”. [ 33 ] She followed him to make sure he left. [ 34 ] Later she texted Mr.

Sorza to ask if he had taken a cab and he answered that he walked. [ 35 ] She testified that after this happened, she felt “like I was no longer a person. It took the life right out of me and I haven’t been able to get back since.” [ 36 ] After the accused left, she texted her cousin and told him what happened and then took a cab to her cousin’s place, because she

did not want to be alone. She told him more about what happened and then went to bed. [ 37 ] The next day she went to the hospital and medical personnel took her clothing, bed sheets and a tampon for testing. She was wearing a tampon the day after the sexual assault. She testified that she was not menstruating at the time of the assault. [ 38 ] She gave a videotaped statement to a detective 10 days later. She told him in her statement, “I don’t remember a lot.” [ 39 ] She testified that there is a lot she does not remember from that night.

Her memory is “somewhat” blurry. [ 40 ] The complainant met with the Crown attorney a few weeks ago, he made notes which she had reviewed and they were forwarded to the defence. [ 41 ] She testified that there were some things she was unable to remember at the time of her statement and some things she was unable to remember while testifying. Some things she appeared to remember now, as opposed to when she gave her police statement over two years ago.

Her explanation for that, when asked about it on cross-examination, was, “I think that after lots of therapy I’ve come to the realization of some things.” She agreed that on some things her memory is better, and other things it is not. [ 42 ] The accused testified. He was 20 years old at the time of this event, living in Winnipeg with his brother in a downtown apartment. He immigrated to Canada with his family in 2014 from the Philippines and lived in Virden, Manitoba with his mother and brother.

He graduated from high school and then went to college and graduated from the dental assistant program and worked in that profession for three years. [ 43 ] The accused’s testimony about how he first met FS and how they came to be together that night is generally consistent with that of FS. [ 44 ] At the time of the pre-gaming at his place and the party, he was dating a young woman named Annika, although they were not exclusive and he did not consider they were girlfriend and boyfriend at the time. At some point Annika drank too much and the accused took her and her two sisters home to Annika’s place.

While he was there for about an hour, he received a phone call from Jaden, the host, telling him to come back because some “drama” or something occurred involving FS. [ 45 ] Mr. Sorza testified that before he left the party, FS was acting intoxicated, and what he meant by that was that she was erratic, emotional, flirty and following him, his brother and his guy friends from Virden around. He told the police during his September 11, 2020 statement, that the complainant was really drunk and out of it. [ 46 ] When he returned, Jaden had called a cab and asked the accused to take FS home.

He testified that FS also asked him to take her home. [ 47 ] Although counsel was careful to ensure that the witnesses did not testify directly about what happened to FS, it is apparent that something bad happened to her at the party, and she was very upset about it. [ 48 ] The accused felt responsible for how FS was feeling, because he invited her to the party. On the cab ride to her place, she told him what happened and who did it and the accused was shocked that the young man in question would do such a thing.

The accused testified that FS was still very upset in the cab, but he was trying to console her and she calmed down. On the way to her place, she told the accused that her parents were away at the cottage. [ 49 ] He testified that he went to the door with her and helped her find her keys and she opened the door.

He testified that she asked him if he wanted to come in and he said yes and when they got inside she guided him and he followed her to the bedroom. [ 50 ] She changed out of her jeans into her sweat shorts, in front of him. [ 51 ] She sat down on the bed and asked him to sit next to her. [ 52 ] He testified during cross-examination that they were sitting cross-legged in the middle of the bed facing each other. [ 53 ] He asked how she was feeling and she said fine, and then he added, “And obviously still upset.” [ 54 ] She initiated a kiss on his lips and then they were kissing and making out.

Then the complainant took off her shorts and panties and moved over in the bed, and asked the accused to “finger” her, that is, digitally penetrate her, which he did with two or three fingers. Then the complainant gave him a “hand job”. He was kneeling in front of her. She moved her hand on his penis in different manners, because he was unable to get an erection at first. He eventually did and ejaculated near her vagina and on the bed. He did not have a condom because they did not have “sex”. [ 55 ] The accused testified that FS was “normal” and “fine” by that time; she was not upset nor crying.

She did not say “no” nor “stop” and did not push him away or resist. He testified that they were “young and horny”. [ 56 ] After he ejaculated, he told the complainant that they cannot be doing that, and what they did was wrong because of what happened to the complainant at the party. He testified that he asked FS if it was okay for him to leave and she said yes and asked him where he was going next. He told her he was walking home. [ 57 ] He testified that he messaged FS later that night and asked how she was doing and she answered ok, and that she was going to her cousin’s place, because she was still upset.

Analysis of the Evidence [ 58 ] This case can be resolved only by an analysis of the evidence of each of the key witnesses, applying the analysis set out by the

Supreme Court of Canada in R v W(D), (SCC), [1991] 1 SCR 742, and assessing their evidence in the context of all theevidence (See R v Menow, 2013 MBCA 72). [59] The W(

D) test prescribes that if I believe the evidence of the accused, I must acquit. If his evidence raises a reasonable doubt, Imust acquit.

Even if I do not believe his evidence and it does not raise a raise a reasonable doubt, I must be satisfied beyond a reasonabledoubt that the Crown has proven all the elements of the offence before a conviction can be entered. [60] This is a very high standard, supporting the fundamental principle in Canadian criminal law of the presumption of innocence. [61] The issue to be resolved in this case is whether the complainant was consenting at the time of the sexual activity. [62] The testimony from the only two witnesses about the specifics of the sexual activity involved was completely different. [63] But the remainder of their testimony was largely the same. [64] The accused’s version of what occurred was detailed and plausible.

The complainant’s evidence about what occurred wasbereft of any detail, and conclusory. [65] The accused’s version of events is that the sexual contact between he and the complainant was consensual and in fact initiatedby the complainant. [66] The accused presented his evidence in a cogent and straightforward manner. His narrative of what happened was generallyunchallenged on cross-examination and some questions I asked for clarification. He provided extensive detail about the sexual contactbetween him and FS. [67] There were no inconsistencies in Mr.

Sorza’s evidence on the material evidence relating to the sexual activity and the issue ofconsent. The most that can be said is that the story he told the Court was much more detailed than what he admitted in his statement tothe investigating detective, but the accused’s explanation for that is plausible and I accept it. He was a 20-year-old immigrant who hadnever been arrested or interviewed by the police and he was being accused of committing a very serious offence. He was frightened. Hedid not even know if he could speak to a lawyer; he did not know the policies as he put it, when a person is arrested.

When he did speakto counsel, the lawyer advised him to say nothing to the police and that he would have his chance to tell his story in court. [68] He admitted that the detective did his job and got him to talk a little, even against the lawyer’s advice. [69] But a lot of his answers to the detective were “I don’t know” and “I don’t remember.” As he explained in his testimony, he wasfollowing the legal advice he had received to not answer the questions and not to say anything about what happened.

I do not see this asrepresenting an inconsistency in his narrative. [70] The accused’s version of events is believable. It was consistent, detailed and plausible. [71] The complainant’s story lacked detail. “He raped me. . . . without my consent he put his penis in my vagina.” She could notdescribe any movement of either of their bodies and denied any touching or kissing. [72] The absence of detail is concerning. [73] The complainant’s story was overly simple. It was conclusory rather than descriptive. [74] I do not believe the complainant was trying to mislead the Court.

I believe that her memory of the events of that evening areblurred by alcohol, the passage of time and possibly trauma, because we know from all accounts that she was very upset about somethingthat happened to her at that party. There were many, many details of the night that she was not able to remember. [75] For example, she did not testify about vomiting in the bathroom at the party. The other Crown witness, Tyra, testified that FSwas in the bathroom vomiting at the party, she assumed, because FS had too much to drink.

Tyra testified that the bad thing thathappened to FS occurred later at the party. [76] This trial took place almost two and a half years after the alleged offence. It is trite that people’s memories generally fade overtime. There were inconsistencies between FS’s police statement she made 10 days after this event, what she told the Crown attorney afew weeks ago and this week in the trial. [77] She testified that she drank only two or three coolers at the pre-game and two or three at the party, but she was not sure. Shetold the police in her statement she drank more than usual.

Tyra testified that she was vomiting in the bathroom because she had toomuch to drink. Mr. Sorza testified that she was intoxicated, acting erratic, emotional, crying and flirty and “out of it”. [78] She testified that her memory of that night is “blurry”. [79] More concerning, 10 days after this event she told the police detective that she did not remember a lot of what happened onceshe was on her bed. [80] She told the police 10 days after this occurred that she could not remember if Mr. Sorza was in the bedroom when she changed,but she was sure 28 months later that he was. [81] She did not recall Mr.

Sorza sitting next to her on the bed and asking her if she was feeling alright and that she answered “yes”. [82] She testified that there was no kissing, but 10 days after the event, she told the detective she did not remember if they werekissing.

[83] In her meeting with the Crown and in her evidence she testified that Mr. Sorza pulled down her shorts and panties, but she toldthe detective she did not know how they came down. [84] She testified that her memory changed, and has improved on that. [85] She testified to Mr. Sorza ejaculating. She told the detective 10 days after the event that she did not know if he ejaculated.

This is particularly concerning given the fact she had been to the hospital to have a SAP examination and the hospital seized her clothingand bed sheets where the semen had pooled. [86] Given the lack of detail of the complaint, and the admitted and proven frailties of FS’s memory on critical details at criticaltimes, I cannot place much weight on her evidence. [87] The accused’s evidence was very clear, that he was facing the complainant, kneeling between her legs with his penis close toher vagina when she was masturbating him, and then he ejaculated very near her vagina. [88] The accused’s version of the sexual contact is consistent with the DNA evidence filed by the Crown and is less consistent withthe complainant’s version.

Sufficient semen to test for DNA was not found inside the complainant’s vagina. If the accused had his penisinside her vagina and ejaculated, it is more likely that there would be semen containing the accused’s DNA in the vagina. [89] There was no evidence that the accused removed his penis before ejaculation. The complainant testified only that he had hispenis inside her vagina and then there was a puddle under her bum and thighs.

The Law of Consent in Sexual Assault Cases [90] The law of sexual assault is well-established but nonetheless can be complicated. [91] A sexual assault is an assault which is committed in circumstances of a sexual nature such that the sexual integrity of thevictim is violated. An assault is committed where the accused applies force intentionally to another person without her consent. Thereis no question that any amount of force is included in the definition, such that any touching of a sexual nature would be included as“intentional force” for the purpose of the definition. [92]

Section 273.1(1) of the Criminal Code defines consent in the context of sexual activity as “the voluntary agreement of thecomplainant to engage in the sexual activity”. [93] As former Chief Justice McLachlin stated in R v JA, 2011 SCC 28 at paragraph 34: Consent for the purposes of sexual assault is defined in s. 273.1(1) as “the voluntary agreement of the complainant to engage in thesexual activity in question”. This suggests that the consent of the complainant must be specifically directed to each and every sexual act,negating the argument that broad advance consent is what Parliament had in mind.

As discussed below, this Court has also interpretedthis provision as requiring the complainant to consent to the activity “at the time it occur[s]” (Ewanchuk, at para. 26). [Underlinedemphasis in original; Italicized emphasis added.] [94] Justice Major for the Supreme Court majority in R v Ewanchuk, (SCC), [1999] 1 SCR 330, stated as followsat paragraph 26: The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mindtowards the touching, at the time it occurred.” [Emphasis added] [95] The Supreme Court of Canada’s decision in R v Barton, 2019 SCC 33 is the most comprehensive and current statement on theissue of consent.

Justice Moldaver’s majority judgement states at paragraphs 88 - 90: ”Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”.6 It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” (A. (J.), at para.31), and it must be freely given (see Ewanchuk, at para. 36).

This consent must exist at the time the sexual activity in question occurs (A.(J.) , at para. 34, citing Ewanchuk , at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); A. (J.) , at paras. 40 and 43).Further, as s. 273.1(1) makes clear, “consent” is not considered in the abstract.

Rather, it must be linked to the “sexual activity inquestion”, which encompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”, thoughit does not include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitteddiseases” (R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346 (S.C.C.), at paras. 55 and 57 (emphasis deleted)). Consent is treated differently at each stage of the analysis.

For purposes of the actus reus, “consent” means “that the complainant inher mind wanted the sexual touching to take place” (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on thecomplainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies thatshe did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple (see Ewanchuk, at para.31). At this point, the actus reus is complete.

The complainant need not express her lack of consent, or revocation of consent, for theactus reus to be established (see A. (J.), at para. 37). For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent,

“consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused” ( Ewanchuk , at para. 49 ). Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions” ( ibid. , at para. 47). (Emphasis added.) [ 96 ]

Section 273.1(1.1) of the Criminal Code requires that consent must be present at the time the sexual activity in question takes place.

Conversely, the Crown in order to secure a conviction for sexual assault, must prove beyond a reasonable doubt that the complainant was not consenting at the time of the sexual activity. [ 97 ] “Silence, passivity or ambiguous conduct does not constitute consent” ( R v DKB , 2012 MBCA 114 at para. 10 ). [ 98 ] As the Supreme Court decision states in JA at paragraph 37: [I]t is important to keep in mind the differences between the meaning of consent under the actus reus and under the mens rea : Ewanchuk , at paras. 48-49 .

Under the mens rea defence, the issue is whether the accused believed that the complainant communicated consent . Conversely , the only question for the actus reus is whether the complainant was subjectively consenting in her mind.

The complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established. [emphasis in original.] [ 99 ] The Supreme Court noted in the case of Ewanchuk that consent for the purpose of determining if the actus reus of the offence has been proven is determined solely by reference to the complainant’s actual state of mind (see para 29). For the purpose of determining whether the Crown has proven the actus reus of the offence, “consent” means “that the complainant in her mind wanted the sexual touching to take place” (at para 48).

As the Supreme Court commented on this in Barton as noted above, at this stage, the focus is “on the complainant’s state of mind and the accused’s perception of that state of mind is irrelevant” ( Barton , at para 89 ). [ 100 ] The complainant’s testimony is the only source of direct evidence as to her state of mind. The credibility and reliability of that testimony must be assessed in the context of all the evidence in the trial.

The actus reus of the offence of sexual assault is therefore proven where the judge is satisfied that the complainant was not consenting to the sexual activity. [ 101 ] Therefore, if the complainant testifies that she did not consent and the judge accepts that evidence, the actus reus is complete. There was no consent. [ 102 ] If the judge does not accept that evidence, one of the essential elements of the offence, the actus reus , is not proven. Application of the Law to this Case [ 103 ] The question of whether the accused thought the complainant was consenting is not the issue in this case.

The defence did not raise the defence of honest but mistaken believe in communicated consent, which is a defence going to the mens rea of the offence. [ 104 ] The only issue is whether the Crown has proven beyond a reasonable doubt that the complainant was not consenting at the time of the sexual activity between her and Mr. Sorza. [ 105 ] It is also irrelevant in law that the complainant did not say no, resist or otherwise state her lack of consent to Mr. Sorza.

These are outmoded and outdated expectations based on rape myths eschewed by our law. [ 106 ] Nonetheless I must be satisfied beyond a reasonable doubt that there was an absence of consent, based on admissible evidence or lack of evidence. [ 107 ] There are too many gaps in the Crown’s evidence and concurrently there is sufficient detail and plausibility in the accused’s evidence to at least raise a reasonable doubt.

The accused’s unchanged and detailed evidence that the complainant was the initiator and willing participant to kissing, digital penetration and masturbation of him, if true, demonstrates that the complainant communicated her consent through these actions. It was not a question of acquiescence.

Her behaviour was affirmative. [ 108 ] At the very least, this evidence raises a reasonable doubt that she was not consenting. [ 109 ] I am not satisfied beyond a reasonable doubt that there was no consent at the time of the sexual activity. [ 110 ] The complainant’s version of events is so lacking in detail and her evidence is so demonstrative of an unreliable memory, it would be unsafe to convict on her evidence alone, even if there was no other evidence. Decision [ 111 ] I am not satisfied beyond a reasonable doubt that the Crown has proven the actus reus in this case.

I have a reasonable doubt that the sexual activity that took place was without the consent of the complainant at the time it took place. [ 112 ] Mr. Sorza is acquitted of the charge of sexual assault.

Devine, P.J.