R. v. J.R.M., 2011 NSSC 499

SUPREME COURT OF NOVA SCOTIA Citation: R. v. J.R.M., 2011 NSSC 499 Date: 20111219 Docket: CRH 340391 Registry: Halifax Between: Her Majesty the Queen v. J. R. M. LIBRARY HEADING Restriction on Publication:

Section 486 C.C.C. (Sexual Assault) Editorial Notice Identifying information has been removed from this electronic version of the library sheet. Judge : The Honourable Justice M. Heather Robertson Heard: December 12, 13 and 14, 2011, in Halifax, Nova Scotia Written Release of Decision: February 28, 2012 (Verdict: December 19, 2011) Subject: Sexual Assault 271(1)

Summary: The accused was found guilty of sexual assault against the sleeping complainant who did not consent to the plaintiff’s actions. Presence of a third party witness in the bed. Issue: Consent and credibility

Result: The accused found guilty s. 271(1) THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: R. v. J.R.M. , 2011 NSSC 499 Date: 20111219 Docket: CRH 340391 Registry: Halifax Between: Her Majesty the Queen v. J. R. M. Editorial Notice Identifying information has been removed from this electronic version of the judgment. Restriction on publication:

Section 486 C.C.C. (Sexual Assault) Judge: The Honourable Justice M. Heather Robertson Heard: December 12, 13 and 14, 2011, in Halifax, Nova Scotia Decision: December 19, 2011 (Verdict) Written Release: February 28, 2012 Counsel: Rick Woodburn, for the Crown Patrick MacEwen, for the Accused

Robertson J. : (Orally) [ 1 ] J. R. M. is charged with the sexual assault of S. J., in the early morning hours of May 1, 2010, after a night of partying at Mr. M.’s Clayton Park apartment. [ 2 ] At approximately 11:00 p.m. in the evening five young people (all in their early twenties) gathered at the two-bedroom apartment of the accused that he shared with his roommate L. H.. [ 3 ] Prior to 11:00 p.m. the three young men, the accused Mr. M., Mr. H. and Mr. C. I. had been drinking with friends, playing guitar, watching TV and just hanging out at the apartment. At or near 11:00 p.m. they were joined by Mr.

I.’s girlfriend L. M. and her friend S. J. the complainant who arrived at the party be cab. [ 4 ] Alcohol and drugs played a role in the evening. The three young men appear to have consumed 36 beer, some wine, smoked some marijuana and two of them C. I. and the accused additionally did two lines of cocaine each, before bedtime. [ 5 ] The girls, Ms. J. and Ms. M. had by their account a couple of drinks each earlier in the evening at Ms. J.’s apartment; (Ms. J. two vodka coolers and Ms. M. two vodka and orange juice from a pint of vodka she later took with her to the apartment). [ 6 ] Ms.

J. agreed she shared a couple of joints with the boys at the apartment. Ms. M. testified she did not smoke any marijuana. The accused testified he drank about 11 beers between 6:00 p.m. and sometime in the early hours.

He also testified he did not smoke any marijuana, but snorted two lines of cocaine, half of the $40 amount (.4 of a gram) he had ordered up from his local dealer at 11:30 p.m. and had delivered to the apartment. [ 7 ] The details of the events of the evening with these five young people partying at the apartment are not much in dispute, but for the sexual encounter that took place when the accused, the last one up in the apartment, who had planned to stay in the livingroom decided to go to bed in his own bed, where the girls lay sleeping. [ 8 ] For the girls, the evening ended at approximately 1:30 a.m. Ms.

J. was returning to her job at the * retail outlet on May 1 st at 10:30 a.m. and testified that she wanted to get a good night sleep. She and Ms. M. had earlier agreed they would stay the night at the apartment and Mr. I., who at no point in the evening could have driven them home because he was drinking, agreed to drive Ms. J. to her workplace in the morning. [ 9 ] Mr. H. retired to his bedroom around 12:30 or 1:00 a.m. Mr. M. agreed he would give his bedroom to the girls and that he and Mr. I., who wanted to continue partying in the livingroom , would sleep on the two sofas there in the livingroom. Mr.

M. gave the girls pajama bottoms and t-shirts to wear to bed. It was then after 12:30 a.m. At this time Mr. M. also changed into his own pajamas and retrieved extra pillows and blankets from a closet for their use in the livingroom on the sofas. [ 10 ] Sometime after the girls changed into their pajamas, they crawled into bed which they testified was a double or queen size bed. [ 11 ] The room was not large. The bed was located in the left-hand corner of the room up against the wall, as one entered the bedroom. A tallboy dresser was located on the same wall pushed up against the foot of the bed.

One the right side of the room, but a mere arm’s length away from the bed was a second dresser with a TV on top of it. [ 12 ] When the girls got into bed, Ms. M. turned on the TV and wanted to watch part of a movie before falling asleep. The TV was on video output and the boys Mr. I. and Mr. M. were called into the room to fix it. Mr. M. did so. He first had the TV on a porno image of a couple engaging in intercourse, which he flipped to twice before turning the TV to the requested movie channel. The girls had

protested they did not want to see the pornography. [ 13 ] Mr. M. testified that he had only been joking and quickly turned to the movie channel, when his friend Mr. I. told him to. The boys then left he room turning the lights out. Ms. J. remembered the door being shut. Mr. M. does not believe he shut the door. [ 14 ] It is clear from everyone’s evidence that the girls were to have the bedroom and the two boys the sofas in the livingroom. These would be the sleeping arrangements for the night. [ 15 ] Mr. M. testified that he and Mr.

I. went back to the livingroom and had another beer or two and snorted cocaine, Mr. I. fell asleep on one sofa and Mr. M. remained awake watching an action movie on the TV, from the second sofa. [ 16 ] Mr. M. testified that he decided the sofa was too uncomfortable and he wanted to sleep in his own bed. Mr. M. testified it was 2:45 a.m. possibly 3:00 a.m. “give or take 20-minutes either way.” It is fair to say that the accused was uncertain of the exact time of the sequence of events that followed. [ 17 ] Mr.

M. entered the bedroom and climbed over the foot of the bed and crawled under the blankets, nearest the wall behind Ms. J., who was now in the center of the bed, with Ms. M. on the outside of the bed nearest the TV. [ 18 ] It is Mr. M.’s evidence that he never intended a sexual encounter when he decided to go to bed in his own bed. Although he did say on cross-examination, when asked if, as he approached the bedroom doorway, did he think it might be possible to have a sexual encounter with Ms.

J., he testified “I thought it might be possible but it was not my intention.” He also admitted on cross-examination that he had a crush on Ms. J. but “not a major one.” [ 19 ] In describing the sex, Mr. M. testified that Ms. J. woke up when he crawled over her, that she yawned and moaned, that they were cuddling in spoon fashion for about five minutes, that Ms.

J. made suggestive movements “of her bum to my crotch”, that he had his hand on her right hip, that she arched up and slid her pajama bottoms off, that he then slid his off, that he stuck his penis in her vagina and that they engaged in intercourse for five to six minutes and that Ms. M. then woke up and said “Where’s C.?” [ 20 ] He testified that when Ms. M. woke up, Ms. J. said “Oh My God, look what he’s doing to me” and struck him on his face with a backhand from her right arm. It was Mr. M.’s testimony that they were having consensual sex and that Ms. J. merely reacted with embarrassment when her friend Ms.

M. woke up, so she “started to freak out” and leapt out of bed. [ 21 ] Ms. J. testified to a very different version of events. She testified that “I fall asleep. And then, I get awoken somehow, wake up and feel that something’s wrong. Um, something’s wrong um, I feel something, someone is inside of me.” [ 22 ] Ms. J. testified that she was lying on her left side sleeping and facing Ms. M.. She testified that she had no idea anyone was in bed behind her. She testified that “it wasn't until I heard Joey's voice saying ‘L., C. wants you in the living room' that I realized what was happening.

I immediately swung with my right hand and hit him with the back of it and then I moved away and curled into L. for two seconds and I said out loud ‘I can't stay here’ and then I don't even really know what happened but I remember piling out of the bed and grabbing my stuff and running to the washroom to get changed.” [ 23 ] She testified “After I got changed, I came out of the bathroom and he was sitting on the couch. Joey was sitting on the couch with a really dumb look on his face.” [ 24 ] Ms. J. testified that at no time did she invite Mr. M. into her bedroom or consent to him having sex with her.

She testified she became aware “a part of his body was inside of my vagina. I assumed it was his penis, but I don’t know for sure.”

[ 25 ] With this realization, she testified that she hit him. “After I hit him, he told me that I liked it and that I wanted it. That was it. After I hit him I kind of curled into L..” Further she testified “As I am curling into her, I’m saying, I can’t stay here and that’s is when like, she is awake. That’s when she was awake.” [ 26 ] And Ms. J. testified that “literally it was a few seconds and I was out of bed.” [ 27 ] On cross-examination, Ms. J. testified that everything happened very quickly, her awareness of Mr. M., her hitting him, L. waking up, and both of them piling out of bed. [ 28 ] Ms.

M. was asleep on the outside edge of the bed nearest the TV. She testified, “The next thing I recall is being awoken suddenly, feeling I woke panic, I woke in panic and I heard S.’s voice ‘Oh My God, you can’t do that.’ She said ‘you are disgusting, you can’t do this to people’ and she smacked him.” [ 29 ] Ms. M. testified, “I shot right, I had been lying on my back, so I shot right up and I was facing straight at first.” [ 30 ] She testified that she looked toward Ms. J. who was lying on her left side facing her and that Joey was behind her spooning.

She testified, “After I heard her reaction she bolts out of bed.” [ 31 ] Ms. M. testified that she then got out of bed and took her clothes and left the bedroom. She too changed quickly and went to wake up her boyfriend Mr. I. in the livingroom, but she could not rouse him. She also attempted to rouse Mr. H. who awoke slightly, but went back to sleep. She testified that she re-entered the livingroom and Ms. J. and Mr. M. were in discussion disputing what had happened. She testified that they only then remained in the apartment about four minutes − she and Ms.

J., that a cab had been called, she was uncertain who called the cab, but they left quickly. She testified that Ms. J. was “distraught, emotional, crying.” [ 32 ] Ms. M. testified that before leaving she had a very brief conversation with Mr. M. “We mostly didn’t have a long conversation. It was just more or less he told me he didn’t do that and that it was, that’s all that happened and that Sam wanted it to happen and I said in response ‘I can’t talk about this.’ ” Ms. M. testified “She wanted it” was the phrased used by Mr. M.. [ 33 ] In cross-examination Ms.

M. agreed that she believed she woke up when she heard Ms. J.’s words “Oh My God.” She testified “ . . . I guess that's what woke me up, I heard noises so I, obviously something was going on, talking, that woke me up. I mean, she said "Oh My God" that was the first thing I heard as I was awake.” . . . Yeah and I felt the panic feeling as well at the same time and I shot up out of my sleep.” [ 34 ] She testified that at this point she assumed something had happened. She testified that Ms. J. had said to her “She said it in the apartment while she was getting out of the bed.

She said "he had sex with me while I was asleep" and that was the only time she told me in the house and then once we got in the cab we more ... had a discussion what had happened cause we just wanted to get out of there so we didn't have time to talk about it.” [ 35 ] Having returned to Ms. J.’s apartment Ms. M. testified that she called her father to discuss what had happened to Ms. J. and then called the police. Ms. M. answered the door for Constable Marshall Williams and she first explained the incident to him. [ 36 ] Constable Williams testimony was that he spoke with Ms. J. and Ms.

M. together about the incident, explained the course of action that would follow, the requirement to attend the QEII and the police station. Constable Williams took them to the QEII at 5:30 a.m. Ms. Sandra Witherbee, the sexual assault nurse on duty at the QEII, testified how she met the complainant at approximately 7:50 a.m. and conducted her examination. [ 37 ] Ms. J. was given an antibiotic for the possibility of a sexually transmitted disease, the morning after pill to avoid possible pregnancy and some Gravol to counter the nausea often caused when the morning after pill is administered.

[38] Ms. J., Ms. M. and Constable Williams then went to the police station. All three had remained together, but for, theexamination of Ms. J. by the Sexual Assault Nurse Examiner (“SANE”), when Constable Williams then left the room with Ms. M. andtook a statement from her. [39] Defence counsel points out that Constable Williams could have separated the complainant and the witness Ms. M. early on,interviewing them separately, but failed to do so. [40] The defence has suggested that Ms. J. having consented to sex with Mr. M., was so embarrassed that Ms.

M. awoke and sawthem, she jumped out of bed having struck the accused and said, “Oh My God, what are you doing.” [41] It is the defence theory that Ms. J. was carried along with Ms. M.’s reaction that a sexual assault had taken place and that sheacquiesced to Ms. M. carrying the complaint forward by trying to wake Mr. H. and Mr.

I. to tell them what happened by later calling herfather, then by calling the police and reporting the matter. [42] As in most incidents of alleged sexual assault, the court is faced with two versions of the event, the accused’s version that thesexual encounter was consensual and the complainant’s version that she awoke and realized Mr. M. was attempting to have sex with her.

Not often however is there a third person present when the alleged assault actually occurs. [43] Ultimately, it is a matter of the credibility of these three young people who have testified as to the events of the evening. [44] In order to secure a conviction under s. 271 of the Criminal Code, the Crown must prove beyond a reasonable doubt that aphysical touching that was sexual in nature took place and that there was an absence of consent by the complainant. [45] R. v. Ewanchuk (1999), (SCC), 131 CCC (3d) 481 established that the mental element of sexual assault iscomprised of (

a) the intention to touch and (

b) knowledge or recklessness or wilful blindness towards lack of consent. Consent isdefined is s. 273.1(1) to mean, for the purpose of ss. 271-273, the voluntary agreement of the complainant to engage in the sexualactivity in question. Consent is the sole issue in this trial. [46] It is not for the defendant to prove that the complainant consented to a sexual act. The presumption of innocence remains withthe accused throughout the trial.

The law presumes that the accused is innocent, that is to say not guilty, until the court has consideredthat the Crown has proved each and every element of the offence charged beyond a reasonable doubt. [47] The standard of “beyond a reasonable doubt” is a high standard. It is not sufficient to say that the accused may on the balanceof probabilities have probably committed the offence or likely committed the offence. The court must be satisfied beyond a reasonabledoubt.

This does not mean that the Crown must prove its case to an absolute certainty, but to a near certainly, close to a standard ofabsolute certainty than to a mere balance of probabilities. To meet this high threshold, reasonable doubt is based on reason andcommonsense arising logically from the evidence. [48] If the court is not satisfied that the Crown has established the elements of the offence beyond reasonable doubt then the lawrequires that the benefit of the doubt must be given to the accused.

And conversely if the Crown does succeed in proving the elementsof the offence beyond reasonable doubt, the presumption of the accused’s innocence is displaced and the court must convict. [49] As I said, the only element of the offence in issue in this trial is that of the lack of consent of the complainant.

The accusedadmits to the sexual nature of the act and has testified that he was having consensual sexual intercourse with the complainant, which shedenies, having testified that she was awoken by this sexual act. [50] It is not so simple as the court deciding between the two versions of these events, preferring one version over the other. It is

possible that even if I do not accept the evidence of the accused that I may still be left with a reasonable doubt in which case the accusedwould be entitled to an acquittal. [51] The principle of reasonable doubt applies to the issue of credibility. I must instruct myself according to the principles of R. v.W.(D.), (SCC), [1991] 1 SCR 742 as follows:

(1) If I believe the evidence of the accused, then I must acquit;

(2) Even if I do not believe the testimony of the accused, but I am left in reasonable doubt by it, I must also acquit the accused;

(3) Finally, even if I am not left in doubt by the evidence of the accused, I must go on to ask myself whether, on the basis of all theevidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [52] In considering the evidence before me, I do not have to accept or reject all of the evidence of any witness, but may accept whata witness testifies to in whole or in part.

I must bear in mind all of the evidence and attribute such weight to any piece of evidence as itdeserves not in isolation, but relative to the whole of the evidence before me. [53] In order to determine issues of credibility, it is important to consider discrepancies and inconsistencies in a witness’ testimonyand reflect on it relative to the testimony of others as to the same events.

It is appropriate to consider the witness’ demeanor, theircapacity for accurate memory of the events, any motive or interest they may have in the outcome and how their testimony may bechallenged on cross-examination. [54] Having heard all of the evidence in this case, I carefully reviewed my own notes and also reviewed the record of the evidenceof these witnesses to the alleged sexual assault. [55] In assessing the evidence before me, I do not find the accused Mr. M.’s evidence to be credible on the issue of consent.

Iaccept his words on face value “In my mind I was having consensual sex” but I can only conclude from all of the evidence that is beforeme that Mr. M. made a tragic error in judgement fuelled by way too much liquor consumed over the evening and some cocaineconsumed very late at night, when he entered his bedroom with the intention of possibly getting lucky and having sex with Ms. J.. Butthe reality of the situation was that Ms.

J. was sound asleep and did not consent to his sexual advance and in particular did not consent tobeing penetrated in her vagina by a part of his body. [56] It may have been his wish that a sexual encounter could occur, but the fact is Ms. J. was asleep. I accept her evidence as beingcredible and consistent with that of Ms. M. as they both testified to the immediacy of their response to being awakened by Mr. M.’sintrusion and presence into their bed. [57] Indeed, each of these witnesses, the complainant and Ms.

M. explained the events of the evening with consistency and seemingaccuracy largely unchallenged in cross-examination. [58] Mr. M., however, did have difficulty with the timing of the events of the evening after 11:00 p.m. when he recalls havingactually looked at the clock when the girls arrived in the apartment. I attribute his poor recollection to his state of inebriation that night. [59] Nor do I accept as truthful his evidence that he and Ms. J. danced in a “grinding” fashion for one or two songs that evening, andthat Ms. M. was dancing along with them and observed this. Ms.

M. testified there had been no dancing and Ms. J. said if there had beenit might have been she and Ms. M. dancing together briefly.

[ 60 ] I recognize that in providing statements to the police both Mr. M. and Ms. J. lied; Ms. J. that she had not smoked marijuana that evening and Mr. M. that he not had snorted cocaine (which he later admitted in the interview). They both did not want to admit their use of drugs to the police. However, there was one more untruth not corrected by Mr. M. in his statement to the police, that he did not see or switch channels to pornography on bedroom TV. Quoting him “No that’s not true . . . I swear to God . . . that didn’t happen.” Clearly, it did happen and I accept Ms. J. and Ms.

M.’s evidence on this point. [ 61 ] I also accept that at the end of the evening and in the early morning hours Ms. J. knew her own mind and determined that it was right to report the incident to the police. [ 62 ] On my assessment of all of the evidence that is before me and applying the three-step criteria of W.(D.) I am satisfied on the basis of the evidence that I do accept, that the Crown has proved its case beyond a reasonable doubt that the accused committed a sexual assault on Ms.

J. in the absence of her consent. [ 63 ] A conviction will be entered against the accused. [ 64 ] I assume counsel may want a pre-sentence report before sentencing on this matter. Justice M. Heather Robertson