Mr. T was charged with sexual assault after his friend, Ms. C, accused him of engaging in sexual intercourse with her while she was passed out in his fraternity room bed. The central issue at trial was whether Ms. C “subjectively consented to having sexual intercourse with [Mr. T]” on that occasion or, “framed more narrowly, whether she had the capacity to do so.” The judge deemed the relevance of any previous sexual activity between the two as primarily “contextual” to this central issue.
The testimony provided by Mr. T and Ms. C were diametrically opposed on the issue of consent and on whether Ms. C had the capacity to exercise consent. While Mr. T claimed that Ms. C eagerly engaged in consensual sexual intercourse three times that night, Ms. C asserted that she was physically incapable of giving consent and unable to prevent him from assaulting her.
Given the he-said/she-said nature of the testimony, the judge primarily based his ruling on the principles governing the assessment of credibility. Mr. T’s defence team repeatedly shredded Ms. C’s credibility during cross-examination and by introducing a third witness. During cross-examination, Ms. C admitted that she was not wholly unconscious during the incident, as claimed during her initial testimony and had been conscious enough to withhold consent. Cross-examination also revealed that while Ms. C claimed that her seven-week relationship with Mr. T had been platonic until the incident, they had previously engaged in oral sex and other sexual foreplay numerous times. And while Ms. C continued to assert that she left the fraternity early the following day in a state of “fear, revulsion, and anger” after realizing that she “had been raped,” the defence witness testified that Ms. C had breakfast at the fraternity and helped with the after-party clean up.
In issuing a finding of “not guilty,” Judge G noted that his faith in Ms. C’s general trustworthiness had been impaired by the testimony, leaving him to doubt her allegations. In closing, the judge said the decision “reflects the inevitable result of the Crown’s failure to crest the high hurdle—that of proof beyond reasonable doubt—required to anchor a finding of guilt in criminal proceedings.”
Mr. J was charged with sexually assaulting Ms. V after she allegedly passed out on his bed with her friend, Ms. K, after a long night of partying. Mr. J’s defence did not challenge evidence that he had sexual contact with Ms. V but contended that it occurred with her consent. Mr. J did not testify during the trial or call any evidence.
In her initial testimony, Ms. V provided detailed descriptions of a long night’s partying at Mr. J’s apartment. She described her state just before the sexual assault as being “falling-down drunk.” During the alleged assault, she claimed that she passed in and out of consciousness, couldn’t remember whether any words were spoken, didn’t know whether Ms. K was still in bed with them, and asserted that she never expressed any consent to the activity to Mr. J.
During the defence cross-examination, Ms. V could not explain the distinct differences between the narrative of the described events in her original taped interview with police and the initial courtroom testimony concerning the narrative. In her taped police interview, Ms. V noted that she had fallen asleep in the bed while “spooning” with Mr. J before the assault occurred. She also told police that her alcohol consumption that night had been “typical,” with no reference to being “falling-down drunk.”
Ms. K’s cross-examination testimony offered no help to Ms. V’s narrative, as she testified that she awoke during the incident to the sound and feel of “shuffling” in the bed. Ms. K assumed this was caused by “mutual fondling and playing with each other” and noted that Mr. J and Ms. V then went into the bathroom, where she believes they showered together. She also rebutted Ms. V’s assertion that she was falling-down drunk and that there had been copious drug use at the party.
In coming to his decision to acquit Mr. J of the sexual assault charges, Justice B said that Ms. V’s evidence is “replete with major inconsistencies and troubling contradictions on central portions of her account.” Noting that her testimony provides the only evidence of non-consensual sexual activity, the justice said that “[i]t would be, at the very least, dangerous to rely” on it to reach a guilty verdict.
Charged with sexual assault and related allegations, Mr. M’s defence team applied for a stay of prosecution 21 months after he was charged based on Section 11(b) of the Canadian Charter of Rights and Freedoms. Under the current court-precedent-setting Jordan framework that mandates trial delays beyond 18 months as unreasonable, Justice M appropriately analyzed the reasons for the delay to account for defence-related delays, which reduced the net trial delay to just over 19 and a half months.
Using precedents set in the Jordan case and others, the Crown attempted to account for the remaining one-and-a-half-month trial delay by arguing that they were caused by “exceptional circumstances.” These circumstances included an unexpected sick leave of the officer-in-charge and “related disclosure lapses that precipitated the abandonment of the first trial date.”
Mr. M’s defence argued that the unexpected sick leave was a “red herring” to disguise the Crown’s numerous and systemic failures to provide the defence with complete disclosure materials. These disclosure failures included taking more than a year to get access to a video that the complainant had provided to police—and that police for some time claimed did not exist. The defence also pointed to the need to change trial dates due to the disclosure of a witness statement on the initial trial date from a witness the Crown had repeatedly said had “no relevant information” and would not be called as a witness.
In staying the sexual assault charges against Mr. M., Justice H noted that “[t]erminating a prosecution without regard to the merits is always unpalatable, especially when the charges are serious.” However, the justice held that “[a}pplying the Jordan framework analysis to the chronology of this case compels the conclusion that the delay in this case is unreasonable and constitutionally intolerable.” The disclosure process in this case did not constitute “an exceptional circumstance” worthy of trial delay and represented systemic failures in the Crown’s disclosure process.
