This week’s top three summaries: R v Kruk, 2022 BCCA 18: #assumption of #sense, R v Sharifi-Jamaili, 2022 ABQB 52: #down from #joint sub, and R v [M.S.], 2022 NSSC 12: #memory gaps in sex assault.
R v Kruk, 2022 BCCA 18
[January 20, 2022] Sexual Assault: Assumption of the Human Sense of Touch [Reasons by Marchand J.A. with Tysoe and Stromberg-Stein JJ.A. concurring]
AUTHOR’S NOTE: This case turned on a trial judge’s conclusion regarding the unlikelihood of any complainant being mistaken about the feeling of penile penetration in their vagina. The Court of Appeal concluded this was not the proper subject of judicial notice or common sense. While the facts of the case are unusual, the proposition in law has the potential of being replayed in other cases often. Many sexual assault allegations that go to trial involve complainants who were intoxicated significantly at the time of the incident. The question sometimes becomes can we trust their recollections in that condition? We often disregard people’s accounts of what they saw (ie. visual identification) or heard (ie. voice identification) on the basis that it is difficult to be accurate and we are not always the most accurate historians. There is no principled reason why the sense of touch should be special in this regard. When other things are impacting our ability to accurately recall, that sense is not immune from reliability concerns.
Introduction
[1] Sexual assault trials are difficult to adjudicate. Trial judges must apply highly technical legal rules and make findings of fact, often with little evidence beyond the conflicting testimony of the complainant and the accused. The task becomes even more difficult in cases involving highly intoxicated, and therefore highly vulnerable, complainants whose ability to provide reliable testimony may be impaired.
[3] On March 12, 2020, Christopher James Kruk was found guilty of one count of sexual assault committed on May 27, 2017, in Maple Ridge. The trial judge found that Mr. Kruk engaged in sexual activity with the complainant when she was highly intoxicated and asleep. The only issue at trial was whether the sexual activity occurred.
[4] Mr. Kruk appeals his conviction on two grounds. First, Mr. Kruk submits the judge erred in taking judicial notice of a “highly contentious fact.”…
[5] The trial judge understandably had significant concerns with the reliability of the complainant’s testimony given her “extreme” level of intoxication. He largely overcame his concerns on the central issue of whether sexual activity occurred by finding that “[i]t is extremely unlikely that a woman would be mistaken about [the]feeling [of having a penis inside her]” (emphasis added). Respectfully, that finding was not grounded in the evidence and was not the proper subject of judicial notice or common sense. In my view, the trial judge fell into reversible error and I would allow the appeal.
[8] Mr. Kruk, who was then 34 years old, saw that the complainant was heavily intoxicated, approached her, introduced himself and offered to get her home safely. The two walked to the residence of a friend of Mr. Kruk’s so that he could gather some personal belongings. They then walked to a SkyTrain station.
[9] They took the Expo Line and then the Millennium Line to Coquitlam. On the way, the complainant used Mr. Kruk’s cell phone to call her mother. Her own phone was dead. The complainant’s mother was understandably very concerned about her daughter and spoke to Mr. Kruk. Mr. Kruk assured the complainant’s mother hewould assist in getting her home safely. He says he gave the complainant’s mother his full name and address and offered to give her his driver’s licence number.
[10] … Mr. Kruk told the driver to take the complainant home and went into his home. Mr. Kruk called the complainant’s mother at 2:14 a.m. to let her know the complainant was on her way home.
[11] About five or ten minutes later, the cab driver returned the complainant to Mr. Kruk’s home because of her level of intoxication. The knock on the door by the cab driver woke Mr. Kruk’s father, who lived downstairs. Mr. Kruk’s father was upset. Mr. Kruk did not call the complainant’s mother to let her know what had happened.
[12] When the complainant did not arrive home, the complainant’s mother began calling Mr. Kruk. Over an almost two-hour period, she phoned him more than
20 times, to no avail. At 2:46 a.m., the complainant’s mother texted Mr. Kruk to advise that the complainant was not home and to ask which cab company she should call. Mr. Kruk did not respond.
[13] Inside Mr. Kruk’s home, the complainant eventually passed out or fell asleep in Mr. Kruk’s bedroom. She testified that she woke up to find Mr. Kruk on top of her with his penis inside her vagina. Her pants were off. She did not think he was wearing a condom. She pushed him two times. The second time, she was able to push him off. She did not feel him moving when his penis was inside her and was unable to say whether he ejaculated. She was not asked to provide any other details of the assault.
[14] Mr. Kruk denied having sex with the complainant. He testified that he had given her a glass of water which she spilled on herself. He then gave her some pyjamas to change into in the privacy of his bedroom. When he subsequently found her passed out on his bed with her pants around her ankles, he put a blanket over her. He was unable to wake her, even with the assistance of his father. He became annoyed with the situation. He wanted the complainant gone. He checked his phone but it was not charging due to a faulty charger. He then fell asleep. When he woke up, he again tried to waken the complainant. This time she came to in a startled fashion.
[15] What happened next is largely not in dispute. The complainant asked, “Where’s my dad?” She walked out of the bedroom wearing only her sweatshirt and underwear. Mr. Kruk believed that she must have kicked her pants off. She was disoriented and wandered through the house looking for a phone charger. She was unable to operate the light switches. She agreed in cross-examination that she was “freaked out” by waking up to a strange man on top of her, being unable to turn the lights on and seeing Mr. Kruk’s children’s toys in his home.
[17] The complainant heard her father and rushed out the door in her sweatshirt and underwear. Mr. Kruk retrieved the rest of the complainant’s clothes and gave them to her father. The complainant was upset and told her brother words to the effect that Mr. Kruk had sexually assaulted her. When the complainant’s brother told their father, their father confronted Mr. Kruk. Mr. Kruk denied having sexually assaulted the complainant.
[18] Later that morning, the complainant filed a police complaint and attended a local hospital for a medical examination. The medical examination began at
11:45 a.m. on May 27, 2017. A urine sample taken between about two and a half and seven hours after the assault revealed that the complainant’s blood alcohol concentration was nearly three times the legal limit for operating a motor vehicle. Because the precise time the urine sample was taken was not recorded, there was no evidence of the complainant’s blood alcohol concentration at the time of the alleged sexual assault.
[20] DNA swabs were taken from the complainant’s underwear and vagina. There was no DNA match to Mr. Kruk.
[21] Mr. Kruk was eventually arrested and gave a voluntary statement to the police in which he denied having sexually assaulted the complainant.
Reasons of the Trial Judge
[24] He found the complainant to be “an obviously unreliable witness because of her state of intoxication.” He noted that she had experienced alcohol-induced blackouts throughout the events at issue and that there were “massive gaps in her memory.”
[28] The judge made the following findings: …
3. The judge rejected Mr. Kruk’s evidence related to the “state of … undress” of the complainant and Mr. Kruk at the time the complainant’s father arrived. There were inconsistencies between his testimony and his statement to the police. The judge also found it “improbable in the extreme” that the complainant had kicked her pants off when she was wakened by Mr. Kruk. He held that “[t]he likelihood of her being able to do that in her state of disorientation and extreme intoxication, without falling flat on her face, is remote.” He also found that Mr. Kruk had lied to the police when he told them that he answered the door in the same clothes he had on earlier in the evening. In fact, he was only wearing swim trunks. …
[30] On the complainant’s “core assertion” that she woke up to Mr. Kruk’s penis in her vagina, the judge held:
[The complainant’s] evidence is devoid of detail, yet she claims to be certain that she was not mistaken. She said she felt [Mr. Kruk’s] penis inside her and she knew what she was feeling. In short, her tactile sense was engaged. It is extremely unlikely that a woman would be mistaken about that feeling.
[31] The judge noted the presence of “some circumstantial evidence consistent with a sexual encounter having occurred between [Mr. Kruk] and the complainant.” Specifically, he noted their respective states of undress and considered the possibility of the complainant removing her own pants as “fanciful.” The judge concluded that Mr. Kruk had removed her pants.
Analysis
Permissible Common Sense or Speculative Reasoning?
[42] Historically, the issue of improper assumptions typically arose in the context of trial judges drawing adverse inferences about the credibility of sexual assault complainants based on discredited myths and stereotypes. The authorities are clear, however, that trial judges must not rely on assumptions and stereotypes in their assessment of testimony given by both sexual assault complainants and accused persons. Though not essential to the outcome of the case, in R. v. C.M.M., 2020 BCCA 56, Justice DeWitt-Van Oosten neatly summarized the point as follows:
[138] I will note, in passing, that when assessing credibility, trial judges must keep in mind that speculative reasoning relying on “common sense” propositions that are not grounded in the evidence can give rise to reversible error. See, for example, R. v. P. (T.), 2007 ONCA 585.
[139] The law is also clear that a negative assessment of credibility based on an unfounded stereotype constitutes an error of law: R. v. A.R.D., 2017 ABCA 237 at paras. 28, 50, 57, aff’d on appeal, 2018 SCC 6; Lacombe at para. 33. Moreover, this principle applies to both complainants and the accused. Rejecting an accused’s testimony based on a “stereotypical assumption or generalization lacking in an evidentiary foundation” can necessitate a new trial: R. v. Kodwat, 2017 YKCA 11 at para. 41. See also R. v. Thompson, 2019 BCCA 1 at paras. 52–69; R. v. Quartey, 2018 ABCA 12 at paras. 2, 21, aff’d on appeal, 2018 SCC 59.
[43] The parties cited a number of authorities to assist the Court in distinguishing between a trial judge’s acceptable resort to common sense and an impermissible reliance on speculative reasoning…. Two cases of greater relevance are Perkins and Roth.
[44] In Perkins, the Court of Appeal for Ontario unanimously overturned convictions for sexual assault, assault and threatening death. Of relevance to this case, the Court held the trial judge erred by determining an important fact based on his personal perception rather than the evidence.
[45] … One of the live issues to be resolved by the judge was whether the appellant was wearing a condom that came off during the sexual activity, as alleged by the appellant, or whether he was never wearing one at all, as alleged by the Crown.
[46] The trial judge had resolved the issue in favour of the Crown. …
I find it hard to believe that such was the case. A virile young man with a full erection bound on having a climax would not lose his erection. There is one reasonable interpretation. He did not have a condom on at all. He just kept going with his sexual activity and pulled out spilling out seminal fluid on R.L.
[Emphasis added by the Court of Appeal for Ontario.]
See Perkins at para. 30.
[47] Justice Doherty, for a unanimous Court, rejected the Crown submission that the trial judge had appropriately exercised his common sense and human experience to assess the plausibility of the appellant’s testimony. Instead, he accepted the appellant’s submission that the trial judge had improperly taken judicialnotice of a fact to be adjudicated, namely the functioning of the penis of a healthy young man during intercourse. …
[35] … Whether a healthy young man can lose his erection during sexual intercourse is hardly a matter of “common sense”. To the extent that it reflects the trial judge’s personal experience or understanding, it is not a substitute for evidence. If the trial judge’s comment reflects his own understanding of the physiology of the penis, his understanding cannot be treated as representing the medical norm applicable to all persons such that it can be regarded as a fact in a criminal proceeding in the absence of any evidence. I think the trial judge clearly reached outside of the evidence to find that:
A virile young man with a full erection bound on having a climax would not lose his erection.
[36] The trial judge was entitled to go beyond the evidence to make findings of fact only if he could take judicial notice of that fact.
[48] Justice Doherty then held that the unlikelihood of a healthy young man losing his erection during intercourse was not the appropriate subject of judicial notice. …
[49] In Roth, a combination of errors in the trial judge’s credibility assessment resulted in this Court setting aside a sexual assault conviction. Of relevance to this case, this Court held the judge had engaged in speculative reasoning not grounded in the evidence in rejecting an important aspect of the appellant’s testimony.
[50] The issue in Roth was consent. The appellant testified that he and the complainant ran into each other at a nightclub in Prince George. After leaving the nightclub, he said they engaged in consensual kissing and touching in a cab and later engaged in consensual intercourse at the complainant’s home. The trial judge expressed a number of reasons for rejecting the appellant’s testimony. Among the reasons was that she considered the appellant’s evidence about the cab ride home to be inconsistent with the cab driver’s evidence that the appellant had fallen asleep by the time the cab arrived at the complainant’s home. Justice DeWitt-Van Oosten summarized the judge’s reasoning for rejecting the appellant’s testimony about the cab ride as follows:
[36] … From the judge’s perspective, if there had been kissing and mutual touching throughout the ride, it “makes no sense” that the appellant would fall asleep, “particularly given his testimony that he was a fit and healthy young man who regularly worked out and trained as a power lifter and that he was only ‘buzzed’ and not drunk” ….
[51] Justice DeWitt-Van Oosten concluded the judge fell into legal error by relying on “a speculative assumption about this appellant’s ability to sustain prolonged physical effort based on his training as a powerlifter”: at para. 66 (emphasis in original). She explained: …
[71] In my view, the credibility of the appellant’s evidence about the events in the cab, including his explanation for why he may have fallen asleep, was discounted on the basis of an unfounded (and therefore speculative) assumption about his physical stamina arising from his training as a powerlifter.
Application of Legal Principles
[54] Regarding the reliability of the complainant’s testimony, there was no dispute about her high level of intoxication or that she had experienced blackouts over the course of the night. The issue was whether she could reliably say whether Mr. Kruk’s penis was in her vagina.
[55] During the trial, very little detail was elicited from the complainant in her direct examination regarding her core assertion. While she confidently expressed that she felt Mr. Kruk’s penis in her vagina, she was not asked, for example, to put into words what that felt like, whether she experienced any pain, whether she had been injured or even why she felt so confident about her testimony.
[56] During a lengthy cross-examination of the complainant, counsel for Mr. Kruk largely avoided questions going directly to the complainant’s core assertion….
[57] … Counsel submitted the evidence established that the complainant’s level of intoxication had affected her balance, coordination, judgment, perception, memory, and ability to process information. She highlighted gaps and inconsistencies in the complainant’s testimony and noted the absence of corroborating evidence from the medical examination. The defence theory was that the complainant was disoriented when she woke up, became progressively more panicked as she wandered through Mr. Kruk’s house and, finding herself with no pants on, assumed the worst.
[58] In reply, the Crown made comparatively brief submissions concerning the reliability of the complainant’s testimony. The Crown simply noted the complainant felt Mr. Kruk’s penis inside her, left his home when she heard her father, immediately disclosed what had happened, …
[61] I agree with the Crown that there was a body of evidence on which the judge could convict. However, as noted by Fitch J.A. in Pastro, my task on appeal is to conduct a contextualized review of the reasoning path reflected in the reasons for judgment.
[62] In convicting Mr. Kruk, the judge clearly found that, despite significant concerns regarding the reliability of the complainant’s testimony generally, he was satisfied that “her tactile sense was engaged” and that Mr. Kruk had inserted his penis into her vagina. Implicit in the judgment is the judge’s rejection of the defence theory of the case.
[63] The what of the judgment is clear. But what about the why?
[65] … the primary reason the judge accepted the complainant’s core assertion is contained in a single sentence: “It is extremely unlikely that a woman would be mistaken about that feeling.”
[66] … The issue was never what any complainant would feel or even what this complainant would feel. The issue was always, appropriately, what this complainant did feel.
[67] After reviewing the whole of the record and the whole of the reasons, I am unable to find that the judge’s conclusion regarding the extreme unlikelihood of any complainant, in all circumstances, being mistaken about the feeling of a penis in their vagina is the proper subject of judicial notice or common sense. It is a finding that was not sought by the parties, was not grounded in the evidence, and engages questions of neurology (the operation of the body’s sensory system), physiology (the impact of alcohol on perception, memory and the body’s sensory system) and psychiatry (the impact of alcohol and/or trauma on perception and memory). [Emphasis by PJM]
[69] In all of the circumstances, I am of the view that the judge erred in law. He did not grapple with the evidence and arguments of the parties on the central issue in the case. He did not make a finding that was tethered to the evidence. Instead, he engaged in speculative reasoning. He made an assumption on a matter that was not so well known as to be notorious, that was not capable of immediate and accurate proof by resort to a readily accessible source of indisputable accuracy, or that was a matter of common sense. [Emphasis by PJM]
[Appeal allowed]
R v Sharifi-Jamali, 2022 ABQB 52
[January 20, 2022] Sentencing: Starting Point Sentences Properly Considered (per SCC) for Gun/Drugs, Deterrence/Denunciation in CSOs, Rehabilitation [Associate Chief Justice J.D. Rooke]
AUTHOR’S NOTE: It’s the second case in a week where authoritative judgments in Alberta have come down in favour of departing down from a joint submission on sentence. Moreover, in this one there is promising treatment of start point sentences for drug offences. The court reacted to the significant rehabilitation undertaken by the accused and both departed from a joint submission of two years imprisonment and a start point sentence. The persuasive value of this case in Alberta is high. Perhaps we have turned the R v Parranto corner permanently.
Introduction and Sentence
[1] In this unique case, I departed downward from a proposed joint submission on sentence for drug related crimes, committed by a first-offender drug user, who had carried out and completed a remarkable self-directed regime of rehabilitation, had lived law-abidingly for three years since his arrest under strict terms, garnered exceptional community support, and had been attempting to plead guilty since April of 2021. …
[3] After indicating his intention to do so, on April 30, 2021 (see “Background” below), on December 16, 2021, Mr. Sharifi-Jamali entered a guilty plea to 5 counts, … I accepted his pleas and thereafter sentenced him as follows:
Count 5 (unsafe storage of a firearm, to wit, a shotgun), contrary to s. 86(1) of the CC; Count 6 (possession of a prohibited weapon/ammunition, to wit a firearm magazine, without a licence to possess, contrary to s. 91(2) of the CC; and Count 8 (a prohibited/restricted weapon, to wit brass knuckles, without a licence to possess, contrary to s. 91(2) of the CC. Sentence: a Conditional Sentence Order (CSO) for 2 years, less a day, without a custodial order, concurrent as between these counts, but consecutive to the sentence in Count 1, plus all applicable conditions. …
Count 1 (possession of cocaine3 for the purposes of trafficking), contrary to s. 5(2) of the CDSA. Sentence: 3 years suspended sentence (SS) and probation order (PO) (combined SS/PO), consecutive4 to the sentences in Counts 5, 6 and 8, plus all applicable conditions.
Background
[7] When Justice Gates was not available to complete the sentencing, but no adjudication had been made (669.2(1) CC), the matter came before me on October 29, 2021. At that time, I gave notice, pursuant to R v Anthony-Cook, 2016 SCC 43[5] at paras 49-60 (especially para 58), to Crown and Defence Counsel, that I was concerned about accepting the joint submission of two years imprisonment that was proposed to me. At that time, I outlined the type of sentence that I thought was fit (much similar to what I ultimately ordered), and provided cases that I believed supported the possible sentence. I set the matter over to November 23, 2021, “to speak to”, to hear the intent of Counsel (which ultimately became separate, no longer joint, submissions on sentencing) and to, finally, set a date for sentencing, which was December 16, 2021. Crown and Defence provided a number of cases and full oral submissions supporting their respective positions at that time, the substance of which I will address below.
[8] Thus, while I acknowledge that “judges are obliged to depart only rarely from joint submissions”, and I have almost never done so in 30+ years on the Bench, in the exceptional circumstances of this case, I had a concern that “the severity of [the] joint submission would offend the public interest”, requiring me to “provide clear and cogent reasons for departing” therefrom: Anthony-Cook, paras 54, 52 and 60.
Denunciation and Deterrence
[12] I begin, as in all drug trafficking cases, with acknowledgment of the principle that denunciation and deterrence must lie at the heart of every sentence for commercially motivated drug offences. These are prime considerations in sentencing of trafficking or possession for the purpose of trafficking of hard drugs – see R v Ostertag, 2000 ABCA 232 at para 41, as to Alberta, and R v Oickle, 2015 NSCA 87 at para 31, as to Nova Scotia.
[13] There are, however, different, creative and innovative ways to achieve these goals in the case of each offender. In the tools available to a sentencing justice, these goals can be accomplished, in the right case, by a period of sharp – even if relatively short incarceration, as in the proposed 2-year sentence by the Crown, or by a sentence of a longer, broader, duration. Judicial wisdom and a wide discretion must be applied, not merely some formula. In relation to this offender, Mr. Sharifi-Jamali, I have chosen the latter as being fit and just for him, and for the community, and for general sentencing purposes.
[14] In my view, allowing Mr. Sharifi-Jamali to continue as a contributing member of society, under strict, lengthy (5 years) community supervision, carrying a real risk of a lengthy imprisonment for any re-offence, better serves the deterrent and denunciative purposes in this case. …
[16] To the extent that general deterrence is effective, many unreformed and unrehabilitated drug dealers would likely much rather do prison time than live under the prolonged conditions and risk of lengthy summary re-incarceration that Mr. Sharifi-Jamali accepted, but that is not what is important to him, his family or society.
Incarceration
[16] To the extent that general deterrence is effective, many unreformed and unrehabilitated drug dealers would likely much rather do prison time than live under the prolonged conditions and risk of lengthy summary re-incarceration that Mr. Sharifi-Jamali accepted, but that is not what is important to him, his family or society….
[19] Absent a clear statutory prohibition (there is none here for the CC offences, as the Crown concedes (TR 21/2-18)), and, as is seen in relation to CSOs for non-drug offences, incarceration is only to be invoked if “necessary”, and while often used, it is not necessary for denunciation or deterrence, in the right case (see R v Proulx, 2000 SCC 5, at paras 1, 21-22), and again other cases also say that (see, inter alia, R v Peters, 2015 MBCA 119). Thus, incarceration should not be handed out as a matter of rout, but must be considered/re-considered in a creative and innovative way by the sentencing justice. However, the threat of incarceration, for breach of conditions, during the up to 5 years more supervision is not only a significant deterrent to recidivism, but also a denunciation of the crimes.
Rehabilitation
[20] Rehabilitation is absolutely significant in this exceptional case. I found, as a fact, that Mr. Sharifi-Jamali has rehabilitated himself as fully as seems possible and as could be hoped, recognizing that drug substance abuse is a disease, that never is beyond risk. In my oral decision on sentencing, I said (TR 34/38-40) and now repeat: “I find it ironic that you can go to a drug treatment court and get … relief … by way of sentence, a reduced sentence. But if you do it yourself, you cannot. There is something wrong with that picture….”.
[22] Times have changed some small amount in the drug world in the 24 years since that case. Recent medical crises, and acknowledgement of the need for increased emphasis on harm reduction (Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44), have elevated the importance of rehabilitation, both in law and in the public mind. …
Reparations
[23] In the sentence that I have imposed, I have provided for reparations for the harm done by allotting 300 hours (60 hours more than alternatively proposed by the Crown), for community service under the CSO and SS/PO scenarios (TR 22/29-34), under the control of the offender’s supervisor, or work to provide funds (based on his work hourly rate) for donation to charities designated by his supervisor for 1⁄2 of the last 180 hours….
Responsibility and Acknowledgement of Offenders
[24] Rehabilitation must be balanced with deterrence and denunciation: Ostertag, para. 45. However, here, Mr. Sharifi-Jamali rehabilitating himself from past substance use, almost completely on his own, ceasing his illegal activities and supporting his family powerfully demonstrates his taking responsibility for his actions and acknowledging the harm that he has done to society and his community…
Cases for Joint Submission Here
[28] The Crown and Defence provided three Alberta cases on possession of cocaine for the purpose of trafficking, in support of their initial joint submission: R v Maskell, 1981 ABCA 50; R v McCulloch, 2011 ABCA 124, at para 4; and R v Gittens, 2019 ABCA 406.
[30] McCulloch was a single transaction of trafficking in cocaine, undertaken (with some small relationship to the case at Bar) to support an addiction[7]. It was noted (para 8), referencing, inter alia, Maskell, that, in Alberta “the starting point sentence for commercial trafficking[8] in cocaine in small quantities (“beyond a minimal scale”) is three years”, which, in non-exceptional cases, I accept. However, in the same para, it was noted that R v Ostertag, at paras 12-16, is authority that a starting point sentence is not a minimum, “nor does it eliminate the sentencing judge’s wide discretion in imposing a sentence”; see also R v Corbiere, 2017 ABCA 164 at para 20.
[After noting Crown cases opposed and Cases in Support of the Disposition, the Judge turned to the PSR]
[61] Let me state this bluntly: the PSR is the most positive post-offence report I have seen for an offender after 30+ years on this Court. I find that it demonstrates exceptional circumstances as discussed herein. It should be read in full, but I believe that it can be fairly summarized (with page numbers in rough chronological order) as follows: …
- P 3 – remorseful – no efforts to minimize his actions, and while rationalizing them “did express that his actions were not acceptable regardless of his rationalizations and he expressed regret for his involvement…” …
- No violations since his Recognizance Order on release on November 24, 2018 – and reports thereunder “religiously” and with compliance …
- At 18, witnessed a roadside death, which negatively impacted him, leading to more regular use and increased quantities of intoxicating substances
- Resourcefulness – purchased first home, with aid of inheritance, at age 17 and has been independent sinc
- Immediate family – fiancé and step child, and new child – fiancé accepted him after he was charged and rehabilitated himself and engaged in November 2020 with plans to marry – good relationship with step-child, respecting his biological father – “he would not risk jeopardizing [his family] for anything as he realizes the importance of having a family and providing a solid foundation for both emotional and physical support” – “any return to or involvement with illicit substances or negative individuals would mean …” his loss of his family- leading to a commitment to “abstain from illicit substances and poor influences
- P 6 – Fiancé does not condone illicit drug use, and did not resume a [pre-existing] casual relationship until June 2019, when he had rehabilitated …
- Attended SAIT and NAIT, completing courses in AutoCAD and blueprint reading, with certificates in a number of areas related to his employment in the construction industry – since being charged, took the initiative to challenge for and has been accepted into a Project Management Professional Certificate (Red Seal) program, through the Project Management Institute, which he continues to actively pursue
- Employment in the construction industry with a company (second in command), confirmed, continuously since 2019, …
- Used cocaine from ages 20 – 23 while in the circumstance of his former employer, leading to an addiction, providing cocaine to his clients, and by age 25 was using up to 2 grams a day
- Pp 9 – 10 – started Narcotics Anonymous (NA) in November 2018 and attended for a month, abstaining from alcohol or illicit drugs for 1 year, and, after being informed of the conception of his child in May 2019, committed to “never use illicit substances again” and “does not require any external substance use assistance or counselling” …
- Pp 11 – 12 – Summary, Conclusion and Recommendations – a summary of some of the above points, including that he is “showing insight into the general areas to him that present risk, such as, substance use and social influences” – confirmed “no current substance issues”, has family support – is the “primary financial provider to his family” – has “familial and community support”
Aggravating/Mitigating
[69] There are no obvious aggravating factors beyond the offences themselves, and there was no evidence of violence associated with the offenses. However, the Crown notes that the offences were premeditated, planned and deliberate, different from Diedricksen and Johnson – TR14/24-33 & 19/10-28. However, that adds little or nothing because, by definition, all commercial trafficking at more than a minimal scale involves at least the level of intentional conduct, as present here.
[73] Moreover, in the last 10 years, contrary to what is said/suggested in Dunn, at paras 16 et seq, relying on Proulx, at para 23, while primarily a “rehabilitative sentencing tool”, a SS/PO can have deterrent and denunciatory effects, as recognized in other cases including Peters, McGill, Voong (and others) (supra).
[74] As to safety, it is noteworthy that 54 petitioners from Mr. Sharifi-Jamali’s community have specifically beseeched the Court not to impose a custodial sentence….
[75] The petitioners provide their names, street addresses, telephone numbers, email addresses, relationships, and signatures.
[76] Moving to specific deterrence, McGill at paras 102-3 notes the interrelationship with rehabilitation, with words that I believe are very true and germane there, and in comparison to the case at Bar: “… the imperative of specific deterrence is ultimately, if inversely, linked to rehabilitation: the greater the evidence of self-directed and effective rehabilitation the less the need for severe sanctions to meet the ends of individual deterrence.” In the end, at para 114, the Court held that “[a]ny concerns for specific deterrence can here readily be met by lengthy community supervision, appropriate probationary terms and the risk of resentencing of any future criminality” – the ‘Sword of Damocles’ , adding “[t]he sentencing objectives reflected in the principles of general deterrence and denunciation, to the degree that they are community-directed, are far better met in this case by a sanction that rewards rehabilitation than one that perpetuates incarceration”.
[77] At para 104 of McGill, the following is astutely observed of general deterrence: “In R v Proulx … at para 107 … a unanimous Court noted that, ‘[t]he empirical evidence suggests that the deterrent effect of incarceration is uncertain’. More recently, in R v Nur, 2015 SCC 15, at para 113, the same Court … affirmed that ‘doubts concerning the effectiveness of incarceration as a deterrent had been longstanding’”. In the result, McGill, at para 105, concluded, I believe with much merit, on the “constellation of objectives” intersecting rehabilitation and deterrence, that “[w]here as here, there is unquestioned evidence of rehabilitation, social reintegration and a continuing resolve to remain crime-free, deterrence and denunciation take on more muted roles in the final calculus than they might in other cases where these virtues have not been satisfactory established”.
[79] The role of discretion for first instance sentencing justices in R v Lacasse was recently re-enforced by the Supreme Court in R v Parranto, 2021 SCC 46, stating, inter alia, in para 9:
This Court has repeatedly expressed that sentencing is “one of the most delicate stages of the criminal justice process in Canada” (R. v. Lacasse … at para 1). More of an art than a science, sentencing requires judges to consider and balance a multiplicity of factors. While the sentencing process is governed by the clearly defined objectives and principles in Part XXIII of the [CC], it remains a discretionary exercise for sentencing courts in balancing all relevant factors to meet the basic objectives of sentencing (Lacasse, at para 1). (Emphasis added).
[80] At TR 29/9 – 30/19, Defence Counsel referenced the individualistic nature of sentencing, referencing Felix and Parranto, and, in referencing the comparisons to Ms. Lungal in Livingstone, noted the need for, and submitting that while different, Mr. Sharifi-Jamali’s possession of “exceptional circumstances”, which, noting differences, discussed above, I accepted in coming to the sentence I imposed.
R v [M.S.], 2022 NSSC 12
[January 18, 2022] Sexual Assault: Memory Gaps [Justice Jamie Campbell]
AUTHOR’S NOTE: Trials often occur in matters where sexual assault complainants have significant gaps in memory. Herein, Justice Campbell gives a good overview how such gaps should be treated generally. Specifically, while there is not a presumption of no sexual assault, this form of testimonial evidence should be treated with significant caution because there is no guarantee that the spotty recalled evidence is accurate.
Note: the accused name is edited as he was acquitted. The edit appears as [M.S.].
Evidence
[2] [M.S.] was an airline pilot at the time of the incident. The complainant was a flight attendant with the same airline. They returned from an overseas flight with their flight crew and were to remain in Halifax for the evening to wait for their return flights to western Canada. They had flown together in the past and had spoken just a few times. They were not people who socialized with each other and had had only brief conversations.
[3] On the trip through Halifax the flight crew stayed at a downtown hotel. Several of them got together and went for lunch at a nearby restaurant, and the complainant and [M.S.] were part of that group. They were separated by a few people at the large table and did not carry on a conversation. The complainant drank a couple glasses of wine over the course of a two-hour meal.
[4] … While at the pub they drank some more. The complainant shared a bottle of wine with her friend and then had another half glass of wine over the course of the late afternoon at the pub. She was not intoxicated and placed her own level of impairment at perhaps three or four out of ten. She was not slurring her words and she said she could walk without trouble. She had been eating as well during that time. There is no suggestion that she was significantly impaired. She said that she was not particularly tired because she had slept on the overseas flight.
[6] … The others said that she was speaking mostly with [M.S.]. The complainant said that at one point she and [M.S.] got into an argument about their employer’s policies. She said that their voices were raised. She felt that he was devaluing her opinion. She turned her back on him eventually. But the group seems to have remained together at the pub, at the same table. [M.S.] did not recall any argument between himself and the complainant. Neither of the other two flight attendants could recall any argument between [M.S.] and the complainant and even though the pub was noisy they were sitting so closely together at the same table that both would have overheard an argument had one happened.
[8] The group left the pub at about 8:30 pm. The complainant had no memory of leaving the pub and there was a significant gap in the complainant’s narrative. The other two flight attendants and [M.S.] said that they left the pub as a group of 4 and made their way back toward the hotel. The two flight attendants were walking ahead because one of them was familiar with the city and knew the way back to the hotel. [M.S.] and the complainant followed them. The two flight attendants walked arm in arm and the complainant and [M.S.] walked arm in arm toward the hotel. Eventually the others lost sight of [M.S.] and the complainant. They went to the hotel and then to their own rooms for the night. The evidence that [M.S.] and the complainant walked arm in arm is not evidence upon which consent to any sexual activity could be inferred.
[9] Both the other flight attendants said that when they last saw the complainant there was nothing at all out of the ordinary about her behaviour, her speech, or her ability to walk. The complainant had not consumed a substantial amount of alcohol that evening. She said that she was not significantly impaired by alcohol. She said that she was an experienced drinker and was not someone who was affected by alcohol in an exceptional way. She had not previously had an extreme reaction to alcohol that caused her to lose her memory. There was no evidence presented to indicate that the complainant was impaired by some other substance. She did not say that she had consumed anything else willingly and there was no evidence that she had been given anything surreptitiously.
[10] [M.S.] said that he and the complainant walked around the city for an hour or 90 minutes. He said that they talked and enjoyed the evening, walking around the downtown area. He said that he got “turned around” and could not find his way back to the hotel. …
[11] [M.S.] said that they returned to the hotel, went to the elevator, and went together to his room. He opened the door and the complainant followed him. They did not speak when that took place. [M.S.] said that the complainant kissed him and said, “Don’t cum inside me.” He said that he replied that he was fixed or had a vasectomy. He said that she replied, “OK”.
[12] … [M.S.] testified that they started kissing each other and fondling each other. He said that the complainant was fully awake at the time. After that they began to have sexual intercourse. [M.S.]’ evidence was that the complainant asked him how it felt and that he replied that she was beautiful, and it felt fantastic. He said that the complainant said the words, “You feel so good. Don’t stop.” They then fell asleep in each other’s arms.
[13] The complainant said that she did not have any recollection of leaving the pub. After she had a drink of wine everything “blacked out” for her. …
[15] After consuming that drink of wine, the complainant said that the next thing she knew she was laying down. It felt like she was drowning or just could not breathe. She reached up and felt hands around her neck, choking her. She said that she opened her eyes and saw [M.S.] on top of her, with his penis penetrating her vagina. She said that she had no idea where she was or how she had got there. She was going in and out of consciousness. She said that [M.S.] was penetrating her with “extreme force”. She said that he was angry and was taking it out on her body.
[16] As she was lying there, she then saw the silhouette of [M.S.]’ naked body getting out of bed and realized that she was in someone else’s room. She said that she did not speak to him. She passed out again.
[17] [M.S.] said that they woke up at some point and started kissing and fondling each other again. … [M.S.] said that the complainant said, “I want you inside me”. They began having intercourse and his penis slipped out of her vagina. The complainant turned around and got up on her knees. He saysthat she then said, “Fuck me.” He continued to have sexual intercourse with her.
[18] The complainant said that she had passed out after the first incident of vaginal penetration. The next thing she recalled was her vagina being penetrated from behind. Her hair was being pulled and she was in great pain. She said that it was the most horrible thing that she had ever experienced. She knew it was [M.S.] but could not see whether she was being penetrated with his penis or with another object. She could feel pain all the way up to her stomach and in her neck. She said that he was mad and full of rage and was violently torturing her. When he finished she passed out again. [M.S.] denied ever pulling the complainant’s hair.
[19] When she woke up, she said that she felt a wave of nausea coming over her. She crawled over him to get to the bathroom, where she threw up. She sat on the toilet and urinated. She felt burning pain in her vagina. There was blood in the toilet and her legs were trembling and shaking. She looked in the mirror and saw that her hair was a mess, and her head was pulsating from having had her hair pulled.
[20] The complainant said that when she came out of the bathroom, she saw her clothes on the second bed in the hotel room. As she started to put her underwear on her legs buckled. She said that [M.S.] then grabbed her and pulled her back into the bed. Next, she said that she remembered waking up with [M.S.] performing oral sex on her. She said that she had no strength when trying to push his head away from her. She said that he then began kissing her and for the third time penetrated her vagina with his penis. She said that she tried to block his penis from her vagina with her hand, but she was not successful. She said that she just had no strength.
[21] She said that neither of them said anything. The complainant testified that she just wanted it to be over. She passed out again.
[23] [M.S.] evidence was that when the alarm went off, they both groaned about having to get up. They kissed as the complainant got up to go. He said that he did not notice the complainant going into the bathroom. He went to the bathroom and when he came out, she was dressed. He said that he told her that it was flattering that a beautiful young woman would take an almost 60-year-old man to bed with her. He said that she said, “Not bad for 60.” [M.S.] said that he did not tell her not to tell anyone what had happened.
[24] The complainant testified that she left the room and went to her own hotel room to get changed for the flight back. She ended up in the same hotel elevator with [M.S.] and the first officer of the flight crew. They exchanged morning greetings as if nothing had happened.
Subjective Consent
[27] There are two very different narratives. In one, the complainant was a consenting participant in sexual activity. In the other, she was not conscious, could not have consented and would not have consented to sexual contact with the accused. That naturally inclines toward a choice. One is telling the truth and the other is not. That binary choice is an overly simplistic characterization of the process.
[29] The state of mind of the complainant at the moment that the sexual contact took place is for the Crown to prove beyond a reasonable doubt. That can only be done by inference. The court cannot presume to know another person’s thoughts. The complainant may say what their thoughts were at that time. The surrounding circumstances, including what the complainant did and said at the time of the sexual contact may provide evidence from which the subjective thoughts of the complainant at the time may be determined. There is no nuanced consent or partial consent or grudging consent. Either the lack of consent has been proven or it has not.
[30] The circumstances that can be considered in making the determination of whether the lack of consent has been proven beyond a reasonable doubt, are limited. The consideration of a broader context can lay the groundwork for the use of improper legal reasoning. Context must be carefully circumscribed. Evidence of prior consensual sexual activity between the complainant and the accused is not evidence of consent with respect to the sexual contact that forms the basis of the charge. Evidence of intimate behaviour even very close in time before the sexual contact at issue, does not admit of the inference of consent. Evidence of consensual sexual contact close in time to the contact at issue, is not evidence of consent. Evidence of sexual contact of a kind other than that upon which the charge is based is not evidence of consent. Evidence of cordial relations or intimate behaviour between the complainant and the accused is not evidence that can be used to infer consent to sexual contact. Evidence of consensual sexual contact after the contact complained of, is not evidence from which consent can be inferred.
[31] The subjective state of mind of the complainant is what matters. The assumptions or inferences drawn by the accused are not relevant. And the subjective state of mind of the complainant must be determined by the court, by inference from the context. But that context is limited.
[32] Part of the evidence about the complainant’s state of mind comes from the complainant. They can give evidence about what they thought at the time. That can be considered with other evidence to determine whether the Crown has proven that the complainant subjectively did not consent.
Consent
[36] The complainant said that the sexual activity happened without her consent. She said that she did not consent and would not have consented to engage in any form of sexual activity with [M.S.]. She said that she was conscious for some of the time when sexual activity was taking place and she specifically recalled that at that time she did not want to be engaging in that activity. The issueis whether the complainant’s evidence with respect to her lack of subjective consent, along with all the other evidence, was sufficient to prove beyond a reasonable doubt that at the time when the sexual activity was taking place, she was not subjectively consenting to it. What [M.S.] thought at the time is not a relevant consideration. What the complainant thought at the time that the sexual activity was taking place is all that matters.
[38] No nonspeculative explanation was given for why the complainant’s memory suddenly went blank. There was no evidence about a condition or drug or other cause for the complainant to have lost her memory of a time when she left the pub seeming fine to those who were with her, and later to fall in and out of consciousness in the hotel room. There was no evidence about how any psychological or neurological condition that might cause the complainant to have memory blackouts covering the time when she was leaving the pub and apparently conscious, would affect her ability to accurately recount what had happened in the time following.
[39] The complainant was adamant that she and [M.S.] had an argument while at the pub with the others. This was before the period when she said her memory went blank. While it was noisy both the other flight attendants, who formed the group of four at the table with [M.S.] and the complainant, said that they had no recollection of such an argument and would have heard it if it had taken place. One of them said that they walked together, and the complainant and [M.S.] followed them, arm in arm. That does not provide any evidence from which consent to sexual activity could be inferred, but it does conflict with the complainant’s assertion that she and [M.S.] had argued and become angry with each other.
[40] That is consistent with [M.S.]’ testimony about the walk toward the hotel. He said that he and the complainant walked together for about an hour or 90 minutes before returning to the hotel. Again, that is not evidence of consent to later sexual activity. But the complainant has no recollection whatsoever about that. There is no reason to disbelieve [M.S.]’ testimony that he and the complainant walked around Halifax that evening before going back to the hotel. Again, that is not evidence to support the inference of subjective consent to sexual activity.
[45] In assessing the circumstances to make an inference as to whether the complainant subjectively consented or did not, considerable caution is required about making assumptions. Different people react differently when experiencing the extreme trauma of sexual assault. A person may be too scared to say anything. A person may be too frightened or disoriented to just get up and leave. Remaining in the hotel room with a person for several hours is not evidence from which consent can be inferred. The same would apply to walking around the city for an hour and returning to the person’s hotel room. Coming into the room is not evidence of consent to sexual activity.
[46] The proof of the absence of consent in this case would have to come from the complainant’s testimony. To establish that lack of consent her testimony must be sufficiently reliable to form the basis of a criminal conviction. Her statements that she did not consent must be enough to prove beyond a reasonable doubt that she did not consent. Her testimony regarding her total lack of memory from the time before her departure from the pub until she was in [M.S.]’ hotel room, was unexplained.
[47] It is theoretically possible that her drink was spiked with a drug that caused her to behave normally for some time and to appear to be processing things normally, then to have episodes of memory loss. There was no evidence to indicate how any drug was placed in her drink, who might have done it, or why they might have done it. There was no evidence about what drugs might have had the effect of creating a black out effect while allowing her to function normally for some time, and no evidence of whether any such drug would at first cause her to have no memory of events and then cause her to go in and out of consciousness. There was no evidence about whether any drug or medical condition that would cause temporary memory backouts, would have otherwise affected the complainant’s ability to accurately recall or remember the other events of that night.
[48] The complainant left the pub and appeared to the others to have been fine. She was not severely or substantially intoxicated. There is no evidence that after leaving the pub she consumed anything else. Yet, she was not able to remember anything at all about that period of time. Her memory was not just patchy or vague. She had no memory of it at all. …
[49] When the complainant began to say what happened in the hotel room, she seemed to have little difficulty in recalling details, despite whatever it was that caused her memory to fail for the time previously and whatever caused her to pass in and out of consciousness. She was able to say that [M.S.] was behaving angrily and violently, which would make his behaviour consistent with what she reported as an earlier argument. …
[51] The complainant’s narrative was of a horrific sexual assault. Nothing about the way in which she gave her evidence suggested that she was anything other than sincere in what she said. Evidence can be given sincerely and may be sincerely believed by the person giving it, yet it may not be accurate or reliable.
[52] The gaps in the complainant’s memory are entirely unexplained. A person may be intoxicated and unable to give consent. That person cannot be expected to have a detailed recollection of the time before and after the sexual contact. In that case there is an explanation. The memory gap in this case is a mystery. It was sporadic. The complainant could remember parts but not other parts. There is no way to know whether the parts that she could recall can be relied upon. [Emphasis by PJM]
[54] [M.S.]’ version of events was highly detailed. It had the appearance of a carefully curated narrative. …
[55] [M.S.] gave his evidence in a way that appeared studied and practiced. But his evidence was also consistent with the evidence of the other two witnesses with respect to the time at the pub and leaving the pub to head toward the hotel. They too were able to remember details of conversations that happened what is now years ago. [M.S.] was not caught in any internal contradictions.
[56] The issue is not which of the witnesses is more believable or even which one is telling the truth or something closest to the truth. It is whether on the evidence, considered as a whole, there is a reasonable doubt with respect to any one of the essential elements of the offence. The lack of consent is an essential element of sexual assault. The Crown must prove that lack of consent. The evidence does not prove that lack of consent beyond a reasonable doubt.
[57] I find the accused [M.S.] not guilty of sexual assault.
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