Adam's Case — Sexual Assault — Dismissed

Background
Adam traveled from Spain to visit his sister Karen. Just before his return, he was drinking with Karen and her husband Michael. While Adam and Michael were horsing around, Karen took pictures. Some of the shots were sexual in nature. Michael later alleged that he did not consent to the activity in the pictures. He also alleged that he was passed out, and that he could not remember the incident. Michael complained to the police. Adam was charged with sexual assault. The Crown refused to withdraw the charge. We prepared for trial. The issue was consent. Our defence was that Michael had consented to the picture taking, and that he had voluntarily participated. The Judge ruled that he had a reasonable doubt. The charge was dismissed.

Adam's Case
Police Report

Between
Her Majesty the Queen, and Adam M.

[2002] O.J. No. 5402

Ontario Court of Justice
Toronto Region - Toronto, Ontario
Wolski J.

20 March 2002
(5 paras.)

Charge:	Sexual Assault, Criminal Code, s. 271
Counsel:	K. Kiree, Assistant Crown Attorney, Toronto Craig Penney, Criminal Defence Lawyer

¶ 1 WOLSKI J.: — Adam M. is charged with having sexually assaulted Michael E. sometime between the 14th day of February, 1995 and the 5th day of March in the same year. The Crown's case consisted of Mr. Michael E.'s evidence and that of his spouse Karen E. The defence called Mr. Adam M., who is the brother-in-law of the complainant and brother of the wife.

¶ 2 Dealing first with her evidence: her distaste for this process; her anger towards her husband; her distaste for everything about this process was palpable and she oozes all of that. I disregard her evidence in its entirety. If the defence were to fashion its evidence based solely on her word I would disregard her as completely unreliable and uncredible.

¶ 3 Mr. Michael E. was intoxicated. He admitted his intoxication. He alleges that he was unconscious at the time the sexual activity occurred that is complained of in the photographs, exhibits five through to seven A, including seven B.

¶ 4 Mr. Adam M., on the other hand, testifies that he and Mr. Michael E. were goofing around. There were elements of horseplay. They were both intoxicated. One thing led to another and the activity captured in the photographs taken by Mrs. Karen E. were part of that horseplay that Michael E. was consenting throughout and participating, and engaged in the activity on his own volition.

¶ 5 I must instruct myself in accordance with the Supreme Court of Canada decision with respect to R. v. W.(D.), [1991] 1 S.C.R. 742. There are difficulties associated to accepting Mr. Michael E.'s evidence in its entirety. And those difficulties are further occasioned by the credibility of Mr. Adam M. himself. His evidence, I am satisfied, does raise a reasonable doubt with respect to the issue of consent. Again, I specifically removed from consideration the evidence given by the wife, who I find to be a most unreliable and objectionable witness. The accused will be entitled to an acquittal.