WARNING: This article includes details about an alleged sexual assault and other language of a sexual nature.
A Sault man who admitted on the witness stand that he lied to police was found not guilty of sexual assault last month — in part because the judge was not able to hear directly from the alleged victim, who died before trial.
The accused in the case, 48-year-old Philip Renner, did not deny that he and the complainant had sexual intercourse in a downtown Sault Ste. Marie parking lot that was fitted with a surveillance camera — which he installed — but claimed she was a sex worker and the intercourse was consensual.
The name of the now-deceased complainant is not being disclosed due to a publication ban. The two were not known to each other at the time of the alleged incident on June 16, 2018.
Justice Michael Varpio was unable to hear directly from the female complainant because she died prior to the start of trial. His ruling does not say when or how she died.
However, the court was able to hear taped testimony from the complainant that was given during the preliminary hearing (which Varpio did not preside over) as well as interviews she did with Sault Police.
Varpio noted in his Feb. 14 decision that the complainant "was often combative with defence counsel as he asked questions" during the preliminary hearing. He said she apologized, was sleep-deprived and had a learning disability that accounted for her behaviour.
Renner testified in his own defence and was cross-examined by Crown counsel David Kirk about what happened that night six years ago.
Renner's defence lawyer, Bruce Willson, told SooToday on Tuesday that he is "very pleased" with the decision to acquit his client. "The evidence was strongly in favour of the defence," he said.
Varpio acknowledged in his written decision that he gave very little credibility to Renner's version of events.
"The accused lied to authorities, and his evidence before me is sufficiently tenuous that I largely reject it," the judge wrote in the ruling.
Renner admitted in his testimony a number of times that he had lied to police about the encounter, including when he was first interviewed about his whereabouts on the night of the incident.
Renner was asked by police in a videotaped interview if there would be any reason his DNA would be found at the scene. He responded no.
Kirk: "You lied to the officer there, right?"
Renner: "Yes, I did."
Renner testified that when police began questioning him, he assumed the complaint was made by another woman, not this complainant.
Asked if he was driving around downtown at the time of the incident, Renner told police he was not.
Kirk: "So, you adamantly tell him [police] again, hundred percent, I know I wasn't down there, right? That's what you tell him?"
Renner: "Yes."
Kirk: "That's a lie, right?"
Renner: "Yes."
The accused, who was in a relationship at the time of the incident, does not dispute that he and the complainant had unprotected sexual intercourse in a parking lot that night, but he insisted he solicited the services of a sex trade worker.
Under the Criminal Code of Canada, whether someone is a sex worker or not, any unwanted sexual contact that is not mutually consensual is classified as sexual assault.
On the night of the sexual encounter, Renner was in a pickup truck when he stopped near the complainant in downtown Sault Ste. Marie. The complainant asked for a cigarette and Renner said he told her he doesn't allow smoking in his truck.
Renner told the court he thought the complainant was a sex worker by the way she looked.
Renner: "She nodded her head and I pulled over and yeah, I rolled down the window to talk."
Kirk: "And you probably said something."
Renner: "Imagine I said...
Kirk: "...as you rolled the window down."
Renner: "I imagine I said: 'Hi, do you want to go for a ride?'"
The complainant said during the preliminary hearing that she entered the truck because the accused spoke to her as though he knew her. She said he identified himself only as "Phil."
The complainant said in her police statement that Renner grabbed her breast and she told him "no" before the two drove to a Tim Hortons drive thru. The Crown argued this incident was the first count of sexual assault in the encounter.
In his testimony, Renner agreed he touched her breast in the truck while driving.
Willson: "Did you touch her in any way in the truck before this in a sexual manner?"
Renner: "Yeah, as we were driving, I reached over and felt her breast."
Willson: "Where was that? After Tim Hortons or before? Do you know?"
Renner: "I'm not a hundred percent sure. While we were driving."
Asked in the preliminary hearing why she didn't get out of the truck when the pair went through the Tim Hortons drive thru, the complainant said she stayed because there were "no red flags."
In his decision, Varpio noted this as one inconsistency in the complainant's testimony that he would have liked to hear her explain further.
After Tim Hortons, Renner drove the complainant to the KC Roofing parking lot next to the Canadian Bushplane Heritage Centre. He testified that the business is owned by his parents, who were in attendance while he was on the witness stand.
Renner said there was a dispute with the complainant about payment. He said he brought $40 for the encounter, which he believed from previous experience with sex workers was enough to receive oral sex.
In her preliminary hearing testimony, the complainant denied there was any conversation about sex for money.
In cross-examination, the accused testified that the complainant did not want to engage in oral sex and eventually agreed on vaginal sex for the $40.
Kirk: "So, you have obviously some familiarity with engaging women for sex for money, right?"
Renner: "Yes."
Kirk: "How often do you do that?"
Renner: "I don't do it anymore."
Kirk: "At the time, how often were you doing it?"
Renner: "It had been years."
The Crown asked Renner if there were any safe sex precautions planned for the encounter. Renner said he did not bring condoms and there was no discussion about using one.
During her testimony in the preliminary hearing, the complainant didn't remember the exact location she was taken to, but said the accused told her he wanted to go to that specific parking lot because there was a security camera.
On the stand, Willson asked Renner why he chose the KC Roofing location in particular.
Renner: "My purpose is to go and have sex in by the shop area where there's cameras and lights there from the shop — I pulled in. I mentioned that when I pulled in there, I said this is a shop here, all this this is my shop here and trucks, and I pulled up on an angle there and that's what I did."
Willson: "What kind of area are you in here — your shop's there, but what are you can you describe the area for us that you're in now?"
Renner: "Yes. It's a parking lot type area around some industrial type buildings with big garage doors and some lights around the buildings and..."
Willson: "You said there's lights?"
Renner: "Yes."
Willson: "Okay. Is there any — are there any other things there?"
Renner: "There's a camera as well."
Renner told the court he helped to install the camera at the property.
Willson: "And why are you going to have sex if you know there's cameras there?"
Renner: "I don't know really. I just was comfortable to be, is tucked in behind, you know, the main area, Queen Street area, so that's a shop where I'm comfortable to be. And I pulled up there, it didn't really matter to me that there was cameras, I was just going to have sex and not worry — I had nothing to hide."
The complainant got out of the truck to smoke the cigarette she was given earlier, Renner said. That is when the vaginal sex occurred outside the truck. During cross-examination in the preliminary hearing, the complainant said she was unsure who initially took down her pants.
“I may have taken them down willingly, but I tried to pull them up. That’s when he yanked them down,” she said, adding: “[he] didn’t rape me until after he pulled my pants down.”
The complainant said Renner put his arm on her back and held her down as he "violently raped" her. She estimated the sexual act lasted five to 10 minutes.
At some point, the complainant took an identification card for the United Brotherhood of Carpenters and Joiners of America with Renner's name on it as a way to later identify him to police.
He dropped her off near a downtown bar, where she called police to report that she had been raped.
The court also heard from Maureen O'Shea, a nurse practitioner certified as a sexual assault nurse examiner, who retrieved evidence while administering a sexual assault kit to the complainant shortly after the incident.
O'Shea examined her a few hours after the sexual encounter and said she was distraught and quite profane, but sober.
"If she [the complainant] was under the influence of alcohol or street drugs, she wouldn't have been able to give me informed consent because she would have been under the influence of a mind-altering substance," said O'Shea.
In the reasons for his decision, Varpio noted that the complainant did not testify before him.
"Accordingly, her evidence does not have the benefit of being adequately contextualized," he wrote. "She did not have to [sic] opportunity to explain inconsistencies and/or illogical items arising in her testimony. She did not have the opportunity to fill in areas of concern that were not captured by her previous statements. I did not have an opportunity to review her testimonial demeanour and assess its impact upon overall credibility."
"She was not able to explain the 'red flag' evidence," the judge continued. "She could not give insight into the identification card evidence. She was not able to explain the knowledge of the 'alias.' She was not able to explain whether she remembered who pulled down her pants, and the circumstances that inform the inconsistency in her evidence. Rather, I am left with material inconsistencies on important details of the case."
In the end, Varpio concluded he was not satisfied beyond a reasonable doubt that Renner committed a sexual assault "because the complainant’s evidence leaves me confused as to what happened."
