ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MOHAMMAD ARMAN
Before Justice B.M. Green
Heard on February 14th, 15th and 16th, 2022
Reasons for Judgment released on April 8th, 2022
Mr. S. O’Neill counsel for the Crown
Mr. R. Greenway counsel for the Defendant
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
A. Introduction
1Mr. Arman is charged with one count of sexually assaulting Ms. A.A. on the 16th of January in 2020. Unfortunately, as a result of the Covid related closures of the courts, this matter took a considerable amount of time to proceed to trial. By the time the witnesses finally testified about this incident, more than two years elapsed, and their memories had faded about some of the details of the events that transpired between Ms. A.A. and Mr. Arman.
2Counsel for Mr. Arman focussed the trial by making a series of appropriate admissions. It is conceded that Ms. A.A. attended a Pizza Pizza on January 16th, 2020, seeking to charge her phone. While she was there, she was looking for work, so she provided a resume to Mr. Arman who owned that restaurant. Mr. Arman contacted Ms. A.A. later that day to arrange an interview with her for a job. He picked her up, in his personal vehicle, at her home. He drove her to a motel where he was temporarily residing to conduct the interview. The contentious issue is what took place in that motel room while Mr. Arman was alone with a considerably younger woman who was desperate for employment.
3The crown called two witnesses, Ms. A.A. and her best friend at that time, Mr. L.M., to prove beyond a reasonable doubt that Mr. Arman took advantage of Ms. A.A.’s vulnerabilities and sexually assaulted her. The crown also tendered a statement from Mr. Arman that was partially exculpatory. I can accept all, some or none of a person’s evidence. The crown urged me to reject the exculpatory aspects of Mr. Arman’s statement and accept only those parts of his statement that confirmed Ms. A.A.’s account.
4In contrast, counsel vigorously advocated that Ms. A.A. was neither a credible witness nor a reliable historian. He suggested that she was pressured into making a fallacious and/or exaggerated complaint by Mr. L.M. Alternatively, at the very least, the exculpatory aspects of Mr. Arman’s statement ought to raise a reasonable doubt about his guilt. Counsel conceded that Mr. Arman’s conduct may have been ill-advised and inappropriate, but he strenuously cautioned that does not mean that Mr. Arman committed a crime. As a result, he submitted that Mr. Arman should be found not guilty of sexual assault.
5Mr. Arman’s conduct was much more than inappropriate, it was predatory and reprehensible. I am convinced beyond a reasonable doubt that Mr. Arman took full advantage of Ms. A.A.’s obvious desperation for work. Following a series of progressively invasive sexual advances, after providing a teenager with alcohol, he intentionally touched Ms. A.A. in a manner that violated her sexual integrity, without her consent. He knew that she did not want him to touch her, but he persisted anyways. For the reasons that follow, I find that Mr. Arman sexually assaulted Ms. A.A.
B. Findings of Fact:
i. Ms. A.A.’s age, stature and vulnerabilities:
6The context of these allegations is important to explain the dynamics of their interactions and the obvious power imbalance between Ms. A.A. and Mr. Arman.
7In 2020, Ms. A.A. was 19 years old and quite vulnerable. She was physically tiny. She was struggling with an eating disorder. She was 5’4” and 105 pounds. In contrast, Mr. Arman appeared to be significantly larger than her and he was 41 years old1. He was 22 years older than Ms. A.A. Moreover, he was in a position of authority as a prospective employer.
8In addition to Ms. A.A.’s diminutive size, the age disparity between her and Mr. Arman and the obvious power imbalance, Ms. A.A. struggled with mental health issues. Mr. L.M., who knew her for years, provided the following description of his friend (at page 55, February 15th):
A. Oh, she is one of the most anxious people I’ve ever met. She has a very hard time sticking up for herself. And in any sort of danger or situation with - where she would perceive danger, she would crumble instantly.
Q. And what do you mean “she would crumble instantly”?
A. She’s very prone to panic attacks, as I’m sure you guys have seen. She’s very prone to just kind of not being able to think straight, and she just kind of loses her cool pretty easily under pressure.
9During the trial, I was struck by Ms. A.A.’s demeanour and noted my observations on the record. She had to be coaxed into the courtroom by the crown. She was extremely emotional while recounting this incident. She was physically trembling. She broke down on more than one occasion. She engaged in a nervous habit of repetitively wringing her hands and cracking her knuckles. It was evident that Ms. A.A. is psychologically fragile. I accept that she was petrified of attending court and she did want to be put in a position where she would be compelled to testify about these events.
10I have cautioned myself about the fallibility of demeanour evidence. The Ontario Court of Appeal recently summarized the law on this issue in R. v. Chacon-Perez, [2022] O.J. No. 43 at paras 119 and 120 (Ont.C.A.):
Testimonial demeanour is a relevant consideration in evaluating the credibility of any witness, including an accused: R. v. M.(O.), 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 34. But as a predictor of testimonial accuracy, a witness' demeanour is fallible. Its fallibility is a function of many and disparate factors. The culture of the witness. Stereotypical attitudes. The artificiality of and pressures associated with a courtroom: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at para. 44.
The fallibility of a witness' demeanour as a measuring stick of testimonial accuracy signals caution in its role. It is but one of many factors. Not exclusive. And not predominant: Hemsworth, at para. 45.
11While it is not a predominant consideration, Ms. A.A.’s testimonial demeanour is one factor that I have considered when assessing her credibility. Contrary to the submissions of counsel, she did not present as a witness who was in any way invested in pursuing charges against Mr. Arman. Instead, she had to be convinced to come forward. In addition, despite a fulsome cross-examination, counsel did not suggest to Ms. A.A. that she pursued any civil action against Mr. Arman after this event happened more than two years ago. She does not appear to have any financial motive to fabricate an allegation against Mr. Arman. Quite the contrary, as a result of this complaint, she gave up Mr. Arman’s offer to employ her when she was distressed about her finances.
12I was also impressed with Mr. L.M.’s conduct. Even though he has not maintained a close relationship with Ms. A.A., he was completely supportive of her. He confirmed important aspects of her evidence. He provided insightful commentary on how his own conduct exacerbated the situation that Ms. A.A. found herself in that day. He was straight-froward throughout his testimony without any apparent guile or combativeness.
13Finally, while Mr. Arman relied on an interpreter throughout the trial, Ms. A.A. assured the court that he had no difficulty conversing with her while they were together. He spoke with an accent. She could understand him and, if she didn’t understand something he said, she sought clarification (page 41 February 14th). Whatever minor language barriers existed, Mr. Arman understood completely, by Ms. A.A.’s words and actions, that she was not interested in any of his sexual advances.
ii. The interview:
14In 2019, Ms. A.A. decided to take a year off of university and moved out of her family home for the first time. She left Peterborough to move to Oshawa in December. Her parents had only given her enough money to support herself for one month. She thought that there would be more employment opportunities in Oshawa because it is a much bigger city. Ms. A.A. presented as genuinely naïve and from a sheltered background.
15Ms. A.A.’s previous work experience was quite limited. She had only worked for her father at a restaurant, at the local mosque and with her best friend’s sister. She had no experience applying for jobs or participating in work related interviews. At that time, she was proactively looking for work so she could support herself. Despite handing out resumes to various businesses, Ms. A.A. was unsuccessful with finding any employment. By January 16th, 2020, she had been away from home for nearly two months, and she was running out of money. As a result, she attended at Ontario Works in Whitby to seek social assistance.
16This was a particularly demoralizing day for Ms. A.A. After she left the meeting at Ontario Works, her phone died which was regular occurrence. Mr. L.M. confirmed that her phone had some kind of glitch, so the battery ran out frequently. Ms. A.A. attended a nearby Pizza Pizza establishment seeking a place to charge her phone. She encountered Mr. Arman who she believed to be the owner/manager because of the way that he was dressed compared to the other employees. He gave her permission to use one of the plugs. Ms. A.A. had some resumes in her purse so she thought she would take a chance and she gave one to Mr. Arman. The resume listed her address and phone number. Mr. Arman told her that he would contact her.
17Ms. A.A. returned home by bus after meeting Mr. Arman. That same afternoon, Mr. Arman called her and indicated that he would like to pick her up for an interview. After their call ended, he texted her and asked her for her home address. During their communications, Mr. Arman called her “sweetie”.
18In 2020, Ms. A.A. and Mr. L.M. were best friends. They were in almost constant contact with each other throughout most days. They communicated through calls, texts, different apps and skype. If Mr. L.M. did not hear from Ms. A.A. for a period of time, he would get worried and he regularly checked up on her. He was her source of emotional support.
19Ms. A.A. immediately called and messaged Mr. L.M. after she had this exchange with Mr. Arman. She messaged “I’m more nervous he called me a sweetie”2. Mr. L.M. advised her against meeting with this stranger especially in light of him calling her “sweetie”.
20Despite his misgivings, Mr. L.M. and Ms. A.A. devised a safety plan for her to attend the interview. She turned on the live location settings on her phone through an app so he could monitor where she was going with this man. They agreed to have this app running for an hour. The crown produced phone records that confirmed that they set this up before Mr. Arman picked her up.
21Ms. A.A. realized that it was “suspicious” that Mr. Arman called her sweetie and that he offered to pick her up. Nevertheless, because he was an older man and she was desperate for work, she decided to give him the benefit of the doubt (at pages 22 and 23 February 14th). Mr. L.M. testified that he was very concerned that a prospective employer was coming to pick up A.A and he called her “sweetie”.
22Mr. Arman arrived to pick A.A. up shortly after he texted her. When he arrived, she got in his car. He was smoking a cigarette. He asked her where she wanted to conduct the interview. He gave her options to go to Tim Horton’s, a coffee shop or “his place”. She replied whatever he thought was best. Mr. Arman indicated that “his place” would be more comfortable. Because he was smoking and she wanted him to be happy with her, she thought he would be able to smoke at his home. Counsel suggested to Ms. A.A. that Mr. Arman told her that he was tired which is why he wanted to go to “his place”. Ms. A.A. denied that he gave her reasons to go to “his place”.
23Initially, Ms. A.A. believed that he was referring to a “house” to conduct the interview. Mr. L.M. explained that, when Ms. A.A. texted him that she was going to this man’s “house”, he could see on the live location sharing that they were still in transit. This confirmed her evidence that she did not know that they were driving to a motel until they arrived there.
24Ms. A.A was taken aback when Mr. Arman pulled up in front of a motel. She was initially hesitant to enter the motel, but Mr. Arman explained that he was living there while he was looking for a place to live in Oshawa (page 77 February 14th). Ms. A.A. insisted that she would never have gone along with Mr. Arman’s suggestion to go to “his place” if she knew that it was a motel. Ms. A.A. was “more uncomfortable” but they had not commenced the interview yet and she really wanted this job. Against her better judgement, she went into the motel room with him.
25Counsel challenged Ms. A.A. about why she went into the motel room in the first place. She acknowledged that she was concerned but she didn’t want to turn down the opportunity of securing a job. In hindsight, she sincerely regretted that choice. Throughout her evidence, it was very apparent that Ms. A.A.’s desperation for work, combined with her youthful inexperience, influenced her judgement.
26Mr. Arman could have easily driven Ms. A.A. to the nearby Pizza Pizza, which was just as close as the motel, to conduct a formal interview. Other employees would have been present. It would have been the only professional and advisable course of action when an adult male is interviewing a female teenager. Nevertheless, Mr. Arman chose to bring her to his motel room. Ms. A.A. only agreed to go inside in the naïve hope that he was a good person who genuinely wanted to interview her.
27From the very beginning of Mr. Arman’s interactions with Ms. A.A., I find that he was engaging in a course of action that was “testing the water” to see how Ms. A.A. would respond to clearly inappropriate conduct by a prospective employer. He offered to pick her up instead of meeting her somewhere or having her return to his place of business the next day for an interview. He used a term of endearment to address her before he picked her up. He made various suggestions about where they could do the interview, none of which included his nearby place of business.
28Ms. A.A. estimated that Mr. Arman initially texted her around 4:00 to 4:15 p.m. He picked her up about 20 minutes later around 4:35 p.m. They drove for about another 15 to 20 minutes until they arrived at the motel close to 5:00 p.m.
29Unlike Ms. A.A., Mr. L.M. was not so naïve. He began freaking out when he realized, based on checking the address that they had driven to on the live location tracking, that they were going to a motel. He began calling and texting her repetitively trying to convince her to leave the motel immediately. He sent 7 messages in a row about how suspicious this conduct seemed to him. The messages were similar in content: “This is very sus (meaning suspicious)” and “Probably not okay” and “ A. don’t get murdered or assaulted please” and “I asked a bunch of ppl that all said this is very bad”. Ms. A.A. declined his calls and texted him at 5:15 p.m., “I’m okay” and “he’s just weird”.3
30Mr. L.M. knew Ms. A.A. very well and they texted and messaged throughout the day all the time. He felt that it was odd that she was sending unusually short messages. He interpreted her messages to mean that she was uncomfortable in this situation. He also described how she gets “super shaky” when she gets stressed which may have impacted her texting. She was extremely shaky in court while she was testifying.
31Mr. Arman had a key card to the room, so they entered it directly without going to the front desk. There were two small couches in front of the bed and across from each other. He told her to have a seat and she sat on the couch in front of the bed. Mr. Arman initially remained standing, and they began discussing the job. It was Ms. A.A.’s first job interview. She didn’t want to “fumble the interview”.
32While they were discussing the job, about 10 or 15 minutes into the interview, Mr. Arman got out a bottle of vodka and offered Ms. A.A. a drink. She politely declined but he insisted that “he likes to drink with his employees and it’s how he gets to know them” (at page 26 February 14th). Even though she said no, he poured her a drink anyways by the mini fridge. He put a shot and a half of vodka in a mixed drink.
33Ms. A.A. thought it was some kind of test at first to see if she would drink alcohol. When Mr. Arman kept insisting, she thought that he really wanted to get to know her better for the job. She relented and began drinking. She tried to drink it slowly. However, Mr. Arman kept asking why she wasn’t finishing her drink. She didn’t want to offend him, so she finished it.
34Mr. Arman sat across from her on the opposite couch at first while they were both drinking. He told her that she would be “paid in cash” and that she would be earning less than minimum wage. In one of the messages to Mr. L.M., A.A. texted that he was telling her about the job. She also texted that “he said that they pay cash but like it is a real pizza pizza”.
35Mr. L.M. continued to call and text her. He sent a barrage of messages stating, “get the fuck out of his house” and “this is very not okay to be happening” right now. In order to shock Ms. A.A. into leaving, Mr. L.M. became progressively abusive in the texts. He told her that she had been there too long, that “everyone” was telling her to leave, “if you don’t leave like now I’m going to fucking scream” and “you’re gonna get murdered you dumb bitch fucking leave”. She replied that “he’s just a weirdo who wants to talk about his life, if I get hired it’ll be fine”. When she texted this message, Mr. Arman had not touched her yet (page 46 February 14th).
36Even though Ms. A.A. was worried about the way Mr. Arman’s conduct was progressing, Ms. A.A. felt very reluctant to share any of her concerns with Mr. L.M. because of the way he was reacting to the situation (pages 74 and 75 February 14th). I found the tone of Mr. L.M.’s texts to be incredibly abusive and misguided. Even though Ms. A.A. did not appreciate the manner in which Mr. L.M. was addressing her, when the location sharing time ran out, she did renew it for another hour to keep this safety net in place.
37Mr. Arman spent some time telling Ms. A.A. about the job when they were sitting across from each other. Mr. L.M. continued to call Ms. A.A. She didn’t answer the calls because Mr. Arman began asking who kept calling her. She still really wanted a job. She lied and told Mr. Arman that it was her roommates. She tried to make excuses to leave their meeting. She explained to Mr. Arman that her roommates were worried about her and that she had something to do with her mom in the morning. Mr. Arman kept giving her reasons why she shouldn’t leave. He asked her if it was her boyfriend calling her. He instructed her to tell them to stop calling so she put her phone on silent.
38During examination in chief, Ms. A.A. volunteered that the alcoholic drinks were mixed with orange juice. She tried to water them down with the juice. Once the orange juice was finished, Mr. Arman gave her pineapple juice to mix with the alcohol (p. 41 and 42 February 14th).
39Counsel put Ms. A.A.’s statement to the police to her wherein she stated that Mr. Arman offered her juice and later in the sentence she explained how he brought out the bottle of vodka. Counsel suggested to Ms. A.A. that Mr. Arman initially only offered her juice. She agreed that she had the juice, but Mr. Arman insisted on adding the vodka. Ms. A.A. adeptly explained that she had not contradicted herself (p. 11 February 15th):
I don’t see how that contradicts it. He offered me juice and he offered me vodka with the juice, and I said I would have just the juice, and he insisted that I drink the vodka. In this original statement, you can see that I was stuttering a lot and saying “um”. It was the first time I had spoken to a police officer directly in an interview. I was just trying to include as much detail as I could remember, so it is a little - I am rambling a bit. So, I did include that detail, but I didn’t think that it was relevant that I had drank a cup of juice before he offered me the juice with the vodka, because once he offered me the vodka, he insisted that I wasn’t - just the juice wasn’t okay. So, that’s when I accepted the drink.
40Ms. A.A. agreed with counsel that Mr. Arman also poured himself an alcoholic drink, but she could not recall if that was before or after he poured her a drink. Mr. Arman was drinking alcohol while she was in that room. Counsel reminded Ms. A.A. that Mr. Arman assured her, when he began drinking, that he would pay for her to take a taxi home. She recalled that he said that, if he could not drive her, he would ensure she got home.
41Ms. A.A. is cognizant that she fidgets with her hands when she is nervous, so she held them together in her lap when she was not drinking. Ms. A.A. is also very self-conscious about the appearance of her hands because she has a skin condition. Mr. Arman pointed out to her that her hands were very dry. He reached over and pushed back her sleeves. He said that his wife also had dry hands. He retrieved some Vaseline and began rubbing it on her hands.
42Ms. A.A. told him that she was uncomfortable. Mr. Arman ignored her and continued “massaging” her hands. He started to talk about his wife and that she tried to leave him. He had thoughts of killing himself which “struck a chord” with Ms. A.A. because of her own personal struggles at that time. Ms. A.A. repeated that she didn’t feel comfortable with what he was doing. He told her that he wasn’t “doing it in a sexual way”. She did not want to him to touch her. She did not consent or communicate her consent to him touching her.
43Mr. Arman poured Ms. A.A. a second drink after he massaged her hands. Once again, he insisted that she drink it. He poured her a third drink as soon as she finished the second one. Ms. A.A. was becoming increasingly alarmed by Mr. Arman’s conduct. At the same time, she was receiving more messages from Mr. L.M. urging her to tell Mr. Arman that she wanted to leave. She texted back, “is okay I think I told him I have to leave by 6 and he hasn’t done anything”. Mr. L.M. texted back “you’re so fucking stupid it hurts”. She replied, “I know”.
44Ms. A.A. was sitting on a small couch which was a one-seater. Mr. Arman moved from his couch to her couch. He sat beside her and put his arm around the back of the couch. She was worried that Mr. Arman would see her phone, so she stopped replying to Mr. L.M.’s texts.
45Ms. A.A. was trying to convince herself that it could still be “a normal job interview and I might be employed coming out of it” (page 51 February 14th). However, the more worried L.M. got about her, the more she realized that she had gotten herself in a “scary” situation.
46Without warning, Mr. Arman kissed her neck. Ms. A.A. told him that was not just being friendly, she was not comfortable and to stop it. Despite Ms. A.A. instructing Mr. Arman to stop, he kissed her neck a few more times, at least four times in total (page 35 February 14th). Mr. Arman told her he was just doing it “as a friend”, that he was too much older than her to be making sexual advances. When Ms. A.A. insisted again that he must not kiss her, he said he wouldn’t kiss her anymore (page 40 February 14th).
47Ms. A.A. tried to move away from Mr. Arman on the small couch. He ignored her body language of pulling away from him. Instead, he reached over and put his hand on her stomach. He said that she was much smaller than he expected. She could not recall if he put his hand over or under her shirt, only that she was wearing a thin silk shirt. She agreed that he only touched her stomach briefly. He didn’t put physical pressure on her. During cross-examination, she agreed that Mr. Arman moved his hand back and forth. She responded to his conduct by protectively moving her hand to cover her stomach and he pulled his hand away. She told Mr. Arman that she had not been eating much because she had moved out on her own.
48After Mr. Arman pulled his hand away, he reached into his pocket, removed his wallet and gave her $200 in cash for groceries. She was caught off guard and felt a little bit insulted (page 20 February 15th). Nevertheless, Ms. A.A. accepted the money. She wasn’t “too proud” to take money because she needed it and she was beginning to comprehend that Mr. Arman had not brought her there for a “real job”. She also didn’t want to aggravate him. She was trying to find a way to extricate herself safely from this situation without upsetting Mr. Arman.
49Unfortunately, after giving her money, Mr. Arman escalated his advances. He suddenly reached over again and tried to unzip her pants. She grabbed at her pants and demanded to know what he was doing. He became “quite irritated”. He told her that, if he wanted to do something, he could get her drunk and there was a bed over there. He said he could just do it if he wanted to. Since she had been drinking, she felt like this was a threat.
50Mr. Arman told Ms. A.A. that if he wanted “special massages” implying something sexual, there was a place across the street where he could go to pay for that service. He insisted that he was too old for her. He denied that he was trying to make a sexual advance while he was making sexual advances.
51Mr. Arman asked Ms. A.A. if he could “lick her” as friends. He told her that it would feel good. Mr. Arman brought up all the calls and messages that she had been receiving and said, “whoever I was seeing wouldn’t mind because he was just trying to be friendly” (page 49 February 14th).
52Ms. A.A. told him that she did not want him to do that to her. She pulled up her zipper and she got up to leave the motel. Mr. Arman told her that there was a cab company across the street. He offered to walk her there and gave her another $100 for cab fare. She walked to the door, opened it, and tried to leave.
53At the doorway, Mr. Arman grabbed Ms. A.A.’s hand and turned her around. He put her hand on his genitals and said that if he was trying to do something that there would be something there, implying that he would have an erection. Ms. A.A. immediately pulled her hand away. Before she could turn away from him, he kissed her on her mouth. She was very upset and told him that he promised that he would not kiss her again. Mr. Arman replied, “I’m sorry” and “I just must have been a little too drunk”. Ms. A.A. fled from the motel room.
54Counsel went through the sequence of events of the zipper, the comments about the bed and the massage, the kiss and then placing her hand on his genitals a few times with Ms. A.A. He suggested to her that the sequence of events was “crystal clear in your mind” (pages 25 and on February 15th). Even though Ms. A.A. said yes after counsel repeated that phrase, Ms. A.A. never fully adopted the suggestion that she was crystal clear about anything. She repeated many times that it was a long time ago, she believed some events happened before others, but she could be mistaken, she was panicking and she under the influence of alcohol.
55Ms. A.A. did not believe that Mr. Arman was intoxicated. She did not notice any changes in his speech. He was not slurring his words and there were no outward signs of impairment. In contrast, she was considerably underweight, at that time in her life. She recalled having three vodka drinks in total. She was feeling the effects of the alcohol near the end their encounter although she fairly stated that she was not incapacitated (page 41 February 14th).
iii. The aftermath:
56Before the last few interactions with Ms. Arman and just before her phone died, Ms. A.A. received a string of seven messages from L.M. He wrote: “I think we are in a fight”; “Please tell me you’re leaving”; “A. are you FUCKING JOKING I can see you’re still there” (the location tracking had been enabled a second time while she was there); “You have to text me at least”; “Please A. I’m so worried”; “I’m calling the Whitby police if I don’t hear from you soon” and “6:30 is when the location sharing runs out so that is when I will be calling the Whitby police”.
57Ms. A.A. replied that she was leaving. She insisted that she was “okay”. She stated that “he is so so sketchy tho” and “so glad I shared my location”. She pleaded with Mr. L.M. “do not call anyone if I’m not home by 7:15 (typed “tell” but she explained she meant “yell”) yell ok”. She explained that this text meant for L.M. to call the police if she was not home by that time. Ms. A.A. readily agreed with counsel that she had reassured Mr. L.M. that she was okay multiple times in the messages even though she wasn’t really okay at all.
58Ms. A.A. believed that it was after these texts that Mr. Arman’s behaviour escalated even more when he pulled her zipper down. Ms. A.A. explained at page 53 that:
I wasn’t comfortable with the police showing up at the time so I did want to avoid them being called by somebody else without my knowledge because even if he did alert me that he would be calling, I knew my phone was very low and probably going to die but I wasn’t sure if I would know that the police would be showing up or when.
There were a couple of reasons. One was that I wasn’t -- I wasn’t comfortable -- I’m still not the most comfortable with police specifically because I am a visible minority and I -- I do know a -- a few people who haven’t had the best experiences with police being racialized people. So I just wasn’t quite sure how that situation would go down and I’ve never had police actively show up to a -- a situation like that. So I -- I just wasn’t sure if it was going to put me into further distress rather than be helpful.
59Ms. A.A. was distraught when she finally left the motel room. She did not want to go to the cab company across the street because she was afraid that Mr. Arman would follow her. She recalled crying as she was walking down the street. A kind man stopped to assist her and called a cab for her. A female cab driver arrived and picked her up. She asked the cab driver if she could charge her phone because it had died again.
60Ms. A.A. was quite “tipsy” just before leaving and after she left the motel. The effects of the alcohol really began to hit her. She was also very emotional. She could not recall having a telephone conversation with Mr. L.M. before or while she was in the cab. She explained that this happened two years ago, and she cannot remember when or if she spoke with Mr. L.M. after she left the motel.
61While Ms. A.A. could not recall speaking with Mr. L.M., he remembered speaking with her, and she was extremely upset. He described her emotional state immediately after she left the motel (page 73 February 15th):
Yes, she called me and was sobbing and bawling her eyes out very, very loudly and aggressively. Like, clearly kind of, like, in the state that I believed she was in. I was correct. And trying to tell me what happened, trying to - like, anything, but she couldn’t really get words out. It was all just kind of nonsense, crying and trying to say things that she couldn’t quite put together. I tried my best to calm her down as best I could. She had mentioned that she was just trying to get a cab and go home.
62During that call, it was the most distraught and terrified that Mr. L.M. had ever heard his friend. She was barely able to communicate, and he didn’t understand what she was saying to him. Ms. A.A.’s phone cut out while she was on the phone with him. Mr. L.M.’s evidence confirmed her emotional state when she left the motel and that her phone died.
63After reviewing a number of authorities, in R. v. Woollam, 2012 ONSC 2188, [2012] O.J. No. 3867 at paras. 48 and 49 (Ont.S.C.J.), Justice Durno concluded that:
First, His Honour could use J.P.'s post-event demeanour in assessing her credibility. Post-event demeanour or emotional state evidence is admissible and may be used to support a complainant's evidence of a sexual assault: see Murphy and Butt v. The Queen [1977] 2 S.C.R. 603 at 617; R. v. Boss, (1988), 46 C.C.C. (3d) 523 (Ont. C.A.); Varcoe, at para. 33, R. v. Arsenault, [1997] O.J. No. 3977 (C.A.) at para. 9; R. v. Clark, [1995] O.J. No. 4036 (C.A.) at para. 7. That is what His Honour did.
In outlining the applicable law, the trial judge said, "If the court was satisfied that her condition was genuine and not feigned or possibly attributable to some other cause or hurt, then it may be seen as providing circumstantial support as being consistent with her allegation and inconsistent with the defendant's denial." The authorities are clear, His Honour was entitled to make the findings he did in relation to J.P.'s post-event condition. [emphasis mine]
64I accept that Ms. A.A. was genuinely panic-stricken after she left the motel room, so much so that she doesn’t even remember speaking to Mr. L.M. This post-event emotional state is consistent with Ms. A.A. having just suffered a traumatic experience.
65While her phone was dead, Mr. L.M. sent her nine more messages informing A.A. that he called the police. He planned on calling them back in a matter of minutes if she did not respond to his texts. Ms. A.A. finally saw all his messages when she was in the cab and her phone was charging. She admittedly lied to Mr. L.M. again. She explained to him that she had not responded because her phone died and she tried to assure him “I promise I’m okay, please tell the police it was a mistake.” Mr. L.M. answered that they would talk when she got home.
66Ms. A.A. was despairing that the police may be waiting for her when she returned home, so she sent L.M. three more texts “please tell me you told them its fine”, “I’m fine I swear on tonks” and finally “I just hate myself”. Tonks was the name of her cat who she adored. She felt that if she swore on her cat that would finally convince Mr. L.M. to back off.
67Mr. L.M. continued to forcefully insist that this man’s behaviour of bringing her to a motel for an interview had to be addressed. He wrote “you’re giving me this guys phone # or telling me his name/which pizza pizza location it is” and “you pick”. Ms. A.A. replied “I’m not” and “please stop I’ll talk to you when I’m home please”. Mr. L.M. still wouldn’t let it go. He replied, “Yeah I’ll tell you what I just told you … on the phone if it helps” and “I’m getting this guy fired with or without your help” and “I have his address, not like it’ll be hard to find him”. Ms. A.A. continued to plead with L.M. via texts: “Please just call me when I am home” and “please” and then again “please”. Mr. L.M. responded, “I will but I am telling you what the result of this will be and I’m telling you that it isn’t changing”. She replied “please”, he said “no” and she texted his name back to him.
68When Ms. A.A. was finally home she texted “thank you for checking in on me I’m sorry I worried you and I make such bad decisions” and “I’ll talk to you tomorrow”. He replied, “fuck right off”. Ms. A.A. relented and told him, “do what you feel you need to do” and “if you’re not up for it I’ll take care of it”. She spent the rest of the evening watching a movie with a friend.
69Counsel vigorously pressed Ms. A.A about the contents of the Facebook messages and the texts during cross-examination. He suggested to Ms. A.A and made submissions that Ms. A.A. did not lie to Mr. L.M. at all. Counsel asserted that what she texted L.M. about being “okay” was the truth. Mr. Arman was sketchy, but she was okay when she left that motel. Counsel suggested that Ms. A.A. was pressured into making up these allegations. Ms. A.A. disagreed with counsel. She provided persuasive explanations for why she chose to lie to Mr. L.M.:
Page 43 February 14th: I was still processing what had happened and I wasn’t quite sure if it was something that I was able to report to the police. I -- I wasn’t sure if -- only because I did blame myself for putting myself in that situation quite a bit and Luke also seemed like he thought I wasn’t very smart for doing that. So, I wasn’t too sure if that might also be what the police might think or anybody I reported it to. So, I wanted to make sure that I was prepared if there was going to be police involvement and I wasn’t at that time.
Pages 54 to 55 February 14th: I’m just -- I said that because I thought that he had already called them and I do know that police matters are serious and I didn’t know if they had already -- like, were already on their way actively and I was still a bit tipsy on my way home. I was just starting to process everything that had happened and I couldn’t stop crying and I wasn’t sure if I was able to report it to the police because especially in that moment, that was when I was able to re-read all of Luke’s text messages in completion so I really did blame myself. So I didn’t -- I -- I didn’t know what I would -- I wasn’t prepared to say anything to the police if they did show up. So in that moment I just wanted to make sure they weren’t coming and the only way that I thought I could do that quickly, before my phone died, was to tell him to tell them it was a mistake because I figured then I would be able to deal with the police at my own pace but in that moment I wasn’t -- I wasn’t ready to interact with the police, let alone speak about the incident to them.
I mean specifically with sexual assault and consent, I wasn’t quite sure I if I had been violated to an extent that there was criminal and I wasn’t sure if I was at fault legally at all for drinking or putting myself in that type of situation. So I -- I just wasn’t sure if somehow I could get in trouble for it and I -- yeah, I just didn’t know how to process what had happened as it had and what had been done to me and -- and that I was not at fault.
Page 57 February 14th: Yes. And because of that, that’s part of the reason why I was -- felt like I had to say that it was a mistake and that I was fine was because I felt that if I had said anything other than that, that he was too upset about the situation to not try and do something about the situation himself. And I wasn’t too comfortable with that. I did want to be the one to do anything about it, if I did decide to.
Page 101 February 14th: (with respect to promising on her cat) he was so adamant about the police being called throughout the time that I wasn't sure even when I told him that it was okay and it was a mistake, he didn't seem to receive that well. So I felt I needed to take it [indiscernible] up further to get him to believe that I was okay for him to -- to tell -- to stop the police involvement. I -- I didn't see any other way to avoid that given how he had responded.
70In retrospect, Mr. L.M. realized that his messages seem awful out of context. He was so scared for his friend that he was using strong language to try to compel her into action. He insightfully reflected that, unfortunately, his messages had the opposite effect on A.A.:
Page 69 February 15th: It was a combination of being very, very concerned and I was also a little frustrated that I wasn’t able to get through to her, so I was pretty upset. And also, I note that A. - as I said, A. doesn’t stick up for herself at all in these types of situations, and I felt that I wasn’t getting through to her, so I needed to use as strong language as I could to kind of get through to her how serious this was, because in her state of panic, it would be very hard for her to not only stand up for herself, but even realize that there’s a reason to be panicking.
Page 78 February 15th: I should have been more understanding about why maybe she wouldn’t have wanted to hear a more aggressive tone, but I was using the aggressive tone to really get my point across that she had to get this dealt with, because I did not feel that getting this - like, reporting this situation or taking further action is something that she would be likely to do, especially in the state that she was in, and that the state that she was in had been - had led her to believe that she was powerless and what - shouldn’t do anything about it.
71In addition, to disregarding the validity of Ms. A.A. explanations for why she lied to L.M. in the texts, counsel overlooked the unfortunate reality that a racialized woman may feel very reluctant to have police involved in a sexual assault, especially when she felt that she was partially to blame.
72I do not agree with counsel that the lies Ms. A.A. texted to Mr. L.M. reflect negatively on her credibility about what happened to her that day at all. Quite the contrary, I accept that she was in a state of shock when she left that motel room. As she wrote in her texts, she hated herself and blamed herself for putting herself in that situation. Understandably, she needed time to process what happened to her. The only way that she could do what was best for her, in that moment, was to lie to Mr. L.M. in order to prevent him from making decisions for her.
73I do not accept counsel’s suggestions or submissions that Ms. A.A was pressured into making a complaint. She was not pressured into making an allegation. She was pressured into lying to her friend about what happened to her so that she could make her own decision when she was ready. Ms. A.A. specifically denied that she was influenced by Mr. L.M. to make the complaint (page 64 February 14th):
If I was influenced at all, it was that it made it actually a bit more difficult for me to report it just with how he had reacted during the situation. I had -- I think a big part of why I blamed myself and wasn’t too able to process it as it had happened was because he also, at least from the messages, seemed to believe that I had put myself in that circumstance so that made me a little more hesitant to report because it made me question whether or not other people may think the same thing.
74Ms. A.A. explained that she texted Mr. L.M. that she hated herself because she felt naïve for not realizing sooner what was going to happen especially when he warned her about it. She also came clean with L.M. afterwards and told him everything that happened as soon as she felt safe enough to do so. She needed his assurance that he wasn’t going to call the police without her consent before she confided in him.
75During the evening, Ms. A.A. deleted all the messages from Mr. Arman because they were at the top of her message history, and she didn’t want to see them. Counsel suggested that she only deleted them because they weren’t helpful to “what she told the police”. Ms. A.A aptly pointed out that counsel’s suggestion didn’t make any sense. She was well aware that Mr. Arman would have all their exchanges on his phone, so deleting the messages on her phone would not benefit her in any way. Moreover, the messages were mostly innocuous references to picking her up.
76At 3:16 a.m. on January 17th, despite how desperately Ms. A.A. needed a job, she sent Mr. Arman a message stating:
That “interview” was highly inappropriate and I was extremely uncomfortable the entire time especially as the hiring owner of a franchise. I am not interested in anything you have to offer including a job.
77Mr. L.M. reported the incident to the Pizza Pizza human resources department. A few days later, they were both interviewed by a person who worked with that department. Mr. L.M. also supported Ms. A.A. with calling the police. Ms. A.A. spoke with them a week later.
iv. The impact of Mr. L.M.’s statement about what Ms. A.A. disclosed to him:
78For some reason, Mr. L.M. was not interviewed by the police until weeks before the trial. This interview was two years after the exchanges he had with Ms. A.A. He told the police what he thought he recalled about Ms. A.A. telling him. Mr. Arman kissed her hands, kissed her on the cheek and touched her thighs. While Ms. A.A. could not recall what she told Mr. L.M., she was adamant that she would have told him the truth. She could not explain why he would have provided such an inconsistent account.
79Ms. A.A. provided an account to the police of what happened to her while the events were still fresh in her mind in 2020. In stark contrast, Mr. L.M. was asked to recall and repeat what Ms. A.A. said about her own experience two years ago. By that time his memory of the details of what A.A. told him was “faded” and fuzzy”. He explained that he was not mentally prepared when he spoke to the officer in January of 2022. He hadn’t thought about their conversation in a long time, and he recalled more details while he was mulling things over in anticipation of the trial. As counsel put suggestions to him about the nature of Ms. A.A.’s complaint, it refreshed his memory of her disclosures.
80During Mr. L.M.’s evidence, after spending time reflecting, he provided a much more detailed recollection of what Ms. A.A. told him which was externally consistent with her account. I am not satisfied nor am I left with a doubt that Ms. A.A. made the prior inconsistent statement to Mr. L.M. that he described in his conversation with the officer in the beginning of 2022. I accept his evidence that he did not have a clear recollection when he spoke with an officer two years later about what Ms. A.A. told him. As a result, I do not accept, nor does it raise a reasonable doubt that Ms. A.A. made the prior inconsistent statements that Mr. L.M. reported when he spoke with the officer in January of 2022.
v. The defendant’s statement to police:
81Counsel emphasized Mr. Arman’s cooperation with the police when urging the court to consider how “honest” he was in his statement. However, the context in which Mr. Arman provided a statement is important.
82Mr. L.M. and Ms. A.A. made a complaint to the human resources department at Pizza Pizza before she attended the police station to provide her statement. Mr. Arman confirmed that Pizza Pizza called him about her complaint before he attended the police station (p. 18). Three or four days after meeting Ms. A.A. on January 16th, 2020, human resources directed him not to have any further contact with Ms. A.A. (p. 50). He did not provide a statement to police until February 5th, 2020. These were not spontaneous utterances. Mr. Arman had plenty of time to reflect on his conduct and what he would say, if anything, about what transpired between them.
83Mr. Arman was aware that there would be independent evidence of his inappropriate interactions with a financially desperate, prospective teenage employee about picking her up for an interview. I accept her evidence that he texted her about picking her up and he called her “sweetie”.
84In addition, I accept that Ms. A.A. told Mr. Arman that her roommates were calling and texting her throughout her stay in the motel room. Mr. Arman admitted that she was messaging her friends while she was there (p. 44 and 45). Moreover, before Mr. Arman said anything to the officer, the officer commenced the interview by warning Mr. Arman that “there’s cameras, there’s places that you go everybody has a camera” (p. 7).
85Mr. Arman was made aware that it would be easy for the police to verify that he took this young woman to a motel room. Similarly, if she had roommates who were waiting for her when she returned home, they would have confirmed that she had been drinking alcohol while she was with him. Mr. Arman’s confirmation of what he believed to be independently verifiable facts does not necessarily lead to an inference that he was being “honest” as urged by counsel. Rather, he admitted what he was in no position to dispute.
86Mr. Arman corroborated the basic information about how he met Ms. A.A. He was initially reluctant to provide the officer with any additional details stating “that’s all I know” after discussing how they met in the restaurant (page 10). The officer confronted him with the fact that he knew that Mr. Arman “called her later because I got your phone number”. Once confronted with the fact that the police were aware of his texts, Mr. Arman relented and conceded that he called and texted Ms. A.A.
87The officer specifically asked Mr. Arman how he normally conducted interviews with candidates, and he replied, “all I do in the store, whoever can” (p. 11). Mr. Arman obviously made an exception for an attractive young woman. Unlike any prior job interview, he picked Ms. A.A. up at her home. His initial plan was to “talk to her right there, and she open, she came to the car like a smiley face, drive away, sitting in the car” (p. 12). Ms. A.A.’s smile somehow influenced Mr. Arman to change his mind about interviewing her in his car, outside her home, and he chose to take her for a drive instead.
88During their drive, he related that he asked her where they should park and talk. She told him “to go anywhere I want to”. He confirmed that he suggested that they go to a Tim Horton’s or Coffee time and she reiterated that it was up to him. Mr. Arman claimed that, because he was tired, he decided to go to “my place”. This was a ridiculous and unbelievable justification for bringing Ms. A.A. to his motel room. If Mr. Arman was actually tired and he just wanted to interview Ms. A.A., he could have interviewed her right outside her home in his car. He could have driven to the nearby Pizza Pizza which was just as close. However, because of her smile, he decided to take Ms. A.A. for a drive.
89Notably, at the beginning of the interview, Mr. Arman said that he told Ms. A.A. that he was taking her to “his place”. He initially used the same expression that Ms. A.A said he related to her to describe where they were going. Mr. Arman changed his statement near the end of the interview when the officer pointed out how “naïve” Ms. A.A. was to go with him to a motel. Mr. Arman changed his recollection and insisted that he told her that he was living in a motel, and she said, “I don’t mind, anywhere I needed to go” (p. 32). I accept Mr. Arman’s original account that he said he was going to “his place” and that he did not tell Ms. A.A. that it was a motel.
90Mr. Arman repetitively stated throughout the interview that he reminded Ms. A.A. that he was “not looking for sexual thing. I’m not a man of sexual thing” (page 13). Obviously, sex was at the forefront of his mind since he was the one who brought it up multiple times with Ms. A.A. and the officer. He confirmed Ms. A.A.’s account that he said this type of thing during all of his advances in the hotel room. To quote a line from a Shakespearian play, the man “doth protest to much, me thinks”. Mr. Arman denied his sexual intentions so frequently to Ms. A.A. and the officer that it had the opposite effect and reflected his true state of mind.
91Mr. Arman indicated that Ms. A.A. was confiding details of her personal life to him and that she had “a bad life”. He initially denied that he shared any of his personal details with her but, when the officer asked about his marital situation, he changed his answer. He agreed that he talked to her about his personal life and his marriage.
92Mr. Arman confirmed that Ms. A.A. was “so exciting she can be in this job” (p. 16). She promised that she would work hard because she was “starving”. She also told him how badly she needed a job (p. 46). He gave her $300 during their interaction because “I feel sorry for her” (p. 16). He told her that she could give him back the money after she started working for him.
93Mr. Arman confirmed that Ms. A.A. was in the motel room between 5:00 p.m. and 6:30 p.m. Obviously, a job interview for a Pizza Pizza position would not take that long. Mr. Arman did not volunteer any additional details about what happened during that period of time until the officer asked him about whether they had any alcohol. Mr. Arman was reluctant to provide any additional details and asserted “that’s enough I told you” (p. 18).
94The officer momentarily distracted Mr. Arman with other topics. He returned to the issue of providing alcohol to Ms. A.A. by approaching it a different way. He asked Mr. Arman if it was typical for him to provide a person with alcohol during an interview. Mr. Arman agreed that it was out of character for him. He asserted that he did not offer her drinks, he offered water or juice. During a job interview, which he confirmed Ms. A.A. was desperate to be hired for, he claimed that she asked him to give her alcohol. She poured the alcohol drinks for herself “two times” (p. 22).
95Since trying to avoid this issue with the officer did not work, Mr. Arman switched tactics. Mr. Arman attempted to shift the blame for this indisputably inappropriate conduct to Ms. A.A. He claimed it was her idea. Nevertheless, by his own account, she was starving and desperate to secure this job, so she wanted to present to him as an exemplary prospective employee. It makes absolutely no sense that she would have asked an employer, who she was trying very hard to impress, for alcohol. I reject this evidence and find that it is reflective of the overall tone of Mr. Arman’s statement. He lied to the officer and tried to blame Ms. A.A for his misdeeds.
96Mr. Arman confirmed that he gave Ms. A.A. some vodka (p. 32). He also had “maybe two” drinks (p. 33)
97The officer asked Mr. Arman if he ever touched Ms. A.A. physically and he immediately answered “no”. However, once again, he changed his answer. He recalled that he pointed out how dry her hands were when she was sitting across from him, so he offered her some Vaseline. He told her to put some on her hands. She asked him to do it for her, so he did. He recalled rubbing her hands with the Vaseline for two or three minutes. Just like the alcohol issue, Mr. Arman shifted blame to Ms. A.A. that she asked him to do it. Considering how insecure Ms. A.A. was about her skin condition, I completely reject Mr. Arman’s version of events.
98Mr. Arman tried to paint a picture of Ms. A.A. as disarming him with her smile. He felt sorry for her, so he gave her money. She charmed him into providing her with alcohol and a hand massage to a prospective teenage employee in a motel room that he brought her to, all while professing that he was not a sexual man. I find that his statement was a transparent failed attempt to manipulate the truth to justify making obvious sexual advances on a very vulnerable young woman. I wholeheartedly reject his description of Ms. A.A.’s behaviour as a fallacious, fanciful justification for taking advantage of her naivety and desperation.
99When Ms. A.A. was leaving the motel room, Mr. Arman claimed that she was so happy that she gave him a hug. Mr. Arman kissed her cheek in response. The officer asked him if he thought that kissing her was a little inappropriate. Mr. Arman replied no because “I don’t kiss anythings” (p. 28). He justified his behaviour by saying “she came so friendly” (p. 29) In other words, she wanted it. Clearly, Mr. Arman did not understand how unacceptable it was to kiss Ms. A.A. in any fashion. Later on, he said that he only kissed her “as a friend” (p. 44) which is what Ms. A.A. indicated Mr. Arman said while he was making sexual advances.
100Mr. Arman denied any of the sexual acts or remarks alleged by Ms. A.A. because he loved his wife. He claimed that part of the reason that he took this young woman to his motel room was that he was concerned that he may be seen with her, and his wife and children may find out. He took Ms. A.A. to the motel for his own “safety”. Again, this explanation for going to a motel was utterly incredible.
101Mr. Arman denied that the police would find his DNA on Ms. A.A.’s clothing even though she had been sitting in his car and on a couch in his motel room, he admitted to massaging her hands, she hugged him, and he kissed her cheek. Mr. Arman’s denial that the police would find his DNA, considering these physical interactions, does not make him credible as suggested by counsel.
102Near the end of his interview, Mr. Arman slipped up and stated that, after the initial meeting in the motel about the job, Ms. A.A. “tried to leave that time” but they kept talking for 40 minutes (p. 47). Ms. A.A. testified that she tried to leave but she felt that he compelled her to stay. Mr. Arman was aware that she wanted to leave but he continued to talk to her. After she left the motel room, he tried to call her in a half hour to see if she got home safely but she didn’t answer his call (p. 49).
103The officer asked Mr. Arman what he thought about the message that Ms. A.A. sent him declining a job because his behaviour was “inappropriate”. He agreed that he received it, but he didn’t review it because his reading is not “too good”. Even though she declined the job, Mr. Arman indicated that he sent her a message the next day to say “hi”, but she never responded back to him (p. 37). There was no professional reason for him to text her after she declined his job offer.
104At the end of the interview, in response to the officer expressing how he was having a hard time with his story about going to the motel, Mr. Arman stated “I know… honestly, I never had a plan. I know I did mistake” (p. 51). He realized that he had done something wrong by taking Ms. A.A. to a motel when Pizza Pizza called him. Mr. Arman was an experienced business owner. He knew that everything he did that afternoon, starting with picking up Ms. A.A. up in his vehicle, was unprofessional. Instead of accepting responsibility, he made up unbelievable excuses and blamed Ms. A.A. for his choices.
C. Legal Analysis
i. Fundamental principles:
105It is important to start from the fundamental premise that a criminal trial is not a credibility contest. I cannot choose between competing accounts or evidence and decide which one is more credible or compelling. Furthermore, in order to be acquitted, I am acutely aware that Mr. Arman does not have to prove anything about what happened in that motel room. The burden of proof rests solely and unwaveringly on the crown.
106The issues to be decided in this case are whether the crown has proven beyond a reasonable doubt that Mr. Arman sexually assaulted Ms. A.A. In order to make this determination, I have considered the credibility and reliability of the witnesses who testified during the course of the trial and the evidence adduced in Mr. Arman’s statement to the police.
107It is important to distinguish between the concepts of credibility and reliability because they are different. As the Ontario Court of Appeal explained in R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 at para. 41 (Ont.C.A.):
Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness' ability to accurately:
i. observe;
ii. recall; and
iii. recount
events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.
108While a witness may not be credible or reliable with respect to certain aspects of their account that does not mean, inexorably, that I can’t accept other parts of that witness’ evidence. I am entitled to believe all, some or none of a witness’ evidence.
ii. The W.D. analysis commencing with the defendant’s statement:
109Applying these concepts to the facts in this case, within the W.D. framework, I carefully reviewed each of the witnesses’ evidence. The defence did not call evidence but the crown tendered a partially exculpatory statement.
110Regarding Mr. Arman’s statement to police, I have considered whether I accept it as accurate and whether it is exculpatory. Even if I don’t believe the exculpatory aspects of Mr. Arman’s statement, I must consider whether it raises a reasonable doubt. Finally, even if the exculpatory aspects of Mr. Arman’s statement do not raise a reasonable doubt, I must still go on to consider, based on the evidence that I do accept, whether the crown has proven Mr. Arman’s guilt beyond a reasonable doubt.
111As stated during the review of the evidence, I did not believe Mr. Arman’s account of what happened in that motel room. He was not a credible historian. He presented as a man who was trying to excuse his reprehensible and predatory misconduct by providing incredulous explanations for how he ended up in a motel room with a desperate prospective teenage employee, giving her alcohol and touching her. I reject the exculpatory aspects of Mr. Arman’s statement and those parts do not raise a reasonable doubt. I accept only those parts of Mr. Arman’s statement that confirmed Ms. A.A.’s evidence.
112While I have rejected Mr. Arman’s exculpatory account and it does not raise a reasonable doubt, I must address counsel’s submissions about the frailties in the crown’s case.
iii. Ms. A.A.’s evidence:
113There were a few internal and external inconsistencies with Ms. A.A.’s evidence. Counsel highlighted insignificant discrepancies like whether she got juice before the alcohol or when she sent certain texts or when Mr. Arman made lewd references to the bed and a paid massage. Ms. A.A. suffered a personally life altering trauma that night, while under the influence of alcohol and more than two years have elapsed since the occurrence. The reliability of some of her recollections was negatively impacted by these factors but she was completely unshaken in her evidence about how she was victimized by Mr. Arman.
114The Court of Appeal observed in R. v. A.M., [2014] ONCA 769 at paragraphs 13 and 14:
Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.
Fifth, a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses. [citations omitted]
115The inconsistencies highlighted by counsel were about “peripheral subjects”. I do not accept that they were material facts about which an “honest witness would be unlikely to be mistaken”.
116Counsel also forcefully submitted that Ms. A.A. was not a credible witness because she lied to Mr. L.M. and insisted that he not call the police. I could not disagree more. Ms. A.A. provided perfectly rational and understandable explanations for her choices.
117First, Ms. A.A. was concerned that because she entered the motel voluntarily with a strange man and she consumed alcohol, she may be in trouble with the police, or they may not believe her. L.M. confirmed that Ms. A.A. did not trust the police (page 83 February 15th):
A. is very - has always been quite scared of police and been very uncomfortable around them. I can - there have been times where we have just been driving down a road, and there was just - we’ve just driven past a cop car, and it’s given her a bit of a panic attack type of thing. Not, like, a super major one or anything, but just the mere presence of police officers has definitely flared her anxiety in the past.
118As a racialized woman, Ms. A.A.’s lack of confidence in the police is understandable and should not be casually or caustically dismissed. All participants in the criminal justice system must be very mindful of current events in the world, the global media attention surrounding countless accounts and recordings of police brutality involving people of colour and how this mounting distrust of police within racialized communities may impact the way a person of colour perceives and reacts to the involvement of the police.
119The Supreme Court of Canada in R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34 at paras 95 and 97 (S.C.C.) addressed the lasting negative impact of unfair police practices on the collective psyche of racialized communities. Please also see: R. v. Thompson, 2020 ONCA 264, [2020] O.J. No. 1757 at para. 63 (Ont.C.A.). I accept that Ms. A.A.’s race was a factor that influenced her perceptions and worries that the police may react negatively as well as her unwillingness to report these events until she had more time to reflect.
120Secondly, a well-intended but overly aggressive male friend was inadvertently exacerbating the situation. He made Ms. A.A. feel stupid for her choices and like it was her fault for getting herself in this situation. She lied to L.M. because she did not want a man to make a choice for her about reporting her experience. That does not make her incredible. Quite the contrary, she needed time to process her victimization and lying was the only way to ensure that she was not forced into a situation that she was not emotionally or psychologically ready to deal with at that time.
121Thirdly, counsel intimated that Ms. A.A.’s ability to stand up for herself during the trial was somehow an indication that she was nowhere near as gullible or meek as she purported to be the night of this interaction with Mr. Arman. Again, I disagree. She is two years older and two years wiser. She has more life experience. She is back in school and economically stable. Moreover, despite her maturity, it appeared to take every ounce of Ms. A.A.’s personal strength to persevere and testify during the trial. She was trembling, crying and emotional. She looked completely exhausted at the end of the first day of the trial and she was very reluctant to be a witness.
122Fourthly, counsel’s submissions that Ms. A.A. was influenced or forced into making a complaint by Mr. L.M. were based on his suppositions as opposed to being informed by the facts. Ms. A.A. made a complaint with the assistance and support of Mr. L.M. when she was ready to come forward. Counsel submissions teetered very close to suggesting that Ms. A.A.’s delayed disclosure ought to negatively impact my assessment of her credibility. In R. v. D.D. 2000 SCC 43, [2000] 2 S.C.R. 275 at para 65, the Supreme Court of Canada directed that:
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. [emphasis mine]
123The Court of Appeal, in R. v. Kiss, 2018 ONCA 184 at para. 101, also explained that:
The principle in D.D. is not confined to delays in reporting. It relates to any stereotypical assumption about how sexual assault victims are apt to behave, and it is stereotypical to assume that sexual assault victims tend to scream for help. Some will, others will not.
124Finally, I found Ms. A.A.’s account of what Mr. Arman did to her to be simple, straight forward and without any embellishments. I am aware that in R. v Alisaleh, 2020 ONCA 597, [2020] O.J. No. 4004 at paras. 16 and 17 (Ont.C.A.) the Court of Appeal warned trial judges to be cautious when considering these factors.
To be clear, it is not an error to simply note that there is an absence of embellishment in the complainant's testimony. This court has held that the presence of embellishment can be a basis to find the complainant incredible, and there is nothing wrong with noting the absence of something that could have diminished credibility. However, it is wrong to reason that because an allegation could have been worse, it is more likely to be true (citations omitted). Our colleague Paciocco J.A. put it this way in Kiss at para. 52:
On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness' evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible. [emphasis mine]
125Similarly, R. v. J.B., [2022] ONCA 214 at paras. 15 to 18, the Court of Appeal revisited this consideration:
In this case, the trial judge was not using the absence of exaggeration in J.D.’s evidence or her lack of motive to lie as a “makeweight in favour of credibility”. It was merely one of the explanations he gave for why he did not find the complainant to be incredible: Kiss, at para. 53. He was not reasoning that, because the allegations could have been worse, they were more likely to be true.
Thus, Alisaleh is clearly distinguishable. At para. 14 of that case, and unlike the present case, Fairburn A.C.J.O. found that “the lack of embellishment was specifically noted by the trial judge as an ‘important’ factor used to ‘enhance’ the complainant’s credibility.”
126Ms. A.A provided a compelling account of a progressively invasive series of sexual advances and unwanted contact that interfered with her sexual integrity in circumstances in which Mr. Arman knew full well that his conduct was both uninvited and unwanted.
127Finally, I found Ms. A.A. to be a very credible, articulate, and compelling witness. Moreover, her evidence was supported and confirmed by Mr. L.M. Based on a review of all of the evidence that I do accept, the crown has proven the following facts beyond a reasonable doubt:
- Mr. Arman called Ms. A.A. “sweetie” when he texted her. He picked her up at her home and he chose to bring her to “his place”. Ms. A.A. did not know it was motel room until they arrived there. Mr. Arman used the possibility of a job prospect to lure a desperate teenager into meeting with him alone in a motel room.
- Mr. Arman insisted that Ms. A.A. consume alcohol and that she stop communicating with whoever was texting and calling her.
- He touched her hands without her consent and rubbed them with Vaseline despite her expressing her discomfort with his conduct.
- Mr. Arman moved over to the small couch where Ms. A.A. was sitting on his own initiative. He sat very close to her with his arm around the back of the couch. Despite Ms. A.A. trying to physically pull away from him and asking him to stop what he was doing, Mr. Arman kissed her neck four times, he touched her stomach and then he tried to unzip her pants.
- Mr. Arman made inappropriate and intimidating comments about what he could have done on the bed to her if he wanted to and that he could have paid for sexual services. He offered to lick Ms. A.A. in a sexual manner.
- When Ms. A.A. tried to leave the motel, Mr. Arman grabbed her hand and placed it on his genitals. Ms. A.A. pulled her hand away and Mr. Arman kissed her on the lips.
- Ms. A.A. was distraught and crying when she left that motel. She took the time that she needed to collect herself. She chose to make the complaint to human resources and the police when she was ready with Mr. L.M.’s assistance.
128Ms. A.A. only wanted a job. She did not invite or consent to any of Mr. Arman’s sexual advances. She expressed her discomfort throughout their meeting, but he manipulatively pretended that he was not sexually interested in her. He violated her sexual integrity through a series of progressively invasive sexual advances.
iv. Do these acts amount to sexual assaults:
129Counsel did not dispute that, if I accepted Ms. A.A.’s evidence about what transpired in the motel, that it would amount to sexual assaults. As noted in the seminal decision of the Supreme Court of Canada in R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33 at paras. 89 and 90:
Consent is treated differently at each stage of the analysis. For purposes of the actus reus, "consent" means "that the complainant in her mind wanted the sexual touching to take place" (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant's state of mind, and the accused's perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent -- plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see J.A., at para. 37).
For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent, "consent" means "that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused" (Ewanchuk, at para. 49). Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed "the complainant effectively said 'yes' through her words and/or actions" (ibid., at para. 47). [emphasis mine]
130The crown has proven the actus reus of the offence that Ms. A.A. did not consent to any of this conduct that interfered with her sexual integrity. Since I accept that Ms. A.A. did not consent, I still must consider whether there is any evidence that raises a reasonable doubt, that Mr. Arman honestly but mistakenly believed that Ms. A.A. communicated her consent to the sexual activity.
131There are no facts, in the circumstances of this case, that raise a reasonable doubt about the mens rea of this offence. There was nothing in Ms. A.A.’s conduct that would have communicated to Mr. Arman that she was a willing participant or that she was consenting in any way. Rather, every step of the way, she asked him to stop and/or told him that she was uncomfortable with what he was doing to her. Mr. Arman ignored Ms. A.A.’s expressed wishes and continued to try and take advantage of her desire to secure a job.
132I find that Mr. Arman violated Ms. A.A.’s sexual integrity knowing that he was doing so without her consent. In addition, despite his protestations that he was just trying to be friendly, Mr. Arman’s conduct was undoubtedly sexually predatory.
D. Conclusion:
133Mr. Arman’s conduct with a vulnerable young woman who trusted him was shameful. Ms. A.A. was not to blame in any way for a grown man’s choices to take advantage of her desperation, inexperience and naivety.
134The crown has proven beyond a reasonable a doubt that Mr. Arman committed the unwanted and invasive acts described by Ms. A.A. As a result, he is found guilty of sexual assault.
Released: April 8, 2022
Justice B.M. Green