Publication Ban Information
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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) MANDATORY ORDER ON APPLICATION — 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.
486.6 OFFENCE — (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.
Another non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5 (1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (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.
Ontario Court of Justice
Date: 2023 08 02 Court File: Toronto 22-10002249
Parties
Between: His Majesty the King And: Charles Waddling-Leeson
Judgment Details
Heard on: July 10-14, 17 and 18, 2023 Before: Justice Brock Jones Written Reasons for Judgment Delivered on: August 2, 2023
Counsel
M. Gries, counsel for the Crown A. Goldkind, counsel for Mr. Waddling-Leeson
Introduction
1On the afternoon of March 24, 2022, Ms. A.A. was working as a teaching assistant at Ryerson University in Toronto. [1] When her class took a scheduled break, she entered a women’s washroom. A man she had never met before followed her. What happened inside the washroom between Ms. A.A. and this man formed the focus of this trial.
2Mr. Waddling-Leeson is charged with sexual assault while threatening to use a weapon: namely, a knife (Criminal Code section 272(1)(a)); sexual assault causing bodily harm (Criminal Code section 272(1)(c)); sexual assault while choking (Criminal Code section 272(1)(c.1)); robbery (Criminal Code section 343(b)); possession of property obtained by crime under $5000 (Criminal Code section 354(1)); and failing to comply with a probation order (Criminal Code section 733.1(1)).
3Ms. A.A. described a horrifying sexual assault that continues to haunt her to this day. Mr. Charles Waddling-Leeson does not dispute that he was the man who interacted with Ms. A.A. and that they had sexual contact. He asserts that whatever occurred between them was consensual, and disputes many of the specific allegations Ms. A.A. made against him. He painted a very different picture of what happened that day in his testimony.
4As in every criminal trial, the onus rests with the Crown to prove the charges beyond a reasonable doubt. Mr. Waddling-Leeson is presumed innocent. He bears no burden to prove anything.
5Following the conclusion of the trial, I reserved my decision. These are my reasons.
Summary of the Crown’s Evidence
(i) Testimony of Ms. A.A.
6Ms. A.A. was 24 years old on March 24, 2022. She was employed as a teaching assistant. That afternoon, she was at Kerr Hall South. When her professor gave the class a scheduled break, she used a women’s washroom. It was shortly after 5 p.m.
7When she entered the washroom, she noticed someone else was present. She did not pay much attention to this person and proceeded to enter a stall. When she was finished, she left the stall and approached one of the sinks. She turned her head and this person, whom she could now tell was a man, was standing next to her.
8She immediately felt discomfort. The man would not take his eyes off her. He approached her and told her she “looked so fucking sexy”.
9He removed her iPhone from her pant pocket and threw it across the room. He placed his hands on her, using one hand to hold her arms together. She remembered he used a considerable amount of force. He pushed her and she fell to the ground. Her head hit the floor.
10She began to scream. She was terrified. She did not know what was about to happen to her. While lying on her back, he placed himself on top of her. He put one hand over her mouth to muffle her screams. It was painful.
11Ms. A.A. had a facemask on when she entered the washroom due to the university’s COVID policies at the time. He ripped that off. The man proceeded to unbutton or unzip his pants and pulled them down.
12He forced his penis into her mouth and said, “Suck on it, suck on it sexy.” She could not remember exactly how long this lasted. He then unbuttoned her pants and pulled them down along with her underwear. He changed his body’s position and proceeded to perform oral sex on her.
13She was unable to move. She was scared about what was happening and greatly concerned about contracting a disease. She was also fearful that his behaviour might change depending on how she reacted. He might hurt her further if she resisted.
14After about thirty seconds he turned around again and inserted his tongue into her mouth. He told her to “Open it”, meaning her mouth, several times. She recalled in vivid detail that the man smelled “very bad” like he had this “musky smoke scent to him”, akin to cigarette smoke.
15Someone else eventually entered the washroom. Ms. A.A. could hear footsteps. She screamed for help but the man stayed on top of her. The unknown person who entered the washroom made a remark and then left.
16The man then attempted to turn her over onto her stomach and she tried not to move. She had back surgery in the past and had rods in her spine. But he was too strong, and he was able to turn her body. He digitally penetrated her vagina and anus with his fingers. He warned her that he had a knife and if she made another sound, he would stab her or hurt her. He said this more than once.
17He touched her elsewhere on her body, including on her left breast both on top of and underneath her bra. When she wouldn’t follow his instructions to her to open her mouth, he pressed his hands into her neck, and she felt his fingers gripping her skin. He pressed down so hard she felt like she couldn’t breathe and wondered if she would pass out.
18She was so overcome with fear she worried she would not make it out of the washroom alive.
19Another person entered the washroom. This was a woman with long dark hair. She looked at what was happening between Ms. A.A. and the man. Ms. A.A. could not recall if this woman said anything. The woman quickly left, and the man brought his face close to Ms. A.A. He told her not to move and “Not to tell anyone.” He picked up her iPhone and walked out of the washroom.
20Ms. A.A. stood up and exited the washroom. She walked down the hall and found the other woman who had just been in the washroom with long dark hair. That woman spoke to her and was already on the phone with campus security. Ms. A.A. next reported the incident to her professor, whom she sought out for emotional support.
21She attended Mt. Sinai Hospital and Women’s College Hospital. Her medical records were entered into evidence. She had noticeable injuries, including scratches on the left side of her neck. She suffered from a great deal of pain and had soreness on her back and head. She subsequently experienced headaches, dizziness, and nausea.
(ii) Ms. S. B.
22Ms. S. B. was attending a class in Kerr Hall South the same day. She stepped out of class to use the washroom.
23When she entered, she saw two people on the bathroom floor. She was unsettled by her observations. A young woman was lying on her back with a man on top of her. The top half of his body was positioned directly over her. Her pants were pulled down and her underwear was out of place. He was touching her vaginal area with his fingers. She appeared “lifeless” and had no expression on her face.
24The man was acting aggressively and appeared to be holding her down on the ground with considerable force. She uttered a remark along the lines of “Jesus Christ, what the fuck?” as she was so shocked by what she saw. She stepped out almost immediately and called campus security.
25About 30 seconds later she observed the man leave the washroom. He seemed agitated. He left the area. The woman came out next and approached Ms. S.B. She told her she’d been raped. Ms. S.B. assisted this woman (who was Ms. A.A.) while they awaited the arrival of campus security.
(iii) Video Surveillance Evidence
26Video surveillance evidence was presented from Ryerson University. Mr. Waddling-Leeson attended Ryerson University earlier that afternoon. It was agreed between the parties that he was not a student and had no academic or employment business there. He was able to gain access through the main campus doors at 350 Victoria Avenue. These doors were locked and required a key card. Mr. Waddling-Leeson gained entry by following another student through them. Once inside, he appeared to simply meander around the university campus through various areas.
27Ultimately, he arrived at Kerr Hall South. In the video footage taken in the hallway outside the washroom in question, Ms. A.A., Mr. Waddling-Leeson, Ms. S.B., and other persons were identified. The following timeline of events can be established from the video evidence:
- 5:02 pm – Mr. Waddling-Leeson is loitering in the hallway outside the women’s washroom at Kerr Hall South;
- 5:04:49 – Ms. A.A. enters the women’s washroom;
- 5:05 pm – Mr. Waddling-Leeson enters the washroom;
- 5:09:54 – unknown person #1 enters the washroom and exits shortly thereafter;
- 5:11:10 – unknown person #2 enters the washroom and exits shortly thereafter;
- 5:11:51 – Ms. S.B. enters the washroom;
- 5:11:59 – Ms. S.B. exits the washroom;
- 5:12:10 – Ms. S.B. and unknown person #1 are observed talking in the hallway;
- 5:12:20 – Mr. Waddling-Leeson exits the washroom and leaves the area;
- 5:13:03 – Ms. A.A. exits the washroom.
28The Crown also presented video surveillance footage from 100 King Street West taken on the evening of March 24, 2022, commencing at 5:41 p.m. This video captured Mr. Waddling-Leeson in this building at various locations. I will address the purported significance of this video later in my reasons.
(iv) Medical Records, DNA results, Agreed Facts, and Property Located Upon Arrest
29Ms. A.A. attended Women’s College Hospital on March 24, 2022. She had two scratches on the left side of her neck, measuring 3 cm and 1.5 cm. A sexual assault evidence kit (“SAEK”) was completed and later submitted to the Centre of Forensic Sciences (“CFS”).
30She attended Mt. Sinai Hospital on April 10, 2022, complaining of headaches, dizziness, light-headedness, the inability to focus and poor sleep. The main diagnosis was a concussion.
31A forensic biologist with the CFS, Ms. A. Morris, was declared to be an expert on DNA analysis and interpretation. Her reports were filed as an exhibit and she testified. The following is only a summary of that evidence. She examined samples from the SAEK to determine whether semen and/or saliva could be detected and whether a male DNA profile could be developed that was suitable for comparison purposes. She concluded that saliva with a male DNA profile was located on Ms. A.A.’s underwear. Mr. Waddling-Leeson could not be excluded as the source.
32Ms. Morris also examined a pair of underwear taken from Mr. Waddling-Leeson upon his arrest on March 24, 2022. A swab from the inside of this underwear revealed the presence of saliva with a female DNA profile. Ms. A.A. could not be excluded as the source.
33After he was arrested on the evening of March 24, 2022, near 106 John Street in Toronto, a search of Mr. Waddling-Leeson revealed that he had Ms. A.A.’s iPhone, although the protective case that had been covering it was not located.
34Mr. Waddling-Leeson was subject to a probation order on March 24, 2022. A term of that order required him to “keep the peace and be of good behaviour.”
Defence Evidence
(i) Testimony of Mr. Charles Waddling-Leeson
35Mr. Waddling-Leeson is 28 years old. He has a grade 11 education.
36He worked as a male entertainer. He could be hired for various purposes. Sometimes clients would have sex with him. He was willing to have sex in public areas, including changerooms, or washrooms.
37He normally communicated with clients through apps or text messaging. He met Ms. A.A. on Tinder and referred to her as “Nikki”. They messaged and video-chatted approximately five times over a period of two to three weeks prior to March 24, 2022. [2]
38On that day he received a reply from Nikki and intended to meet her at Ryerson for a hook-up. She texted him her location at Kerr Hall and wanted to meet him in a women’s washroom.
39Mr. Waddling-Leeson was initially skeptical of this proposed arrangement but decided it was not unusual to meet in a washroom in his line of work.
40He attended the university and could not gain entry to the university at first as he did not have a keycard for one of the exterior doors. He followed some students inside when they opened the door.
41He meandered around Ryerson University including in areas that were not intended to be accessible to members of the public. When he finally arrived at Kerr Hall South he texted Nikki again to confirm the room number where she was teaching. When he saw her in the hallway and enter the women’s washroom, he knew it was her from their prior video chats.
42Inside the washroom, he attempted to kiss her but she didn’t seem to want him to do so. He played with her hair. They began to engage in some consensual sexual activity. He undid her pants and pulled them down below her buttocks. He was touching her body in this area and “playing with her.” He also touched Nikki’s breasts. His pants remained on the entire time.
43He touched her vagina but could not “fully remember” if he inserted his fingers into it. He did recall licking at least one finger first before touching her there. He denied that oral sex was on his mind at all. He was expecting a brief sexual experience as Nikki’s break was at most 20 minutes long. Tinder, in his experience, was used for those seeking a “hot hookup.”
44He denied the specific allegations Ms. A.A. made about the nature of the sexual assault and violent behaviour that occurred in the washroom on her version of events.
45He grabbed her iPhone and kept it in his pocket. He admitted he took it when he left and this constitutes a theft.
46At one point a woman walked into the washroom. He could not recall if she spoke, but he did not hear anything. Several minutes later, the witness who testified (Ms. S.B.), next entered the washroom. She walked in and out without saying a word.
47He denied that any sexual assault occurred in the washroom. He was adamant that he knew security was in the building and could have walked into the washroom at any time. It would have been illogical to assault someone. Everything was done with consent.
48He left the washroom as he felt the mood had changed following Ms. S.B.’s entry. He “just happened” to be the first one to leave. He proceeded downtown to 100 King Street West. He knew that some rooms associated with the janitorial staff had washrooms that he could use. He showered in one of these rooms in the basement.
49He travelled to 106 John Street where he was located by the police and arrested.
Positions of the Parties
50Ms. Gries submits Ms. A.A. was the victim of brutal sexual assault committed by a stranger. She was an honest witness and I should have no difficulty accepting her testimony. Her testimony was logical. Despite suffering from this assault, both physically and emotionally, she was able to answer all questions asked of her and relive the experience. The DNA evidence, medical records, and testimony of Ms. S.B. corroborate her version of events. Mr. Waddling-Leeson’s post-offence conduct, as demonstrated through the video surveillance evidence at Ryerson University and 100 King Street West, is evidence of a guilty mind.
51By contrast, Mr. Waddling-Leeson’s testimony was unbelievable. I should not be left in a reasonable doubt based on his testimony, which finds little to no support in the rest of the evidence presented at the trial and is contradicted by some of that evidence.
52She rightly cautioned me against succumbing to improper reasoning by relying upon discredited myths. There is no inviolable rule about how a victim of a sexual assault will behave afterwards. Nothing about Ms. A.A.’s experience should call into question that she was a victim of exactly what she described.
53When Mr. Waddling-Leeson stole Ms. A.A.’s phone, he committed the offence of robbery because the theft was linked to the violence that immediately preceded it.
54Mr. Goldkind submits that the Crown has failed to meet its burden. This is a “he said v. she said” case and I should be left with reasonable doubt about the nature of the sexual conduct that occurred in the washroom and whether it was done with consent.
55There were serious problems with Ms. A.A.’s testimony. Her testimony was internally and externally inconsistent in at least one crucial area. She “dug her heels in” during cross-examination and would not accept even relatively benign suggestions if they clashed with her preferred narrative of events. Equally worrying is that she and Ms. S. B. may have influenced each other’s testimony when they discussed what happened after Ms. A.A. left the washroom. Ms. A.A. also had to have her memory refreshed on whether she was choked or not, as she did not mention this initially during her testimony in chief. That is a serious part of her allegations that one would not be expected to forget.
56Mr. Goldkind argued the DNA evidence was not suggestive of guilt. First, DNA evidence does not speak to the issue of consent. Second, he pointed me to the absence of DNA evidence confirming all aspects of Ms. A.A.’s testimony.
57Additionally, Mr. Waddling-Leeson’s testimony should raise a reasonable doubt. I must consider his testimony free from any preconceived stereotypes about how men and women may engage in consensual sexual activity. Mr. Waddling-Leeson’s explanation for how he met Ms. A.A. via Tinder should be accepted.
58There was no dispute Mr. Waddling-Leeson’s decision to steal Ms. A.A.’s phone constituted theft. However, Mr. Goldkind submits that the Crown cannot prove a robbery occurred, as the taking of the phone was not sufficiently linked to any violence. He reminded me that Mr. Waddling-Leeson denied any violence occurred at all.
Analysis
59The primary issue in this trial was whether the Crown proved beyond a reasonable doubt that what happened between Ms. A.A. and Mr. Waddling-Leeson was truly a stranger sexual assault as she described.
60A criminal trial is not a “credibility contest where the trier of fact must choose whether to believe one side or another”: R. v. I.W.S., 2017 ONCA 409, at para. 14. Rather, in a case such as this, the court must apply the approach to assessing the witness’ credibility described in R. v. W.D.:
- First, if the judge accepts the evidence of the accused, then the accused must be acquitted.
- Secondly, if I do not believe the testimony of the accused, I could still be left with a reasonable doubt, and again I must acquit the accused.
- Thirdly, even if the testimony of the accused does not raise a reasonable doubt, I have to consider all of the evidence including the evidence adduced by the Crown to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offences.
(i) Crown Evidence
61I found Ms. A.A. to be an honest witness trying her very best to accurately describe what happened to her on March 24, 2022. She answered questions in chief clearly and articulately. She admitted when she did not know something or could not remember a particular detail. For example, she could not always remember what her assailant was doing with each of his hands at all times or the precise words he said to her during different stages of the assault. She focused on what stood out in her mind. She was nevertheless able to recount in harrowing detail the nature of the sexual assault she experienced. On the central issue of consent, she never wavered that she did not consent to anything that happened in the washroom. She did not know Mr. Waddling-Leeson and this was a terrifying ordeal for her.
62She provided specific details about not only the nature of the sexual assault that she endured but also the appearance of her attacker. She remembered he had blue-green eyes, bangs on his hair that were pushed to the side, and dark clothing including a dark shirt, and dark grey or black pants. This is consistent with the video surveillance evidence. There were some minor errors in her testimony on peripheral matters, such as her belief the man was wearing a toque (which the video shows he was not.)
63In cross-examination, she initially answered Mr. Goldkind’s questions to the best of her ability fairly and comprehensively. However, I agree with Mr. Goldkind that as cross-examination continued, she became evasive and uncooperative when questioned about certain details of her testimony.
64One area stands out in particular and requires careful analysis. Mr. Goldkind presented her with the video surveillance footage from Ryerson University which demonstrated her entering the washroom first and the man the Crown alleged was Mr. Waddling-Leeson following her inside. While she testified in chief that she believed the man who assaulted her was already in the washroom when she entered, she was asked to consider the possibility that she was mistaken, and that the man was actually outside the washroom when she entered it. Again, this was confirmed by the video surveillance footage and neither side disputes this order of events.
65Yet despite the video footage, Ms. A.A. refused to accept Mr. Goldkind’s suggestions to her that something about her narrative must therefore be wrong. He asked these questions several times, in simple language, and a professional manner. I find Ms. A.A. feigned confusion about his questions and refused to answer them directly. She was upset and concerned that her memory of the events in question did not seem to accord with the video footage which she only saw for the first time while testifying.
66During her testimony in chief, she was certain the man who assaulted her was already in the washroom when she entered. She explained that she did not determine the person’s gender when she first arrived in the washroom, as she didn’t pay much attention to this person initially. After she left the stall in the washroom, she clarified that she believed the same person she saw when she entered the washroom was the man who subsequently assaulted her. It was only when he approached her by the sinks that she realized the person was a man.
67In cross-examination, Ms. A.A. accepted that she gave a statement to the police after the assault occurred in which she was “clear” that the man who assaulted her was in the bathroom before she entered. While she did not pay him much heed at first, she felt “his eyes on her”, and after she approached the sink that same man began to assault her. In cross-examination, as Mr. Goldkind pressed his point about her belief that her assailant was already in the washroom when she entered, and she knew the person was a man from the beginning. She began to deny not only knowing that the person was a man but also that this person was necessarily the same person who assaulted her. All of this appeared to be done in an attempt to explain away her prior statement and testimony and why they did not seem to be consistent with the video footage showing the suspect entering the washroom after she did.
68At one point during this portion of her cross-examination, Ms. Gries objected to Mr. Goldkind’s questions and stated that “I believe the complainant’s evidence was that she didn’t know who was in the bathroom. She couldn’t tell if it was a man or a woman.” The witness was present in the courtroom during this objection and heard Ms. Gries’ submission. Before voicing her objection, Ms. Gries did not recommend that the witness be excluded. Yet after hearing the objection, Ms. A.A. provided several answers to Mr. Goldkind’s subsequent questions that were influenced by hearing Ms. Gries’ submissions.
69For example, she began to disagree with Mr. Goldkind that she had ever told the police that the man who assaulted her was in the washroom before she entered. This was in direct contradiction to an answer she had given earlier the same day. She changed her testimony and stated that she was “unaware as to who was in the washroom when I first entered” and “I was not able to identify whether the person there was the man who assaulted me or not.” She had left me with the opposite impression during her testimony in chief.
70Mr. Goldkind submits that having been influenced by the Crown’s submissions at the time of the objection, her answers to the questions after that point must be approached with caution. I agree. The witness should have been excluded from the courtroom before Ms. Gries made her arguments. Ms. A.A.’s testimony was affected by what she heard, and the answers she provided after that point about the order of events on March 24, 2022, and specifically whether she believed the man who assaulted her was already in the washroom before she entered must be evaluated with that in mind.
71Crucially, despite Mr. Goldkind playing the surveillance footage of her and Mr. Waddling-Leeson in the hallway at Kerr Hall outside the washroom several times, Ms. A.A. never pointed to the man on the video footage and identified him as the man who assaulted her. She only accepted that this man on the video footage also had dark clothing which was similar to what her assailant was wearing.
72As Mr. Goldkind correctly submitted, Ms. A.A. is an educated woman who understood his role as defence counsel. She appreciated the significance of the legal arguments she heard. I find that rather than simply providing honest answers when reviewing the video footage, she was trying to think through the implications of her testimony and altered her answers to try to find a way to reconcile the obvious contradictions between her police statement, in chief testimony, testimony during cross-examination and what could be seen in the video footage.
73The video footage also demonstrated that three people entered the washroom when her assault was occurring, not two as she remembered. This also contradicted part of her testimony in chief.
74Mr. Goldkind asked Ms. A.A. whether the man in the washroom who assaulted her was wearing anything like a mask to obscure his face. He suggested to her that the man was not hiding his face from her at all. She disagreed with this suggestion at first, despite never mentioning anything previously in her testimony that the man was trying to hide his face from her. She explained that she thought Mr. Goldkind was asking about “not just his face”, but “his whole presence.” Nothing about his questions suggested anything of the sort. After several more questions, she finally agreed with Mr. Goldkind’s suggestion.
75Ms. A.A. was obviously mistaken that the man who assaulted her was already inside the washroom when she entered. Her memories were flawed in this regard. When challenged on several aspects of her testimony as I previously described, she was not being as forthright in her answers as she should have been. She was frustrated and worried something was wrong with her memories as compared to the video surveillance.
76It is important to keep in mind that the identification of the man in the washroom was not an issue during the trial as Mr. Waddling-Leeson agreed it was him (as the DNA evidence left no room for doubt in that regard). Had identity been an issue in this trial, these problems with Ms. A.A.’s testimony might have taken on great weight. However, I find these difficulties with her testimony do not significantly impact any of the live issues I must decide.
77A court may accept some, none or all of a witness’s testimony: R. v. C.P., 2021 SCC 19, at para. 35. I accept Ms. A.A.’s testimony entirely about the nature of the assault she experienced. She never wavered on the core issue of whether the sexual encounter with this man was non-consensual. She provided detailed, comprehensive testimony about what happened to her in the washroom. Her description of the assault included that the man inserted his penis and testicles into her mouth, and later forced oral sex on her after pulling her pants and underwear down. The DNA evidence confirmed that her saliva was located on a portion of Mr. Waddling-Leeson’s underwear and that his saliva was located on a portion of her underwear. I acknowledge that while this confirms her description of this aspect of the sexual contact that occurred, DNA evidence does not speak to the issue of consent.
78Her testimony that the man who assaulted her took her phone before the assault commenced and then kept it afterwards is entirely logical. The man would not have wanted her to call for help at any time. Mr. Waddling-Leeson does not dispute he took her phone, although he described the circumstances differently.
79Her version of events is also confirmed by Ms. S.B.’s testimony who noticed Ms. A.A. on the floor of the washroom while a man was on top of her acting in an “aggressive” manner. As I will explain, I accept the testimony of Ms. S.B. where that testimony was based on her direct observations.
80The weaknesses of Ms. A.A.’s testimony identified by Mr. Goldkind and the inconsistencies between her testimony and the video evidence do not raise a reasonable doubt in my mind on the issue of consent or what transpired in the washroom: see R. v. Rose, 2021 ONCA 408, at para. 38. I find that Ms. A.A. testified, overall, entirely honestly, and she held up well during a prolonged cross-examination. Her description of the assault was very detailed. She experienced a devastating sexual assault by a stranger, which was a traumatic event. Any frailties in her memory must be considered in this context, including her inaccurate recollection of the order of events preceding the assault: see R. v. G.M.C., 2022 ONCA 2, at para. 38; R. v. Wei, 2022 ONSC 5087, at para. 52.
81I accept Ms. Gries’ submission that Ms. A.A.’s post-event demeanour can serve as circumstantial evidence to corroborate her testimony as well: see R. v. Steele, 2021 ONCA 186, at para. 94. The video evidence from Kerr Hall South was of poor quality and it is difficult to determine her demeanour from it. However, Ms. S.B. testified that Ms. A.A. appeared “shocked and confused.” Ms. A.A. testified that she was shaking, dizzy and light-headed. I accept both of their testimony on this point. This is evidence that Ms. A.A. was profoundly affected by what happened to her in the washroom: see R. v. A.J.K., 2022 ONCA 487, at para. 43.
82The absence of more visible physical injuries does not suggest Ms. A.A. was providing inaccurate testimony. I heard no medical evidence that for Ms. A.A.’s description of the assault to be truthful certain physical injuries would need to be visible or otherwise present. The photographs and medical records sufficiently confirm Ms. A.A.’s description of what she endured: see Wei, supra, at paras. 68-73; R. v. M.R., 2017 ONSC 5891, at para. 119. She had marks on her neck and described his hands on her throat while he choked her. She hit her head on the floor with significant force and was later diagnosed with a concussion, and experienced symptoms of head trauma prior to that formal diagnosis.
83Nor am I concerned that Ms. A.A.’s clothing was not torn or there wasn’t any evidence of buttons having been pulled off as argued by Mr. Goldkind. A sexual assault can occur, even one as violent as the one described by Ms. A.A., without there being obvious signs of damage to a victim’s clothing.
84I also do not find that Ms. A.A.’s description of being choked is less worthy of acceptance because her memory on this point had to be refreshed during her testimony in chief by Crown counsel. It is not unusual that a witness may require her memory of the details of an assault to be refreshed when testifying. Giving testimony in a courtroom about difficult subject matter and traumatic events is very difficult for most witnesses. The Supreme Court of Canada observed in R. v. R.V., 2019 SCC 41, that “[t]estifying in a sexual assault case can be traumatizing and harmful to complainants”: see para. 33. Once her memory was refreshed, Ms. A.A. was able to thoroughly explain how she was choked and the context of this happening to her.
85She was a reliable witness in all but one area of her testimony, which was whether the man who assaulted her was already in the washroom when she arrived. She was a credible witness on the core issues of consent and what happened in the washroom and that testimony was confirmed by various other sources of evidence as described.
86Ms. S.B. testified accurately as well. She was a credible and reliable witness. She had a clear vantage point from which to make her observations in both the washroom and the hallway. Ms. S.B. agreed with suggestions put to her by Mr. Goldkind when she thought they were accurate but also held firm on her own beliefs where she disagreed with his questioning.
87She accepted that she only saw the two people on the washroom floor for two or three seconds. She therefore had a limited opportunity to make her observations.
88She had been the victim of a traumatic event herself in the past of a similar nature. Due to that prior experience, at least in part, she believed everything Ms. A.A. told her. She accepted her own prior experience may have coloured her view of what she saw in the washroom and the conclusions she drew. For example, while she did not believe the sexual activity was consensual, she agreed that she was not entirely sure at first. That is why she did not call 911 but rather chose to call campus security. She wanted them to investigate as they would be better positioned to find out what was happening.
89She agreed with Mr. Goldkind that it was only when Ms. A.A. told her she was sexually assaulted that she firmly came to that conclusion herself. Mr. Goldkind cautioned me about the reliability of Ms. S.B.’s testimony accordingly and raised the possibility of her evidence have been subject to collusion or inadvertent tainting: see R. v. B.H., 2022 ONCA 812, at para. 18.
90Ms. S.B. and Ms. A.A. had a conversation in the hallway after Ms. A.A. exited the washroom. Ms. A.A. briefly described what happened to her. As Hoy J.A. said in R. v. E.M.M., 2021 ONCA 436, at para. 19, “courts must be wary of jumping to the conclusion that a witness’s evidence is no longer independent, and has been tainted by innocent collusion, simply because of a conversation.” At most, this conversation may have confirmed in Ms. S.B.’s mind that her initial impression that the sexual activity in the washroom was non-consensual was correct. Nothing more turns on it, as the Crown’s case on the issue of proving a lack of consent turns almost entirely on the testimony of Ms. A.A.
91I have considered some contradictions between the testimony of Ms. A.A. and Ms. S.B. Ms. A.A. told Ms. S.B. she had been “raped” according to Ms. S.B., but in her testimony in chief, Ms. A.A. did not use that word specifically. Ms. A.A. also said she was screaming for help at various moments during the assault but Ms. S.B. did not testify she heard any screams. Ms. A.A. did not testify that she heard the woman who entered the washroom last (who was S.B.) utter, “Jesus Christ, what the fuck”, or similar words.
92I do not find any of these inconsistencies between the two witnesses’ testimony detract from their credibility or reliability. As previously stated, Ms. A.A. experienced a highly traumatic event, where she feared for her very life. Her memories may understandably not be flawless as previously discussed. Where there is disagreement between the two witnesses, I prefer the testimony of Ms. S.B. who was able to make largely objective observations both in the washroom and in the hallway.
93However, I do not agree with Ms. Gries that Mr. Waddling-Leeson’s conduct after leaving the washroom is strongly suggestive of a guilty mind. Post-offence conduct evidence must be approached with extreme caution.
94In R. v. Calnen, 2019 SCC 6, Justice Martin of the Supreme Court of Canada explained how a trier of fact may make lawful use of post-offence conduct at paras. 111-112 (citations omitted):
After-the-fact conduct is circumstantial evidence. Like other forms of circumstantial evidence, after-the-fact conduct allows a fact finder to draw particular inferences based on a person’s words or actions…
In order to draw inferences, the decision maker relies on logic, common sense, and experience. As with all circumstantial evidence, a range of inferences may be drawn from after-the-fact conduct evidence. The inferences that may be drawn “must be reasonable according to the measuring stick of human experience” and will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence… That there may be a range of potential inferences does not render the after-the-fact conduct null…
95Ms. S.B.’s assessment that Mr. Waddling-Leeson appeared agitated when he exited the washroom is highly subjective. Even if he was agitated, there may be innocent explanations for why he appeared that way. On his version of events, this was a consensual encounter, in a public washroom. Simply being interrupted by a third party may have affected his behaviour afterwards. I also do not find his conduct on the video surveillance demonstrates he was attempting to hide his identity. While he did place a scarf over his head, if this was an attempt to conceal his face, it was a remarkably feeble one. His entire face and body remained visible on the video surveillance. He did not run from the campus. Indeed, he appeared relatively normal as he left Ryerson University and later when he was captured on video taken at 100 King Street West.
96Mr. Waddling-Leeson testified he took a shower in a bathroom used by janitorial staff at 100 King St. West and Ms. Gries suggested he did this to attempt to wash away any evidence of the sexual assault that might be present on his body – for example, Ms. A.A.’s DNA. Yet Mr. Waddling-Leeson was transient and explained he used these washrooms often for basic hygiene purposes. While Ms. Gries’ suggestion is entirely reasonable, so too is the innocent explanation given Mr. Waddling-Leeson’s circumstances at the time. I cannot conclude that if he took this shower he did so to attempt to destroy evidence. I also note that he did not dispose of his underwear or other aspects of his clothing that he was wearing at the time of the sexual activity with Ms. A.A., which would have been expected of him if he were trying to engage in the post-offence cover up Ms. Gries alleged occurred.
97Overall, the difficulty I have with this portion of Ms. Gries’ submissions is that Mr. Waddling-Leeson’s conduct after the incident in the washroom could be equally consistent with an consensual, albeit unusual sexual encounter that was interrupted, as it could be with someone who had just committed a sexual assault. I cannot assign it any meaningful weight. I am particularly mindful of the comments of Justice Harris of the Superior Court in R. v. Beals, 2023 ONSC 555, that “consciousness of guilt evidence and inferences are often the “graveyard of trials”: see para. 146.
(ii) Defence Evidence
98Mr. Waddling-Leeson has a prior criminal record. This record included many crimes of dishonesty, including thefts and failing to comply with court orders. Pursuant to section 12 of the Canada Evidence Act, the Crown was entitled to ask him about his prior record. I may lawfully consider this prior record when assessing Mr. Waddlng-Leeson’s credibility, but for no other purpose: see R. v. Hussein, 2023 ONCA 253, at paras. 26-7.
99While the Crown is correct to argue the record is a relevant consideration, I approach some features of the record very cautiously. I place no weight on the prior youth entries as they are far too dated. I also have cautioned myself that while he has two prior entries for the same crime that he is now charged with, those entries are only marginally relevant to the extent they further reflect on his credibility. Mr. Waddling-Leeson has only one finding of guilt since 2020. A lack of recent offending is relevant when assigning any weight to the record: Hussein at para. 32.
100Mr. Waddling-Leeson’s description of a consensual, pre-arranged “hookup” with Ms. A.A. must be evaluated on the merits of his testimony and any other relevant evidence. I caution myself that I must not resort to any stereotypical reasoning when evaluating Mr. Waddling-Leeson’s description of what occurred in the washroom.
101That caution is vitally important in this case as the Crown submits Mr. Waddling-Leeson’s version of events is “patently unbelievable.” In R. v. Cepic, 2019 ONCA 541, at para. 14, the Ontario Court of Appeal explained how stereotypical reasoning can be used to the detriment of an accused person’s defence:
It is an error of law to rely on pre-conceived views about how sexual assault victims would behave: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65; R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2. These are the “myths” of appropriate behaviour that the law seeks to eradicate. Historically, these myths have operated to undermine a complainant’s testimony. But they may also operate in the reverse, to artificially bolster a complainant’s credibility on the basis that “no young woman would consensually engage in the alleged behaviour”: R. v. J.L., 2018 ONCA 756, 367 C.C.C. (3d) 249, at paras. 46-47.
102In this case, I cannot engage in impermissible stereotypical reasoning that people do not have sex with strangers and therefore reject the defence theory out of hand: see R. v. Ahmad, 2022 ONSC 504, at para. 194; R. v. Murrilo, 2023 SKCA 78, at paras. 34-38.
103I must also consider the defence theory that Ms. A.A. was in a relationship with another man and therefore had a motive to lie by falsely reporting this incident as a sexual assault once she was caught by witnesses in the washroom with Mr. Waddling-Leeson. For example, in R. v. Esquivel-Benitez, 2020 ONCA 160, the Ontario Court of Appeal held that a trial judge must consider a motive to fabricate. In that case, the issue was framed as whether or not the victim had an affair and then lied to conceal the truth from her husband by claiming she had been the victim of an assault: see paras. 13-15. A similar defence theory is presented in this case.
104Concerning the sexual encounter itself, Mr. Goldkind submits that Mr. Waddling-Leeson’s description of texting with Ms. A.A. to confirm their “hookup” location is consistent with the video surveillance footage which demonstrates him using a cellphone before entering the washroom. The text messages themselves, should they exist, were not produced into evidence. Ms. A.A. denied ever communicating in this manner. I recognize there is no burden on the defence to prove anything. Yet I must assess Mr. Waddling-Leeson’s testimony in the context of the evidence that was presented during the trial.
105Mr. Goldkind argued that if Mr. Waddling-Leeson wanted to sexually assault a woman, he could have done so in a more private location within the university campus. The video evidence recorded him walking around in several different secluded areas. I agree the location of a sexual assault can be a factor to consider. In R. v. Spicer, 2023 ONCA 232, the Court of Appeal restored an acquittal in a sexual assault case where the trial judge found he was left with a reasonable doubt in part because the assault allegedly occurred in an open washroom accessible to many other people. It was not logical that the accused would commit such an act knowing other people might be witnesses to it: see paras. 9-10.
106With these considerations in mind, I nevertheless find the following factors demonstrate significant problems with Mr. Waddling-Leeson’s testimony beyond the credibility problems associated with his prior criminal record. He could not provide meaningful details of how he purportedly met Ms. A.A. on Tinder such as her username, profile picture, or the dates and times he communicated with her beyond generalities. He testified he was at Ryerson University specifically to locate Ms. A.A. for their meeting but wandered around aimlessly before waiting outside the women’s washroom on Kerr Hall South. His movements on the video do not demonstrate he had a plan to attend at a specific location.
107His testimony was flatly contradicted by the testimony of Ms. S.B. that I accept. He denied ever being on the floor in the washroom with Ms. A.A., but Ms. S.B. observed them in that position when she entered the washroom.
108The uncontested DNA evidence was that saliva found on Ms. A.A.’s underwear contained Mr. Waddling-Leeson’s DNA profile. On Ms. A.A.’s version of events, this was a result of him forcing oral sex on her. On Mr. Waddling-Leeson’s version of events, he licked his finger before touching her vagina, which might explain the presence of that DNA.
109However, Ms. A.A.’s DNA was located in saliva found on Mr. Waddling-Leeson’s underwear as well. She described him forcing his penis and testicles into her mouth which would explain why her saliva might have been located on his underwear. Nothing in his testimony explained the presence of her saliva on his underwear as he denied any oral sex occurred at all. Mr. Goldkind alluded to the possibility of transference, but I heard no testimony from Ms. Morris about DNA transferability with hypotheticals relevant to the different versions of what happened in the washroom. She only testified that DNA can be located where it was not originally deposited as a result of transference. I cannot speculate about how DNA may have been transferred in this case: see R. v. Marshall, 2022 ONCA 84, at para. 14.
110Mr. Goldkind submitted that if Mr. Waddling-Leeson inserted his fingers into Ms. A.A.’s anus or vagina, there should be some evidence of his DNA being recovered from those locations. Ms. Morris’ report, dated June 1, 2022, revealed that there was not enough male DNA to complete a test from the anal swab taken during the SAEK, and only enough male DNA for Y-STR testing on the vaginal swab. That testing was not done according to Ms. Morris since this is a less discriminating form of DNA analysis and she decided against employing it. At the same time, Ms. Morris did not provide an opinion that if this particular conduct occurred, male DNA would likely be located in these areas due to the nature of the touching. She testified that DNA may be left behind depending on a variety of factors. I do not find the absence of evidence of Mr. Waddling-Leeson’s DNA on these swabs raises reasonable doubt about whether the sexual assault occurred as Ms. A.A. described.
111The location of the sexual assault in a public washroom on a university campus also does not raise doubt in my mind based on the evidence I accept. In some cases, as in Spicer, the allegation of a sexual assault in a public restroom with other persons potentially right outside who could walk in at any moment may raise reasonable doubt. In this case, Mr. Waddling-Leeson followed Ms. A.A. into the washroom when he had reason to believe she would remain alone. The hallway was not busy or bustling with students such that he would have necessarily been concerned about others inevitably entering. Regardless, not all sexual assaults occur in private, and not everyone is deterred by the possibility of someone else noticing them engaged in sexual activity.
112Mr. Waddling-Leeson’s testimony is also inconsistent with the medical records which demonstrated visible scratch marks on Ms. A.A.’s neck and the diagnosis of a concussion.
113I do not accept Mr. Waddling-Leeson’s testimony and nor does it raise a reasonable doubt in my mind on the factual dispute about what happened in the washroom and nor on the issue of consent to any sexual activity.
Conclusions
114This was not a consensual sexual affair. It was a savage sexual assault on an innocent woman by a stranger. I have assessed the credibility and reliability of Ms. A.A.’s testimony based on the specific answers she provided in this case, and the context of the evidence presented as a whole. She was working that day as a teaching assistant and simply wanted to use the washroom on a break. She did not wish to engage in any sexual contact with Mr. Waddling-Leeson. She reported the incident immediately and was severely affected by what happened to her. She was not lying to cover up an illicit “hook up” pre-arranged on Tinder from her partner.
115Sexual assault is committed where the accused, without the complainant’s prior consent, intentionally applies force to her in circumstances that are, when viewed objectively, of a sexual nature: see R. v. G.F., 2021 SCC 20 at para. 25. The mens rea of sexual assault requires the Crown to prove that the accused intentionally touched the complainant and that the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent: G.F., supra at para. 25; R. v. Ewanchuk at para. 42.
116I accept Ms. A.A.’s testimony regarding the sexual assault. Mr. Waddling-Leeson grabbed her arms and pushed her to the ground. He forced his penis and testicles into her mouth, performed oral sex on her, and inserted his fingers into her anus and in and on her vagina.
117The specific charges, in this case, are that Mr. Waddling-Leeson committed the act of sexual assault while choking Ms. A.A., threatening her that he had a knife, and the sexual assault caused her bodily harm. I find that Mr. Waddling-Leeson placed his hand on her throat and choked her trying to prevent her from screaming and in doing so seriously impaired her ability to breathe. I also find that he threatened to harm her with a knife, although I cannot conclude that he did have a knife as none was ever seen and nor was one recovered when he was arrested later that day. The injuries she sustained from the assault, both physical and psychological, were far more than merely “transient or trifling” as required by the Criminal Code. The harm was caused by his actions and manifested itself immediately even if aspects of her injuries were only fully diagnosed at a further date: see R. v. L.K., 2020 ONCA 262, at paras. 45-6.
118I find the Crown has proven the essential elements of these three charges beyond a reasonable doubt. Mr. Waddling-Leeson knew he never had any consent to touch Ms. A.A. sexually. He is therefore guilty of each of the counts of sexual assault.
119On the robbery count, Criminal Code section 343(b) states that anyone who “steals from any person and, at the time he steals or immediately before or immediately thereafter wounds, beats, strikes or uses any personal violence to that person”, is guilty of robbery. In R. v. Lieberman, the Ontario Court of Appeal held that the violence used need not be inflicted with intent to commit a theft. The intent to steal doesn't need to exist at a time immediately proximate to the theft. In R v. Downer, at 541, the Court held that the purpose for which the personal violence was used is immaterial provided it accompanies the act of stealing or immediately precedes it: see also R. v. Hardy, 2017 ABQB 588, at para. 81.
120Mr. Waddling-Leeson removed the iPhone from Ms. A.A.’s pants to prevent her from calling for help when he sexually assaulted her. After he was interrupted by Ms. S.B., when she entered the washroom, he decided to stop the sexual assault and leave before he could be caught. When he left, he stole the iPhone. The acts of sexual violence he committed occurred immediately before the theft. While his purpose for inflicting violence upon Ms. A.A. was not to facilitate the theft, that does not preclude a finding of guilt for robbery. The Crown has proven the essential elements of the offence of robbery under section 343 (b). I find Mr. Waddling-Leeson guilty of robbery.
121As he was subject to a probation order at the time, I find him guilty of failing to comply with that order by not keeping the peace and being of good behaviour.
122There is no dispute he was unlawfully in possession of Ms. A.A.’s iPhone when he was arrested. He is found guilty of possession of property obtained by crime under $5000.
Signed: Justice B. Jones
Footnotes
1On April 26, 2022, the university was renamed Toronto Metropolitan University. All witnesses referred to Ryerson University during the trial, and I have chosen to identify it by that name in this judgment accordingly.
2The specifics of Mr. Waddling-Leeson’s testimony in this regard were not put to Ms. A.A. in cross-examination, arguably violating the rule in Browne v. Dunn. The Crown decided against recalling the witness.