Publication Ban Warning

WARNING The court hearing this matter directs that the following notice be attached to the file:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 10 31 COURT FILE No.: Brampton 998-23-31101207

BETWEEN:

HIS MAJESTY THE KING

— AND —

Ian Katumo

Before: Justice De Filippis

Heard on: October 16 – 19, 2023 Reasons for Judgment released on: October 31, 2023

Counsel: Mr. T. McCann..................................................................................... counsel for the Crown Mr. B. Dickson................................................................................. counsel for the accused

De Filippis, J.:

Introduction

1The defendant was tried on an Information alleging that he sexually assaulted the complainant and that while doing so he forcibly confined her and stole her cellular telephone. The offences are said to have occurred on January 22, 2023, in the City of Brampton. The Crown proceeded by Indictment.

2The complainant reported to police that she had gone to the home of the defendant for a sexual encounter with him but was confined in his bedroom while he, and his friend, Clinton, engaged in sexual activity with her without her consent. She claims that during this incident, the defendant took her cellular telephone from her.

3The Defence waived proof of Identity, date, and jurisdiction. After the incident, the complainant agreed to a sexual assault evidence kit. The defendant and Clinton were subjected to a penile swab. The result of these tests is not in dispute: DNA from the defendant and Clinton was found on the complainant’s underwear and DNA from the complainant was found on the penis of both men.

4I heard testimony from the complainant, defendant, and a police officer. There is no doubt that the defendant and Clinton engaged in sexual activity with the complainant. The issue at this trial is whether the Crown has proven that the complainant did not consent. These reasons explain why I find the defendant guilty of the offences.

Evidence

The Complainant

5The complainant met the defendant through social media a few weeks before the incident in question. She testified that they were attracted to each other. On January 22, 2023, the complainant attended an event at which she consumed alcohol and became intoxicated. Her cousin drove her to the defendant’s home, arriving around 4 AM, by which time she was sober. The defendant was in the living room with others, including Clinton and his girlfriend, Leah. The complainant did not know these other people and testified all were drunk.

6The complainant and defendant went upstairs to his bedroom. Clinton followed. A woman was sleeping on the bed. The defendant and Clinton took this woman out of the room. The defendant returned and lay on the bed with the complainant and they “started making out for a bit”. Clinton came into the bedroom again and joined them on the bed. Both men began kissing the complainant. She asked the defendant “why is this friend here”. The complainant said “stop”. Clinton told her to “calm down, relax, I have a girlfriend, I am clean”.

[7] The complainant described what happened next as follows: I think they were trying to force me into it, a threesome. This lasted about 30 minutes. They were kissing on me and touching my chest and ear. I was lying there, feeling very uncomfortable. I didn’t come here for this. I came for Ian. I was trying to get my phone to call uber. They took my phone away. Ian had my phone. I felt they were holding me hostage. I wanted to get home to my one-year-old son. Ian said they would take me home, no need for uber…. They offered liquor and forced me to drink it. They both did this. They were saying calm down, if you love me, you’ll drink the liquor. Ian was saying a lot of sweet stuff so I would take the liquor.

[8] The complainant drank “two to three shots” and fell asleep. She awoke around 5 or 6 AM. She continued her account of what occurred as follows: Ian came into room and laid next to me. He was making out with me, and Clinton came into room, and this is when they took advantage of me. I said, [to the defendant] what is he doing here, I spoke to you, I don’t want to do this, I just want to go home. They were getting aggressive with me at that time, taking my clothes off. My bra broke.

[9] The complainant testified that she said “stop” but the two men said, “calm down, relax” and pushed her down as she tried to leave. She added these details: Clinton was holding me down. I couldn’t move. I think it was Ian holding me down and Clinton having intercourse with me. I think they were trying to do one from the top and one from the bottom and I didn’t feel comfortable doing this. I think Ian wanted to put me on top and Clinton from the back. They did not because I moved. At this point I laid on my back. I couldn’t leave. Ian was holding my hands back. I couldn’t get Clinton off me.

10The complainant testified that the defendant groped her with his “hands and mouth” but did not have sexual intercourse with her. She added that, “I don’t think he wanted to. He just wanted his friend to take advantage of me and watch and let it happen”. The complainant knew there was nothing more she could do; she said, the defendant “was fingering me – sorry about the language - I said no all the time but they would not listen to me”.

11As these events unfolded, Clinton’s girlfriend, Leah, came into the room and screamed “you’re raping her”. The complainant testified that, “this is when I started crying, this is when they let me go, they were trying to calm me down”. Leah said that Clinton “had HIV”. The complainant testified that “I was freaking out as they didn’t use condoms. I did tell them to use condoms”.

12As Clinton and Leah argued, the complainant left the house, without her telephone, and knocked on the door of a neighboring home. Someone from that home, answered but would not admit the complainant. She walked about two minutes to an Indian restaurant and explained to the owner what had happened. The owner called the police. The complainant was taken to a hospital and agreed to a sexual assault evidence kit. She added that “also I wanted to know I didn’t have HIV”.

13The Crown tendered two short video clips that capture the complainant when she went to the neighbour’s door. After knocking on the door, gives her name and is heard to say “the guys next door”. When the neighbour refuses to open the door, the complainant walks away. Throughout this encounter she is crying. At trial she explained that, “I was sad I didn’t get help and I’m thankful I got help at the Indian restaurant”.

14The complainant visited the defendant because he had invited her (by text message) earlier that evening. In cross-examination, the complainant confirmed that she has a low tolerance for alcohol. She denied ever blacking out. The complainant had consumed three shots of tequila at the place she had attended before going to the defendant’s home, but she had sobered up on arrival there. She had another two or three shots of whisky in the defendant’s bedroom. This was given to her in a cup by the defendant and Clinton. Both men were also drinking the alcohol. Both men kissed her. The complainant “fell asleep and they went downstairs”. She explained that “they left when they realized I didn’t want to do what they were doing to me, I was tired and wanted to sleep, they went downstairs, and they came back when I woke up”.

15The complainant denied that she had been with the two men for “one long incident”; she repeated that she had fallen asleep, and the men returned. The complainant believes she was asleep for one hour. She looked for her phone, previously taken by the defendant, but could not find it.

16The defendant returned to the bedroom. The complainant was upset that Clinton followed. She denied that she removed her clothing. She testified that the two men removed her dress and her bra. She was wearing a one-piece dress and cannot recall if it was pulled over her head or down her legs and feet. Her bra was broken as it was taken off her. This upset her as it was expensive.

17The complainant testified that she yelled at the men to stop. She said they kissed her, and she did not kiss them back. The complainant was pulled on top of the defendant. She reconsidered earlier testimony that one of the men said they wanted to double penetrate her and said it may be that she assumed this because “one was on front, and one was on back”. The complainant managed to pull away from the defendant. However, he had oral sex with her. The defendant then held her by both wrists and pulled her arms over her head and Clinton had sexual intercourse with her. By this point the complainant stopped resisting. This was the scene when Leah walked into the bedroom.

18The complainant denied that she had not viewed her interaction with the two men during the evening as a sexual assault until Leah mentioned rape. She was alarmed to hear Leah also say that Clinton was HIV positive. Leah told the complainant she should call the police but declined to do so herself.

19The complainant left the home to go to the neighbour and then the Indian restaurant. Before doing so she fell outside the bedroom and had a seizure. I note at this point in my reasons that during cross-examination the defendant suddenly asked to leave the courtroom. I agreed to this. As she stepped out of the witness box, she fell to the ground and had a seizure. I also note that while the seizure could be due to the stress caused by cross-examination, Defence counsel is not responsible. His cross-examination was firm and fair. On consent of the Defence, the complainant later completed her testimony remotely from a nearby room.

20The complainant acknowledged that only Leah came to the room. She cannot explain why the others did not do so and assumes it is due to drunkenness. She insisted that she was yelling at the men to stop.

21The complainant agreed that the Indian restaurant was open for business. She could not confirm that it opens daily at 10 am and, thus, she left the defendant’s home sometime after this hour. She repeated that without her phone she could not check the time.

22The complainant believes she met Clinton once before at the defendant’s home. She saw him after the events in question, along with the defendant at a party. This had not been planned. The parties talked about the present case. She admitted seeing the defendant on two occasions after this party; she accepted an invitation from the defendant to visit him at his home and he came to her house.

[23] Defence counsel reminded the complainant that she had testified that after her encounter with the defendant and Clinton, she feared the two men. When asked why she would see the defendant afterwards, she replied that; I’m a very generous person and he reached out to me for help and I, ya, I didn’t help but listened to what he had to say…., I felt he was trying to conflict me and we have this thing going on [the present case] and I felt conflicted, he reached out to me and said he wanted me to remove the charges and I said let the court deal with it, it is very conflicting, I am the one that is hurt.

24In re-examination the complainant agreed that the defendant and Clinton had contacted her to have the present charges dropped. She repeated that she felt conflicted by the request to drop the charges. She explained that she believes in forgiveness, but needed to speak up about sexual assault.

PC Bond

25PC Lauren Bond testified that she was on routine patrol on the day in question, responded to the 911 call and met the complainant at an Indian restaurant. A body camera video clip of the meeting was tendered by the Crown. As described by the officer, it depicts the complainant in a small dress on a cold winter day.

The Defendant

26The defendant testified that on the evening in question he was at his home with three other people. All except one woman consumed alcohol. The defendant began drinking around midnight. He confirmed that he had invited the complainant to his home with the intention of having sex with her. She arrived after attending another event. Almost immediately after, Clinton and Leah arrived.

27There were now seven people in the house. All were seated in the living room. Clinton poured a shot for the complainant and “she helped herself to more”. The defendant said the complainant was “happy and drinking and liked being touched”. At some point everyone went upstairs to various bedrooms. The complainant joined the defendant in his bedroom. Clinton had previously stated he would drive the complainant and Leah in the morning as they lived near each other. The complainant agreed to this.

28Soon after the defendant and complainant went to his bedroom, Clinton entered with a bottle of whisky. All three sat on the bed “drinking and talking”. The defendant testified that he and the complainant “started making out and Clinton started fingering her and I was kissing her, she didn’t say anything”. He added that “she liked being touched”. The defendant had more alcohol to drink while “they made out” and then fell asleep beside them.

29The defendant was awakened by Leah shouting at Clinton. He saw that Clinton was having sexual intercourse with the complainant. Clinton had his pants down and the complainant’s dress was on the floor. Leah called Clinton “a ho” and told the complainant that “he has HIV”. The defendant tried to end the argument developing between Clinton and Leah and noticed the complainant was gone. He did not see her again that day. The defendant found the complainant’s phone on the bed. One week after this incident, the defendant visited the complainant at her home. The defendant testified that she told him she is not comfortable around his friends, especially Clinton. He did not see her again.

30In cross-examination the defendant stated that the complainant arrived at his home around 4 AM. While in the living room with the defendant and others, she touched Clinton’s thigh. The defendant testified that, “she was flirting” and added that “Clinton told me, she wants something”.

31In addition to the two shots of whisky he consumed at midnight, he had another four shots between the time the complainant arrived and 5:30 AM, when he fell asleep beside the complainant and Clinton. Most of this alcohol was consumed in his bedroom. He testified he “wasn’t that drunk but tipsy” and added that he was “tired”. He saw the complainant consume alcohol but cannot say how much.

32The defendant testified that he had been “fingering” the complainant as well as Clinton and added that nobody said anything. The defendant added that, “we just did this, she did not refuse, she has done this before”. When Crown counsel pressed him to explain this, the defendant replied, “nothing was said, we were just making out and drinking”.

33The defendant acknowledged that he saw the complainant fall and have a seizure when she left his bedroom. He did not check on her well-being at that time and when he did go downstairs, she had already left the home. He admitted that he contacted the complainant after this incident in violation of a term of his release prohibiting all contact. He also conceded that he met her three times, not once, as he said in testimony in chief. The defendant maintains that they never discussed the present charges and that he met her because he cared for her, although not dating. He said he stopped calling her because “there was too much going on, she kept trying to get hold of me” and all contact ended.

34When pressed for details of the events in his bedroom, the defendant said that he and the complainant were engaged in sexual activity “because she was giving in and she has done this before”. This was interrupted by Clinton’s arrival and the three people consumed alcohol. The defendant continued: “Clinton then starts kissing and fingering her”. At no time did the complainant say anything but, “she was moaning, she’s enjoying it, I started fingering her”. When asked again if the complainant had said anything the defendant replied that “the only thing she said is remember you are taking me home in the morning”.

35The defendant testified that there was never a woman passed out on his bed. He agreed that he and Clinton kissed and touched the complainant’s breasts and that this activity lasted about 30 minutes. He rejected the suggestion that the complainant did not consent to this. She did not shout. He added that Leah was upset with Clinton and told the complainant he was HIV positive but never used the word rape.

36The defendant denied that Clinton held the complainant down while he had oral sex with her. He did not confine her while Clinton had sexual intercourse with her. The defendant rejected the suggestion that the complainant’s DNA was found on his penis because he pulled her on top of him with the intent that there be double penetration with Clinton.

37The defendant explained the DNA results showing the as presence of his saliva on the complainant’s underwear, as follows: “It got there from my fingers, there was saliva on my fingers and that is how it got on her underwear, it is simple”. He explained results of the penile swab showing the complainant’s DNA on his penis by the fact that they had had sex three days before.

Submissions

38The defendant testified that he invited the complainant to his home. She arrived at the same time as Clinton and Leah and joined others already there. All, but one of the other women, consumed alcohol. The defendant and complainant went to this room. Clinton brought alcohol. They had consensual sexual activity for about 30 minutes. He did not take the complainant’s phone. She was not confined by the defendant or Clinton. This threesome ended when the defendant fell asleep. He was awakened by Leah shouting and saw Clinton and the complainant having sexual intercourse. Leah’s comments about Clinton having HIV alarmed the complainant and she had a seizure before leaving the home. Defence counsel argued that his client was honest and clear in giving this evidence and it should be accepted. At least it raises a reasonable doubt. In any event, it is the Defence position that the complainant is an unreliable historian.

39The Defence argued that the complainant is an honest but mistaken witness. Counsel claimed that the complainant offered different accounts of when she arrived and left and how much alcohol she consumed. It is also submitted that “there are many details the complainant got wrong”: Her phone was not taken by the defendant; she left it on the bed and forgot to take it with her when she left. The defendant’s bedroom was unoccupied when he and Clinton went there with the complainant; there was no woman passed out on the bed. She is confused about when Clinton came into the bedroom. The defendant and Clinton never left the bedroom. This was one incident. Moreover, the complainant cannot be correct in her insistence that she shouted her objections to sexual activity. There were four others in nearby bedrooms and only Leah came to the defendant’s bedroom, late in unfolding events.

40The Defence asserted that the complainant is unreliable because she was intoxicated; this affected her memory, but not her ability to consent. Counsel added that once Leah angrily interrupted and claimed that Clinton was HIV positive, the complainant became alarmed and angry – not because of the sexual activity but because of the possibility she had contracted HIV. It is argued that the complainant’s demeanour as captured on video at the neighbour’s door and in dealing with PC Bond is due to the seizure she had suffered.

41The Crown argued that the complainant was genuine and straightforward in giving evidence, with no attempt to embellish or evade challenge. Counsel conceded her timeline is confusing, but this is not remarkable since she did not have her phone and should not be expected to track time in detail. The Crown also acknowledged that there are inconsistencies in her testimony, but these are peripheral matters.

42The Crown submitted that complainant was consistent about the core evidence: She met the defendant on social media within weeks of the events in question. She arrived at his home in a sober state around 4 AM. She did not join others in the living room in consuming alcohol. The defendant and complainant went to his bedroom where a woman was passed out on the bed. She was escorted out of the room by the defendant and Clinton. She and the defendant went to the bed and engaged in sexual activity. They were soon joined by Clinton. This startled the complainant and she objected to his presence. Clinton stayed in the room and the defendant took her phone away. She tried to resist the advances of the two men as they roped and kissed her. She was told to calm down and forced to drink alcohol. After about 30 minutes of this activity, she fell asleep. She awoke when the defendant returned. As they kissed, Clinton returned. The complainant became upset and again objected. She was told to calm down as the men removed her clothing. Her bra was broken as they did so. The defendant digitally penetrated her and performed cunnilingus. She assumed they were interested in double penetration, but she was able to prevent this. The defendant held her down while Clinton had sexual intercourse with her. This ended when Leah entered the room. The complainant managed to leave the bedroom as Leah argued with the two men. The complainant was upset to hear the Clinton was HIV positive. She suffered a seizure before leaving the home. She ran to a neighbour but was refused assistance. She went to a nearby restaurant and the police were called.

43The Crown pointed to inconsistencies in the defendant’s evidence. Counsel also noted that the defendant explained the complainant’s consent by stating “she has done this before”. This is prohibited reasoning. In any event, counsel asserted that the defendant’s testimony must be rejected because of how he dealt with a pivotal issue. In examination in chief, he admitted to kissing the complainant. In cross-examination, he said he also “fingered” her. Counsel claimed that this change was designed to set up an explanation for the undoubted fact that his salvia was found on the complainant’s underwear.

44The defendant explained the DNA results showing the presence of his saliva on the complainant’s underwear, as follows: “It got there from my fingers, there was saliva on my fingers and that is how it got on her underwear, it is simple”. He explained results of the penile swab showing the complainant’s DNA on his penis by the fact that they had had sex three days before.

Analysis

45The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed but raises a reasonable doubt. An acquittal will follow even if the defence evidence is rejected, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty (R. v. W(D), [1991] 1 S.C.R. 742).

46Probable guilt is not the criminal law standard of proof – it is closer to certainty. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence (R. v. Villaroman, 2016 SCC 33 ). In applying the standard, I can accept some, part, or none of what a witness states. The testimony of a witness is assessed based on the person’s sincerity and accuracy.

47This is not a case that engages difficult issues with respect to the law of sexual assault such as the capacity of the complainant to consent or the defendant’s honest but mistaken belief in communicated consent. This is a case about the assessment of credibility and reliability in determining if the Crown has proven beyond a reasonable doubt that the complainant did not consent. It is no less challenging for that reason.

48Section 273.1(1) of the Criminal Code defines consent as the voluntary agreement of the complainant to engage in the sexual activity in question. The Supreme Court of Canada has ruled that “the sexual activity in question” encompasses the specific physical act(s) engaged in, the sexual nature of those acts, and the identity of the partner in those acts. This means that consent to one act does not amount to consent to another act. Consent must be given for each sexual act engaged in. Consent can be established by word or gesture. However, it cannot be implied by a complainant’s silence, passivity, or ambiguous conduct. See R v Kirkpatrick, 2022 SCC 33 .

49The defendant admits to inviting the complainant to his home for the purpose of engaging in sexual activity and participating with Clinton in kissing and touching her for about 30 minutes. He fell asleep and was awakened by Leah shouting that the complainant was being raped by Clinton. The defendant testified he was not drunk but tipsy and tired. Even assuming this induced such a deep sleep that he was unaware of Clinton having sexual intercourse with the complainant as he lay beside her, I reject his assertion that the other sexual activity was consensual.

50The defendant explained the DNA results showing the presence of his saliva on the complainant’s underwear, as follows: “It got there from my fingers, there was saliva on my fingers and that is how it got on her underwear, it is simple”. No further explanation was offered about how and why his fingers had his saliva before he digitally penetrated the complainant. In this regard, I note that he denied having oral sex with her. He explained the results of the penile swab showing the complainant’s DNA on his penis by the fact that they had had sex three days before. I must assume that he did not shower since that event.

51The defendant testified that the violation of his release order in seeing the complainant was because he cared for her. He added that they did not discuss the charges. It is hard to believe the subject did not come up in their conversation. In any event, he would have me believe that he ended his association with her because she kept trying to contact him. No further explanation was offered about why he suddenly stopped caring for her. A reasonable explanation is that he stopped seeing the complainant because she would not agree to assist in having the charges withdrawn.

52The foregoing observations are sufficient to reject the defendant’s evidence. In any event, any hope of credibility is lost because of his comments about the complainant’s consent. They are self-serving. Even assuming these comments are sincere, they cannot legally be accepted as evidence of consent.

53The defendant said that he and the complainant were engaged in sexual activity “because she was giving in, and she has done this before”. This was interrupted by Clinton’s arrival and the three people consumed alcohol. The defendant continued: “Clinton then starts kissing and fingering her….she was moaning, she’s enjoying it, I started fingering her….we just did this, she did not refuse, she has done this before….nothing was said”.

54Rejection of the Defence evidence does not end the matter. The onus on the Crown to prove guilt beyond a reasonable doubt is not satisfied by this rejection.

55There are inconsistencies in the complainant’s version of events. The times of certain events and the sequence of those events is not entirely clear. It is not suggested by the Defence that this reflects her sincerity. That is a fair concession. The DNA evidence confirms sexual activity between the complainant, the defendant, and Clinton.

56I am not troubled by the inconsistencies in the complainant’s evidence; she had consumed alcohol and did not have her telephone to check times. I am not troubled because on the central issue at trial – did the complainant consent to the sexual activity – her testimony was clear, consistent, and compelling: She insisted she arrived at the defendant’s home with the intention of spending time with him. They went to his bedroom for that purpose. She was confused by the arrival Clinton. When she realized he was joining in the sexual activity, she told the defendant she did not want a “threesome”. As the two men groped and kissed her, she objected. She was physically restrained by the two men. The defendant penetrated her vagina with his fingers. Clinton had sexual intercourse with her. At some point, the complainant stopped resisting, realizing it was futile to continue to do so.

57The complainant was surprised and confused by the arrival of Clinton in the bedroom. She said the two men forced her to drink alcohol. I find it hard to believe they successfully physically forced her. I accept that they pressured her to do so. In any event, there is no controversy about the fact that she did not verbally consent to the sexual activity. I reject the defendant’s claim that she consented by gesture; by “moaning” showing that “she liked it”. I accept the complainant told them to stop and struggled as she was kissed, groped, and vaginally penetrated by the fingers of both men and the penis of Clinton. I am not troubled in this finding by the fact that the complainant testified that she told the men to use condoms. This statement must be considered along with her testimony that she eventually realized further resistance was futile. In this regard, I note that neither counsel pursued this point in questioning her or in submissions.

58The demeanour of the complainant as captured is also relevant. They show a distraught woman. The Defence argued that this is because she had just suffered a seizure. However, I note that while crying, what the complainant is heard to say is “the guys next door”.

59I reject the testimony of the defendant. I accept that of the complainant.

60The defendant is guilty of sexual assault, forcible confinement, and theft.