Court File and Parties
Ontario Court of Justice
Date: July 16, 2024 Court File No.: 23 48122160-00
Between:
His Majesty The King
— And —
Ahnaf Alvee
Before: Justice Hafeez S. Amarshi
Written reasons for judgment released on July 16, 2024
Counsel: L. Liscio, for the Crown L. Azzopardi, for Ahnaf Alvee
H.S. Amarshi J.
Reasons for Judgment
A. Introduction
1Ahnaf Alvee is charged with nine offences. They all relate to his former girlfriend C.M. Specifically, it is alleged between January 6 and 7, 2023, he assaulted C.M. by choking her. That on January 26, 2023, he assaulted and willfully damaged her reading glasses. Further, between November 29, 2022, and January 7, 2023, he sexually assaulted C.M. Also, during this time period he stole her cell phone. Further, on February 2 and 4, 2023, he breached multiple conditions of an undertaking not to have any contact with her, and finally on February 4, 2023, he assaulted C.M. contrary to sections 267 (c); 430 (4); 266; 334 (b); 271; 145 (3)(a); and 267 of the Criminal Code.
2The Crown proceeded by indictment and called the complainant and the Officer-in-Charge. [1]
3Mr. Alvee testified.
4The central issue in this case is credibility.
B. Relevant Evidence
5C.M. is 22 years old. She is currently in school studying human resources management.
6On February 2, 2023, she called police after encountering her then ex-boyfriend at a Burger King restaurant on the Danforth. She said Mr. Alvee confronted her at the restaurant and started yelling at her. She had broken up with the defendant only a few days earlier. The couple had been dating for about seven or eight months. Police arrived a short time later and arrested the defendant. He was released on an undertaking. Two days later she gave a videotaped statement to police outlining multiple criminal allegations.
7The complainant described Mr. Alvee as her best friend. They have known each other since childhood when they were both attending the same school in Bangladesh but did not interact because they were separated by gender. In 2018, C.M. settled in Toronto with her family. She started talking to the defendant over Facebook when he arrived in Canada in April 2021 as a student. They started dating in the summer of 2022.
8The complainant testified that the beginning of the relationship was really good, but in her words became “toxic” over time. That Mr. Alvee was abusive, controlling and possessive.
Assault in the defendant’s bedroom
9C.M. described a choking incident. She identified multiple different dates for the incident. The couple was at the defendant’s home on Westbourne Ave. They were laying down. C.M. asked to look at the defendant’s cell phone. He agreed. As she was scrolling through his phone, she saw pictures of herself and her ex-boyfriend. She couldn’t understand why the defendant had those images saved on his phone. She got angry. The couple fought about the saved images. C.M. says she was crying and stood up and was ready to leave. The defendant stood up as well and grabbed her by the throat and pushed down to the crib, pinning her. According to the complainant she was held down for a three- or four-minute period. She tried to push Mr. Alvee off but couldn’t.
10She remembers crying, that her hands were being held down by the defendant. At some point Mr. Alvee let go. She says he got up and walked to her home which was about a 10–15-minute walk away. There were no injuries.
Damaged eyeglasses
11C.M. recounted another incident, she says happened on either January 26 or 27, 2023, when she went to see a Bollywood movie with the defendant.
12The couple was watching a movie at a Cineplex Odeon in Scarborough, when she received a call from a family friend – a 15-year-old male. This caused Mr. Alvee to get very upset. That he was screaming at her. The defendant left the movie theater taking the complainant’s phone. He spoke to the caller.
13Mr. Alvee returned, and the couple began fighting. They left the movie before it was finished.
14They left the movie theatre and headed to a TTC station and took a bus. C.M. wanted to go home after the incident at the theatre. At the entrance to Main St. station the couple began fighting. According to the complainant, Mr. Alvee snatched her glasses and threw them to the ground. He was angry. One of the lenses becomes detached and was damaged.
15About five to ten minutes later, C.M. says the defendant grabbed her cheeks and pressed “really hard.” He was angry and jealous. She pushed him away. The couple were still arguing about the call in the movie theatre.
Stolen cellphone
16C.M. testified to an incident on November 29, 2022, when the defendant wanted to check her phone. The couple was at Dentonia Park, near C.M.’s home. Mr. Alvee grew angry. She described him as being “really upset.” She says the defendant grabbed her iPhone and ran in the opposite direction of her home. She begged him to return the cellphone. He refused.
17C.M. says she became upset and was crying. She walked home which was about 10 minutes away. She lived in an apartment with her stepfather, mother and younger sister.
18In her bedroom she opened her MacBook. She received a notification that someone was trying to log into her iMessage account. She explained that her MacBook was connected to her iPhone. She immediately concluded it was the defendant, who knew the password and was logging into her phone to view her messages.
19She received a message over iMessage from the defendant. She headed down to the apartment lobby and could see Mr. Alvee was across the street. She walked up to him and grabbed her phone. She was crying.
Sexual assault in the stairwell
20C.M. returned to her apartment after retrieving her cellphone. Her eight-year-old sister was at home in her bedroom. Her parents were at work. She sat on the couch. About 20 to 30 minutes later Mr. Alvee entered the apartment and sat next to her on the couch. The door was unlocked, and he walked into the unit. She wasn’t expecting him, nor had she invited him to come to her home. She says the defendant started kissing her on the neck and touching her. She told him to stop. The couple argued. C.M. stood up and told the defendant they should talk outside the apartment in the stairwell. She was concerned that her sister was home. They walked to the 6th floor stairwell, which is accessed by a door separating the staircase and the hallway.
21The couple continued to argue in the stairwell. There was no-one there. Mr. Alvee tried to forcibly kiss her and pull her pants down. She told him she did want to have sex. C.M. says Mr. Alvee pushed her against a wall and held her. That he pulled her pants down. She was telling him to stop. That he pulled his pants down partially. She was facing away from the defendant when he penetrated her – specifically testifying the defendant put his penis in her vagina. This went on for three to five minutes. C.M. says the defendant did not ejaculate and was not wearing a condom. During the act, she told him to stop multiple times.
22C.M. testified that she was in the stairwell for a 20-to-25-minute period. That initially Mr. Alvee was trying to kiss and hold her in the stairwell. She was telling him not to. That she had no intention of having sex with the defendant. She says she wanted to speak in the stairwell because she couldn’t “shout or talk properly” while her sister was in the apartment.
Further contact
23Mr. Alvee was arrested on February 2, 2024, after C.M. called police from a Burger King restaurant. The defendant was released on an undertaking. According to C.M. after the defendant’s release, he called her multiple times, she thinks between 10 to 12 times. He called her, she says, as soon as he was released the evening of his arrest. That he called from different phone numbers. In cross-examination she testified that she picked up a call and that the defendant told her to drop the charges. She told Mr. Alvee not to call but he continued.
24She provided a call log to police, which showed she received calls throughout the night. She believed it was the defendant calling.
25After C.M. gave a videotaped statement to police on February 4, she returned to her apartment building around 9 or 9:30 p.m. Mr. Alvee was standing in front of her building. He entered the lobby. She testified that he was begging her to drop the charges. That he was crying.
26C.M. said she was scared. She did not want to speak to the defendant and had never told him to meet in her apartment lobby. She texted the Officer-in-Charge soon after the encounter to report the incident.
Defence evidence
27Ahnaf Alvee is 22 years old. He came to Canada in 2021. Starting in August 2022 he started studying human resources at George Brown College.
28He testified that he first met the complainant when he was in grade one. They attended the same primary school in Bangladesh. That they used to play together. In grade three they were separated by gender, although they would occasionally speak.
29The defendant says he was reunited with C.M. when he started living in Toronto. They started dating near the end of June 2022. The couple dated for seven or eight months.
30He described C.M. as having a difficult relationship with her stepfather. That although he had been introduced, the stepfather was not aware the couple was dating. He believed C.M.’s mother knew about their relationship. He says he got along well with C.M.’s younger stepsister.
Apple ID account
31The defendant testified about events that occurred at Dentonia Park. Earlier that day he along with C.M. had job interviews at Burger King. He recalls it was early November. After the walk-in interview they went to get pizza on the Danforth. The couple had an argument.
32According to the defendant, C.M. was supposed to go to his place, but changed her mind and she decided to go home. He went with her. They cut through Dentonia Park on the way to C.M.’s apartment building. The couple continued to argue.
33Mr. Alvee testified that he wanted to see messages on the complainant’s phone. Specifically, he wanted to access her Apple ID, because he says C.M.’s ex-boyfriend also had her Apple ID. As she was walking, he took her phone from her back pocket. He says the complainant screamed at him. She asked him to return the phone, but he refused. He described the complainant attempting to retrieve her phone – that she would approach him, but that he would move away.
34C.M. eventually left the park and went home. Mr. Alvee admits logging into her account, but realized he could not use two different Apple ID accounts on his device. He testified that he felt like a jerk for taking C.M.’s phone and felt regret.
35He received a message from C.M. he believed she sent him through her laptop. That she was aware that he had logged into her account. He conceded C.M. was “really upset.” He walked to her home and was able to walk directly into the building. He encountered the complainant waiting outside of her unit, that she was crying. C.M. asked for her phone. He refused, first asking her if he could come inside the unit. Mr. Alvee said the complainant agreed. Once inside, he returned the phone.
36The defendant described C.M. as angry, that she was yelling and screaming. She told the defendant to leave. She was concerned her stepfather and sister would be returning soon. Mr. Alvee refused, saying he would not leave until C.M. forgave him and stopped crying. He described her pushing the door closed. A neighbour intervened at which point Mr. Alvee decided to leave.
Bollywood movie
37The defendant testified that the couple went to see Pathaan – a big Bollywood movie, he had been looking forward to seeing. He believed the date was January 22, 2023.
38During the movie, C.M. received a call from Ayman, who the defendant described as a “really stupid boy.” The complainant told him she would answer the phone after the movie. Ayman called a second time. The defendant says this pissed him off. Ayman called a third time and Mr. Alvee picked up the phone. He left the movie theatre and spoke to the male. He told Ayman that he would pass on any messages.
39According to the defendant when he returned to the movie theatre, he could tell C.M. was “pissed,” that she did not want Mr. Alvee to pick up the phone.
40After the movie the defendant planned to walk C.M. home. The complainant was not speaking to him.
41The couple took a bus and got on the subway. The defendant says he was holding C.M.’s bag, which contained her glasses.
42Mr. Alvee testified that he did not want to “give her bag back easily,” because C.M. had been giving him the silent treatment for an hour. He says the complainant tried to pull her bag away. He let go and the complainant fell to the ground. This caused C.M. to react angrily, that she was frustrated and that she threw her bag on the ground. The complainant reached into the bag and noticed that that a lens had popped out of her glasses.
Bedroom incident
43Mr. Alvee testified in January 2023 the complainant was at his place. They were lying next to each other, and the complainant asked to go through Mr. Alvee’s old phone. He agreed. As she was swiping through his photo gallery – she saw a picture of the defendant and an ex-girlfriend. According to the defendant, C.M. reacted angrily, because he made her delete photos of her ex-boyfriends and he had not done the same. He says the complainant slapped him twice and scratched him. That she threw his phone against the wall. C.M. attempted to leave, but she was not fully dressed. The defendant says he stood at the door to try and stop her. He tried to calm her down. He denied putting his hands around her neck.
Stairwell incident
44Mr. Alvee testified that he was studying for a mid-term exam and that the complainant wanted him to come to her apartment and have sex. He believed it was around November.
45When he arrived, C.M.’s sister and her friends were in the apartment. A neighbour around the complainant’s age was also there. According to Mr. Alvee the complainant proposed they have sex in a stairwell. He did not like the idea and thought it would be uncomfortable. The defendant says C.M. threatened to stop speaking to him if he declined. He says the complainant seduced him by kissing him on the couch. At one point the complainant’s sister came into the living room. Soon after C.M. held his hand and led him to the stairwell.
46According to Mr. Alvee there are multiple stairwells in the building, and they headed to the closest one. He says the complainant wanted a “quickie.”
47Once in the stairwell, he says C.M. touched his penis. The couple started kissing and touching. At one point he says he pushed her against the wall. He believed he pulled her pants down and then removed his pants. He says he penetrated her with her back facing him. At one point she turned around to kiss him. It is shortly after this that C.M. told the defendant they should stop, that she was concerned about leaving her sister in the unit, that it was her responsibility to care for her. The defendant says he was relieved because he was worried about his midterm exam. The couple he says had been in the stairwell for about 10 to 12 minutes.
48Mr. Alvee testified that the sexual activity was consensual, that the complainant was kissing him. The defendant returned home.
Post-arrest
49The defendant described January 30, 2023, as a breaking point in his relationship with C.M. The complainant wanted to attend the University of Windsor, where she recently received an offer of admission. The defendant did not want to be in a long-term relationship and was planning on staying in Toronto.
50Despite the tension, the defendant says the couple continued to be in a relationship, although he concluded the relationship was likely over.
51On February 2, 2023, he went to a Burger King restaurant at Danforth and Victoria Park. He saw the complainant, but he did not know she was going to be there. C.M. was with her cousin. He says the complainant invited him to join them. The cousin eventually left.
52According to Mr. Alvee, the complainant was being nice to him and kissed him on the cheek. The couple had a conversation about their relationship. C.M. left the restaurant to go to a nearby nail salon. A short time later police arrived, and the defendant was arrested at the Burger King. He was released by police. The conditions of his police undertaking included not to have any contact with C.M. nor be within 100 metres of anywhere he knew her to be.
53After being charged he decided to meet his friend Rashad, who stayed with him that night and left the next morning. He said he received a text from the complainant. He did not respond. The next day he received a call from the complainant. He picked up the call. He says she was sympathetic, asking him if he had eaten and inquiring if he was depressed. In cross-examination he agreed he could have hung up the phone, but that the complainant was being kind and he felt he could get out of trouble.
54Mr. Alvee says they spoke again and C.M. told him she would speak to police the next evening about withdrawing the charges. He says they made a plan to meet at 7:30 p.m. after the complainant returned from speaking to police.
55The defendant called the the next day at 3 p.m. using his roommates’ phone to confirm they were still meeting. Later that evening he went and waited in the lobby. The complainant did not arrive until 9 or 9:30 p.m. and the defendant had been waiting in the lobby for about two hours. Mr. Alvee says when he saw the complainant, she seemed like she was in a hurry. She told him the charges could not be withdrawn.
56He denied grabbing her and preventing her from walking away.
C. Applicable Principles
57Credibility and reliability are the central issues in this case. The framework in R. v. W.(D.), [1991] 1 S.C.R. 742, 1991 93 (SCC), applies in this case and requires me to find Ahnaf Alvee not guilty if I accept or I am left with a reasonable doubt by his evidence or any evidence inconsistent with his guilt. In other words, I need not believe the defendant to find him not guilty. Further, even if this court rejects such exculpatory evidence, I must still be satisfied beyond a reasonable doubt by the Crown's evidence that I do accept that the defendant is guilty.
58It bears emphasizing that in a criminal case, this court cannot find an accused person guilty because it prefers the complainant's evidence to that of the defendant. In other words, criminal trials are not credibility contests, and it would be an error to arrive at a conclusion on culpability based on which witnesses' evidence I preferred. There is no burden on Mr. Alvee to prove anything in this case and I cannot find him guilty unless I am sure he is guilty of the offences as charged.
59I further note the onus is on the Crown to prove beyond a reasonable doubt that the defendant committed the criminal offences before this court. To secure a conviction the Crown must establish each essential element of the charge against an accused to a point of "proof beyond a reasonable doubt" this standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probability. It is not a standard of absolute or scientific certainty, but it a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charges. [2]
60Essential Elements
61The actus reus of sexual assault requires the Crown to establish three things: touching, the objectively sexual nature of the touching and the absence of consent. [3] In this case, there is no issue with respect to the first two elements. The issue is whether the Crown has proven an absence of consent.
62At the mens rea stage, the Crown must establish both that the accused intentionally touched the complainant and that he knew that the complainant was not consenting or was reckless or willfully blind to the absence of consent on her part. [4]
63Consent is defined in the Criminal Code for the purpose of sexual assault in section 273.1(1). It means "the voluntary agreement of the complainant to engage in the sexual activity in question." This requires the conscious agreement of the complainant to "every sexual act in a particular encounter." [5]
64How the accused perceived the complainant's consent (or lack of consent) is analyzed as part of the mens rea requirement of the offence. [6]
D. Analysis
(i) Credibility finding – C.M.
65I found C.M. to be a credible witness. I believed her evidence. In relation to the most serious charge before this court, I readily concluded that she was telling the truth about what occurred in the stairwell of her building and that Mr. Alvee forcibly had sexual intercourse with her. She did not consent to the sexual activity. Her account of events leading up to the sexual assault was logical and entirely believable.
66On material matters related to that offence she gave detailed evidence. For example, she recalled hearing that one of the buttons from Mr. Alvee’s pants fall off when he was taking his pants off. She gave detailed and compelling evidence of the assault. That she struggled to escape from the defendant’s grasp. That she pushed Mr. Alvee in an attempt to move away, but that the defendant held her. At some point he let her loose a little and she pushed him, and she was able to walk away. Particularly compelling was her demonstration of that motion in court which was described for the record - specifically she was facing the wall and moved forward in the direction of the wall and turned around to face him. She used two hands to push him away. Her actions and description were entirely plausible in her attempt to get away from the defendant.
67I accepted C.M.’s evidence that she did not consent to any sexual activity in the stairwell - that the defendant was trying to touch her hands and body and she did not want him to, that she told him to stop on multiple occasions, but he persisted. She maintained her core assertions of non-consensual sex during cross-examination. Despite the passage of time, I deemed her evidence on events that occurred in the stairwell to be reliable and worthy of belief.
68C.M. is young and at times was visibly nervous during her testimony. I concluded that she was an honest witness who gave frank evidence. She readily admitted to facts that portrayed her in a negative light or had the potential to undermine her version of events. She admitted to being physically aggressive with the defendant, pushing him, when for example, he checked her phone. On multiple instances, she testified that she was angry with Mr. Alvee, that they fought constantly, that she screamed at him. She admitted lying to the defendant. She agreed she told the defendant she was going to tell the police the charges were going to be dropped but had no intention of doing so. She admitted going through his phone when she was in his room, albeit with his permission.
69She acknowledged what seemed to be difficult admissions for her – that she gave Mr. Alvee access to her social media accounts. That she allowed the defendant a certain level of control over her life. She was particularly concerned by Mr. Alvee’s threats of “consequences” as she put it, specifically his threats to reveal intimate aspects of past relationship to her parents. C.M. had a poor relationship with her stepfather and her parents have a culturally conservative outlook on romantic relationships.
70C.M. gave measured evidence, for example, she was careful to point out when describing the damage to her gasses that the frame was not damaged, only that there was a scratch. This desire for accuracy contributed to my conclusion she was a credible witness.
71Overall, I found C.M. to be a candid witness – admitting when she was unsure in her evidence versus having a definite recollection. She readily admitted when she couldn’t remember something. I concluded C.M. was careful not to fill in gaps in her evidence.
Nature of the relationship
72I found C.M.’s description of her relationship with the defendant to be particularly compelling. The narrative of her relationship was believable. She was consistent that the relationship was marked by jealousy, abuse and a consistent desire on the part of the defendant to control her. Indeed, Mr. Alvee corroborates this evidence in large parts, although he makes efforts to downplay his conduct.
73She testified that the defendant did not want her wearing short dresses, that he would constantly check her phone. She testified that he used to call her family friends and speak negatively about her. That he sought out her ex-boyfriends. That he demanded her social media passwords. That the defendant wanted her to delete WhatsApp, a cellphone-based messaging platform, because he didn’t have access to her account. She initially gave him the passwords, but increasingly became uncomfortable. She further testified that Mr. Alvee would go through her phone deleting photos, unfriending people without telling her.
74In this context her evidence was entirely believable that she wanted to break up with the complainant because of his controlling behaviour, but that he wouldn’t let her leave the relationship.
75That Mr. Alvee consistently violated the boundaries of his relationship with C.M. is plainly revealed in the defendant’s own evidence. It supports her description of a toxic relationship. The defendant admits taking C.M.’s cellphone to access her messages, refusing to return it. He casually boasts that it took a lot of effort to log into her Apple ID. He testified to refusing to leave the complainant’s apartment, standing in the doorway as she tried to close the door. Further, controlling who could speak to C.M. Tellingly, he testified that she felt the complainant was being selfish when she was considering going to university in Windsor and leaving him alone in Toronto.
76To be clear, the fact that Mr. Alvee was a poor boyfriend who attempted to manipulate and control C.M. is no basis for determining criminal liability. However, the nature of their relationship frames the core allegations in this case and is an important aspect of the narrative in this case.
77I should note that although I found C.M. to be both a credible and a reliable witness the analysis is not complete. I must be satisfied that the Crown has satisfied their burden of proof beyond a reasonable doubt.
(ii) Assessment of defence evidence
78Although there were aspects of the defendant’s evidence that I accepted as candid and forthright, I did not believe Mr. Alvee’s testimony in relation to the material facts in dispute in this case.
79I consistently found Mr. Alvee downplayed certain aspects of his evidence in an attempt to recast it in more favourable terms. For example, when describing an incident at the complainant’s apartment unit, when the complainant wanted Mr. Alvee to leave but he refused. A neighbour had to eventually intervene because of the screaming. He agreed the complainant had told him to leave multiple times and went so far as trying to shut the door on him. He testified however, that his intention was always to leave, that he was at the doorstep, and he was one more step away from being outside of the apartment. Mr. Alvee further explained that he would have eventually left even if the neighbour had not come.
80What is striking about the situation is that it was sufficiently serious that a neighbour had to intervene. It was only after that intervention that Mr. Alvee walked away. Yet in the defendant’s telling, he was close to leaving anyways, glossing over his bad behaviour. He justified his actions at the door by stating he was only trying to get the complainant to forgive him for taking her phone earlier stating his persistence was worthwhile, “ because there’s always a chance for people to forgive you.” A nonsensical explanation to justify his conduct.
81Similarly, he downplayed his behaviour at the Cineplex. C.M. and the defendant’s evidence is largely consistent on what occurred during the movie. That they went to a Bollywood movie and at some point C.M. received calls from a male friend - Ayman. That the defendant walked out of the movie theatre with the complainant’s phone telling the male not to call C.M. When the Crown suggested that this was controlling behaviour, he deflected saying he was not telling C.M. not to call Ayman, just that he should not call her. Oddly, when pressed, he testified that Ayman did not make his feel insecure because he was a teenager, again downplaying what is clearly jealous and dominating behaviour. If that is the case, it hardly explains why the defendant left a movie, he testified that he was eagerly anticipating, just to speak with someone he deemed inconsequential.
82These were not the only examples and cumulatively they contributed to undermining Mr. Alvee’s credibility. When challenged on why he took C.M.’s cellphone while the couple were at Dentonia Park, he rationalized his actions by saying he wanted it “just for once” and that C.M.’s former boyfriend also once had access to her account.
Stairwell assault
83Mr. Alvee denied he sexually assaulted the complainant. I did not accept his evidence and I found aspects of his evidence on this issue to be implausible.
84He testified the reason the couple stopped having sexual intercourse in the stairwell was that the complainant was worried about her sister in the unit. However, that does not account for the fact that there was an adult in the unit, around C.M.’s age, effectively mitigating that concern. When challenged on this issue, the defendant explained C.M. did not trust the woman. The defendant’s explanation does not make sense – why would C.M. leave her young sister in the unit with someone she did not trust in the first place and then belatedly become concerned.
85I further did not accept Mr. Alvee’s evidence that the complainant “seduced him” in the living room. When the defendant arrived at C.M.’s unit there were multiple people in the apartment. It is unlikely she would have initiated intimacy in this context. It was clear from the evidence that C.M. was cautious about her conduct around her younger sister. According to Mr. Alvee for example, the complainant would put her younger sister to sleep in their parent’s room before initiating physical intimacy.
86I accepted C.M.’s evidence that the reason they left the unit to go to the stairwell is because the couple was fighting, and she did not want to argue in front of her sister. This makes sense given my conclusion that the incident of sexual intercourse in the stairwell took place on November 29, 2022, the same date as the incident at Dentonia Park, when Mr. Alvee admits to taking the complainant’s cell phone. Both parties are consistent about C.M.’s emotional state. The complainant testified she came home to her apartment crying after leaving the park. Mr. Alvee testified that the complainant was screaming and yelling, that she was “really upset” that he had logged into her personal account. It is by all accounts a significant intrusion of C.M.’s privacy.
87In this context, given the level of conflict and the complainant’s emotional state it is simply not believable, that the complainant initiated sexual intimacy.
Burger King arrest
88I further had difficulty accepting Mr. Alvee description of the period just before his arrest. He testified that he ran into the complainant at a Burger King, that she invited him to sit with her and her cousin Tasmin, kissed him on the cheek and confirmed when he asked, that she was his girlfriend. This is difficult to accept. The complainant had just broken up with him days before. She called police that day and it is not believable that she acted in the way described.
89Instead C.M.’s version of events is logical and consistent with the actions that followed, specifically she testified that the defendant confronted her at Burger King and started yelling at her. She called police soon after.
90He was released by police a short time later. The conditions of his police undertaking included not to have any contact with C.M. nor be within 100 metres of anywhere he knew her to be.
91I note that Mr. Alvee did not resile from his position that he did not sexually assault C.M. He was not shaken in his position that the sex that day was consensual. He was subject to a thorough cross-examination. He also denied the substance of the other allegations before this court. There were aspects of his evidence that was truthful. He frankly conceded elements of the Crowns case. Further, he admitted to conduct that led to an obvious conclusion, that he attempted to control C.M. He testified in a calm and measured manner.
92Although I have concluded that the defendant overall not a credible witness and material aspects of his evidence are not worthy of belief, I must go on to consider whether the totality of the Crown’s evidence is sufficient to prove the elements of each offence beyond a reasonable doubt. In other words, the rejection of Mr. Alvee’s evidence does not lead inexorably to a finding of guilt.
(iii) Defence submissions on credibility
93Mr. Azzopardi argued there were a number of areas in C.M.’s evidence that should cause this court concern. Specially that she gave inconsistent and unreliable evidence and had a poor recollection of events in dispute. Further, she gave sparse details to support some of her allegations before this court.
94I note that not all inconsistences, are of equal importance and not all inconsistencies lead to the same conclusion. It is important to take any inconsistencies in context. [7]
95I will address the most significant defence arguments.
96Mr. Azzopardi cites as an example of the complainant’s poor reliability her evidence related to the location of her cellphone, which she says was stolen by Mr. Alvee. C.M. initially testified that her cellphone was in her hand, but at another point in her evidence that the phone was in her back pocket. Further, she testified that the defendant ran away with the cellphone, yet in her videotaped statement he says he walked away.
97I did not conclude these inconsistencies were significant. Mr. Alvee admitted to taking her phone when it was in her possession which was the crux of the allegations. The incident occurred as described by C.M. Whether he walked or ran is a peripheral issue. He maintained control over the cellphone after she repeatedly asked and demanded it be returned.
98The defence pointed to another contradiction in the complainant’s evidence. C.M. testified that she always locked the door when she is at home with her sister. However, she testified on the day the defendant took her cellphone, after a 20-to-30-minute period, he walked into her unlocked apartment. This inconsistency was put to the complainant. She explained that she did not bother locking the door because she was really upset, saying, “I was not on my senses, so I just closed the door and did not lock it.” I accepted this as a reasonable explanation. That her actions were impacted by her emotional state. I readily concluded her evidence was true that Mr. Alvee entered her home uninvited on the day he took her cellphone.
99Mr. Azzopardi queries another inconsistency as evidence of challenges with C.M.’s reliability. In the complainant’s video statement, she says a neighbour had to intervene to assist the complainant in an argument with Mr. Alvee on the date of the sexual assault. At trial, however, she testified that the incident occurred on a different date.
100I did not consider this to be a material inconsistency. Both the defendant and C.M. are consistent that there was an incident where a neighbour was involved and significantly, they both agree the complainant wanted Mr. Alvee to leave the apartment but he refused.
101I accepted her evidence at trial, that she was mistaken. That the date the neighbour intervened in their argument did not occur on the date of the alleged sexual assault. This makes sense in the context of other evidence I accepted as established by the evidence. That on the date of the sexual assault, both parties left the unit and walked to the stairwell together. That after the incident, Mr. Alvee testified he was relieved the intercourse was over because he was stressed about his exams, and he went straight home to continue studying. That she headed to her unit and locked the door. She did not suggest that Mr. Alvee returned to her apartment after the incident.
102Mr. Azzopardi submits there were aspects of C.M.’s evidence that were implausible. Specifically, her description of the time it took to walk from the unit to the stairwell was doubtful - that it took two to three minutes to walk that short distance. The complainant testified there were only two units separating her unit and the stairwell. It is a compelling argument and I accept that it is highly unlikely that it would have taken that long to walk a short distance. When this issue was put to C.M. she explained that the couple was yelling and fighting and it took, “us a little bit of time to go over.”
103Although this duration as described by the complainant is unlikely, I did not conclude the inaccuracy was sufficiently significant either alone or in combination with other inconsistencies identified by the defense to undermine the overall reliability of the complainant’s evidence. C.M. provided a reasonable explanation to support her perception of the time it took to walk from her unit to the stairwell.
Lack of sufficient detail
104The defence further submitted that it is suspect that the complainant did not give much detail of the events leading up to the sexual assault. I did not agree with this submission. The complainant provided sufficient detail. That Mr. Alvee stole her phone, that 20 to 30 minutes later he arrived unannounced and sat on the couch with her. She described events on the couch. She provided an explanation as to how the parties ended up in the stairwell. Indeed, her narrative was logical and her explanation of the events leading up to the stairwell incident coherent.
105Similarly post-incident, Mr. Azzopardi submits that C.M. provided only sparse details – that she went to her home and locked the door and the defendant left. However, that is consistent with the defendant’s evidence which I referenced that he was stressed about his exams, and he left the apartment building to return home to continue studying.
911 call
106The complainant testified that when she called police from the Burger King, she was by herself. Her evidence was contradicted by the 911 call, where her cousin Tasmin can also be heard on the call. She accepted she was mistaken when the 911 audio was played in court. It was an obvious concession to be made in the circumstances.
107I concluded this discrepancy was peripheral and did not impact the core allegations in this case.
E. Conclusion
(i) Count 1 – Assault – choking
108I find the defendant not guilty. Although I found the complainant over the totality of her evidence to be a reliable and credible witness, her evidence in relation to the assault she alleged occurred in Mr. Alvee’s bedroom leaves me with a reasonable doubt.
109In describing the assault C.M. initially testified the defendant used one hand, but later explained he used two hands. That he pinned her down on the bed, but also that the defendant threw her on to the bed.
110More significant were the discrepancies related to when this event occurred. In examination in chief, the complainant said the incident occurred either in September, October, or November. When questioned further she stated January. She further testified it to be summer, then winter.
111The Crown countered that the date of offence is not always an essential element of the offence relying on R. v. McGee, 2014 ONCA 358. I don’t disagree with that position, however in this case the variation and inconsistency of dates was significant, such that I had concerns about C.M.’s ability to accurately recollect details about this incident. In addition, there were inconsistencies in the nature of the assault.
112Count 1 is dismissed.
(ii) Counts 2 and 3 - Mischief; Assault
113I accepted C.M.’s evidence that the defendant slammed her bag on the ground in anger and that further he grabbed her cheeks. Her evidence was believable and consistent with other evidence in this case. That the couple had been arguing after Mr. Alvee took her phone to answer a call from a male friend. That the argument continued as they left the movie theater and the couple travelled on the TTC. Mr. Alvee was jealous and angry and acted violently.
114I reject Mr. Alvee explanation that the complainant’s glasses were damaged when she threw her bag to the ground in frustration. I found the explanation to be fanciful given the evidence I did accept. I did not accept his denial that he did not grab the complainant’s cheeks.
115As I have explained I did not find the defendant to be a credible witness. His testimony did not leave me with a reasonable doubt either alone or in combination with any other evidence.
116A conviction is entered on counts 2 and 3.
117The Crown has proven the elements of both offences beyond a reasonable doubt. The defence did not contest there was damage to the eyeglasses.
(iii) Count 4 – Theft
118Mr. Alvee admitted to taking the complainant’s cell phone. He refused to return it. C.M. described begging the defendant to return her phone. He deprived the complainant, at least temporarily, of her property. A conviction is entered.
(iv) Count 5 – Sexual Assault
119This is the most serious count before this court. The ultimate question in this type of analysis is not simply whether the complainant was credible, but whether the allegations are proven beyond a reasonable doubt.
120I have considered the issues of credibility and reliability raised by the defence and I have concluded that the complainant was a credible witness, and I believed her account of what occurred in the stairwell of her apartment building. The complainant provided logical and reasonable explanations for the inconsistencies in her evidence. Further, the inconsistencies were peripheral to the material issues in dispute. Specifically, I find that the defendant had forcible intercourse with C.M. That she resisted, that she told him to stop but he persisted.
121I reject the defendant’s testimony that the sexual activity was consensual, that he was seduced on the couch in C.M.’s apartment and led to the stairwell for the purposes of sex. I find his testimony does not leave a doubt either alone or in combination with any other evidence.
122There was some discussion during closing submissions whether the defence of honest but mistaken belief in consent was applicable on these facts. In the circumstances of this case, there is no air of reality for its application. I note both parties have diametrically opposed versions of what occurred in the stairwell. The issue was purely one of credibility - consent or no consent. [8]
123I further note the principles enunciated in R. v. J.R.R.D., 2006 ONCA 40088, 218 O.A.C. 37, apply in this case. I reject the evidence of Mr. Alvee because I have no difficulty accepting the truthful testimony of the complainant, which is inconsistent with the evidence of Mr. Alvee. A conviction of an accused in a sexual assault case may, in appropriate circumstances, be properly based upon an outright rejection of the testimony of the accused and a considered and reasoned acceptance of the truth of the testimony of the complainant beyond a reasonable doubt.
124A conviction is to be entered.
(v) Counts 6-8 – Fail to Comply with an Undertaking
125The defendant upon his release by police on February 2, 2023, was bound by an undertaking. The conditions included that he have no contact with C.M. and that he not be within 100 metres of any place he knew C.M. to live, work, go to school, frequent or know her to be.
126I accepted the complainant’s evidence that Mr. Alvee called her multiple times soon after his release on February 2. On one occasion she picked up the phone – it was the defendant. She testified that the defendant called her from different phone numbers. Mr. Alvee admitted he had called the complainant from his roommates’ cellphone. The fact that he did not use his own phone is a clear indication that the defendant was aware of the conditions of his undertaking and was seeking to avoid further jeopardy. The defendant admitted as much in his evidence.
127Accordingly, a conviction is entered on count 6 – a breach of the no contact condition of his undertaking on February 2.
128Counts 7 and 8 relate to alleged breaches of the same undertaking on February 4.
129Mr. Alvee further admitted he waited on February 4 in C.M.’s building lobby for her to return from the police station. He admitted he had been in contact with her by phone earlier that day. He says she initiated contact.
130The defence argued the defendant did not knowingly breach his undertaking and therefore the Crown has not established the requisite mens rea to support a conviction. Mr. Alvee believed that C.M. was going to the police station to drop the charges. The complainant admits she told him so.
131Under s. 145(3) of the Criminal Code, the Crown is required to prove subjective mens rea. The Crown must establish that the accused breached a condition of an undertaking, recognizance or order knowingly or recklessly. [9]
132In this case, Mr. Alvee was aware he was subject to a no contact order. He brazenly breached his undertaking soon after his release and did so again two days later. If he was concerned with the legal consequences of his actions, he would have made the basic effort to contact police to confirm he was no longer subject to an undertaking.
133The defendant was reckless. He had knowledge of the risk of non-compliance. He was aware that his conduct, that is, meeting the complainant at her building created a risk of non-compliance. He proceeded to wait in her lobby for a two-hour period.
134Convictions are entered on counts 7 and 8.
(vi) Count 9 – Assault
135C.M. testified that on February 4, 2023, the defendant was waiting in the lobby of her building after she returned from the police station after providing a video-taped statement. That he dropped to his knees, begging the complainant to drop the charges. That he touched her leg but was not shaking it.
136The defendant agreed he asked C.M. if she dropped the charges at the police station. Mr. Alvee testified that the complainant seemed to be in a hurry, and she had already pressed the elevator button. The interaction was short. He denied having any physical contact with her. There was likely some touching, however I have determined there is a reasonable possibility it was accidental given his emotional state. I accept the defendant had dropped to his knees and was crying.
137This count is dismissed.
138I want to thank both counsel for the professional and thoughtful way they conducted this trial.
H.S. Amarshi J.
1Detective Nathan Gibson testified that C.M. received calls during the police interview. He instructed the complainant not to answer the phone. The caller was not identified.
2As Justice Horkins succinctly wrote in R. v. Ghomeshi, 2016 ONCJ 155, in explanation of the standard of proof in a criminal trial.
3R. v. G.F., 2021 SCC 20 at para. 25.
4Ibid at para. 25.
5See R. v. J.A., 2011 SCC 28 at para. 31.
6See R. v. Barton, 2019 SCC 33 at para. 90; R. v. H.W., 2022 ONCA 15 at para. 46.
7See R. v. Dadson, 2018 ONSC 4823.
8See R. v. Park, [1995] 2 SCR 836, 1995 104 (SCC) at para. 26; R. v. P.S., 2007 ONCA 299 at para. 44.