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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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.

Ontario Court of Justice

Date: 2024 10 04 Court File No.: Central East - Newmarket 4911-998-22-91109049-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

ROBERT SHARP

Before: Justice A. A. Ghosh

Heard on: April 8-11, 26, May 30, July 31, September 4, 26, 2024

Reasons for Judgment Released on: October 4th, 2024

Counsel: P. Castiglione...................................................................................... counsel for the Crown J. Roth................................................................ counsel for the defendant Robert Sharp

GHOSH J.:

Overview

1Robert Sharp was tried before me for “Sexual Assault” and three breaches of release orders, contrary to the Criminal Code. I found him guilty of the sexual assault and two out of three breaches within days of submissions. The Crown then applied for a dangerous offender assessment.

2Mr. Sharp, a stranger, engaged the victim on social media and arranged to meet her. They met a few times in a group setting. On the date of the sexual assault, a group of them met at a motel. Mr. Sharp guided the victim to an empty room, which caused her to verbally recoil from him. Their friends were in a different room, and she confronted him in their presence about his decision to take her to an empty room.

3Things calmed down, and they drank and smoked until the victim fell asleep on the motel-room bed beside her friend. She woke to being sexually assaulted by the offender. She pushed him off her. She yelled and confronted him in the presence of two others. The defence conceded the fact of intercourse. The defendant elected not to testify.

4These are my reasons convicting Mr. Sharp.

Summary of the Evidence

5In March of 2022, 21-year-old SDR received a “friend request” on the social media platform “Snapchat” from a stranger that went by the name “Richard Talented”. He would later go by “Rich”. He wished her a happy birthday, suggested he had a gift for her, and that they should meet and spend time together.

6They began communicating on social media. “Rich” shared that he had meaningful connections to parties and events as a promoter, and that he wanted to bring her out to these events. They shared with each other a little about their respective backgrounds. He shared with her some photographs of himself that she would later provide to the police.

7She agreed to meet him, but she brought a few friends as she was wary of this stranger. They met three times with others present, including the fateful night of the incident that supported the sexual assault charge.

The Two Encounters Between Them Before the Sexual Incident

8The complainant and the suspect met for the first time at the “Warehouse” restaurant, bar, and lounge in Toronto. SDR sat across from the suspect at a large, grouped table for a few hours. “Rich” attended with a male friend, and SDR arrived with several girlfriends. The suspect looked exactly like the person in the photographs she had received. They all ate and drank. They had spent a few hours together. Rich’s friend drove them all home. SDR had a lot of alcohol to drink that night and felt tired and intoxicated on the way home.

9SDR and “Rich” continued to communicate after that night and made plans to meet in a group again the following night, March 30th. As “Rich” lived outside of Toronto, he thought he would secure a hotel room for them all to meet and hang out.

10On this second night together, “Rich” and his friend again picked up the women and drove them to the hotel in Toronto. They arrived after 4 p.m. and left the hotel well after midnight. The group spent time together in the room, smoking, drinking, chatting, and listening to music. SDR spoke with “Rich” throughout the evening, sometimes facing each other while a mere foot or so apart. Rich would later drive her home.

11SDR requires corrective contact lenses to see properly. Her eyesight is very poor without them. She is supposed to wear them constantly, although sometimes she fails to restock on time. She does not recall whether she wore them at the first or second meeting with “Rich”, although she clearly recalls seeing his face and recognizing him as the same person in the Snapchat photographs she made plans with to meet on those days.

The Alleged Sexual Assault

12On April 1st, 2022, the date of the incident, SDR had been drinking alcohol with friends. “Rich” messaged her, and they made plans to meet that same night. She asked him to come pick them up. While she did not believe she was wearing her contact lenses that night, she recognized “Rich” as the driver as she entered the front passenger seat. He picked him up at around 3 a.m.

13“Rich” drove them for approximately forty minutes before arriving at the Pinecrest motel. SDR dropped her package of tobacco, and “Rich” stayed back at the vehicle to help her search for it. The rest of the group, including the male friend of “Rich” went inside to settle inside the motel room. SDR soon found her tobacco, and she walked with Rich into the motel.

14“Rich” guided SDR to a particular motel room. He had the entry key to it. “Rich” led her inside when she discovered there was no one inside the darkened room. She immediately asked “Rich” for the reason he brought her there. SDR promptly messaged her friends asking where they were. They directed her to a different room. It was after 5 a.m.

15SDR quickly walked towards the room where her friends were, as “Rich” followed behind. SDR remained confused and disturbed that “Rich” had taken her to a dark and empty room. He had explained to her that he mistakenly brought her there, but he had the key. She whispered to her girlfriends about what had just happened and asked them if they could contemplate the reason behind his conduct.

16Things calmed down, and they all began drinking alcohol. SDR “drank a lot” that night. At one point, SDR asked Rich’s male friend to drive one of her friends home, as she had to work. “Rich” had gone to sit on the bathtub in the washroom for some time, while his friend sat on a chair in the main room. Rich’s friend left the room for other reasons, and SDR’s friend took an Uber ride to go home. This left “Rich”, who remained sitting on the bathtub in the washroom, while SDR and her remaining girlfriend relaxed on the bed.

17SDR remained “spooked” by “Rich”, given his unsettling escort of her to an empty room. She had not spoken to him that much after that, although they engaged each other as they switched out of the restroom. She remained “a bit skeptical” of him. She would wait for Rich’s friend to return, so he could drive both women home.

18SDR and her remaining girlfriend were both “tired and drunk” by that point in the early morning, and they decided to take a nap on the bed together. SDR felt “intoxicated” and “really tired” by then. They women faced each other on the bed, as they drifted off to sleep. Despite her misgivings about “Rich”, SDR felt safe falling asleep on the bed in the physical company of her girlfriend.

19SDR awoke, feeling herself being vaginally penetrated. She opened her eyes to observe “Rich” right in front of her. He was standing on the edge of the bed while holding her legs up in the air. He was penetrating her vagina with his penis, as her buttocks were positioned on the edge of the bed.

20SDR immediately pushed “Rich” off her and demanded to know what he was doing. “Rich” backed away, with a confused expression on his face. SDR went to the washroom, where her friend was. SDR demanded to know why she left her alone with “Rich” when she had explicitly asked her not to do so (transcript?).

21SDR verbally repeatedly confronted “Rich” again. She used variations of the demand: “Who gave you the ‘Go’?”, “Who gave you the green light?” and “Who told you I wanted this?” She was yelling at him. “Rich” seemed confused and provided verbal responses denying or resisting culpability. By then, his friend “Woah” had returned to the room. SDR continued to loudly demand that “Rich” explain himself.

22SDR was not sure whether “Rich” had been wearing a condom. Her friend called an uber, and the women left the motel. SDR was distraught and communicated about the incident with her friends. The next day she called the police to report a sexual assault.

SA, a Friend, Was on the Bed with SDR and “Rich” at a Critical Time

23SA, a friend of SDR, also testified. She was present in the motel room at material times, including during the sexual encounter between “Rich” and SDR. SA recalled getting to the motel on April 1st, with Richard’s friend nicknamed “Woah” leading the women to the room they had rented. Richard and SDR remained behind at the car to locate something.

24SA received a text message from SDR asking where everyone was. SA provided her with the room number. SDR and Richard arrived at the room within minutes, and SDR seemed upset. She expressly demanded to know why “Rich” took her to a different room. SA heard “Rich” respond that he was confused.

25After that, the collective mood relaxed, and everyone spent time together in the room. SA consumed one or two shots of alcohol, although she had consumed more alcohol earlier that night at her brother’s place. She was sober. It was in the early morning hours by then, and SA went to sleep on the bed with SDR. SA recalled before falling asleep that “Rich” was sitting on a chair, while his friend was in the washroom with the other women, chatting and laughing.

26SA awoke at approximately 8:30 a.m. She felt movement in the bed. SA started scrolling through her phone, and the motion beside her slowed down. SA rose from the bed to use the washroom and returned to lie down on her side of the bed. She realized SDR and “Rich” were both fully under the covers. The movement on the other side of the bed had resumed. When SA heard a “moan” from SDR, she rose from the bed again and sat on a chair.

27SA sat on the chair briefly and decided to go to the washroom to give them “privacy”. Someone then knocked on the motel room door. Before SA could answer it, “Rich” was at the door letting his friend back into the room. SDR came into the washroom and frantically confronted SA about leaving her alone with “Rich”.

28SA was confused. She had thought SDR and Richard were engaged in a consensual sexual act. SDR then loudly confronted Richard about failing to obtain her consent for sex. SA and Richard’s friend were present for this. SDR was crying at one point.

29SA and Richard’s friend arranged for an Uber ride so the women could be driven home. SA apologized to SDR on the drive home. SA recalled that SDR had calmed but observed that she seemed “disassociated”.

The Police Investigation into Robert Sharp

30On April 5th, 2022, days after the incident, SDR provided a videotaped statement to York Regional Police Service. She described the sexual assault and provided the police with the photographs of “Rich” that he had sent to her on Snapchat.

31SDR did not believe she was wearing her contact lenses on the night of the sexual incident. However, she was certain that she was interacting with “Rich” at all material times that night. She looked at him at relevant times from a discernable distance and knew who he was.

32After the interview, the investigator sent the Snapchat photographs of “Rich” to a facial recognition analyst. While it is agreed this process is inadmissible here, the analyst determined that Robert Sharp was the man potentially depicted on the photographs. On September 17th, 2022, over five months after the incident, SDR picked “Rich” out of a police photographic lineup. The selected photograph was of the defendant, Robert Sharp.

Analysis

33Mr. Sharp is presumed innocent. Linked to this fundamental premise of all criminal trials is that the Crown bears the onus to establish beyond a reasonable doubt each element of an offence. This burden never shifts to the defendant.

34The standard of proof beyond a reasonable doubt is grounded in reason and common sense, and not in sympathy or prejudice. It is not an imaginary or frivolous doubt. The standard is logically connected to the evidence or the absence of evidence. It is not as demanding as proof to an absolute certainty, but on the other hand it is not enough that a defendant is probably guilty. [1] This standard of proof is not to be applied piecemeal to items or categories of evidence, but to the whole of the evidence. [2]

35Where credibility must be assessed considering the standard of proof, I must apply the relevant direction from the Supreme Court in W.(D.). [3] A contemporary principled framework of this analysis, as distilled by Paciocco J.A. from our Court of Appeal, has found secure footing in trial and appellate courts around the country. [4] I prefer and adopt it, which sharpens the same concepts.

36These principles can be simply summarized:

i. If I believe evidence inconsistent with the guilt of the defendant, I must acquit.

ii. Even if I do not believe evidence inconsistent with guilt but I am left in a reasonable doubt by it, I must acquit.

iii. Even if I entirely disbelieve the evidence inconsistent with guilt and it fails to leave me in a state of reasonable doubt, the mere rejection of that evidence does not establish guilt. I must still determine whether I am satisfied by the evidence I do accept of guilt beyond a reasonable doubt. [5]

37This paradigm is to be applied even when the defendant does not testify, but other exculpatory evidence is adduced that requires a credibility assessment. [6] For example, SA in this case was a Crown witness that the defence submitted provided exculpatory evidence undermining the absence of consent. Again, the “whole of the evidence” must be considered in determining whether the threshold of proof beyond a reasonable doubt has been satisfied. I can accept some, none, or all of the evidence of a witness.

38Mr. Sharp’s counsel prudently conceded that SDR’s credibility was not of particular concern. However, the reliability of her evidence, notably regarding the central issues of identification and consent, remained in issue. She had been drinking each night with some visual impairment at important times.

39As Justice Di Luca observed about the assessment of reliability in R. v. Guisalta: [7]

In assessing a witness' testimony, there is a distinction between credibility and reliability. Reliability relates to the accuracy of the witness' testimony which engages a consideration of the witness' ability to accurately observe, recall and recount an event; see R. v. H.C., 2009 ONCA 56 at para. 41. At times, a witness may credibly recount an observation or occurrence. However, that evidence may lack reliability for a number of reasons, including the conditions under which the witness made the observation as well as the impact of information received by the witness after an event. An incredible witness's evidence cannot be relied on. However, the converse is not automatically true as credibility is not a proxy for reliability. A credible witness may, nonetheless, give unreliable evidence.

The Immediate Non-Verbal Reaction of the Suspect After SDR Pushed Him Off

40The defence submitted that I should embrace the exculpatory inferences available from the complainant’s testimony that “Rich” seemed confused and surprised when she pushed him off her. She testified that she did so upon awaking to his penis inside of her vagina. This evidence, it is submitted, supports his genuine state of mind, and can cause doubt on the absence of consent or amplify an honest but mistaken belief in consent.

41In support of admissibility and weight, the defence notes that evidence was elicited from SDR by the Crown that he seemed surprised or confused. I find that the complainant’s perception of the suspect’s reaction, while admissible, has virtually no cogency in this case. This involves merely her perception of his immediate and wordless reaction and expression.

42Even accepting her assessment of his surprise and confusion at face value, I cannot infer, without more, what informed this perceived reaction. In the circumstances of her immediate and angry accusation in the midst of sexual intercourse, his confusion and surprise could have been animated by either inculpatory or exculpatory thoughts, either genuine or performative. I cannot speculate. Mr. Sharp did not testify. I will next address the alleged post-event utterances of “Rich” that followed.

Admissibility of Suspect’s Post-Act Utterance that SDR “Semi” Consented

43The Crown seeks to admit a spontaneous post-event utterance of the suspect as a limited admission of culpability. The suspect, on the other hand, clearly intended it to be exculpatory – served as a panicked defence to the victim. SDR and SA both testified that, as SDR was angrily confronting “Rich” about sexually assaulting her while she was asleep, the suspect attempted to explain that SDR had “allowed” the sexual contact to some unspecified degree.

44Specifically, SDR testified that “Rich” tried to explain that SDR “partially allowed it”, clearly referring to consent to sexual activity. SA described the comment from “Rich” somewhat differently, in that he kept repeating that SDR had “semi-allowed it”.

45Excited or spontaneous utterances from a suspect may be admitted for their truth in certain circumstances. [8] It has been submitted that the utterance in this case may support both inculpatory and exculpatory inferences and is thus a “mixed statement”. “There is no dispute that a mixed statement of an accused led by the Crown is admissible for its truth both for and against the accused when the accused does not testify.” [9]

46That said, admissibility and reliance are also subject to other considerations. Inculpatory spontaneous utterances by an accused are more readily admitted as an excited admission against interest, while such exculpatory utterances are generally excluded as self-serving, prior consistent statements lacking probative value.

47Neither the complainant nor her friend were sure about what “Rich” meant by this comment. The alleged victim testified that, as she confronted him:

“He is… talking in circles, trying to… explain himself and make it make sense… At one point… I didn’t understand nothing he was saying. He was talking in circles… At one point, he was like… You partially allowed it. I am like… what does that mean? How did I partially allow it? Like… I was very confused. I don’t know. He was not making any sense.

CROWN: And he said you partially allowed it?

A: Yeah.

Q: Did you partially allow it?

A: No.

Q: Did you know what he meant by that?

A: No.

48SA also had difficulty in understanding what “Rich” meant by the phrase “semi-allowed it”. She watched and listened as SDR continued to confront him about attempting to have sex with her while she was “sleeping”. SA listened to them converse and could not understand his offered explanation. SA testified:

A: I remember at one point I asked him, “what does that even mean?” Because he said she “semi-allowed it.” And I’m like, I don’t get that. Like, what does that mean?

49The suspect did not provide any discernible answer to the two women. While there is a compelling submission that it should be admitted as a spontaneous quasi-confession, I find it prudent to exclude the utterance. There is undue ambiguity, diminishing its value without testimonial context. There are insufficient hallmarks of reliability to support its admission, given both witnesses recall the specific comment differently and neither understood the intention behind the statement.

50On the other hand, I also cannot admit and consider his comments for any exculpatory purpose or inference. Mr. Sharp elected not to testify (understandably, given the identification issue), and by extension did not submit to cross-examination about the utterance. [10] It cannot be received for any exculpatory purpose either, given the same reliability concerns identified.

51This highly charged, variously described, ambiguous utterance of the suspect is dangerous on multiple fronts and would detrimentally infect the fact-finding process. While relevant, its low probative value is dramatically outweighed by its highly prejudicial effect. These post-event comments attributed to “Rich” consequently will not be admitted for any purpose.

Identification Evidence – Overview

52It is contested whether it has been proven that the alleged sexual assailant “Rich” is in fact, the defendant, Robert Sharp. Before they ever met, “Rich” sent SDR photographs of himself on Snapchat, received in evidence. SDR testified that these photographs matched the person “Rich” she met over those three days, culminating in the sexual incident grounding the charge.

53Over five months after the alleged offence, SDR participated in a photographic lineup, videorecorded by the police. She was asked if she could identify her assailant, “Rich”. SDR selected a photograph of the defendant, Robert Sharp.

The Frailties of Recognition, a Type of Identification Evidence – The Law

54Courts must be cautious with identification evidence and alive to its inherent dangers and frailties. There is a very weak link between the confidence of an identification and its accuracy. [11] It is well known that confident but mistaken identification has led to wrongful convictions.

55Recognition evidence is a type of identification evidence and “is subject to the same frailties and the same risks.” [12] Evidence that a witness knows or recognizes a suspect can be deceptively and falsely powerful. As our Court of Appeal observed in R. v. Chafe:

Courts “must approach the evidence of recognition with the same caution as identification evidence and the evidence must have the same level of reliability. Even though the witness knows the person identified, the time to observe, the circumstances of the observation, and the conflicting evidence constitute factors which the trier of fact must grapple with to determine reliability. The usual dangers of eyewitness identification exist in a case of alleged recognition. [13]

56The confident in-dock identifications of the defendant by SDR and SA have no weight in this case. [14] Mr. Sharp was the only person seated in the prisoner’s dock.

Identification: Proof that Mr. Sharp is the Suspect, “Rich”

i. Recognition of “Rich” by the complainant, SDR

57SDR spent several hours a day over three consecutive days with “Rich”. It is important to observe that she had never met him before this. This was a very brief acquaintanceship, impacting the force of her evidence that she recognized him.

58I also accept that her eyesight was admittedly “very bad” when she failed to wear her corrective contact lenses. SDR testified that she was supposed to wear her corrective contact lenses daily, although sometimes she failed to restock on time. She does not recall whether she wore them at the first or second meeting with “Rich”.

59Importantly, SDR believed she did not wear her contact lenses on the date of the incident. Her eyesight was accordingly “blurry” that night. However, she sat right beside “Rich” in the vehicle he drove them in. They met at the agreed upon time and place.

60SDR had also been drinking alcohol on all three nights, including the night of the sexual incident. She was “drunk” on the first night at the Warehouse lounge. She was “tipsy” the second night at the hotel. Significantly, the complainant was “drunk” on the night of the sexual incident with “Rich”. This further informs the reliability of her recognition of “Rich” and of her memory of relevant events.

61With that noted, SDR knew with some certainty that the man she first met at the agreed upon time and place matched the photographs “Rich” sent to her of himself on “Snapchat”. There was familiarity between them from their earlier engagement on social media. After their first in-person meeting, they continued to communicate by “text” after she gave him her phone number. In these communications he told her he would arrange a hotel for all of them. They indeed met and attended a hotel, following the agreed upon plan captured in their digital communications. There is some limited cogency to that “chain of events” on the issue of identification. [15]

62On the continuity front, from Snapchat to the first in-person meeting, counsel submitted that anonymity and misrepresentation are common hallmarks of online engagement. This may be especially true in the dating context. The photographs sent are not always of the person one will then meet.

63I accept that as a general proposition – Catfishing, in all its expressions. Those concerns do not apply here. SDR looked at the Snapchat photographs of the suspect, best described as close-range “selfies”, and was certain that the person she met at the agreed upon times and places on all three nights was the same person.

64At their second meeting, SDR spent several hours in the direct company of “Rich”. They spoke at length throughout the evening. At times, they were “face-to-face”, mere “centimetres” or “a foot away” from each other. He looked the same as he had the previous night when they had all attended the “Warehouse” lounge. “Rich” drove her home from the hotel that night, and they sat right beside each other in the vehicle.

65On the night of the sexual incident, it is accepted that SDR did not wear her contact lenses and had been “drinking a lot” of alcohol that day. However, she was certain she was interacting with “Rich” at all material times. When they arrived at the hotel, they were right beside each other as they stayed by the car to search for her tobacco.

66For all three nights, there were only two men with the complainant and her group of girlfriends. The men were readily distinguishable from each other to SDR, and she knew when she was communicating with “Rich”. When “Rich” took her to an empty motel room by “accident”, SDR was “face-to-face” when she confronted him.

67She remained wary of him as she fell asleep on the bed with her friend, SA. SDR woke to being vaginally penetrated by “Rich”. Again, she was facing him during the act. She immediately pushed him off her and confronted him.

68SDR was sure that her sexual encounter on April 1st, 2022, in that motel room was with “Rich”, the same person captured in the Snapchat photographs. Considering the entire evidentiary record, I too am satisfied beyond a reasonable doubt of that fact. It remains to be determined whether “Rich” is the defendant, Robert Sharp.

ii. Police Photographic Lineup – Positive Selection

69Over five months after the sexual incident, SDR participated in a videorecorded photo lineup procedure with the police. She had not seen nor encountered “Rich” in the intervening time. It is agreed that after being shown eight photographs of black men, SDR selected a photograph of the defendant. While the selection is probative, her confidence is not.

70Counsel submitted that none of the black men depicted in the array of photographs presented in the lineup shared similar facial features of the defendant. He noted, for example, that only Mr. Sharp had his hair in “braids” as described by SDR.

71I accept that the photographs in a lineup should “resemble as closely as possible the eyewitness’ description” and “if that is not possible, the photos should be as close as possible to the suspect.” [16]

72However, the array of photographs in this lineup was reasonably constructed. The standard is not one of perfection. Every photograph captured an adult black male of a certain age range. While each male is certainly distinguishable from another, the lineup as a whole is suitable for a fair comparison with the defendant. While not a centrally forgiving factor, this was not a cross-racial identification.

73I find in all the circumstances, SDR’s photographic lineup selection of the defendant as “Rich”, her alleged assailant, is cogent evidence of identification.

iii. The Trier of Fact’s Ability to Identify the Suspect

74“Rich” sent SDR photographs of himself on “Snapchat”. SDR was sure and unshaken that the “Rich” she met in person on those three nights was the same man depicted in those photographs. The context, timing, and depth of their planned meetings removes any speculative prospect that she met someone else, despite any concerns about her vision and sobriety on those nights. Were these “Snapchat” photographs of “Rich” in fact photographs of the defendant, Robert Sharp? Yes, they were.

75A trier of fact can compare images of sufficient quality of a suspect with the defendant in court in order to identify the offender. In R. v. Nikolovsky [17] the Supreme Court observed that such images:

can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness.

It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the person shown in the videotape at the scene of the crime committing the offence. If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape.

76I must be cautious and circumspect in applying this analysis. As the trier of fact, a judge cannot be cross-examined or tested. The application of the Nikolovski analysis engages many of the cautions associated with identification evidence referenced earlier. I suffer from the same frailties as any other identifying witness.

77However, I find the “Snapchat” photographs sent to SDR by “Rich” are unmistakably of the defendant, Robert Sharp. These are high-definition “selfies” that capture the facial features of “Rich” from very close proximity. I find these photographs capture the identical person selected in the photographic lineup, conceded to be the defendant.

78Robert Sharp sat for three court days in the prisoner’s dock mere metres away from me. I observed him closely at times, knowing I would be expected to conduct a Nikolovsky assessment. The defendant and I made eye contact several times a day, especially when we spoke directly about scheduling and logistical issues of his in-custody trial.

79The “Snapchat” photographs of “Rich” were clearly of Robert Sharp. He is a fair-skinned Black male with “distinctive” [18] facial features. His eyebrows. His fuller cheeks. His mouth. His large eyes. His nose. The build of his torso and shoulders. It is the same person.

80In this case, it matters little that SDR did not similarly provide an elaborately detailed physical description of the suspect. After all, she shared with the police several “selfies” of “Rich” that constituted the best evidence of his appearance.

81I find beyond a reasonable doubt that SDR had a sexual encounter with the defendant Robert Sharp on April 1st, 2022. Identification is established. I must now determine whether the sexual act was unlawful.

Sexual Assault – An Overview of the Applicable Law

82To establish the actus reus of sexual assault, the Crown must establish: (1) touching (2) of a sexual nature, and (3) in the absence of consent. [19] The first two elements of sexual touching are objective, requiring the Crown to prove the accused’s actions were voluntary. The third element, the absence of consent, is subjective, and focused on the complainant’s perspective and state of mind toward the touching at the time it occurred.

83Capacity to consent is a precondition to subjective consent. To have the capacity to consent, the complainant “must be capable of understanding four things: (1) the physical act; (2) that the act is sexual in nature; (3) the specific identity of the complainant’s partner or partners; and (4) that they have the choice to refuse to participate in the sexual activity.” [20]

Capacity to Consent – SDR Fell Asleep and Awoke to Intercourse

84SDR did not testify nor suggest that she was incapacitated due to alcohol consumption. She testified that she fell asleep in a motel room beside her friend and woke up to being vaginally penetrated by the suspect’s penis.

85The Criminal Code codified the law that there is no consent to sexual activity where the complainant is “unconscious”, “incapable of consenting”, “by words or conduct” expressing a lack of agreement, or having consented, later expressed by words or conduct, a lack of agreement to continue. [21]

86The very late time of night coupled with the significant consumption of alcohol obviously informed the depth of SDR’s sleep. I find she was unconscious right before she awoke to realize Mr. Sharp was having intercourse with her. Her sleeping, unconscious state was informed by some combination of fatigue and alcohol consumption.

87I will address the “moan” heard by SA, emanating from SDR, in the context of capacity to consent. While no expert evidence was called, there can be a development of alertness on a waking spectrum as one is roused from sleep. That is a matter of common human experience. [22]

88It is important that SA did not hear SDR say anything to accompany the moan. The next words she heard from the complainant was when she confronted SA and demanded to know why she had been left alone with “Rich”. SDR then demanded directly of “Rich” an explanation of why he thought he had her consent. Mr. Sharp did not testify.

89SDR did not have the capacity to consent when the sexual assault began. She was sleeping. The moment she realized what was happening, she pushed Mr. Sharp off her and demanded to know why he thought he had her consent. I find that she made these demands of him, because he did not, in fact, have her consent.

Absence of Consent – Consistent Messaging From the Complainant

90It is agreed that “Rich” had vaginal intercourse with SDR. As with any trial for sexual assault, the Crown must prove the absence of consent beyond a reasonable doubt. To establish the act of sexual assault, the focus is only on the complainant’s state of mind. If I accept SDR’s evidence that she did not consent, “then there is no consent – plain and simple.” [23]

91The defendant’s perception of her state of mind is irrelevant at this stage. I will return to the Crown’s duty to prove the suspect’s intent to sexually assault shortly. Consent to sexual activity is defined as the “voluntary agreement of the complainant to engage in the sexual activity in question.” [24] It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” [25] and it must be freely given. It means that “the complainant in her mind wanted the sexual touching to take place.” [26]

92There is an abundance of direct and inferential support that SDR never welcomed any form of sexual contact with Mr. Sharp at any time, but vitally at the time of the sexual encounter. The defendant was a stranger. SDR chose to only meet Mr. Sharp in a group setting, surrounded by her friends.

93There is no evidence that SDR and Mr. Sharp shared any flirtatious or sexualized exchanges prior to the incident. On the contrary, as the defendant guided her to an empty hotel room earlier on the night of the incident, SDR demanded to know the reason he took her there and away from her friends. She challenged him about this again in the presence of their friends. That was a limited illustration as to her consistent state of mind towards the defendant. She did not want him to touch her sexually, at all, at any point.

94SDR was unsettled and untrusting towards her assailant after the “empty motel room” incident. She later fell asleep on the motel room bed, calculatingly with her friend, SA, right beside her. She felt safer, as she was still wary of the defendant. Drunk and tired, SDR fell asleep. She woke to her legs being held up by Mr. Sharp, as he penetrated her vagina with his penis. The complainant basically threw the defendant off her, and immediately demanded to know who gave him the “go” or the “green light” of consent. She was angry and upset.

95SDR was unshaken that she awoke to being vaginally penetrated by the defendant. Not only did she not consent, but she immediately pushed him off her and demanded to know why he thought he had consent. This timely, verbalized opposition to any sexual contact was witnessed by SA.

96The “moan” by SDR overheard by SA does not undermine the complainant’s evidence that she never consented to sexual activity with Mr. Sharp. It is clear that SA accepted in evidence that she may have misapprehended and sign of consent, as she began verbally challenging him too.

97While I consider SDR’s immediate and visceral “post-event emotional state” [27], her conduct after the event is not central my acceptance of her evidence that she woke up to being vaginally penetrated by Mr. Sharp’s penis. The circumstances surrounding her post-event reaction powerfully confirm the absence of consent.

98Mr. Sharp did not testify. When he took SDR to an empty room shortly before the assault, she expressly rebuked him and demanded he explain his motivation. She made sure her friend was lying beside her to ensure safety as she fell asleep. Considering all the evidence, I find SDR did not consent to any sexual contact from the defendant.

“Honest Mistaken Belief” in Communicated Consent – No Air of Reality

99Having proven the actus reus of sexual assault, the Crown must also prove Mr. Sharp intended to commit the offence. Section 273.2 codifies several circumstances where the accused’s belief in consent is not a defence, including where the belief arose from his “recklessness or wilful blindness”, or where “there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.”

100The defence of “honest but mistaken belief” in consent requires “reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.” [28] In order to make out the defence, “the accused must have an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct.” [29] The focus on “communication” protects the analysis from “inadvertently straying into the forbidden territory of assumed or implied consent.” [30]

101Again, Mr. Sharp did not testify. I accept in the abstract that “reasonable steps” to ascertain communicated consent might still be theoretically established through available inferences. However, no such inference is present on this evidentiary record.

102Mr. Sharp was fixed with the knowledge that SDR did not want to be alone with him in a room from earlier that night. She immediately confronted him privately when he initially guided her to an empty motel room. Later in the presence of her friends, she again demanded that he explain why he took her to an empty room.

103SDR was fully clothed by the time she fell asleep on the motel room bed, lying immediately beside her friend SA. In this context, I cannot infer that the audible “moan” later heard by SA coming from SDR supports that Mr. Sharp took any steps at all. SA did not hear any words from either of the two people under the covers and only felt some movement on the bed.

104No defence evidence was called to support that any steps at all were taken to ascertain communicated consent. I find SDR was asleep when he began touching her sexually. I found she awoke to his penis penetrating her vagina. There was no air of reality to this defence.

Breaches of Releases Orders

105The defence has conceded that my identification finding that Mr. Sharp was the suspect requires consequent convictions of two out of the three breaches of release orders.

106I find Mr. Sharp violated the “curfew” and “no cell phone” conditions of his release order. “Richard” was with the two Crown witnesses at the relevant time, outside of his curfew and without the company of his mother and surety. He was also seen with a cell phone at the motel room as well. SA saw him “scrolling” on his phone, and SDR saw him with a cell phone on all three nights.

107I will err in acquitting Mr. Sharp of the final breach, yet another alleged violation of the “no cell phone” condition. When he was arrested at his home, police found him sleeping on a couch. A cell phone was seized from the same couch. No data was extracted from the phone. I accept there is a reasonable available inference that it was not his cell phone, and so he lacked the control necessary to construct possession.

Conclusion

108I find Mr. Sharp guilty of sexual assault and two breaches of a release order. My thanks to counsel.

Released: October 4, 2024 Signed: Justice A. A. Ghosh

[1] R. v. Lifchus, [1997] S.C.J. No. 77 [2] R. v. B.D., 2011 ONCA 51, para. 96 [3] R. v. W.(D.), [1991] 1 S.C.R. 742, para. 28. [4] David M. Paciocco, “Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment” (2017) 22 Canadian Criminal Law Review 31; Duchesne c. R., 2021 QCCA 1436; R. v. Ramos, 2020 MBCA 111; R. v. Thalheimer, 2022 SKCA 25; R. v. Duncan, 2020 ONSC 7428, para. 70 [5] R. v. Holden, 2024 ONCA 2123, para. 5 [6] R. v. Boucher, 2022 ONCA 40, para. 72; B.D., para. 96 [7] R. v. Guisalta, 2023 ONSC 2694 [8] R. v. Rojas, 2008 SCC 56, paras. 36-38; R. v. Bagherzadeh, 2023 ONCA 706, paras. 24-26; R. v. Camara, 2021 ONCA 79, paras. 84-5 [9] Bagherzadeh, para. 24 [10] R. v. Edgar, 2010 ONCA 529, para. 72 [11] R. v. Hibbert, 2002 SCC 39, paras. 50-53 [12] R. v. Chafe, 2019 ONCA 113, paras. 31-32; R. v. Olliffe, 2015 ONCA 242, para. 38; R. v. A.W. 2024 ONCA 564, para. 41 [13] Chafe, paras. 29-30 [14] R. v. Biddle, 2018 ONCA 520, para. 32 [15] Hibbert, para. 49 [16] R. v. Gonsalvez, [2008] O.J. No. 2711 (ONSC), para. 52 [17] R. v. Nikolovsky, [1996] 3 S.C.R. 1197; R. v. Olufeko, 2022 ONCA 308, para. 20 [18] R. v. Jack, 2013 ONCA 80 [19] R. v. Ewanchuk, [1999] 1 S.C.R. 330, para. 25 [20] R. v. G.F., 2021 SCC 20, paras. 25, 29; R. v. Gordon, 2024 ONCA 576, para. 3 [21] Criminal Code, s.273, 1(2) [22] R. v. Boone, 2019 ONCA 652, paras. 88-89 [23] R. v. Barton, 2019 SCC 33, para. 89; Ewanchuk, para. 31 [24] Criminal Code, section 273.1(1) [25] J.A., para. 31; Barton, para. 88 [26] Ewanchuk, para. 48; Barton, para. 89 [27] R. v. J.A., 2010 ONCA 491, paras. 17-18; R. v. Marsh, 2010 ONCA 830, para. 20 [28] Criminal Code, section 273.2(b) [29] Barton, para. 91. [30] Barton, para. 92