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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Court File and Parties
ONTARIO COURT OF JUSTICE DATE: January 29, 2024 COURT FILE No.: 21-81400009
BETWEEN:
HIS MAJESTY THE KING
— AND —
OMMEMA IBETO
Before Justice Angela L. McLeod
Trial held December 12, 13, 2022; December 5, 6, 7, 2023; January 15, 2024 Application/Motion hearing dates January 19, 2023, March 2 and 14, 2023, April 4, 2023, June 2, 2023, November 23, 2023.
Counsel: KATHERINE SPENSIERI AND BHAVNA BHANGU.................... counsel for the Crown ANTHONY PACCIOCO AND VALERIE BEGIN........................ counsel for the Accused
OVERVIEW
1Mr. Ibeto is charged that on or about the 27th day of July in the year 2019 at the Town of Collingwood, did commit a sexual assault on S.B., contrary to section 271 of the Criminal Code.
2The Crown proceeded by way of Indictment.
3The matter has a long history due in part to a delay in reporting to the police and mid-trial applications.
4The issue at trial is relatively narrow; the credibility and reliability of the evidence of S.B. Additionally, as Mr. Ibeto testified, a W.D. analysis is required (R. v. W.D., [1991] 1 S.C.R. 742).
5An agreed statement of facts was filed as Exhibit #1a; supplemented by Exhibits 14, 15, 16, 17.
CREDIBILITY AND RELIABILITY
6A trial is not a credibility contest. It is not a question of whose version of the events is most believable. Indeed, “the issue at the end of the trial [is] not credibility but reasonable doubt.” R. v. Sheppard, 2002 SCC 26, 2002 S.C.C. 26, at para. 66.
7Credibility and reliability are not the same thing. Indeed, “credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recounts events in issue” R. v. C.(H.), 2009 ONCA 56, 2241 C.C.C. (3d) 45 (Ont. C.A.), at para. 41. Thus “credibility … is not a proxy for reliability: a credible witness may give unreliable evidence”: C.(H.) at para. 41; R. v. Morrissey (1995), 22 O.R. (3d) 514 (Ont. C.A.), at p. 526.
8I am required to consider the whole of the evidence in deciding a case.
CONTEXT AND UNCONTESTED FACTS
9It was the summer of 2019. S.B. and Mr. Ibeto met on Tinder. He was 19 years old and lived in Ottawa with his parents. She was 19 years old and lived in a small town north of Toronto with her parents. They were preparing to go off to college in the fall.
10The parties had communicated for several months through various social media apps.
11Mr. Ibeto was in the military reserves. He was coming to the general area where S.B. lived for training. The parties agreed to meet in person.
12The plan was that Mr. Ibeto would pick up S.B. at her house. They travelled together in a car to a hotel approximately 15-20 minutes away. At the hotel several of Mr. Ibeto’s colleagues were present. The colleagues left when he and S.B. arrived.
13Mr. Ibeto and S.B. had sexual contact.
14When the colleagues returned S.B. called her friend to pick her up at the hotel. Mr. Ibeto walked her downstairs to the hotel door and kissed her goodbye.
15The parties did not communicate with one another again until seventeen months later when S.B. reported the allegations to the police who contacted Mr. Ibeto requesting that he turn himself in. Immediately, Mr. Ibeto direct messaged S.B. through Instagram writing (Exhibit #2):
I just got a call from the police I just wanna talk Please call me Imm begging you [number removed] I’m crying I didn’t mean to hurt you in anyway please call me Please I just need to understand I am so sorry for anything that hurt you I swear I never meant to I just really need to understand what’s going on Please just explain to me what’s happening I won’t respond if you don’t want to talk
ASSESSING THE RELIABILITY OF S.B.’S EVIDENCE
A. THE RIDE TO THE HOTEL
16Sixteen months passed between the incident and the reporting to police in November 2020.
17Three and a half years passed between the incident and the completion of the trial.
18The trial started in December 2022 and completed in January 2024.
19The passage of time can affect one’s ability to recall.
20S.B. struggled with her ability to recall details of the incident, significant details.
21She testified that she could not recall:
(1) If the parties had made specific plans when arranging to meet for the first time; however, was able to remember that she had clarified ‘over and over my expectations’. (2) Where the parties were to go on the day in question. (3) The time she was first picked up and when she ultimately returned home. (4) Whether she was introduced the driver who picked her up at her house. (5) What was said between she and Mr. Ibeto upon entering the car, discussion about where they were heading, or if there was discussion between the driver and Mr. Ibeto.
22S.B. testified that when Mr. Ibeto arrived at her house, she was told to get into the back seat with him. Another male was driving. She testified that the assault immediately began upon her entering the car. She couldn’t recall if she was even able to put her seat belt on. She testified that Mr. Ibeto put his hands on her and forced her hand onto him. She was not certain where he had put his hands, but believed it was below her waist, on her vagina. She could not recall 100% if it was on top of her clothes or underneath. She could not recall if he was using one or both hands.
23S.B. recalled that she was being forcefully touched and she was trying to fight it off. The assault carried on for the full 15–20 minute drive to the hotel. She then stated that she was being playful, trying to laugh it off, saying “your friend is here” and pushing Mr. Ibeto away. She could not remember how she was pushing him off, stating “I don’t specifically recall those details.”
24When asked what was being said between she and Mr. Ibeto during the assault, she said, “I don’t recall exactly, from what I remember, I can’t recall 100%, it was continuous, he was not listening to what I was saying and not responding to my restraint … he could have said it’s ok, he is not looking, I don’t remember.”
25S.B. testified that she did not want to make a scene, her body went into shock. Then she said that her body was telling her that everything was ok, but her brain went into fight or flight mode. She was playfully saying no, then said she “kinda froze” but then said her response “was more of a playful energy.” She contradicted herself later when she stated that it her body went into fight or flight mode, and she was completely frozen.
26The Crown asked if she was touched anywhere else and she responded, “I don’t remember specifically the details, but yes.” The Crown followed up and asked for the general areas that she was touched, and she said, “at this time in the car I do not remember.”
27The Crown asked if Mr. Ibeto was making her touch him. She stated that he was forcing her to touch him below his waist, to do sexual things to him, but couldn’t remember if it was on top of or below his clothes. She said she recalled trying to remove her hand. The Crown asked if she was successful and she said “from what I recall, no.” The Crown then asked if she made contact with Mr. Ibeto’s penis. She said, “I cannot confirm 100% in the vehicle, but from what I remember, yes.”
28When asked if there was other touching in the back seat of the car, S.B. stated “other than what I described, I don’t recall, I don’t believe so.” When asked how it ended, she said “I don’t recall, I believe we arrived at the destination, I didn’t know where we were going, wherever we arrived.”
29S.B. testified that Mr. Ibeto appeared to be drunk and that she had seen a bottle of liquor in the back seat. She recalled that Mr. Ibeto also consumed a homemade cannabis edible and that the parties had some discussion about it. She could not recall the conversation, how much he had consumed, or whether it changed his behaviour. S.B. said that Mr. Ibeto offered her an edible and she took it, willingly.
30S.B. testified that she took the edible because she thought she was overreacting to the situation, that her brain was telling her to calm down and to stop freaking out. She said, “so I took it to help with that in an attempt to underline the situation, to stop my brain from thinking what it was thinking, my brain was trying to trick me in that moment.”
31S.B. could not confirm when she started to feel the effects of the edible, but believed she didn’t until “I arrived later, I don’t know how long the time frame was.”
32After her memory was refreshed by the Crown, S.B. recalled that Mr. Ibeto told her that they were going to the hotel because he needed to grab something and that she should come inside with him. She said, “I had no problem with that and I followed.” When asked by the Crown what she was thinking as they arrived, she said “my brain shut off what had just happened, I was in fight or flight, so I pretended what just occurred had not, when he said he had to get something, I went along with him, in my head I was trying to believe it was completely fine, I followed him and the driver, I recall taking the stairs.”
B. INSIDE THE HOTEL ROOM
33S.B. recoiled from her recollection about taking the stairs up to the room. She said, “I remember getting up to the room some how, I believe it was the stairs, I don’t remember an elevator, but I can’t confirm 100%.”
34Once at the hotel room door, S.B. testified that the door was opened by a room key, then said “I don’t recall specifically, I believe by the accused.” She said that she was pulled into the room, “but I can’t confirm” and the door was immediately shut and locked. She said that there were originally others in the room who were told to get out. She could not recall if there were more, or less, than five others. Again, her memory was refreshed, and she then said, “I can confirm it was 5 or 8, and not exactly for sure.” She did not recall if Mr. Ibeto had conversation with the others.
35As she stood behind Mr. Ibeto in the hallway, while the others were leaving, her brain “came to” and she knew she “was in big trouble, I was not safe, I knew that before, it was in a different mind frame, at this time it was more aggressive in my brain that I was in danger, my body allowed me to not be in flight mode.”
36Once the others left, the door was locked by Mr. Ibeto, or at least as far as S.B. could remember. She could see out the window of the room but couldn’t recall what she could see. She described the room in great detail.
37S.B. testified that she was ‘raped’ several places in the room. She stated that she could not recall how the initial contact was made and asked to see her statement. The crown advised her that she had not given this detail in her statement, and she then went silent. The Crown then asked, in a leading manner, how she was pushed onto the bed. She responded, “as far as I remember it was aggressively.”
38S.B. testified that at some point her clothes were removed but wasn’t sure if that happened before she was on the bed or after. She was unclear and uncertain what if anything she had said to Mr. Ibeto. She stated, “I believe I kept saying, what I had told him prior, that I didn’t want to do that, I kept reiterating what I had told him before … I can’t remember [the words], it was probably along the lines of I told you what my expectation was, and I told you what I wasn’t doing.”
39S.B. went on to testify about the sexual interaction. Most of her answers began with either “I believe” or “from what I remember”. It was littered with “I can’t recall at this exact moment”, “as far as I can recall”, “as far as I can remember”, “I don’t recall”, or “I don’t exactly know”. Sometimes she responded with “I cannot confirm or deny that” or “I believe so, but I can’t confirm”.
40At some point, S.B. ingested a second edible. She was uncertain how it happen but testified that Mr. Ibeto put it in her mouth. When asked why she swallowed it, she stated, “probably out of fear, or I didn’t have a choice … I wouldn’t have swallowed it if I didn’t have the opportunity, that mixed with pure fear.”
41Ultimately, the interaction came to an end with either a text message from the friends or a knock on the door. S.B. was unclear. Nonetheless, she took the opportunity to go to the bathroom and take her phone with her. She was on the toilet when Mr. Ibeto came in and kissed her and said something like, “come back to me baby”. She testified that he took her phone at that moment.
42S.B. testified that Mr. Ibeto placed the phone either on the bathroom counter, or the bedside table where the lamp was, but she could not access it. She claimed that he was blocking her. Without explanation or understanding, S.B. testified that she had her phone and was texting “whoever I could, I couldn’t call, I felt very much in danger, so I could not make a call, so I was texting. I texted a few friends, they didn’t answer. My plan was to answer as many people and see who would get back to me, nobody did, until a friend did, I was only able to get the message out before it was taken from me.” The phone was placed on the table next to her she said.
43S.B. testified that she told Mr. Ibeto that “I need to go soon”. She checked her phone and a friend had responded. She told the friend where she was and that she needed to be picked up. The friend called. S.B. testified that she spoke with her and that the friend had “gotten my cues”, and “luckily she picked up on all of my cues and she was on her way, and I believe I hung up at that point”.
44S.B. testified that she couldn’t leave the room because Mr. Ibeto had locked it, but that as soon as she said that her ride was there, he unlocked and walked her downstairs. He opened the door to the outside and she said that she ran to her friend’s car. The friend, T.D., was categorized as being “very close, a good friend”. The women had known each other since they were children in public school. S.B. stated that she got into Ms. Davey’s vehicle but remained completely silent the whole way home because her body was in shock.
45The next day, Mr. Ibeto sent a text message to S.B.; she never responded and blocked his number. Her evidence on this point waivered. She stated, “I do remember writing up a response, how you had the audacity to say that to me, something of that nature, I was angry, and I wanted to say to him, I had written it up, I may have sent it, I don’t think I did, I think I just blocked him”.
46In the following days, S.B. sought medical care. She wanted “to make sure, I went under several testing to confirm several things, I took a pregnancy test”. S.B. testified that she told the nurse practitioner what had happened with Mr. Ibeto and that she was the first person “other than T.D. that I told”. This was contradicted by her earlier evidence wherein she had testified that she remained silent the whole way home.
47Filed as Exhibit #22 is a typed note from the nurse practitioner, dated July 31, 2019. Therein some of the details of S.B.’s evidence at trial are replicated. There are some additional details that directly contradict her evidence.
48S.B. went off to college in the fall. A year later she came back from college due to the pandemic. S.B. had not done well at college and was struggling with her mental health. S.B. disclosed to her mother. She did not want to tell her father as she believed he would want to go to the police and she “knew that wasn’t something I was ready to do”. She was acting out. Her father questioned her behaviour. They were fighting. During an argument, a screaming match ensued. She disclosed to her father. He immediately said that they were calling the police. They called that night.
C. IMPROVED MEMORY OR RECOLLECTION
49During cross-examination, S.B. testified that during her statement to police, she “didn’t leave out anything”. However, she agreed that in examination in chief, she provided a lot more information than she had in the police statement. She also agreed that from the time of the police statement to the first day of trial she had been communicating somewhat regularly with the investigating officer, providing pieces of evidence as requested and had not provided the additional details proffered at trial. Additionally, she had messaged the officer that she was remembering details as a result of being involved in therapy.
50When the defence questioned S.B. about a number of specific details that had been added to her allegations post police interview, she repeatedly stated things like, “I don’t remember how and when I told someone”, and, “I can’t confirm or deny what I said or didn’t say”, and “I believe I remember that at the time, but I would have said that, I remember thinking about it now” and, “I do not, but I didn’t mean not to say that” and, “if I didn’t tell him that I had forgotten to say that” and, “it slipped my brain it was a mistake”.
CONCLUSION
51I have not reviewed every concern regarding the evidence of S.B., nonetheless it is overwhelmingly clear that it would not be safe to rely upon it.
52There are so many internal and external inconsistencies that lead to a conclusion that S.B. is also not a credible witness.
53As a result, the Crown has not proven the allegations beyond a reasonable doubt.
54Although not necessary, I will note that I found the evidence of Mr. Ibeto to be credible and reliable and I would have found him not guilty in any event post W.D. analysis.
Released: January 29, 2024. Signed: Justice Angela L. McLeod