WARNING

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

ONTARIO COURT OF JUSTICE

DATE: 2024·10·29

BETWEEN:

His Majesty the King

— and —

Ephraim Mohlala

Judgment

NOTE: This judgment has been edited to comply with the publication order. Distribution of this decision will not violate the terms of the publication order.

A. Kiran .................................................................................................. Counsel for the Crown J. Mann ............................................................................................ Counsel for the Defendant

Felix J.:

Table of Contents

• I. Introduction
• II. The Burden of Proof and Criminal Law Framework
  • A. The Presumption of Innocence
  • B. Reasonable Doubt
  • C. Credibility and Reliability Assessments
  • D. The Guidance of W.(D.)
  • E. W.(D.) Applies to All of the Evidence
  • F. Other Relevant Legal Guidance on Credibility
• III. The Evidence
  • A. The Complainant’s Testimony
  • B. Defendant’s Evidence
• IV. Analysis
  • A. Delayed Disclosure
  • B. Delayed Police Investigation
  • C. Prior Relationship
  • D. Re-Examination Issue
  • A. The Sexual Assault Incident
    • 1. The Defendant Calling Before Arriving
    • 2. The Bike and Alcohol Purchase
    • 3. Condom Discussion
    • 4. The Complainant’s Level of Intoxication – Reliability
    • 5. Omissions : Push on Stomach and “Come from Behind”
    • 6. Defendant’s Clothing
    • 7. Sweatpants
    • 8. Injuries
      • a) Visiting the Doctor
      • b) Bruising Caused by the Sexual Assault
      • c) The Knee Infection
      • d) The Complainant’s Mobility: Credibility Issue
    • 9. Penetrative Sexual Assault
    • 10. Location of the Complainant’s Phone
    • 11. The 911 Call, Immediate Attendance of the Police, Immediate Attendance at the Doctor
• V. Conclusion

I. Introduction

1The complainant and the defendant were friends who knew each other from the community. One night, the defendant attended the complainant’s apartment and they socialized. During this incident, the complainant describes a sexual assault. The defendant describes discussion around sexual contact, but the complainant verbally expressed non-consent before any sexual contact occurred. As a result, the defendant’s position is that no sexual contact occurred.

2The Crown Attorney and Defence counsel did not litigate the essential elements of the criminal offence of sexual assault as defined in the Criminal Code. The parties focused on the central issue at trial – the credibility and reliability of the complainant, and the defendant.

3The Defence position is that having regard to numerous inconsistencies and omissions, the complainant is both incredible and unreliable. Defence counsel cites the product of an efficient cross-examination wherein the complainant’s statements to the police were compared and contrasted with her viva voce evidence in court.

4The Crown position is that inconsistencies and omissions need to be considered in light of the particular circumstances of the complainant and her explanation for the inconsistencies.

5The burden of proof is placed upon the prosecution. The prosecution must prove the offence beyond a reasonable doubt. Having regard to the guidance of R. v. W.(D.), [1991] 1 S.C.R. 742 [W.(D.)], at step one of the analysis, I do not entirely believe the defendant’s evidence – denying sexual contact. Fundamentally, I do not believe his evidence about the complainant having a discussion with him about sexual contact. Nor do I believe his testimony that she initiated sexual contact.

6I find that the complainant was generally a truthful and honest witness. I generally believe her testimony. But belief in the complainant’s version of events is not the end of the analysis in a criminal trial. I found the complainant’s testimony to suffer from several reliability concerns and one credibility concern. This weakened the weight I placed on her evidence.

7Having considered step two of W.(D.), step three of W.(D.), and the guidance of R. v. S. (J.H.), 2008 SCC 30, at para. 12 [S.(J.H)], while the complainant was a credible witness, having regard to the diminished weight I put on her evidence, I am unable to resolve exactly what happened during the sexual assault incident. I cannot convict the defendant because I favour or prefer the complainant’s version of events. I cannot allow a criminal trial to become a simple contest between the defendant’s version of events and the complainant’s version of events. While I found the complainant credible, and highly sympathetic, in a criminal trial, a trial judge must be totally convinced of the defendant’s guilt beyond a reasonable doubt. If a criminal trial judge cannot factually determine what happened, this state of mind cannot support conviction. This state of mind mandates an acquittal.

8Trial judges have a responsibility to clearly explain the reasoning behind credibility and reliability assessments or risk reversible error: R. v. Vuradin, 2013 SCC 38, at para. 11; R. v. Dinardo, 2008 SCC 24, at para. 26 [Dinardo]; R. v. Braich, 2002 SCC 27, at para. 23.

9I will begin by setting out the framework used to analyze the evidence in a criminal trial. Then I will address the material issues and explain why I am in a state of doubt.

II. The Burden of Proof and Criminal Law Framework

10Criminal trials are informed by a number of well-known legal principles. I will briefly set out the framework for the proper approach to the analysis of the evidence.

A. The Presumption of Innocence

11The central tenet in our criminal justice system is the constitutional entrenchment of the presumption of innocence. A criminal defendant begins a trial with the presumption of innocence. The defendant is not required to testify. The defendant is not required to present any evidence. The presumption does not shift during the trial. The presumption of innocence is only dislodged if the prosecution presents evidence establishing the defendant’s guilt beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27; R. v. Starr, 2000 SCC 40, at para. 242.

B. Reasonable Doubt

12The reasonable doubt standard applies to the final determination of guilt or innocence. It is not applied piecemeal to individual pieces of evidence or categories of evidence: R. v. Menard, [1998] 2 S.C.R. 109; R. v. Morin, [1988] 2 S.C.R. 345.

13Reasonable doubt is based on “reason and common sense”, is not “imaginary or frivolous”, does not “involve proof to an absolute certainty”, and must be “logically connected to the evidence or absence of evidence”: R. v. Villaroman, 2016 SCC 33 at paras. 28, 36 [Villaroman].

14It is important to note that the Defence bears no burden to prove foundational facts in support of an inference of innocence: Villaroman, at para. 35; R. v. Khela, 2009 SCC 4. Nor is the defendant required to adduce evidence providing foundational support for a “finding” of reasonable doubt: Villaroman, at para. 28. A defendant is free to point to anything in support of reasonable doubt including the presence or absence of evidence.

15The defendant has no burden in this criminal trial. Nevertheless, he chose to testify. While I did not accept his evidence completely, having evaluated the entire record at trial, his testimony is part of the reason why I am in a state of reasonable doubt.

C. Credibility and Reliability Assessments

16In many criminal trials the credibility and reliability of the central witnesses at trial must be resolved. I rely on the description of “credibility” and “reliability” explained by Watt J.A. in R. v. C.(H.), 2009 ONCA 56, at paragraph 41, and the guidance of the Supreme Court of Canada in R. v. G.F., 2021 SCC 20, at paragraph 82 and R. v. Kruk, 2024 SCC 7, at paragraphs 146-149 [Kruk].

D. The Guidance of W.(D.)

17In assessing the criminal standard of proof beyond a reasonable doubt, trial judges have a responsibility to consider the entire record at trial and to resolve material issues relevant to the credibility analysis. The W.(D.) decision sets out the three-step process for analyzing credibility in the face of conflicting evidence. The guidance is as follows:

1. If you believe the evidence of the accused, obviously you must acquit;
2. Even if you do not believe the testimony of the accused, but you are left in a reasonable doubt by it, you must acquit; and,
3. Even if you are not left in doubt by the evidence of the accused, you must ask whether, on the basis of the accepted evidence, has the prosecution established guilt beyond a reasonable doubt.

18I am in favour of an additional instruction. I acknowledge that a criminal trial is not simply a competition between the version of events provided by the complainant, and the version of events provided by the defendant. But, if after considering the totality of the evidence, I am unable to decide whom to believe, this state of mind translates into a reasonable doubt and an acquittal must be the result: S.(J.H.), at para. 12; R. v. Austin, [2006] O.J. No 4660 (C.A.), at para. 20.

E. W.(D.) Applies to All of the Evidence

19The W.(D). test applies to more than the defendant’s evidence. The test requires consideration of any defence evidence and any admissible exculpatory evidence no matter the source: R v. Savage, 2023 ONCA 240, at para. 37; R v. N.P., 2022 ONCA 597, at para. 29; R. v. Smith, 2020 ONCA 782, at para. 12; R. v. M.P., 2018 ONCA 608, at para. 60.

F. Other Relevant Legal Guidance on Credibility

20There is no such thing as a “credibility contest” in criminal law. A trial judge is not permitted to determine guilt or innocence by simply picking a preferred version of events amongst competing versions. This approach offends the criminal burden proof: R. v. Vuradin, 2013 SCC 38, at para. 26; S.(J.H.), at para. 9; W.(D.), at p. 409.

21A trial judge cannot permit the analysis of credibility to degenerate into a mere choice between competing prosecution and defence witnesses (or competing evidence for that matter). R. v. Hull, [2006] O.J. No 3177 (C.A.) at para. 5.

22In a criminal trial, witnesses testify as to their observations and experiences. A trier of fact is entitled to accept some, all, or none of a witness’ testimony: Kruk, at paras. 82, 145-146; R. v. C.P., 2021 SCC 19, at paras. 35, 274; R. v. Le, 2019 SCC 34, at para. 266; S.(J.H.), at para. 10; R. v. W.H., 2013 SCC 22, at para. 32 [W.H.]; R. v. Francois, [1994] 2 S.C.R. 827, at para. 14.

23The trier of fact is entitled to determine the weight assigned to different parts of the evidence of a witness that the trier of fact accepts: W.H., at para. 32; R. v. J.H., [2005] O.J. No. 39 (C.A.), at para. 44.

24The trier of fact is entitled to decide how much weight to assign to a testimonial inconsistency and any explanation provided by the witness for the inconsistency: W.H., at para. 32;

25A trial judge must endeavour to fairly and evenly evaluate the defendant’s evidence and the complainant’s evidence: R. v. Bartholomew, 2019 ONCA 377, at paras. 30-33; R. v. Radcliffe, 2017 ONCA 176; R. v. Gravesande, 2015 ONCA 774.

26It is also an error to move directly from disbelief of the accused's evidence to a positive finding of guilt: R. v. Dore (2004), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); R. v. H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6.

27Finally, it is critical to note that acceptance of evidence presented by prosecution witnesses does not mandate automatic conviction. A trial judge could conceivably accept prosecution witness testimony, but still harbour a reasonable doubt.

III. The Evidence

A. The Complainant’s Testimony

28The complainant testified that the defendant attended her residence while she was watching television. He gave her money to go and purchase beer for him and to get herself a bottle of wine. She went and purchased those items. She returned and put the items away in the kitchen and poured a glass of wine. When she came back to the living room area of her apartment, she found the defendant adorned only with white underpants.

29She testified that he began telling her how much he loved her and how he felt about her. He began touching her inappropriately. She told him that if he did not stop, he would have to leave. She told him that there is absolutely no way they could be more than friends. The defendant persisted in touching her, kissing her, dancing with her, and pulling her close to him. He communicated that he wished to have sexual contact with her. The complainant was scared and told him to stop and that she did not care for him in this way.

30The complainant testified that the defendant then pushed her from behind down onto the coach on her stomach. He touched her breasts and touched her bottom. She fought him and pushed him away. She got up and this time the defendant pushed her down on her back.

31The defendant had an erection. He pulled her sweatpants down. She was not wearing underwear. The defendant was fondling her breasts and touching her vagina [1] with his hand. He also held her upper body down with one hand and forced her legs apart with his other hand. All the while she struggled, screamed, fought, and told him she was calling the police.

32The complainant testified that the defendant penetrated her vagina with her penis. She explained that she did not disclose this to the police on Sept 27, 2023, because she was in shock and could not remember exactly. She wanted to forget that it happened.

33She went to see her doctor and was tested for all sexually transmitted diseases. She had bruising on the inside of her thighs and on the knee to shin area of her leg.

B. Defendant’s Evidence

34The defendant testified that he attended the complainant’s address after work. He placed five bottles of beer from his knapsack into the fridge. The complainant mentioned that she was running out of alcohol, so he gave her money, and she went and purchased a box of wine and six more beers for him.

35At one point he was tired and was resting on a couch in the living room. He testified that the complainant came to him and pulled at his pants. He testified that she wanted sex. She wanted to see his penis. She wanted to see how big it was. She tried to pull his pants down and he pulled his pants back up. He told her that she was drunk. He pushed her to go back to her seat. When she continued, he said “why don’t you take your pants off first?”. He went to the washroom. When he came back, she was sitting on the blue recliner with her pants pulled down to her knees. He went to touch her pants. She screamed. He then left her and went and sat back on the white couch. The police arrived and arrested him.

36The defendant testified that he never touched the complainant’s breasts or vagina at any time. He never pushed the complainant down on the coach. He did not force apart her legs. There was no sexual penetration. He did not cause any bruising. Simply put, there was no sexual contact whatsoever.

IV. Analysis

A. Delayed Disclosure

37Defence counsel submits that the complainant’s failure to disclose to the attending officers on September 27th that that vaginal penetration occurred is a credibility issue. The Crown Attorney submits that this omission must be assessed having regard to all of the circumstances and any explanation provided by the complainant.

38I apply the guidance of R. v. D.D., 2000 SCC 43, at para. 65:

65 A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

39I also apply the guidance of our Court of Appeal in R. v. Rose, 2021 ONCA 3188, at para. 39:

Yet both the Supreme Court of Canada and this court have repeatedly cautioned that "there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave": R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65; R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at paras. 31-34. There is similarly no inviolable rule on how a sexual assault complainant will process a traumatic event. I see nothing incompatible with resisting during a sexual assault, being in a state of shock, and only fully processing the assault somewhat later.

40The complainant’s “failure” to disclose vaginal penetration to the attending officers is simply one factor to consider when assessing her evidence as a whole. I do not draw an adverse inference for several reasons.

41In poignant and sincere testimony, the complainant provided information about her life circumstances. The complainant is a community-minded person who supports people in her local community. On the evidence at trial, I gather that the complainant is involved in providing support to indigenous persons and the community at large. The support is oriented around vulnerable persons in the local community.

42The complainant testified that the defendant was a friend. While there was no intimate sexual relationship, she obviously trusted him and admitted him to her residence. She explained that the defendant knew, as the larger community knew, that she did not have any relations with a male partner. She explained that the defendant knew that she was very independent and did not want an intimate relationship.

43In the aftermath of the sexual assault the complainant described being in shock. In retrospect she acknowledged having recast the circumstances and blaming herself for having admitted the defendant into her residence. The complainant also explained how she grappled with the magnitude of the defendant’s breach of her trust by committing these acts given he knew her circumstances.

44The complainant testified that she was extremely depressed and traumatized by the sexual assault. A sexual assault that occurred within the safety of her home. After the sexual assault incident, she could not get out of bed, even to take a shower. She could not communicate with anyone for days while she recovered from the traumatic event. This testimony was vivid. Clear. Compelling.

45With this necessary context in mind, I find that I am not troubled by the “failure” to specifically disclose to the attending police officers that vaginal penetration occurred for several reasons.

46First, I do not have the full context of the circumstances of this initial contact with the police. The parties have adduced a small portion of video from an officer’s body-worn camera. I do not have the context of the discussion between the complainant and this officer. I do not have the content of any conversation with any of the attending officers. This necessary context was not adduced into evidence.

47Second, I recognize that the complainant called 911 immediately and the police were in attendance within minutes. When the complainant cites the shock of the event, it is not difficult accept that this shock was in play.

48Third, I can see that the attending officers were uniformed patrol officers. The omission of detail occurred at the very scene of the alleged sexual assault within minutes of it having occurred. While I do not have the full context of the body-worn camera interaction or the content of any conversations, I infer that the uniformed officer was not conducting a “formal” interview.

49I suspect that an attending uniformed patrol officer is generally interested in addressing the dynamic circumstance of the scene. Part of the assessment would involve assessing the need for medical attention. Part of that assessment could involve ascertaining the level of physical contact. I suspect that an attending uniformed patrol officer would know that it is often the case that specialized police officers will conduct a more thorough and detailed interview on video later.

50Neither party adduced evidence on these issues. But based on the record adduced at trial, and my experience as a trial judge, I suspect that this is an accurate capture of what happened even without the parties having adduced the record.

51Fourth, I understand that the complainant provided a formal sworn video statement to specialized police officers on October 16th. The reliability concerns with the complainant’s evidence did not provoke the use of her video statement to refresh her memory during direct examination. As such, I have not received a detailed context or understanding of the interview. Again, based on my experience as a trial judge on many sexual assault trials, I infer that the sworn video statement involved an interview by specialized police officers, not uniformed patrol officers. It would not be surprising if this was a more conducive environment for the provision of detail.

52In virtually every case, there is some gap between the level of detail a complainant provided to attending police officers and the level of detail provided to specialized police officers during a formal sworn video statement.

53I accept the complainant’s explanation for her delayed disclosure and deliberate omission in her statement to the attending police officers.

B. Delayed Police Investigation

54The sexual assault incident occurred on September 27. The complainant’s formal video interview was on October 16th. It is unclear what caused the delay.

55It appears that the delay in this case contributed to the reliability concerns associated with the complainant’s evidence. The complainant testified that on Sept 27th she was in shock and wished to forget details. The delay in capturing details (October 16th) may have contributed to the reliability issues I will set out in this judgment. In many police investigations, a timely interview of a complainant is important. Interviews conducted proximate in time to the criminal event are often conducive to the retention of important detail.

56The delay may have also played a role in the police investigation. While no complaint requires corroboration, it is sometimes an important feature in a sexual assault case. If the police investigators did not have detailed information about the extent of the sexual assault, it is possible that they would not have canvassed more comprehensive medical or forensic examination options. This may explain the absence of forensic examination evidence in this case.

C. Prior Relationship

57The Defence position is that the complainant and the defendant were in the beginning stages of a blossoming relationship. That the defendant expressed interest in an intimate relationship. That the complainant had suggested that they “take it slow”. The complainant did not accept this cross-examination suggestion. In any event, I find that this issue is irrelevant.

58While the contours of the relationship between the complainant and the defendant provide general context to the circumstances, much of this line of examination was irrelevant to actionable legal issues. The suggestion that the complainant was interested in a relationship, or was aware of the defendant having broken up with his girlfriend, or allowed the defendant to sleep on her couch on prior visits, is irrelevant to the legal issue of consent. The defendant did not assert a defence of honest but mistaken belief in communicated consent. None of these issues could provide relevant foundation to the analysis.

59The trial evidence as a whole does nothing more than establish that it was not unusual for the complainant and the defendant to spend time together as friends within the complainant’s apartment.

D. Re-Examination Issue

60Defence counsel objected to the Crown’s approach to re-examination. The parties agreed that the court would receive the re-examination on a voir dire. The parties would be given the opportunity to make submissions about the re-examination approach at the end of the trial. This compromise meant that the complainant was able to complete her testimony. The Crown placed the relevant re-examination excerpts from the complainant’s video transcript on a USB key as an exhibit.

61I have not considered the re-examination in this case for several reasons.

62First, Defence counsel’s objection is sustained. The Crown was aware of the content of the complainant’s statement. I infer that the inconsistencies put to the complainant were sourced in the same material that the Crown possessed and disclosed. The areas of concern were clear and apparent. The Crown could have addressed the issue during direct examination by playing the video for the complainant, exposing the inconsistency, and asking the complainant to explain. This was not done.

63Second, I do not agree with the submission that Defence counsel’s cross-examination worked an unfairness vis-à-vis the complainant. Defence counsel’s cross-examination of the complainant was simply an effective and efficient exercise aimed at exposing inconsistencies in her testimony.

64Finally, the Crown has filed the excerpts of the “transcript”. This “transcript” was not produced during the trial. Having now reviewed the excerpts filed as exhibits on the voir dire, it appears that the “transcript” is in fact an uncertified typed summary of the complainant’s statement. It resembles a video synopsis commonly prepared by police officers for disclosure. I reject these exhibits as foundational for the re-examination rationale. As indicated above, the original statement was available and could have been utilized.

A. The Sexual Assault Incident

1. The Defendant Calling Before Arriving

65At trial the complainant testified that the defendant turned up at her residence without invitation. During cross-examination she adopted a portion of her October statement where she told the police that the defendant buzzed her apartment to gain admission. She permitted him entry to the building and her unit. This change in testimony is a reliability consideration.

2. The Bike and Alcohol Purchase

66At trial the complainant testified that she did not see the defendant with his bike on the date of the allegations. Further, it was she who left the apartment to obtain wine and beer. The defendant testified that he attended the complainant’s residence with five beers. He gave the complainant money to purchase more alcohol. The complainant went to the LCBO and purchased a box of wine and six additional beers for him.

67During cross-examination the complainant adopted a portion of her October statement where she told the police that when she opened the door, the defendant had his bike in the hallway, and he was in possession of a bottle of wine. Defence counsel suggested during cross-examination that there was more than one occasion during the October statement where the complainant said the bike was observed. These other occasions were not put to the complainant. This change in testimony is a reliability consideration.

3. Condom Discussion

68At trial the complainant testified that at no time was there any discussion about a condom. The defendant also testified that there was no discussion about a condom.

69During cross-examination the complainant acknowledged that during her October statement she told the police that the defendant referenced a condom. She told the police that the defendant said if she would just let him do sex, he would wear a condom. The complainant said that the defendant did not have a condom with him.

70The exact context and words used by the complainant regarding the condom discussion during her October statement is not in evidence. This portion of her statement was not played in court. As such, it is difficult to completely resolve this material inconsistency in her evidence. This change in testimony is a reliability consideration.

4. The Complainant’s Level of Intoxication – Reliability

71The complainant’s testimony about the consumption of alcohol provoked both credibility and reliability concerns.

72First, the complainant testified that she had consumed approximately three glasses of wine (i.e., a bottle of wine) or more prior to the arrival of the defendant.

73Second, I find that the complainant told the 911 operator on the night of the incident that she had not consumed alcohol. During cross-examination Defence counsel put to the complainant that during the 911 call the complainant was asked about consumption of alcohol and the complainant told the 911 operator that she had not consumed alcohol. The complainant testified that she did not recall making this statement. The complainant was not confronted with the 911 call. The 911 call was not otherwise adduced into evidence. While the complainant was not asked to formally adopt her 911 call, she went on to say that if, in fact, she had denied consumption during the 911 call, it would have been out of a concern that the police would not attend if they thought she had consumed alcohol.

74This testimony demonstrated that the complainant was prepared to mislead the police during a 911 call in an effort to manage the police impression of her regarding the consumption of alcohol.

75The complainant called 911 immediately after the sexual assault incident. The notion that the complainant had the presence of mind to lie to the 911 operator about alcohol consumption, moments after the incident, is a credibility concern.

76Third, the complainant told the police on September 27th that she had two glasses of wine.

77Fourth, during her October police statement the complainant told the police that she was already feeling good from one bottle of wine prior to the defendant arriving at her apartment. She told the police that after the defendant arrived, she had more wine and started to feel “drunk”.

78While there was no examination focused on the complainant’s tolerance for alcohol, her subjective impression was that she was “drunk”. This is an unavoidable reliability consideration as it pertains to her recollection and provision of detail. I also endorsed a credibility concern given the complainant’s admittedly false statement to the 911 operator.

5. Omissions : Push on Stomach and “Come from Behind”

79Defence counsel cross-examined the complainant using her October video statement and suggested that there were two material omissions: (1) that she never told the police she poured a glass of wine in the kitchen; and (2) that she never told the police that the defendant pushed her from behind causing her to land (initially) on her stomach. [2] The complainant did not accept this cross-examination suggestion. The complainant testified that she had been consistent on this detail.

80The complainant’s video statement was not adduced into evidence by either party. I do not have access to the entire statement. I am unable to determine if the complainant in fact omitted these details. On the record at trial, I did not find there to be material omissions as submitted by Defence counsel.

6. Defendant’s Clothing

81At trial the complainant testified that the defendant was wearing white underwear. During cross-examination the complainant acknowledged that during her October statement she told the police that she was not sure about the defendant wearing underwear. The complainant testified that at the time of the October statement she was still experiencing trauma, and this explains the omission. It does not explain why the detail was accessible by the time of trial. This change in testimony is a reliability consideration.

7. Sweatpants

82During direct examination the complainant testified that the defendant tried to remove her sweatpants. During cross-examination the complainant adopted the suggestion that on Sept 27th she told the police that the defendant did not remove her clothing because she was fighting him too hard. This change in testimony is a reliability consideration.

8. Injuries

83A sexual assault offence always contemplates the non-consensual unlawful application of force (assault) upon the person of a complainant. The defendant in this case faced an allegation of sexual assault, not any of the aggravated forms of sexual assault involving bodily harm. As such, bodily harm or significant injury was not an element of the offence. Notwithstanding this circumstance, the prosecution adduced significant detailed evidence concerning the injury.

84The Crown submits that the evidence of injury is corroborative of the complainant’s version of events. The Crown further submits that it is significant that the defendant’s testimony at trial did not address the complainant’s injuries.

85The Defence position is that the alleged injuries are not corroborative of the complainant’s version of events and the defendant was not required to specifically address the injuries in his testimony.

86Given the approach of the parties on this issue, a comprehensive explanation of my analysis of this issue is required.

a) Visiting the Doctor

87At trial the complainant testified that she saw her doctor the next day, the following day, or “soon after” the event. She also testified that she made an appointment as soon as her doctor was available. The complainant testified that she was concerned about exposure to STDs and the potential impact on her health.

88During cross-examination, Defence counsel put to the complainant that she visited the doctor on October 12, 2023 – 16 days after Sept 27th, 2023. The complainant acknowledged this date. Defence counsel also pointed out that the complainant advised the doctor that the incident occurred on Sept 30th, 2023. The complainant explained that she got the date wrong. This change in testimony is a reliability consideration.

b) Bruising Caused by the Sexual Assault

89The complainant described the injuries she received as a result of the sexual assault. She reviewed photographs (e.g., Exhibit 2A and 2B) and described the bruising and swelling in the photographs. She testified that these injuries were sustained during her effort to resist the sexual assault and get the defendant off of her body.

90The complainant testified that her doctor took photos of her injuries in addition to the photos taken by the police. Neither the Crown nor Defence sought admission of these photos, or any medical evidence associated with the complainant’s attendance at her doctor. This information from the complainant’s doctor is unavailable to add corroborative force to the complainant’s testimony and is therefore neutral in the credibility analysis.

91As is the case with some sexual assault prosecutions, the Crown did not adduce medical evidence corroborative of the sexual assault or injury caused during the sexual assault. Nonetheless, I generally favour the complainant’s evidence on the subject of injury. In so doing, I do not endorse the prosecution submission that because the defendant did not directly address this issue in his testimony, it somehow enhances the complainant’s credibility. The Defence position at trial was clear – no physical struggle or sexual assault occurred. Defence counsel was not required to mount an extensive challenge to the complainant on her articulation of injury. The defendant was not required to specifically say something about the complainant’s injury during his testimony. The defendant has no onus to disprove the complainant’s injury.

c) The Knee Infection

92During direct examination the Crown adduced detailed evidence from the complainant about a pre-existing knee injury, an operation, and subsequent infection. While it is not the object of this court to diminish the complainant’s injury, this evidence was not relevant to the guilt or innocence of the accused at trial and not part of the case the Defence had to meet. While the police make the initial decision on charges, it is open to the Crown to modify the Information. The prosecution did not allege or prove that the defendant caused bodily harm. While sympathetic to the medical circumstances of the complainant, this evidence was functionally narrative and provided context to the complainant’s six months in hospital battling a knee infection.

d) The Complainant’s Mobility: Credibility Issue

93Defence counsel cited the complainant’s mobility as an actionable credibility issue pointing out that she was able to move around the room during her October video statement with no apparent impairment. Defence counsel also pointed out that the complainant did not subsequently advise the police about her knee infection. The complainant explained that the onset of infection and further medical procedures to address her knee commenced on November 6th. She was not experiencing infection at the time of her October statement. This evidence did not impact her credibility or reliability.

9. Penetrative Sexual Assault

94During cross-examination the complainant testified that she did not tell the attending police officers on Sept 27, 2023, that the defendant had penetrated her vagina during the sexual assault. She was directly asked by these attending officers. She said “No”. I have already analyzed the issue of delayed disclosure earlier in this judgment. I accept the complainant’s testimony as it concerns her state of shock and her wish to forget the details on the night of Sept 27th.

95During the complainant’s October statement, the following question and answer was adopted by the complainant at trial:

Q. As it regards to penetration, how about when you were on your front do you think. A. No I was fighting too hard.

96At trial, the complainant did not initially describe vagina penetration as she recounted the chronological sequence of events. It was later during direct examination, when the Crown Attorney re-focused the complainant on the issue, that the complainant testified that “she believed” that the defendant’s penis penetrated her vagina and that it hurt. The defendant testified that no sexual penetration occurred.

97As outlined earlier in this judgment, the complainant was not sure about when she visited her doctor. It was only during cross-examination that it became clear that the complainant did not see her doctor until October 12th.

98The complainant suggested her doctor took photographs, but none were adduced into evidence at trial.

99There is no sexual assault medical examination evidence in this case.

100In a sexual assault trial, it is important for the court to set out the findings of fact. I also recognize that the criminal burden of proof is not applied to individual issues or pieces of evidence. But on this record, I am unable to determine if a penetrative sexual assault occurred. The complainant’s evidence on this issue was not definitive.

10. Location of the Complainant’s Phone

101Defence counsel submits that the complainant was materially inconsistent as it concerned the location of her phone after the sexual assault incident. During direct examination the complainant testified that the phone was in her apartment hallway. During cross-examination the complainant adopted her October police statement where she said that the phone was in her back pocket or on her chair.

102I did not find this to be a credibility issue or an important reliability issue.

103The complainant testified that in the aftermath of the sexual assault she was frantically looking for her phone and found it. Whether she found it on her chair, back pocket, or the hallway is not important. Whether she recalled the exact location is not important. What is important is that the complainant must have found her phone because she used it to call 911. The police were in fact contacted from the complainant’s phone. The police arrived quickly.

11. The 911 Call, Immediate Attendance of the Police, Immediate Attendance at the Doctor

104The Crown submits that the complainant’s immediate 911 call, the immediate attendance of the police, and the fact that the complainant visited her doctor enhances her credibility and supports her version of events.

105The 911 call was not adduced into evidence. As outlined above, the complainant did not attend her doctor immediately. In any event, a court should be cautious about drawing credibility conclusions from the simple fact that a complainant called 911 or sought medical attention quickly. Usually, the probative value of such occurrences is found in the evidence captured as a result, proximate to the offence (e.g., res gestae statements or sexual assault examination evidence). I found this record to be neutral in this case.

V. Conclusion

106A criminal trial must be resolved by application of the criminal burden of proof. I generally believe the complainant. But as explained in this judgment, the reliability of the complainant’s credible testimony was impacted by her testimony about the defendant calling before arriving, the bike, the alcohol purchase, the condom discussion, the alcohol consumption, the defendant’s clothing, sweatpants, penetrative sexual assault, and the attendance at the doctor.

107It is not enough to be probably convinced of the defendant’s guilt. I must be convinced beyond a reasonable doubt. It is not enough to favour the complainant’s evidence. A criminal court judge must assess the entire record of trial filtered through the criminal burden of proof.

108I do not accept the defendant’s version of events about the complainant being the initiator or seeking intimate contact. First, he claims to have told the complainant to take off her clothes. He implied that he would take off his clothes second. This does not make sense having regard to his testimonial position that he did not wish to engage in sexual relations with a drunk person. He was clear in his testimony that he perceived the complainant was in fact intoxicated. Second, the notion that he would go over and touch the complainant’s sweatpants also conflicts with his position that he did not wish to engage in sexual relations with a drunk person. Finally, it is probative that even the defendant’s testimony corroborates the complainant’s position that she screamed and resisted his advance.

109But it is an error of law to move directly from rejection of the defendant’s evidence to a finding of guilt. Any reasonable doubt must be resolved in favour of a criminal accused no matter the crime.

110Having considered step two of W.(D.), step three of W.(D.), and the guidance of S.(J.H), I find the defendant not guilty.

Released: October 29th, 2024 Signed: “Justice M.S.V. Felix”

Footnotes:

[1] She was unsure of digital penetration. [2] Time Stamp 21:55 to 22:24.