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 of Canada. This subsection and subsection 486.6 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 (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way;
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.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
HADEL ELLIS
REASONS FOR JUDGMENT
Heard on: September 3, 4 and October 2, 2025
Released on November 13, 2025
Mr. D. Pyper......................................................................................... Counsel for the Crown
Mr. S. Peters........................................................................................... Counsel for Mr. Ellis
I. Introduction and Issues
1In early April 2023, JS met Mr. Ellis on the day that she, her mother and sister moved into a unit in the condominium building where Mr. Ellis was living. A day or two later, they met in the gym and spent some time in the pool room, where Mr. Ellis pulled JS into the pool against her wishes. Then, they went up to his unit where JS alleges that Mr. Ellis sexually assaulted her by lifting her top and sports bra, touching her breasts with his hands and then sucking on her nipple without her consent.
2A short trial took place before me in which JS was the only witness. The Crown proceeded summarily. As is his right, Mr. Ellis chose not to testify or call any evidence.
3At trial, Mr. Ellis conceded identity, the date of the incident, the jurisdiction of the Court and the authenticity of security video footage from the condominium. There is no suggestion that JS communicated consent to the sexual touching by words or actions. As such, there is no suggestion that Mr. Ellis took reasonable steps to confirm her consent.
4There are two central issues in this trial. The first is whether the Crown has proved beyond a reasonable doubt that the sexual conduct took place as JS described and without her consent. This question turns on the credibility and reliability of her testimony. The second issue is whether the Crown has proved mens rea beyond a reasonable doubt: that is, that Mr. Ellis knew that the JS did not consent, or that he was wilfully blind or reckless regarding the absence of consent.
II. Positions of the Parties
5On behalf of the Crown, Mr. Pyper submits that JS was a credible and reliable witness and that the actus reus has been proved beyond a reasonable doubt. Mr. Ellis did not testify and the defence of honest but mistaken belief in communicated consent is not available to him. That being so, in view of the totality of the circumstances, I should have “little difficulty” finding that Mr. Ellis was at least reckless regarding the absence of consent to the sexual touching that took place in his unit. Mr. Pyper relies on R. v. H.W. 2022 ONCA 15 and R. v. Degale 2024 ONCA 720 as a framework for this argument. Mr. Pyper also argues that the events in the pool and in Mr. Ellis’s unit constituted a single ongoing transaction. As such, it is open to me to use the evidence that Mr. Ellis pulled JS into the pool without her consent to help me determine his state of mind at the time of the sexual touching that happened later, in his unit.
6On behalf of Mr. Ellis, Mr. Peters submits that JS was not a credible witness for two principal reasons: first, because of her conduct in the pool; second, because she displayed a strong animus in relation to Mr. Ellis at trial. He opposes the Crown’s “single transaction” argument for two reasons: first, the conduct is too different in kind, time and place; second, the underlying inference the Crown seeks – that Mr. Ellis is the kind of person who does not take no for an answer – does nothing more than invite propensity reasoning. As for the mens rea, he argues that I must be cautious. On the facts, this case and Degale are “light years apart.” In this case, he argues, JS had been participating, albeit with hesitation, in physical contact in and around the pool as well as in the unit. What is more, when she got up to leave, Mr. Ellis did not try to continue. A reckless person would have tried to go further.
7Without formally conceding lack of consent as part of the actus reus, he acknowledged that it is very difficult to challenge in view of JS’s testimony.
8A summary of JS’s testimony will put the issues and the parties’ positions in their proper context.
III. Summary of JS’s Testimony
9JS is a 22-year-old woman who is interested in a career as a music artist. She recalled that Mr. Ellis told her that he was 38 or 39 years old. He appeared to me to be at least that age. She and her mother and sister moved into the condominium building in early April 2023. On that day, she and her sister met Mr. Ellis, who approached them and struck up a conversation about trading in stocks. He suggested that they move to the business room to continue to talk. There, they talked for approximately 40 minutes. He talked about himself and asked them about themselves. He seemed nice. He made himself look like he had money. JS had a positive first impression of him and felt that he might be a potential mentor to her in the music industry.
10She saw him again in the gym one or two days later, on the morning of April 4. They greeted each other, and 15-20 minutes later, he came and introduced her to one of her neighbours. He then suggested that he and JS be “workout buddies.” It was then that JS felt things began “getting weird.” He commented on a hole in her shorts and told her that he wanted to buy her stuff. He mentioned having a friend who worked at Lululemon. He also commented on her stretch marks but told her not to be insecure about them. She explained that Mr. Ellis talked a lot and described conversation with him as “information overload.” After about 30 minutes in the gym, he suggested that they go to the pool room. They did so and remained for over an hour.
11She sat on the edge of the pool. He went into the water and stood by her, trying to convince her to get in. She had no intention of doing that, because she was in her gym clothes and also on her period. In cross-examination, she testified that her period may not have been on her mind at the time, but that she remembers now that it was a factor. He told her about things he wanted to do for her – like taking her to sit courtside at a Raptors game – and told her that she was thinking too small about the size of the audiences she could perform for. He noticed that the headphones she had were in bad shape and offered to give her a new pair or a Best Buy gift card that he had on hand. She appreciated the offer because hers were broken, and she was using her sister’s.
12At one point, he asked her for a kiss. She did not kiss him. He asked for a hug. She placed her arms around his neck as he stood between her knees. Then, he pulled her into the pool despite the fact that she resisted. Once she was in the pool, he suggested team building exercises. He held her afloat as she lay in the water stomach side down. She was already wet, so she just went along with it. In cross-examination, she rejected the suggestion that Mr. Ellis was teaching her how to swim. She knew how to swim.
13After the pool, they went up to his unit. He told her that he had two: a penthouse and another unit on the 9th floor. He pressed the buttons for both floors, but they got off on the 9th floor and went to his unit. Her plan was to get the headphones or gift card.
14Once inside, Mr. Ellis gave her dry clothes to change into and took hers. She understood that he was going to put them in the dryer. She changed in the washroom. He performed a facial on her, using expensive products. They went to the bedroom, which she described as the only place to sit, because there was lots of stuff all over the living room area.
15They sat on the bed. He “talked and talked and talked.” Mostly about himself and money. He showed her his watch collection. He told her that he had been unable to get the image of her body out of his mind. They got some alcohol, and each had a small shot. It did not have much of an effect on her. He kept trying to have her sit on his lap. She did so, but would get up again, only to have it happen again. She mentioned feeling uncomfortable because she had a boyfriend. She felt guilty. While they were sitting on the bed, he talked to her about some surgery that she could have, such as a little bit of work on her breasts. He said they were pretty but that she should consider a little lift. He appeared to use this as an excuse to lift up her shirt and sports bra and touch her breasts as if he were a doctor. Then, he put his mouth on her breast and sucked on her nipple. She did not consent to any such touching. She felt that her body language had been hesitant and closed off. During the incident, which lasted 20-30 seconds, she felt frozen. She pulled her bra and top down and got up. She felt awful and had a lot of mixed emotions. She was confused and felt like she was in shock.
16She realized that he had actually put her clothes in the wash and that they now had to be put in the dryer. He told her that he had some things to do and began to show her his neckties. He also told her that he had a proposition for her: she would be his “eye candy,” and he would provide for her. He said he would walk her back to her unit. She did not want that, so she told him that she was going to go back to the gym. She also had to pee. She had not wanted to use his washroom as she was on her period. He accompanied her to the gym and waited while she went to the washroom. Then, she began to use some gym equipment. He introduced her to another neighbour and left. She went up to her unit and cried. She texted her best friend and talked to her sister and mother. They contacted the concierge and police were called.
17In hindsight, JS felt that Mr. Ellis had been grooming her by selling her a dream. He talked and talked about money and his connections, and she had no time to think.
IV. Applicable Legal Principles
On the burden of proof
18The Crown bears the entire burden of proving Mr. Ellis’s guilt beyond a reasonable doubt. That burden never shifts to Mr. Ellis. In R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320 at para. 36, the Supreme Court of Canada explained that reasonable doubt is not based on sympathy or prejudice; rather, it is based upon reason and common sense; it is logically connected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and more is required than proof that the accused is probably guilty.
19In R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347, at para. 23, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390, the Ontario Court of Appeal wrote that “[p]robably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not.” The Court went on to explain that
[i]nconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.
On the elements of sexual assault
20In R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 SCR 293, at para. 11, the Supreme Court of Canada explained that sexual assault is
an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer…. The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant… The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. (Internal citations omitted.)
21The absence of consent is established subjectively; that is, by reference to the state of mind of the complainant at the time of the sexual touching: R. v. Ewanchuk, [1990] 1 SCR 330, at para. 26. A complainant’s statement that they did not consent “is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with [their] claim of non-consent” (at para. 30). Therefore, “[i]t is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against [their] assertion that [they], in [their] mind, did not want the sexual touching to take place” (at para. 29).
22The Crown must also prove the requisite mens rea beyond a reasonable doubt: that is, that Mr. Ellis knew that JS was not consenting, or was wilfully blind or reckless as to the lack of consent. However, as the Ontario Court of Appeal has instructed, in cases where the complainant’s lack of consent is proved beyond a reasonable doubt and the defence of honest but mistaken belief in communicated consent is displaced or unavailable, a finding that the mens rea has been proved beyond a reasonable doubt may be a “virtual certainty.” In such cases, a trial judge is permitted to instruct the jury that “they should have little difficulty in concluding that the accused knew or was wilfully blind to the fact that the complainant was not consenting or was reckless and chose to take the risk”: see Degale, supra at paras. 16-18; see also R. v. El-Akhali 2025 ONCA 229 at para. 21.
On both incidents constituting a single transaction
23In R. v. Eze, 2022 ONSC 277, Madam Justice Presser had occasion to determine when more than one incident, separately charged, can amount to a single transaction such that the evidence regarding one is admissible regarding the other without resort to a similar fact application. Her Honour summarized by stating that “[i]ncidents that are sufficiently connected by time, place and circumstances, or that refer to a continuing course or a pattern of conduct may comprise a single transaction within the meaning of s. 581(1).”
V. Analysis
Single transaction
24I am not satisfied that the pool and bedroom incidents can be viewed as a single transaction. They are too disparate in time and location. They took place after JS spent time changing and Mr. Ellis had given her a facial. More importantly, they are too different in kind. The pool incident was not sexual and was arguably playful. What happened in the bedroom was very different. I make no use of what happened in the pool in determining whether the Crown has proved the requisite mens rea in this case.
JS’s credibility and reliability
25While JS did not have a strong appreciation for courtroom decorum, and swore more than most witnesses tend to, I found her to be a credible witness who was doing her best to tell the truth about what happened to her. Granted, her memory was not perfect. But perfection is not the standard. When it came to the core of her complaint, her testimony was detailed, compelling and unshaken.
26On the video footage from the pool area, before the two get out of the pool, Mr. Ellis is standing near the railing that is attached to the steps. JS walks around him to climb the steps, holding his hand in the process. I did not find that this contradicted her testimony as to her lack of interest in Mr. Ellis’s advances. In the circumstances, her conduct was ambiguous at best. It did not affect her credibility in my mind. As for her reaction to being pulled into the pool, and her participation in what followed, I would say the same. I accept that she just went along with it.
27Similarly, I accepted her testimony that she knew how to swim and that what Mr. Ellis was doing was akin to team building exercises. Her body was in an awkward position, with her back very arched and her head held high above the water. Her hands were stirring the water gently, rather than stroking like one does when swimming. It looked like someone trying to keep their head above water while being held near the surface. I found her potential inconsistency as to whether or not her period was a reason why she did not want to enter the pool to be inconsequential. Further, I believed that it was a reason why she did not use the washroom in Mr. Ellis’s condo.
28It is true that JS displayed animus toward Mr. Ellis at trial. Unsolicited, she called him a “groomer.” When the topic of consent was raised, she referred to him as a “creep,” an “old man,” or an “old ass man.” I found that these utterances were consistent with JS’s personality and manner of speaking. More importantly, they seemed to me to be genuine expressions of her feelings about being assaulted, and not the sort of animus that gave rise to concerns about her credibility.
The actus reus
29I believed JS and have no trouble finding that the sexual touching took place as she described it and that she did not consent to it. The two were virtually strangers, and Mr. Ellis was 16 or 17 years older than her. In light of all the relevant circumstances, I find that the Crown has proved the actus reus of sexual assault beyond a reasonable doubt.
The mens rea
30This is a case in which proof of the actus reus beyond a reasonable doubt makes proof of the requisite mens rea a virtual certainty. JS and Mr. Ellis had been acquainted for only a few hours; Mr. Ellis was close to twice her age, and he dominated the conversation, making multiple offers and propositions, and talking mostly about himself and his connections. On the basis of JS’s evidence, and in the absence of any defence evidence, the only reasonable inference is that Mr. Ellis knew that JS was not consenting or was wilfully blind or reckless as to her lack of consent. I have no difficulty making that finding beyond a reasonable doubt. The argument that a reckless person would have pushed on is unpersuasive and likely conjures myths or stereotypes.
VI. Conclusion
31For these reasons, I find Mr. Ellis guilty of sexually assaulting JS on April 4, 2023.
Released: November 13, 2025
Justice Patrice F. Band