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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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
BETWEEN:
HIS MAJESTY THE KING
— AND —
A.B.
Before Justice J.P.P. Fiorucci
Heard on January 5 and 7, 2026
Reasons for Judgment released on July 2, 2026
Megan Brohman counsel for the Crown
Stephen Bernstein counsel for the accused, A.B.
FIORUCCI J.:
Overview
1The accused, A.B., and the complainant, A.W., were co-workers employed as housekeepers at a Hamilton hospital. They had developed a friendship. During an overnight shift spanning January 20–21, 2025, they took a break together in the residents’ lounge of the hospital, which contained a couch.
2The complainant testified that, while seated on the couch, the accused asked whether he could massage her legs, and she agreed. She alleges that he sexually assaulted her by touching her buttocks, digitally penetrating her vagina, and vaginally penetrating her with his penis, without her consent. According to the complainant, the assault stopped when a noise in the hallway startled the accused. The accused admits they were together in the lounge but denies any sexual touching.
3After leaving the lounge, they remained together. They went through a fast-food drive-through, purchased food, and returned to the lounge. During her shift, including after the alleged assault, the complainant vaped marihuana and acknowledged that she was at some point impaired. Both completed their shifts that morning.
4Approximately two months later, the complainant disclosed the alleged assault to her employer and reported it to police about a week later. At trial, she explained both delays. The complainant and the accused were the only witnesses. At trial, held about a year after the incident, the accused was 50 years old and the complainant 24. Credibility and reliability are central issues.
5On May 26, 2026, I found the accused guilty of sexual assault. At that time, I provided brief oral reasons and advised the parties that written reasons would follow. These are my reasons.
Legal Principles
6The Crown must prove every essential element of the offence beyond a reasonable doubt. The accused bears no burden and is presumed innocent. A reasonable doubt is based on reason and common sense, arising from the evidence or the absence of evidence. It is not enough that I believe the accused is probably or likely guilty; such a finding requires an acquittal. While the Crown need not prove the case with absolute certainty, proof beyond a reasonable doubt is much closer to certainty than to proof on a balance of probabilities.
7The accused testified and denied the allegation. I apply the framework in R. v. W.(D.).1 First, if I believe the accused’s evidence, I must acquit. Second, even if I do not believe his evidence, I must acquit if it raises a reasonable doubt or leaves me unable to decide whom to believe. 2 Third, even if the accused’s evidence does not leave me in reasonable doubt, I must still determine whether the Crown has proven guilt beyond a reasonable doubt on the evidence I accept.
8Although described in three stages, the W.(D.) framework ensures that the overriding consideration is whether the evidence as a whole leaves me in any reasonable doubt about the accused’s guilt.3 It guards against deciding the case by simply choosing between competing versions.4 A trier of fact must look at all the evidence when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt.5 It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected.6 Exculpatory evidence may arise from either the defence or the Crown’s case.7
Analysis
Summary of Findings
9The accused denied that any sexual assault occurred in the residents’ lounge. Considered in the context of the whole of the evidence, the frailties in his testimony lead me to reject his exculpatory account. However, I must still determine whether his evidence raises a reasonable doubt. To do so, I assess his account against the totality of the evidence and consider whether the strength of the Crown’s case warrants its rejection. 8
10I found the complainant to be a credible and compelling witness, and I accept her evidence as reliable. I accept the core of her account that the accused sexually assaulted her as described. While acceptance of the complainant’s evidence does not automatically require rejection of the accused’s account, the complainant’s credibility and the reliability of her evidence, together with the frailties in the accused’s testimony, lead me to reject his denial and to find that it does not raise a reasonable doubt.
Analysis of the Exculpatory Evidence
11The accused’s evidence contained significant frailties that undermined both his credibility and the reliability of his denial of the sexual assault.
12The accused testified that, at about 9:30 p.m. on January 20, his supervisor called and asked him to stay for a double shift. He explained: “before 11:00, 10 to 11:00, I went to assigning room to switch, you know, to - from sign out to my area, offices, and reassign to the new area they give me for the nighttime”. According to the accused, he then encountered the complainant and advised her that he would be working a double shift. The complainant denied this, maintaining that the accused told her he was working the 9:00 p.m. to 5:00 a.m. shift.
13The accused’s evidence that, at 11:00 p.m., he began a new assignment requiring a full additional shift is inconsistent with the contemporaneous text messages (Exhibit 1). At 10:43 p.m. on January 20, the accused began messaging the complainant. While the entire exchange did not necessarily occur at exactly 10:43 p.m., it is reasonably inferred that all messages were sent on January 20, before midnight. In that exchange, the accused asked the complainant to assist him with his work, offered to assist her, and stated, “I’m almost done.” This evidence supports the complainant’s testimony that they finished their work together before spending time in the lounge and hanging out with each other until it was time for the accused to go home.
14The accused testified that he began his break at 1:20 a.m. and still had work to complete afterward. In contrast, the complainant testified that they had already finished their work before going to the lounge. The complainant alleges the assault occurred in the residents’ lounge at St. Joseph’s Hospital. Surveillance video (Exhibit 2) shows the accused and complainant entering the lounge at approximately 1:24:09 a.m. and leaving at 2:47:55 a.m. The allegation relates to this period in the lounge.
15The video further shows that they returned to the lounge together at approximately 3:29:20 a.m., with the complainant carrying food and a drink she says were purchased at McDonald’s. They first emerge together from the residents’ lounge at 4:16:20 a.m. After the accused briefly re-enters the lounge, with the complainant following, they depart together at 4:17:02 a.m.
16The accused estimated the break lasted about 45 minutes. I reject the accused’s evidence regarding the timing of events. In his testimony, he minimized the time he and the complainant spent together and asserted that he had a lot of work to do after the break. He testified that, while unsure of the exact time, they likely went to McDonald’s around 1:30 or 2:00 a.m. and remained in the residents’ lounge for another 10 to 15 minutes after returning before resuming work. The accused’s testimony is inconsistent with the video, which shows they remained in the lounge for approximately 84 minutes, then left to attend McDonald’s, returned 42 minutes later, and stayed in the lounge an additional 47 minutes before leaving at 4:17:02 a.m.
17On cross-examination, the accused rejected Crown counsel’s suggestion that he may have returned to work as late as 4:00 a.m., maintaining that it was closer to 2:00–3:00 a.m. because he had a lot of work to do. However, the video evidence is inconsistent with this account, as it shows the accused and the complainant together after 4:00 a.m.
18At several points in his testimony, the accused emphasized that the complainant was vaping marihuana and that he repeatedly asked her to stop because he feared getting into trouble. He testified that the complainant vaped: (i) in the day surgery unit when she assisted him in cleaning stretchers; (ii) during their first break in the residents’ lounge; (iii) in his car while they drove to McDonald’s; and (iv) in the male locker room after they finished work, at approximately 6:00 a.m. According to the accused, on each occasion he urged the complainant to stop, out of concern that he could face consequences simply for being in her presence while she vaped.
19I find that the accused gave internally inconsistent evidence regarding the complainant’s marihuana use and his own response to it. In particular, his account of what occurred in the male changeroom at the end of the shift is not consistent. The accused testified that when the complainant began vaping in the male changeroom at approximately 6:00 a.m., he told her, “Please don’t because we [are] actually going to get in trouble and I don’t want to get in trouble.” He said that, as a result, the complainant immediately left the changeroom, retrieved her belongings from the O.R., and the two of them signed out.
20However, elsewhere in his examination‑in‑chief, the accused acknowledged that, toward the end of the shift, he himself took “a few puffs” from the marihuana vape in the changeroom after the complainant encouraged him to try it. He stated that he initially felt nothing, so he tried a few times, but then experienced dizziness.
21These two accounts cannot be reconciled. If, as the accused first testified, the complainant stopped vaping and left the changeroom immediately after he objected, there would have been no opportunity for him to remain there and take “a few puffs” himself. His evidence on this point is internally inconsistent.
22A further inconsistency arises from the accused’s evidence about the text message he sent to the complainant at 10:54 a.m. on Tuesday January 21 (Exhibit 4), in which he stated that her weed made him sick and that he vomited. The accused testified that, at the time he sent the message, he was still working and that he and the complainant needed to finish their assigned duties. He said he felt dizzy and “was about to go in emerg”. This is inconsistent with his evidence that both had already completed their shift, retrieved their belongings after leaving the changeroom, and signed out at approximately 7:00 a.m.
23In addition to these inconsistencies, the accused’s evidence on this issue is implausible. Throughout his testimony, he maintained that he was concerned about being caught and losing his job, and that he repeatedly urged the complainant to stop vaping for that reason. However, when asked why, in those circumstances, he would choose to try the marihuana himself, he explained only that the complainant encouraged him and told him it would have no effect. If his concern about getting into trouble was as significant as he suggested, it is difficult to accept that he would nonetheless decide to participate in the very conduct he claimed to oppose.
24I accept the complainant’s evidence that the accused did not ask her to stop vaping during the January 20–21 shift. Crown counsel asked the accused whether he may have used cannabis with the complainant before going to the residents’ lounge. The accused replied, “I can’t recall that.” The exchange that followed shows he was unsure when he used the marijuana vape and left open the possibility that it was before they went to the lounge at 1:24 a.m.:
Q. You’re not certain if you two smoked weed before or after the alleged sexual assault.
A. I don’t recall that but I did try though.
25I accept the complainant’s evidence that, after completing their work, she and the accused went to the male changeroom, and both used the marihuana vape before proceeding to the residents’ lounge. I find that the accused emphasized the complainant’s vaping in an apparent effort to undermine the reliability of her evidence. However, his own evidence on this issue was internally inconsistent and implausible. These deficiencies diminish his credibility and the reliability of his testimony, and they contribute to my rejection of his denial of the sexual assault.
26When asked about what occurred in the residents’ lounge after he and the complainant first went there, the accused provided specific details, including that both were on their phones, that he was gambling, and that the complainant was vaping. However, when defence counsel asked whether the complainant ever lay down on the couch, his answers became evasive and difficult to accept. He variously described the couch as both “big” and “normal size,” confirmed that they were seated next to each other, yet stated that he “did not pay attention” to whether she lay down, despite acknowledging her evidence on that point. The following excerpt from the accused’s exchange with defence counsel illustrates his evasiveness on this point:
Q. All right. And you’ve heard her evidence.
A. Yes.
Q. Where she said she laid on the couch, I think initially on her side and then eventually on her stomach, did you hear all that?
A. Yes.
Q. Where – did she ever lay on that couch?
A. I didn’t, to be honest, I didn’t pay attention. I was sitting normal. Sometimes you know you can cross the leg, leg down, put the leg straight. We were just sitting in, in – being on our phones.
27This exchange continued in cross-examination, where the accused again stated that he was not certain whether the complainant lay down on the couch because he “did not pay attention”.
28The accused and the complainant were in the residents’ lounge for approximately 84 minutes during this first visit. Given that they were seated next to each other throughout that period, I find it implausible that the accused would not have noticed whether the complainant had lain down. His evidence on this point was internally inconsistent, particularly in his shifting description of the size of the couch, and unresponsive to a central issue in the case. Whether the complainant was lying down was a key feature of her account of the alleged sexual assault. In these circumstances, his assertion that he did not pay attention was evasive and undermines the reliability of his evidence.
29During cross-examination, Crown counsel confronted the accused with passages from his May 14, 2025 statement to Detective S. Postuma. He agreed the statement was voluntary. The detective outlined the complainant’s allegations and asked the accused to say if she was wrong. The Crown submits that his reply, “you’re not wrong,” amounted to an admission that the complainant’s allegations were true. I do not accept that submission. Having reviewed the evidence, I find the accused did not admit wrongdoing. I accept his explanation that he meant only that the detective was not wrong to put the allegations to him as part of her duties. I find no inconsistency between his denial at trial and his police statement.
30In summary, aspects of the accused’s evidence were evasive, internally and externally inconsistent, and implausible. These deficiencies diminish both his credibility and the reliability of his evidence, including his denial of the alleged sexual acts. While I do not accept the accused’s exculpatory account, I must still consider whether his denial, when assessed in light of the totality of the evidence, raises a reasonable doubt.
Analysis of the Inculpatory Evidence
31I turn now to the inculpatory evidence. I found the complainant to be a credible and reliable witness. Her evidence was compelling. She made appropriate concessions, acknowledged limitations in her recollection, and readily admitted facts that were unflattering or personally difficult. She testified in a direct and forthright manner.
32I have considered the challenges raised by defence counsel and will address them throughout these reasons. While the complainant gave some inconsistent evidence, those inconsistencies do not cause me to doubt either her credibility or the reliability of her evidence on the material issues. I have also considered whether her admitted marihuana use affected the reliability of her testimony. I am satisfied that it did not. Her evidence concerning the material events, including her detailed description of the sexual acts performed by the accused, was reliable. I accept her explanations for remaining in the accused’s company and completing her shift following the assault. I also accept her explanations for the timing of her disclosure to her employer and for her subsequent report to police.
33The complainant’s testimony regarding what took place after she and the accused finished their work remained consistent. I am mindful that the mere repetition of an account, even if consistent over time, does not, without more, bolster a witness’s credibility.9 However, I did not find any meaningful flaws in the complainant’s testimony, and she was unshaken when describing the sexual assault.
34Although the complainant's evidence that they finished work at about 2:00 a.m. is inconsistent with the video, which shows them entering the residents’ lounge at approximately 1:24:09 a.m., her evidence that she and the accused remained in each other's company for the remainder of their respective hospital shifts is consistent with the video evidence.
35The complainant testified that, after they had finished their work for the night, she wanted to use her marihuana vape. Because it was cold outside and there were no cameras in the men’s changeroom, they went there and both she and the accused used the vape. The complainant readily acknowledged that she frequently used marijuana. She stated that they vaped for about half an hour, which was a normal amount for her. She believed the accused told her it was his first time using marijuana and he appeared to be significantly affected by it.
36The complainant agreed with defence counsel that vaping marihuana during her shift was prohibited and could result in her losing her job. She reiterated that she used the vape because she had completed all her work and no supervisors were present on that shift.
37When asked by defence counsel whether she had vaped before getting her work done, the complainant initially responded, “Possibly. Probably.” Defence counsel suggested that this response indicated she could not remember. The complainant then clarified that she had, in fact, definitely vaped beforehand. Defence counsel further questioned why she had used the words “possibly” and “probably” if she was certain. The complainant explained that she was inexperienced as a witness and that such language reflected her everyday manner of speaking rather than any uncertainty about the event. Defence counsel ultimately submitted that the complainant’s use of qualifying language at this point, and elsewhere in her testimony, undermined both her credibility and reliability. I do not agree. The complainant was not evasive when questioned about her marijuana use during her shift. She readily acknowledged this potentially unflattering fact and testified about when she believed she had used marijuana while working.
38The complainant testified that they went to the residents’ lounge from the men’s changeroom because there was more seating and it had comfier chairs. She planned to take a nap. They both sat on the couch. She mentioned to the accused that the drawstring on her scrubs felt tight and that she felt bloated. The accused suggested that she undo the drawstring of the scrubs. Because other friends had made the same complaints about the uncomfortable scrubs and had previously suggested loosening the drawstring, the accused's similar suggestion did not strike the complainant as unusual or concerning.
39As the complainant sat on the couch with her feet up, her back against one armrest and her right side against the back of the couch, the accused sat at the opposite end. He asked if he could touch her leg. Although she found the request strange and initially hesitated, she ultimately agreed. After touching her leg, the accused asked if he could give her a massage. Again, she hesitated because the request made her uncomfortable. She nevertheless agreed, but only on the condition that the massage be limited to her legs.
40The complainant believes the accused’s request to give her a massage stemmed from an earlier interaction that night while they were working together. During that interaction, the accused told her he had studied massage. After she mentioned that she had never had a massage, he briefly massaged her shoulders. The complainant believes this shoulder massage occurred in the day surgery unit.
41The complainant testified that while she was lying on her stomach in the residents’ lounge, the accused began by massaging her legs but then moved his hands to her buttocks and pressed or ground himself against her without her consent. She said she objected and told him he was no longer touching her legs, but he continued. The complainant explained how she was feeling when the accused touched her buttocks: “I got really freaked out and worried and I think I just also didn’t know what was for sure happening like I was trying to process what was happening in the moment”.
42The complainant testified that the accused then pulled her pants down to below her buttocks despite her efforts to keep them on and inserted his fingers into her vagina after moving her underwear aside. The accused was standing beside the couch and leaning over her. She was lying on her stomach with her face down on the couch. The complainant said that she tried to stop the accused from digitally penetrating her by grabbing his arm with her hand. She testified: “I believe I had said – like, I honestly can’t even fully remember if I said anything in that specific moment right then but at some point I did say ‘we should stop, like let’s stop’”. According to the complainant, at this point, she “was just very scared and uncomfortable and really just didn’t know what to do”.
43In examination-in-chief, the complainant testified that after the digital penetration, the accused, “then like just continued and he like flipped me over I think and he put his penis inside my vagina and continued to do that and forced kissing me with mouth-to-mouth as well”. At a later point in her evidence in-chief, she said she was on her back when the accused put his penis in her vagina. When asked by Crown counsel how she went from being on her stomach to being on her back, the complainant said, “I’m honestly not too sure about those details, I, I think it happened during like when it was still just his fingers inside of me. I’m, I’m not sure exactly of the details of how I like flipped over”.
44The complainant could not recall whether she said anything to the accused while he was penetrating her vagina with his penis without her consent. She testified: “I don’t think I said – I’m, I’m not sure if I said anything in that exact moment, it was just throughout the time I said the few times like ‘let’s stop, we should stop’”.
45The complainant described her state of mind while the accused was penetrating her vagina with his penis: “I was just really scared. I think I was trying to deny all of it in my head as well. Uncomfortable. Like trying to think about - like I didn’t even know what, what I should do to get myself out of that situation”.
46The vaginal intercourse ended when the accused heard a noise in the hallway that sounded like people walking, which frightened him. He told the complainant to get dressed. The complainant did not know whether the accused had worn a condom or ejaculated.
47Defence counsel’s cross-examination of the complainant failed to undermine in any material way the complainant’s credibility or the reliability of her evidence regarding the core allegations. For instance, when defence counsel asked her how she wound up on her stomach, the complainant said: “He might have possibly suggested that I lay on my stomach so he could better give me a leg massage”. Defence counsel again placed significant emphasis on the complainant’s use of the word “possibly,” arguing that it undermined the reliability of the complainant’s evidence generally.
48I disagree. The complainant’s failure to recall whether it was the accused who suggested she lie on her stomach is a minor point that does not detract from the reliability of her clear and cogent evidence of the sexual assault. In the following exchange with defence counsel, the complainant provides a credible explanation for her failure to recall certain details, an explanation which I accept as plausible:
Q. Okay. And when you use the word “possibly”, I take it from that, I take it from that that you don’t know why you wound up on your stomach.
A. No, it was about a year ago and it was pretty traumatic so I don’t remember the exact details of, you know, that.
Q. Okay. And I’m going to suggest to you that for whatever reason and you say it’s because of, primarily because of the passage of time, there’s a lot of things that you’ve told us today that you’re not very sure of.
A. Is that a question? Sorry.
Q. Yes.
A. Yeah, I’m not 100 percent sure on necessarily everything that has come out of my mouth because it has been a long time and traumatic. I’m trying to the best of my ability is to give you the whole truth.
Q. And would that have been true at the time that you spoke to the police as well?
A. Yeah.
Q. That there would have been quite a few things that you weren’t sure of then.
A. I wouldn’t say there was quite a few things that I was unsure about, I would say I think in any situation like this, like in anything you do day-to-day, a year ago, you might not remember exactly how it happened and I think even a few months after I didn’t necessarily remember, you know, exactly, was it this word or that word said or, you know?
49Defence counsel suggested that the complainant’s trial evidence was inconsistent with her police statement. At trial, she testified that she was certain the accused pulled down her pants from both sides. In her statement to police, however, she said, “I would say he probably pulled them from both sides”. The complainant disagreed with defence counsel's suggestion that her answer to the detective showed she was uncertain about how her pants came down. The complainant again attributed this to her vocabulary and the fact that she uses the word probably too often but said she “fully meant pulled them from both sides”. Defence counsel also noted that the complainant told the detective her pants “probably” came down only far enough to expose her buttocks. In these circumstances, the complainant’s use of the word “probably” did not undermine her evidence that the accused pulled down her pants, without her consent, sufficiently to digitally penetrate her.
50Similarly, the complainant testified in-chief that, “he then like just continued and he like flipped me over I think and he put his penis inside my vagina and continued to do that and forced kissing me with mouth-to-mouth as well”. The complainant’s evidence that the accused flipped her onto her back appeared inconsistent with both the uncertainty she expressed in her police statement and her testimony in cross-examination that she turned herself onto her back, as illustrated by the following exchange with defence counsel:
Q. Okay. And do you remember today how it was that you wound up on your back?
A. It was during the time which he had his fingers inside of me before he had put his penis in me.
Q. But how – you were on your, your front and then you wind up, you say on your back, how did that happen? What’s your memory of that?
A. I don’t remember like the exact specifics on how I like turned my body right now. It’s probably like if we were to lay on the couch right now, lay on your stomach, and just roll on over.
Q. So is it your evidence today that you simply rolled over onto your back?
A. Yeah. It was – I ended up on my back, yeah, because I was my back.
Q. So that – it was not a question of him flipping you on your back?
A. No.
Q. Okay. Because if you go to the next page, page 19, again about two-thirds of the way down, you’re asked by the detective, “Okay. All right. And then what happened?” And your response then was again, “And then, right, like that’s the part that I’m a little – I don’t fully remember it was like the details of how I had gotten like flipped over really.” So you talk about being flipped over onto your back. Did that not happen?
A. I’m not - nowhere in this am I saying that he flipped me over. That’s not what I said. I said, “I flipped over” like I had gotten flipped over. I had flipped myself onto the, onto my back now.
51The complainant’s uncertainty about how she came to be on her back does not detract from her credibility or from the reliability of her evidence regarding the non-consensual vaginal penetration. Given the traumatic circumstances of the assault, her inability to recall whether the accused turned her over or whether she turned over herself is readily understandable.
52Defence counsel confronted the complainant with a portion of her police statement in which the detective asked whether she had ever been lying on her stomach while the accused’s penis was in her vagina. The complainant replied, “No, I don’t think so.” Defence counsel suggested this response demonstrated uncertainty about how the incident occurred. The complainant disagreed, explaining that she was certain of her account but, being unfamiliar with police interviews and courtroom testimony, did not always express herself in unequivocal terms. She stated that phrases such as “I don’t think so” or “probably” reflected her ordinary way of speaking and were not intended to convey uncertainty. I found the complainant’s explanation for her choice of language to be credible. More importantly, I found her testimony that the accused penetrated her vagina with his penis without her consent to be credible and reliable.
53Defence counsel also challenged the complainant on matters peripheral to the substance of her complaint. The complainant testified that when she first entered the residents’ lounge, she likely had her water bottle, phone, vape, and work badge with her. She was cross-examined on a portion of her police statement in which she said she was wearing her jacket at that time, a detail inconsistent with the video evidence. The complainant readily acknowledged that she was mistaken about having her jacket when she first entered the lounge. I accept her explanation that this was not a significant memory from that evening. While she may have been mistaken about whether she had her jacket, she clearly remembered the central event: the accused, a 50-year-old man, penetrated her vagina with his fingers and his penis without her consent.
54Defence counsel cross-examined the complainant about her use of the phrase “we should stop” while the accused was penetrating her. Notably, despite the defence position that no sexual contact occurred that night, counsel suggested that she did not say “you should stop” because “it was sort of the two of you in this together, so to speak.” The complainant’s response was revealing. It demonstrated the fear she was experiencing and may also explain why she remained in the accused’s company for the remainder of their shifts. She said:
No, I don’t say I took part in raping myself at all. I would say I used the words “we should stop” because I was scared and I didn’t know what to do and I don’t know if you’ve been in that situation, I don’t know if you would know the right words to say either. It kind of scares you, it makes you uncomfortable when you don’t know how the other person is going to react. If I just say “no, get off of me”, all this, “you’re gross”, blah-blah-blah, what do you – how do you think a man’s going to react necessarily? A man that’s double my size. So I’m going not say it in the nicest way I can think of saying it right then to try to keep myself safe.
55There is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave.10 A complainant’s failure to exhibit avoidant behaviour or a change in behaviour is simply one relevant consideration in the overall assessment of credibility. It must not be treated as supporting an adverse inference founded on now-rejected stereotypical assumptions about how individuals react to sexual abuse.11 The complainant provided compelling reasons for remaining in the accused’s company. She was half his age and, by her estimate, half his size. I accept her evidence that, following the sexual assault, her immediate focus was on getting through the remainder of her shift, appearing normal, and carrying on before she was able to begin processing what had occurred. I reject defence counsel’s contention that the video of the complainant and the accused returning to the lounge after going to McDonald’s supports an inference that no sexual assault occurred. The absence of immediate outward signs of trauma is not inconsistent with having been sexually assaulted.
56According to the complainant, while walking to get their coats before going to McDonald’s, she and the accused briefly discussed what had occurred in the lounge. The accused told her that, had she said “yes, yes, yes,” it would have given him a better erection. She reminded him that she had said “no” and that he should not have done what he did. The fact that the complainant subsequently went to McDonald’s with the accused and completed her shift, spent a short time with him the following day during an approximately one-hour overlap in their shifts, and continued to communicate with him by text message does not detract from her credibility or undermine the reliability of her complaint.
57A delay in disclosure, standing alone, does not give rise to an adverse inference against the credibility of a complainant. In assessing the credibility of a complainant, the timing of disclosure of an allegation or allegations is simply one circumstance to consider in the context of all of the evidence.12 The timing of disclosure is not irrelevant to credibility. A delay in disclosure can undoubtedly damage a complainant’s credibility, particularly when disclosure is made coincident with the impetus of a motive to fabricate.13
58I do not find that the complainant fabricated the allegation out of concern that the accused would report her vaping at work. Defence counsel did not press this submission in argument and, indeed, conceded there was no evidence that the accused had told the complainant he intended to report her marihuana use to their employer. I find the complainant was forthright in acknowledging that the accused’s text message concerning hospital fines for vaping (Exhibit 4) contributed to her hesitation in reporting the sexual assault and incident to her employer, as she feared that her marihuana use might result in consequences for her. However, I find that her eventual decision to report the sexual assault was unrelated to any concern that the accused might disclose her marihuana use to her employer. Indeed, when she reported the incident, she openly disclosed that she had used marihuana on the night in question.
59While I do not find that the complainant acted on any motive to fabricate, I am not making a positive finding that she had no motive to fabricate. Motives can remain hidden or there may be no motive at all.14 There is no burden on the accused to prove a motive to fabricate or to disprove that the complainant had no motive to fabricate.15 My conclusion that the complainant did not fabricate the offence to get ahead of the accused reporting her marihuana use is not a makeweight in favour of her credibility.16
60I accept the complainant’s evidence that she delayed reporting the sexual assault because she was initially frightened, uncertain how to proceed, and not ready to deal with the consequences of reporting while facing other significant challenges in her personal life. I also find her explanation for reporting the incident to her employer when she did to be credible. She did so after learning that she would be working alone with the accused during her shift, without any supervisors present.
61Defence counsel argued that the complainant gave inconsistent evidence about why she reported the sexual assault. Counsel submitted that she first said she disclosed it because she would be working alone with the accused, but later said she reported it to protect co-workers and other women from him. I do not find any inconsistency. The complainant’s first disclosure was prompted by concern about having to work with the accused. A few days later, she decided to report the matter to police. She explained that, with support from her family and others, she went ahead with the complaint to police because she wanted to protect other women and make clear to the accused that what he had done was wrong.
62The complainant candidly acknowledged that she used her marijuana vape throughout her January 20–21 shift and, as a result, was high at various times during the shift. She also conceded that she may have been impaired at some point that evening, particularly at the beginning of her shift, as that was when she began using her vape. However, she disagreed with defence counsel’s suggestion that her memory difficulties were attributable to marijuana use and not to trauma or the passage of time.
63The accused did not testify that the complainant appeared impaired in the residents’ lounge or at any other time during the shift, despite repeatedly referring to her use of a marihuana vape. The video showed neither signs of trauma nor indicia of impairment. Nor did the complainant testify that she was so impaired that she blacked out, lost awareness, or was unable to appreciate what was occurring in the residents’ lounge.
64I find the complainant’s evidence on the material issues reliable despite her use of a marihuana vape throughout the night. She gave detailed and cogent evidence about the touching of her buttocks, the digital penetration, and the penile-vaginal penetration. Considering her evidence as a whole, I am satisfied that any impairment she may have experienced from marihuana did not prevent her from understanding or remembering what occurred in the residents’ lounge. She had a clear recollection of the accused’s acts, and I find that her marihuana use did not render her memory of those sexual acts unreliable.17
65Defence counsel also challenged the complainant’s credibility and the reliability of her evidence based on her testimony that she had learned from her therapist, victim services, and other sexual assault resources that trauma can affect memory. Defence counsel submitted that this showed that parts of her evidence were derived from others rather than from her own experience and that she relied on this information to explain her inability to recall certain details. I do not accept these submissions. Having reviewed the complainant’s testimony, I find that her brief reference to these resources merely reinforced evidence she had already given that she believed the trauma she experienced, together with the passage of time, affected her memory of certain peripheral details.
66I observed the complainant’s testimony. While demeanour is a permissible consideration in assessing credibility, it must be approached with caution, and I have not placed undue weight on it. 18 I nevertheless found the complainant’s evidence compelling. That assessment was based not only on her demeanour, but also on the substance of her testimony, portions of which were independently corroborated by the parties’ text messages and the video.
67I have assessed the complainant’s evidence, in the context of the totality of the evidence and find that I accept her evidence. The Crown has proven each of the elements of sexual assault beyond a reasonable doubt.
Conclusion
68For these reasons, I find the accused guilty of sexual assault contrary to s. 271 of the Criminal Code.
Released: July 2, 2026
Signed: Justice J.P.P. Fiorucci
Footnotes
- R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
- R. v. S. (J.H.), 2008 SCC 30, at paras. 10 – 12; R. v. S.H., 2016 ONSC 4492, at para. 39, affirmed 2021 ONCA 41.
- R. v. Thomas, 2012 ONSC 6653, at para. 24.
- R. v. A.J.K., 2022 ONCA 487, at para. 22.
- R. v. Thomas, supra, at para. 24.
- Ibid, at para. 24.
- R. v. B.D., 2011 ONCA 51, at para. 114.
- R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.); R. v. R.A., 2017 ONCA 714, at paras. 55-56, affirmed 2018 SCC 13; R. v. A.I.B., 2023 ONCA 557; R. v. C.L., 2020 ONCA 258; R. v. D. (R.), 2016 ONCA 574.
- R. v. Dinardo, 2008 SCC 24, at paras. 36 and 40.
- R. v. D.D., 2000 SCC 43, at para. 65.
- R. v. D.D., 2000 SCC 43, at para. 63; R. v. A.R.D., 2017 ABCA 237, at para. 42, affirmed 2018 SCC 6, at para. 2; R. v. A.B.A., 2019 ONCA 124; R. v. G.H., 2024 ONCA 523, at para. 20.
- R. v. S.G., 2022 ONCA 727, at para. 43; R. v. D.D., supra, at para. 65.
- R. v. J.M., 2018 ONSC 344, at para. 67, reversed on other grounds at 2021 ONCA 150.
- R. v. Bartholomew, 2019 ONCA 377, at para. 22.
- R. v. S.S.S., 2021 ONCA 552, at para. 38.
- R. v. R.K., 2023 ONCA 653, at para. 46.
- R. v. C.P., 2021 SCC 19, at paras. 34-35.
- R. v. Reimer, 2024 ONCA 519, at para. 93.