R. v. Ururyar

Court Information

Court: Ontario Court of Justice
Citation: 2016 ONCJ 448
Date of Judgment: July 21, 2016
Judge: M.A. Zuker, J.

Parties

Crown: Her Majesty the Queen
Counsel for Crown: Ms. J. Lofft

Accused: Mustafa Ururyar
Counsel for Accused: Ms. E. Bristow

Dates of Hearing

• February 1, 2, 3, 2016
• April 11, 2016
• May 3, 24, 2016

PART I - THE FACTS

Examination In-Chief by Ms. Lofft

Background and Meeting

1Mandi Gray has been a student at York University, a graduate student. She began her master's degree in the Fall of 2013 and then in the Fall 2014 started her PhD. She was teaching in the Department of Social Science, a Criminology class, but is a graduate student in sociology. She first knew the accused or first met him in mid-January, on or about January 16, 2015. Mr. Ururyar was also a graduate student from a different department, but also a first year PhD student. His area was the Department of Political Science, also at York University.

2In addition to being a graduate student, Ms. Gray was a teaching assistant and in the student union. She met the accused at the first union meeting that she attended. They met at the CUPE office at the University of Toronto, in downtown Toronto. After the union meeting everybody said that they were going to be going out. She decided to join along because the friend that brought her to the meeting invited her to come out with everybody.

3Mr. Ururyar came in towards the end of the meeting that evening and then came over to the bar with them. Ms. Gray saw him a number of times before the events on the night that resulted in these proceedings.

January 30, 2015 - Victory Café

4Some friends, also from York University, were going out to Victory Café and so she decided to meet up with them there. It is a small bar/café near Bathurst and Bloor in Toronto. There was some people from CUPE. They had won the strike vote that day that would allow them to go on to strike. It was kind of a mixture between a union get-together but also people just from class socializing. She went to the Victory Café and had a couple drinks with her colleagues. And then she texted and asked Mr. Ururyar if he wanted to come out. She did not provide those texts, but she knew she asked him to come out. He was sick but eventually, he did show up at the Victory Café, along with everybody else that was there, probably 10 - 15 people. The meeting time was probably around 8:00 or 8:30 p.m. A lot of mutual friends were present at Victory that evening.

5She didn't expect him to show up because he had told her that he was sick and was going to stay home. She remembers saying: "Hey, like, I'm here, if you want to come." And then he said he was sick, and then he changed his mind and showed up. He showed up around 9:00 p.m. They were having beers. Before he arrived, she probably had one or two. She was surprised as he kept saying he was sick and he wasn't going to come and then he changed his mind at the last minute. She was socializing with the people she knew and he was kind of socializing at another table with the people that he knew from Political Science and the union. They were talking. They were at different tables. She remembers him asking her not to touch him in public, which was off-putting and surprising to her. It's not that she was hurt but before it wasn't an issue if his girlfriend knew about them. Before that night, he was like touchy in public but, then, that night he said he didn't want her to touch him in public because he didn't want his girlfriend to find out, again, never an issue prior to that date.

6Ms. Gray and her friend Lacey wanted to go out. Mr. Ururyar indicated some of the union people were going to head over to Paupers, just at Bloor and Bathurst area, very close by the Victory Café. She settled up her tab, maybe one more beer before she paid and then they walked over to Paupers. She had maybe three, four beers. She had arrived at the Victory Café at around 7 and then left around 10 or so. At Paupers, Ms. Gray became friendly with several people. It was mostly Lacey. She knew Mr. Ururyar. She knew Lacey the best because she met her in her first year at York in her Masters. At Paupers, Mandi was tipsy but this was not a complete loss of control, just having fun and being silly drunk with her friends. But not out of control or falling over.

7At Paupers she continued to drink beer. Most of the night she was sitting at a booth, socializing with people she had recently met through the union. Lacey was there and Mr. Ururyar was there. He did not have much interaction or much conversation with either of them at the bar. It was mostly talking with people that were also there because of the CUPE strike vote. They stayed until the lights came on, until closing, about 2:00 or 2:30 in the morning.

"Like, I asked – 'cause I was drinking a lot, I asked Mr. Ururyar if I could spend the night over at his place and like I said – and then he said that he was sick, so I could sleep over but he wouldn't have sex with me which I thought was totally weird thing to say, but I kind of just wanted somewhere safe to sleep.

So, I said "Okay", and then I remember I just went, like it didn't really like phase me, I just thought it was kind of an odd thing for him to say. But I just went and sat back down and didn't really talk to him much for the rest of the night. And then when the lights came on, because I had made plans to crash over at his place...."

The Walk Home

8They left and were going to get something to eat but nothing was open. They continued walking up to Bathurst and Bloor, outside of Honest Eds. Mr. Ururyar kept asking Lacey to come home with them. He kept pushing her to keep drinking. He was adamant that she come back and drink. This was strange because he wasn't drinking all night, he was sick, he wasn't feeling well.

9Ms. Gray did not remember seeing him have a beer the entire night. She wasn't interacting much with him that night. Maybe she didn't see him drink. She thought it strange because all of a sudden he was so adamant that Lacey come home with them. His apartment was small. It would be weird for Lacey to come back with them, especially because it was 2:30 in the morning and she was just ready to go to sleep.

"And she kept like saying no. She's like: "No, I don't want to", but he kept pushing and like asking her and, and then I could tell she was uncomfortable and I felt uncomfortable but I didn't think too much of it at the time. And then, then a cab came and she hopped in and as soon as the door closed, that's when everything really took a turn for the worst.

Q. Okay, so she –- when you say she hopped in the cab, that's Lacey you're talking about?

A. Yes, Lacey hopped in the cab."

10Lacey got in the cab and then at that moment the tone of voice of Mr. Ururyar changed and, at first Mandi was caught off guard by it. He was angry. He articulated his anger to her.

"First, the anger began because he said that I was unable to meet his sexual needs and that he wanted Lacey to come home with him and I, because he wanted to have sex with both of us. And ...."

Q. What was your reaction to that?

A. I was really caught off guard and confused because that was not a conversation that the three of us had had. I noticed that he was really adamant asking her to come back to his place but it wasn't explicitly stated that it was he wanted to have sex with both of us and it was really confusing to me. And then the anger began to escalate and he said things that I was an embarrassment, I was embarrassing myself, I was a drunk, I was needy. He just really like began to tear away any sense of like self-esteem that I had at the beginning of that night."

11The anger just kept escalating.

"A. His tone of voice just started to get harsher and more blunt and direct and saying things about me to make me feel like I had done something wrong and I started to believe it, and it was like I knew this person and then after that moment of Lacey leaving, he turned into somebody that I had never seen before, I had never encountered and it was like everything about him completely changed. I didn't even recognize who he was and like, I felt so small."

12She thought she must have done something terrible. She was conflicted and confused. There wasn't a lot of dialogue. It was mostly him talking to her. She was confused and mostly quiet. She does not believe she challenged any of it. He kept going. It just kept getting harsher both in terms of his tone of voice but also the things he was saying about her. They didn't have a conversation about it, yet it was like an expectation that wasn't being communicated, with her or Lacey. No conversation. She didn't talk to him the entire night, so she wasn't sure where this person who was needy was coming from and it was all very confusing to her.

"I'm a person that once –- I go inwards, right and I don't express when I'm feeling hurt or sad or angry. I'm more of an introvert in that way, so I just internalized it all and I just took it. I don't remember responding."

"It was just like, oh, you're just like all the other women, in reference to another particular women (sic) that he had a sexual relationship with. You're just a slut, you're just –- like, all these derogatory terms."

13In her head, Ms. Gray didn't want anything to do with Mr. Ururyar after this night. She didn't want to be friends with somebody that's going to call her the names and treat her like that in a physical relationship.

"We got to his place and after being talked down to, I don't know how long the walk is but, it's a pretty good walk. I remember just like, I was just like, I just was no longer was present. I just like, because I was just hearing all these terrible things about how horrible I am and how much of a drunk and a slut I am, I just wanted to go to sleep. I just wanted to wake up and like, move on with my life without this person in my life.

And we got to his place and I was just ready to go, to crash 'cause like obviously the night didn't have a good end to it and I was just exhausted and tired and ready to go to sleep."

14At Paupers she spent about $40. She didn't eat anything so she assumed she spent about $40 on beer. She didn't remember if she purchased a beer for anybody else.

"Obviously, I was intoxicated enough to seek out somewhere else to sleep because I felt vulnerable in that I didn't feel comfortable catching a cab by myself because I knew, I knew that I was vulnerable. I was intoxicated."

"I remember just feeling like, well, like a little dizzy, a little tipsy and like, as we were walking and like, I think the alcohol also helped in terms of just like completely numbing me, like emotionally when I was being talked down to."

At Mr. Ururyar's Residence

15At Mr. Ururyar's residence, you go up a set of stairs, a house converted into an apartment building. You walk up the stairs and then there's a kitchen, a washroom and the bedrooms. She assumed it was three bedrooms. She did not recall seeing or talking to anybody else when she was there, the early morning hours of January 31, 2015.

"A. From what I remember, I ended up in his room. I was sitting on his bed and again, that verbal aggression began to escalate. I remember feeling really scared because this is somebody that I had never seen. I had never seen that kind of anger. I hadn't – it was like, I thought I must, I must have done something like really badly to deserve this and I began getting scared. I don't know like, if it – like, I just felt like a very real threat of potential physical violence in that moment and I remember being scared and I remember just completely like, just sitting there and taking it because I was like, I just hated myself so much in that moment. Like, he had destroyed any self-esteem I had, I was like, I don't care, I just want to die right now because this hurts so bad."

"I thought that was a friend or like a decent human would say all these horrible things about me and they must be true and I, I just, I hated myself, so I just - he just continued and he continued the verbal aggression and that, yeah."

"I remember the last thing he said to me was this is the last time I'm ever going to fuck you and you're going to like it and that has stuck with me every day for the last year. And that's the last verbal conversation that I remember between the two of us."

16They went right to his room. His aggression continued.

"I don't think I could even describe it if I wanted to of (sic) terms of like how his entire physical body just changed and his tone of voice. It was like a person I didn't even recognize, like I –- he wasn't the person that I knew. He wasn't –- he wasn't that person. It was like, it was like someone I had never met before and it was just totally confusing to me because I just didn't know what to make of any of it.

But no, it was just – yeah, it was just a continuation of what was happening on our walk, in terms of you're a drunk slut, I don't like you, I don't want anything to do with you, you're needy. Yeah, my girlfriend's going to find out, you are – yeah, just continuing the same few lines about me.

Q. Okay. And then what happened?

A. Okay, so then he said what I had said earlier. And the next thing I remember is, okay, I was sitting on the corner edge of his bed and he was standing up looking down on me when he was talking down to me, like literally talking down to me. And I don't remember him taking off his clothes or how that happened, I was not an active participant in that. He grabbed me by the back of the head and pushed his penis into my mouth.

Q. Okay. And what – and then what?

A. It just continued and you know at that moment, I'm like first of all, I hate myself. I just, I'm intoxicated, I have no ability to fight back and I, like I said, that threat of physical violence was very present and I was like, I would rather take this than the risk of physical violence because I don't know what this person is capable of.

And I know if I comply with this, I know how this is going to go or I thought I knew how it would go. It was just like, I just like, I just stopped caring and I just let it go the way – whatever, I was just, I just didn't care anymore.

Q. Did you consent to that?

A. No.

Q. So, you said he grabbed you by the back of the head?

A. Yeah, and he pushed my –- like he pushed and like the back and like, then he just like pushed his, himself into my mouth and I was like whatever, I'll just, I'll just comply because I don't know what the repercussions of me saying no will be.

Q. Okay. And then did he ejaculate?

A. At that time, no.

Q. Okay, so what happened next?

A. I don't know when that ended or how long that lasted for. I kind of checked out of my physical being. I just, I just went with the motions just to get it over with quick as possible. And then I, I don't know, I think he pushed me onto the bed. I'm pretty sure that must have happened because I –- and then he started having sex with me and I just laid there."

"Right before he grabbed my head. That's what he said to me and I remember like him saying that and I was like: "Like, we're having sex now. Like, what – this isn't how you have sex with somebody", but I was so scared, I was like, yeah, I didn't know what else to do, so I just went along with it."

"I guess it stopped whenever he was ready to finish. I don't know how long it lasted. Like I said, I kind of just completely checked out of my physical being, just 'cause I just, I couldn't be present in that."

"I just like was in the fetal position, like crying so much. And like, I don't cry often, like I don't cry very often so when I cry like, you know you did something really bad."

"And he just like totally blew it off and just like went to sleep, no big deal. Like, it was – yeah. And I ...."

Q. Do you remember whether he said anything to you?

A. I think he told me to like be quiet, or something along those lines. And I just passed out, I was just so exhausted and tired and like, I just like – like I said, I just like wanted to die in that moment. I just didn't want to live like that. I didn't want to feel that way and I just didn't care about myself anymore and I just passed out.

Q. What is the next thing you remember?

A. Oh, I woke up because I could feel him masturbating next to me and I was so mad. I was so mad because he knew I went to bed crying last night, the night before, sorry. He knew I went to bed crying the night before and I was just so confused, like what about this situation is like good for you. And he noticed that I was awake and he went and again, put his hand on the back of my head and tried to like push my head back onto his penis. But I was feeling a little bit, I was much more sober at that point, I had slept for a few, for a bit and I just said: "No, like I'm not doing this.""

17She got up, she put on her pants and she left his apartment. It was about 9:00 in the morning. She was waiting for the streetcar to go home, at College and Bathurst and she texted her friend and told her what happened. That was at about 9:45. According to Ms. Gray, when he grabbed her head in the morning, they were still in the same bed. There was no verbal communication.

"I just said: "No, I'm not doing this", and I got up and like, I left and I didn't say bye, I didn't say anything."

18Ms. Gray went home. She slept for a few hours. She woke up feeling conflicted and confused. She felt like he must have misread something. She didn't know what she was thinking or like what she wanted from him, but she texted him and said: "Last night was really fucked up." "And he responded to me: oh, okay." And that was the last they both communicated to each other.

19She again stated that she didn't spend a lot of time with him that evening. He was sober from her best guess.

20She gave evidence that she just turned inwards and went into a depressed state.

21On February 1st, 2015 she was encouraged to report. She decided that maybe she wouldn't report but, at least she should go to the hospital and do the forensic test just in case she changed her mind. She went to the Women's College hospital. It was closed. She then went to Mount Sinai and met with the forensic nurse, or sexual assault nurse. She agreed to move forward with the kit. She would make up her mind later about what she wanted to do with it, but just to have the collection of that evidence. She was accompanied by her friend Lydia. She then went home and decided late Sunday evening that she wanted to get the kit done. By the time she finished up, it was about midnight. Monday morning came and she was supposed to go into work to T.A. February 2 nd . She stated that she didn't know what would happen if she reported to the police? Both of them were graduate students. How that would impact her career? She called her graduate program director and asked her for advice. She also called the union. She was worried as Mr. Ururyar was an executive of the CUPE local at the time.

"I just said: "One of the executive members of CUPE raped me on Friday night and I don't, I need to know how you're going to deal with this if I report to the police 'cause I'm really scared of this person.""

22She called non-emergency and the police dispatched two officers to her apartment that evening. She waited a few hours and they showed up. She gave her statement that same night. The officers came, they took their initial statement and then they took her to 14 Division. She met with Detective Chuck Barry and his colleague and she did a KGB statement. The text she had from Mr. Ururyar was the last communication she had with him.

Examination In-Chief by Ms. Bristow (Accused's Counsel)

23"Q. Mr. Ururyar, did you have sex with Mandi Gray the morning of January 31st, 2015?

A. Yes, I did.

Q. Do you believe the sex was consensual?

A. Yes, there's no doubt in my mind."

24The accused is a PhD student in Political Science at York University and a teaching assistant there. He and Ms. Gray met at a union meeting on January 16 th of 2015. He had a girlfriend on January 30, 2015. Her name is Alison. She was living in Montreal. They had been together just short of three years at the time. It was an open relationship. They had agreed that during the time that they were living in different cities, it would be okay if they saw or slept with other people. It was supposed to become monogamous again in April of 2015, when Alison was going to move back to Toronto. It ended up becoming monogamous immediately after he was charged.

25He told Alison that Ms. Gray had made an allegation of sexual assault against him. He was innocent. He saw Ms. Gray on January 30, 2015 at Victory Café around 9:00. A few of his friends and colleagues had gone there after their strike vote on campus. They were going to have some drinks. He decided to go home because he wasn't feeling a hundred percent. He then got some texts from Ms. Gray saying that she wanted him to come to the bar and then they would have sex afterwards.

"Q. Okay. And was it your intention to have sex with Mandi that night?

A. Yes. I was going to –- I thought that we could do it, yeah."

26He had a beer at home before going to Victory Café. At Victory Café he had a beer there. There were a number of people, mostly from the Political Science and Sociology Department, about 15 to 20. He sat next to her when he arrived at the bar. They talked. They flirted. At one point in the evening, she began to grope his leg. She was rubbing her hand up and down his leg inside. It made him feel uncomfortable. He didn't want to show that sort of affection in public. He was there with his friends and colleagues and he didn't think it was appropriate. He quietly asked her to stop. He stated she had a beer when he arrived and he thought she ordered one more before they left.

27They went to another bar called Paupers, after about an hour, hour and a half. Mr. Ururyar, Ms. Gray, and her friend Lacey and a few other people, maybe 5 or 6, mostly from the Political Science Department walked about 15 to 20 minutes to Paupers. They took their seats. They ordered drinks. Ms. Gray and Mr. Ururyar sat next to each other in a booth with maybe 4 or 5 other people. They were talking, having a good time. She again began to grope Mr. Ururyar leg's underneath the table. This time it was a bit closer to his genitals, it was the inner thigh, upper thigh. Again, it made him uncomfortable. He asked her to stop again. They stayed there until closing about 2:45, 2:50 a.m. He had 2 to 3 beers. She ordered the 1 beer when they arrived later in the evening. He saw her with another beer in her hand, at least 2. They weren't sitting close to each other or standing close to each other for most of the time at Paupers. He left with Ms. Gray, her friend Lacey, his friend Indigo and a mutual friend Gazem. They started walking west from the bar towards Bathurst. At one point, Indigo and Gazem left. He invited Lacey to come over to his place.

"A. Ah, I just said: "Do you want to come over and have a drink with us, with Mandi and I?"

Q. And what was Lacey's response?

A. She was thinking about it, she was on the fence. Ah, but then she eventually decided that she didn't want to and she hailed a taxi."

28At Victory Café, we arranged she would come over to his place. She said that she wanted to come over and he said sure.

"Q. Did you have any conversation with, ah, Lacey or Ms. Gray about having a threesome that night?

A. Ah, no. No."

29At one point in the evening, he said his friend Gazem came up to him and said that Ms. Gray was planning a threesome with him and another person, and the thought of a threesome crossed his mind after that. He stated he met up with Gazem a couple days later and she asked him if he was still seeing Ms. Gray and she also asked how the threesome was? He said that he wasn't seeing Ms. Gray anymore and the threesome did not happen.

30After Lacey left, they started walking towards Mr. Ururyar's place. The walk to his place is about 15 to 20 minutes, just south of College, along Bathurst.

Q. "Walk. Was there any conversation between yourself and Ms. Gray during that walk?

A. Yeah, I expressed disappointment that Lacey didn't want to join us and then Mandi said that -- Mandi asked: "Am I not enough for you?"

And I said: "Yes, you are."

And we kind of held –- I put my arm around her waist and she put her arm around me and we walked down the street."

31He gave evidence that they talked about the weather and the upcoming strike. He stated Ms. Gray said that she was looking forward to coming over and having sex. He said that he would try but couldn't promise he would be able to, physically. He wasn't feeling a hundred percent. He was still recovering from a cold that he had all week. As they were walking home, they were not arguing. Their voices were not raised. He was not angry. Ms. Gray seemed to be buzzed to him, under the influence of alcohol, but not to the extent that she didn't have control of herself. "She was you know, I guess rosy cheeks, um, happy, um ,. yeah, seemed to be having a good time". She was not slurring her words. She wasn't intoxicated beyond previous occasions that they were together. He wasn't.

32His apartment was on the second floor. When you walk in, there's a kitchen and there's a couch there as well. And that's the common space, no real living room. There's a washroom on the right hand side and on the left, there's a hallway that leads to three bedrooms. His bedroom is situated as the first one on the left. He had two roommates.

33"Q. Now, describe what happened, ah, when you arrive at your apartment with Ms. Gray?

A. We walk in, I lock the door behind us. Mandi goes into my room, I follow her. We get undressed, ah, and we get into bed."

"Q. What size bed did you have?

A. A queen size.

Q. And can you describe the position of your bed in your room?

A. It's on the right hand side when you, -- sorry, it's on the right hand side when you walk in. Um, the right side of the bed is along the wall, as well as the headboard.

Q. Okay. And you said that you got undressed. Did you help each other get undressed?

A. No, we undressed ourselves.

Q. And did you tell Ms. Gray to get undressed?

A. No.

Q. Did Ms. Gray tell you to get undressed?

A. No, she didn't.

Q. And do you recall what Ms. Gray was wearing after she got undressed, if anything?

A. I think she was still wearing her tanktop, um, but I'm not sure if she was wearing anything else besides that.

Q. What about yourself? Were you wearing anything at all?

A. I was wearing a long sleeved shirt and long underpants.

Q. Okay. And, ah, so that you got under the covers. Who got under the covers first?

A. Mandi got under the covers first.

Q. And, so, where was she positioned in the bed?

A. She was on the right side, along the wall.

Q. And where did you end up going?

A. I was on the left, the side closest to the middle of the room.

Q. Okay. Was there any lights on in the room at the time?

A. Ah, there was at first the main light and then I switched it off and turned on the lamp next to my bed. And I eventually switched that one off too.

Q. Do you recall when you switched that one off?

A. I think it was after we'd undressed already.

Q. Okay. And so, describe what happened, ah, while you were in your bedroom?

A. Ah, after we were in bed, Mandi moved towards me to kiss me and I moved away.

Q. And why did you move away?

A. Ah, I said that, ah, -- I moved away because I wasn't very happy about how she had behaved at the bars, ah, in regard to the groping and I told her that. And I said that I wanted to end the relationship because it seemed like we weren't compatible. It seemed like we didn't have the same ...."

34He said his girlfriend was going to be moving back in April. So I told her that we should just be friends. She began to cry and she apologized.

"I tried to console her and I apologized for making a big deal of the groping and I, yeah, I you know, just held her and tried to, I touched her arm and her back.

Q. And anything else happen?

A. Ah, she turned a little bit and then we started to kiss.

Q. Did you lean in to kiss Ms. Gray?

A. Ah, we leaned in towards each other.

Q. And what happened next?

A. Ah, we were kissing and then we started to touch and then I rolled over on to my back and she got on top of me and she pulled my pants down and I took my shirt off and she began to perform oral sex.

Q. Did you touch Ms. Gray at any point while she was doing this?

A. I was touching her arms, her breasts, her shoulders and her head.

Q. Were you touching her in any forceful manner?

A. No.

Q. Was there any conversation or anything said during this time?

A. After maybe a minute or two, ah, I think I said: "Do you want me inside of you?"

And she said: "Yes."

And then I think I said, I asked her to turn and she did and she got onto all fours and we had sex in that position.

Q. When you say in that position, what -– what are you referring to?

A. It's, I guess it would be referring to the doggie-style position.

Q. Okay. And, ah, were you ever on top of Ms. Gray?

A. No, I wasn't.

Q. Did, um, did you ejaculate that night?

A. Yes, I did.

Q. Were you using a condom?

A. No.

Q. We had not been using a condom for the last few times that we'd been together. Mandi said that she was keeping track of her cycle.

Q. And what, if anything, happened, um, after you had sex?

A. After we had sex, we got back under the covers and I think we were sort of cuddling and spooning.

Q. Did you notice if Ms. Gray was crying at any point?

A. No, I did not.

Q. Did, ah, you ever say to her that it had to be the last time?

A. I think I said that before we started having sex, ah, I said that this should be the last time that we sleep together or sleep in the same bed.

Q. And why did you say that?

A. Ah, because I didn't want her to –- I just wanted to be honest and say you know, that ah, I didn't want this to continue, our relationship to continue.

Q. Did you believe that the sex was consensual while you were engaging in intercourse?

A. Yes, I do.

Q. And why did you think that?

A. All of the sex acts that took place were mutual. We were both participating in them, the kissing, ah, the oral sex and the intercourse.

Q. Was there any indication to you that Ms. Gray was not enjoying herself?

A. No, there wasn't.

Q. Was there any indication to you that she did not want, ah, she wanted you to stop?

A. No.

Q. Did Ms. Gray cry at all during intercourse?

A. No, definitely not.

Q. Did you ever get an impression that Ms. Gray was unhappy or not enjoying herself?

A. No, I didn't get that impression.

Q. Did you ever feel that Ms. Gray was non- responsive to your actions?

A. No.

Q. Did you ever get the impression or see Ms. Gray's eyes closing or appear that she was passing out?"

35Mr. Ururyar stated that he woke up around 10 a.m. Ms. Gray was standing at the foot of the bed already dressed. She had her parka on and her boots and dark pants. She was looking angry. She felt used. He said he never tried to push Ms. Gray's head onto his penis in the morning. Later that day he got a text from Ms. Gray a couple hours later and the text read: "Last night was really fucked up."

Q. And did you respond to that?

A. I responded saying: "Okay."

Q. And when you got the text message from Ms. Gray, what was going through your mind at the time?

A. Um, my mind, I thought that she was referring to me making a big deal of the groping and, ah, breaking up with her before we had sex.

Q. Was there anything else that was going through your mind?

A. No."

A. Ah, after I didn't hear back from her for a few days, I texted her saying that I was sorry, um, for how the night progressed.

Q. And what did you mean by that?

A. I was referring to, you know, me getting annoyed and upset about her groping me and saying that the relationship was over, but then proceeding to have sex anyways.

Q. Was there any other reason why you were apologizing?

A. No.

Q. And had you spoken to Ms. Gray since then?

A. Ah, no, I have not."

36Mr. Ururyar gave evidence that he saw his roommate Phil that afternoon. Phil's room is behind his bed, behind the headboard. After a couple weeks, after he was charged, Mr. Ururyar talked to Phil about the charge. After he was charged, he was suspended as a teaching assistant and suspended from coming to campus on most days. He first learned that the police were looking for him on the morning of February 15 th . He noticed that he had a number of missed calls from the same phone number. He called the number back and Detective Stephen Barry answered the phone and he said that Ms. Gray had made allegations of sexual assault against him. He was stunned and speechless. He didn't know what to say. The last time that he observed Ms. Gray drinking alcohol was around last call, around 2 a.m. He had sex around 3:30 a.m. He didn't have very much to drink that night.

37"Q. Okay. Was there any doubt in your mind whether or not the sex was consensual?

A. No, there's no doubt in my mind.

Q. And can you describe all the reasons why you believe that?

A. Well, beginning at the text message in the evening when she said that she wanted me to come to the bar and then we would go and have sex. And then at Victory Café, we arranged for her to come over to my place, ah, and on the walk home, she also said –- she also expressed wanting to have sex when we got back to my place. Um, and then when we started kissing, she then got on top of me to perform oral sex and then she got into a position for us to have intercourse.

Q. Okay. Did you force Ms. Gray to perform any of those sexual acts?

A. No, not at all."

PART II - THE LAW

226Mustafa Ururyar is charged with sexual assault. The formal charge reads:

on or about the 31st day of January, in the year 2015, in the City of Toronto, in the Toronto Region, did commit a sexual assault on Mandi Gray, contrary to s.271 of the Criminal Code of Canada.

227To find the accused guilty of sexual assault, the Crown must prove each of the essential elements beyond a reasonable doubt:

i. That Mr. Ururyar intentionally applied force Ms. Gray;

ii. That Ms. Gray did not consent to the force that Mr. Ururyar (intentionally) applied;

iii. That Mr. Ururyar knew that Ms. Gray did not consent to the force that (intentionally) applied; and

iv. That the force that Mr. Ururyar (intentionally) applied took place in circumstances of a sexual nature.

228If the Crown has not satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find Mr. Ururyar not guilty of sexual assault.

229If the Crown has satisfied the Court beyond a reasonable doubt of each of these essential elements, I must find him guilty of sexual assault.

Application of Law to Facts

Credibility Assessment

425It was of obvious need to review the evidence of the accused, Ms. Gray, both in-chief and in cross-examination and re-examination.

456Such a story, scenario we heard from Mr. Ururyar from beginning to end begs credulity, a feeble, feeble attempt in hindsight that is unbelievable and incomprehensible.

457It never happened this way. None of it.

458The groping never happened. Did Ms. Gray grope him. No. That was not the nature of their relationship. That was not Ms. Gray.

459Groping incident number two at Paupers. Did it happen? Illogical, and why? Based on what? Ms. Gray couldn't keep her hands off him? She couldn't wait to grab him? She didn't even spend much of the evening near him, let alone grope him at each bar. What a picture painted by the accused except a false picture and in between the groping, how about a threesome?

462Lovey, dovey on the way home, never happened. Attacking Mr. Ururyar under the covers in bed, never happened, again a great illusion or delusion of Mr. Ururyar but also a joke. A fabrication, credible, never . I must and do reject his evidence.

463I do so without hesitation. To quote McLachlin, J. (as she then was) on the credibility of a witness in R. v. Marquard , 1993 CanLII 37 (SCC) , [1993] 4 S.C.R. 223, at para. 49 :

"Credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis."

Rejection of Accused's Evidence

484I reject Mr. Ururyar's evidence. I cannot accept his evidence. His evidence about Ms. Gray's behaviour the evening of January 30, 2015 and the early morning of January 31, 2015 does not raise any reasonable doubt in my mind. On all the evidence, I am satisfied that they went into his bedroom, Ms. Gray sat on his bed and he took advantage of her.

485I have assessed the significance of any inconsistences in Ms. Gray's testimony. I believe Ms. Gray, notwithstanding any inconsistencies which I find are minor, and of no consequence in this court's accepting her evidence. See R. v. Francois , 1994 CanLII 52 (SCC) , [1994] 2 S.C.R. 827 at 836 and R. v. W. H., 2013 SCC 22 (CanLII) , 2013 S.C.C. 22 at para. 32 , [2013] 2 S.C.R. 180. The mere existence of internal inconsistencies in the testimony of a witness or inconsistencies between witnesses is not itself determinative of the credibility of the witness or the accuracy or reliability of their testimony.

Victim Response to Trauma

486Mr. Ururyar was well into the idea of sex the evening of January 30, 2015 and January 31, 2015. If it could be a threesome that would be even better. Mandi Gray was the wounded one, intoxicated, alone and vulnerable. It was Mandi Gray the accused chose to rape. This was not a bad dream. And on top of that Mandi is blamed, blamed because there were no symbols that it had not just been a bad dream unless there was a reminder from the hospital in her drawer. The court was constantly reminded, told, as if to traumatize the helplessness, the only one we can believe is Mr. Ururyar, because she, she Ms. Gray, cannot remember. What a job and a real bad one, trying to shape the evening. We must not create a culture that suggest we learn that rape is wrong through trial and error.

487How can you prove it? You don't remember. He knows you don't remember. He is going to write the script and he did. Testimony incomplete, memory loss, etc. etc. And, of course, typically, no dialogue in the story. One full sentence by Ms. Gray? What is it? No power, no voice, defenceless.

488To listen to Mr. Ururyar paint Ms. Gray as the seductive party animal is nothing short of incomprehensible. He went or tried to go to any length to discredit Ms. Gray, if not invalidate her. Such twisted logic.

Rape Myths and Victim Blaming

489Despite considerable research and publications in professional and popular journals concerning rape, [rape] myths continue to persist in common law reasoning. See Sarah Ben-David & Ofra Schneider, Rape Perceptions, Gender Role Attitudes, and Victim-Perpetrator Acquaintance , 53 Sex Roles 385 (2005).

490There is no demographic profile that typifies a rapist. There is a danger of stereotyping rapists. When the accused is a friend of the victim and uses that relationship to gain, and then betray the complainant's trust; there may be a need to be informed in order to recognize and understand the accused's predatory behaviour.

491No other crime is looked upon with the degree of blameworthiness, suspicion, and doubt as a rape victim. Victim blaming Is unfortunately common and is one of the most significant barriers to justice and offender accountability. Victim blaming can be expressed in several ways: victim masochism (e.g., she enjoyed it, wanted it), victim precipitation (e.g., she asked for it or brought it on herself), or victim fabrication (e.g., she lied or exaggerated). See Sarah Ben-David & Ofra Schneider, Rape Perceptions, Gender Role Attitudes, and Victim-Perpetrator Acquaintance , 53 Sex Roles 385, 386 (2005).

492Without consent, "No" means "No", no matter what the situation or circumstances. It doesn't matter if the victim was drinking, out at night alone, sexually exploited, on a date with the perpetrator, or how the victim was dressed. No one asks to be raped . The responsibility and blame lie with the perpetrator who takes advantage of a vulnerable victim or violates the victim's trust to commit the crime of sexual assault.

Nature of Rape and Sexual Violence

493Rape is an act of violence and aggression in which the perpetrator uses sex as a weapon to gain power and control over the victim. It is too common to redefine rape as sex and try to capitalize on the mistaken believe that rape is an act of passion that is primarily sexually motivated. It is important to draw the legal and common sense distinction between rape and sex.

494There is no situation in which an individual cannot control his/her sexual urges. See Barbara E. Johnson, Douglas L. Kuch & Patricia R. Schander, Rape Myth Acceptance and Sociodemographic Characteristics: A Multidimensional Analysis , 36 Sex Roles 693, 696 (1997). Sexual excitement does not justify forced sex and a victim who engages in kissing, hugging, or other sexual touching maintains the right to refuse sexual intercourse. Rapists do not rape because they want to have sex and many rapists also may have partners with whom they engage in consensual sex.

495We must not confuse sex with sexual violence and aggression. Most adult rape victims do not have any non-genital injuries from sexual assaults. See Callie Rennison, supra , Rape and Sexual Assault: Reporting to Police and Medical Attention , 1992-2000, Bureau of Just. Stat., U.S. Dept. of Just. (2002) (assuming that every rape victim suffers injury from the commission of the rape and referring to victims who suffered additional injuries in addition to the rape itself).

496Rape is a life-threatening event and victims make split-second decisions about how to react to sexual violence in order to survive. Some victims respond to the severe trauma of sexual violence through the psychological phenomenon of dissociation, which is sometimes described as "leaving one's body," while some others describe a state of "frozen fright," in which they become powerless and completely passive. Physical resistance is unlikely in victims who experience dissociation or frozen fright or among victims who were drinking or using drugs before being assaulted. Kimberly Lonsway, Joanne Archmbault & David Lisak, False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault, 3 The Voice, Nat'l District Attorneys Ass'n Newsletter, 8 (2009) available at http://www.ndaa.org/publications/newsletters/the_voice_vol_3_no_1_2009.pdf .

497To a rape victim, a threat of violence or death is immediate regardless of whether the rapist uses a deadly weapon. The absence of injuries might suggest that the victim failed to resist and, therefore, must have consented. The fact that a victim ceased resistance to the assault for fear of greater harm or chose not to resist at all does not mean that the victim gave consent. Each rape victim does whatever is necessary to do at the time in order to survive.

Victim Responses and Delayed Reporting

498Victims of sexual assaults respond in various ways, including the manner in which they report incidents, if at all. Many victims choose not to report their victimization because they believe that it is a private or personal matter, fear the defendant, or believe the police are biased against them. Callie Rennison, Rape and Sexual Assault: Reporting to Police and Medical Attention, 1992-2000, Bureau of Just. Stat., U.S. Dept. of Just. (2002).

512We are here to deal with realities. Victims of abuse, in fact often do not disclose it, and if they do, it may not be until a substantial length of time has passed. See R. v. D.D., supra , 2000 SCC 43 (CanLII) , [2000] 2 S.C.R. 275. Let us not stereotype victims of rape, particularly with the very much discounted doctrine of recent complaint.

Consent and Affirmative Communication

256Consent, for that matter the absence of consent, is a state of mind, Ms. Gray's state of mind towards conduct at the time and in the circumstances in which the sexual activity took place. Only Ms. Gray's actual state of mind matters. Consent has nothing to do with Mr. Ururyar's state of mind, or for that matter anybody else's state of mind.

257Consent is Ms. Gray's voluntary agreement to take part in the sexual activity that Ms. Gray said happened to her.

276The Supreme Court of Canada decided in M.(M.L.), 1994 CanLII 77 (SCC) , [1994] 2 S.C.R. 3 that the failure to offer some minimal word or gesture of objection should not always be equated with consent.

277Non-consent for the purposes of the actus reus is measured by whether the complainant in her own mind wanted the sexual activity to take place. See R. v. Ewanchuk , supra .

278A Complainant's words and behaviour may be evidence that confirms or contradicts her state of mind. There is no presumption of consent and no doctrine of implied consent. Non-consent for the purposes of mens rea may be measured by the communication of a "yes" by words or conduct.

279There is no doctrine of implied consent based on passivity or historical relationship between the parties. Consent must be contemporaneous and cannot be given in advance for touching that occurs when the complainant lacks capacity. See J.A ., 2011 SCC 28 (CanLII) , [2011] 2 S.C.R. 440.

280A belief in consent must be a belief that consent was voluntarily and affirmatively communicated by the words or conduct of the complainant. A belief that passivity or a law of objection is consent is a mistake of law, not a mistake of fact that can provide a defence.

Findings on Consent

515Is it wrong to cry if you were raped? Unlikely. Ms. Gray was very credible and trustworthy. Ms. Gray stated that she did not participate in anything from the time of sitting on Mr. Ururyar's bed until leaving the next morning. I accept her evidence. Of this, there is no doubt . The possibility of being pregnant, plan B. Rape it was. No confusion. No uncertainty to this Court. Ms. Gray was raped by the accused .

516Mandi Gray remembered what was important on January 31, 2015 and she is right. Asking her to remember the details is ridiculous. The accused grabbed her hair, as she has vividly described. He pushed his penis into her mouth and then intercourse followed. That happened. A nightmare.

517Who do we often blame for being raped? We blame ourselves. Ms. Gray wanted an apology from the accused. She did not want to believe Mr. Ururyar had raped her. Who would. How could the accused possibly rape Ms. Gray? He was supposedly sick. How did he have the strength to rape her, we are asked? Was he not anticipating consensual sex? Yes, but Mr. Ururyar was so angry, so, so angry, that he took power and control over Ms. Gray and violently raped her.

520Ms. Gray was raped on January 31, 2015. It is not about verbalizing.

521Mr. Ururyar came to the bar(s) for "hot sex" but maybe, just maybe he would be too sick. He was the ultimate game player, pushing to Ms. Gray and then pulling away from Ms. Gray. Ms. Gray becomes the slut for the night because the angry, angry accused wanted to seize on the opportunity of having a threesome and Mandi Gray had ruined it. Ms. Gray did not encourage Lacey to come to his apartment on his pretext of having a drink. Ms. Gray could not meet his sexual needs. He told her that. I accept he told her that. She was vulnerable. She was scared. He pounced. Forget the condom. I am in power. I am in command. He said to her and I agree, "this is the last time I am going to fuck you, this is the last time… and you are going to like it". Power, power, power. He was the boss and he loved it.

CONCLUSION

524The Crown has proven its case beyond a reasonable doubt.

525I therefore find Mr. Ururyar guilty of the charge before the Court.

Released: July 21, 2016

Signed: Justice M.A. Zuker