Publication Ban 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(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

DATE: 2022 04 07 COURT FILE No.: College Park, Toronto 20-7002581

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

R.R.

Before: Justice B. Jones

Heard on: March 28, 29 and 30, 2022 Reasons for Judgment released on: April 7, 2022

Counsel: C. Glaister, for the Crown P. Mota, for R.R.

Introduction

[1] R.R. is charged with sexual assault on T.L. contrary to Criminal Code section 271 and voyeurism for having taken a photo of T.L.’s breasts, surreptitiously, and without her consent, contrary to Criminal Code section 162(1)(b). Both charges arise from events that occurred on August 24 and 25, 2019 in the city of Toronto.

[2] The Crown proceeded by indictment. Mr. R.R. elected to have his trial before me and it was conducted on March 28-30, 2022. He pleaded not guilty to both charges.

[3] The Crown called one witness, Ms. T.L. The defence called R.R.

Testimony of T.L.

[4] T.L. was 21 years old when she testified. She was 18 years old at the time of the offences. She met R.R. via social media and they exchanged messages periodically. R.R. was approximately 10 years older than her. She had only met him once before, in person, and considered him an acquaintance.

[5] On August 24, 2019, he sent her a message asking her to spend time with him. She agreed to meet him at his private dance studio, named Prestige, after she was done work around 11:30 pm – 12:00 am. The studio was located on the east side of the city. When T.L. arrived, R.R. was not yet there. He arrived shortly thereafter in an Uber and they entered the studio. He took her on a tour as she had never been there before.

[6] Before attending R.R. asked T.L. to bring a bottle of Coca-Cola so they could mix it with alcohol. He provided the alcohol which was in a small plastic bottle. She was not sure of the exact type of alcohol. She thought it might have been Captain Morgan rum.

[7] R.R. poured them both drinks in plastic cups. She never handled the alcohol directly and let him mix their drinks. They talked, danced, and took pictures of themselves throughout the studio. Eventually T.L. became very intoxicated. In her words, she was “super drunk.” She vomited. It was the first time she had vomited from drinking too much alcohol. She did not remember where she was specifically when this happened but remembered ending up in the studio washroom with R.R. After she was sick he provided her with some water.

[8] They danced and talked some more, and then sat down. There was a section of the studio where R.R. put a blanket on the floor and placed a portable computer on a bench so they could watch a movie. She passed out at some point but was not sure exactly when this occurred. In her prior experience drinking alcohol, after she gets drunk she sits down and passes out quickly. She did not remember any of the movie.

[9] She later awoke to R.R. groping her. They were on the floor and he was lying against her back in a “spooning” position. She was on her left side. He put his hand under her shirt and touched her breasts. She was not wearing a bra. It felt like this lasted a long time. He then moved his hands down towards her genital area. He placed his fingers on her vagina underneath her underwear and attempted to insert his fingers inside her. She then heard him unbuckle his pants. She also heard what she thought was him masturbating. He pulled down her pants to approximately her knees. He tried to kiss her on her lips and then attempted to penetrate her vagina with his penis but he appeared to have difficulty and inserted it into her anus instead. She let out a grunt as this hurt.

[10] During the entire incident he was calling out her name, softly, in a manner akin to a whisper. She believed he was doing this to see if she was awake. She never opened her eyes and pretended to still be asleep. She was scared and did not know how to respond to what was happening. She felt “frozen” and just wanted it to stop. She clarified in cross-examination that she acted lifeless at the time as a survival instinct.

[11] She was not sure if he was fully erect or not but remembered feeling his hands and his penis on her body. Following her grunt, he got up and tried to fix her pants by returning them to where she originally had them. He went to another room where she heard the sound of running water and assumed he was cleaning himself. At this moment she opened her eyes to get a sense of her surroundings and to ensure she was still in the studio. She hoped she had imagined the entire incident but realized it was in fact truly happening to her.

[12] He returned and she closed her eyes again to pretend that she was not fully awake. He said he needed to change her shirt because she had vomited on it. She sat up so he could remove her shirt which he did. With her eyes still closed, she noticed what she perceived to be a bright flash. The only device she had seen previously capable of making such a flash was his iPhone. She assumed he had taken a photo of her breasts because she previously told him she had them pierced. She had no clothing on her upper body when the photograph was taken. He then put a different shirt on her, one that was adorned with his studio information.

[13] She stayed a bit longer and he called her an Uber to send her home. She provided him with her address. He told her he was going to Los Angeles the next day. He gave her a hat she wanted before she left. On the way home, she messaged friends around 4:30 am seeking help and advice about what she should do. No one responded as they were presumably asleep.

[14] Ms. Glaister presented T.L. with a document that contained a series of social media messages she exchanged with R.R. on August 29, 2019. The messages were sent between them via Snapchat. She explained that Snapchat messages will automatically disappear shortly after they are sent, but she took screenshots of some of the messages. She admitted the document presented to her by Crown counsel did not contain all of their messages, as she did not take a screenshot of each and every message, but testified it was overall an accurate representation of that conversation. No objection was taken to the admissibility of these messages and in my view they meet the authentication requirements found in section 31.1 of the Canada Evidence Act. T.L.’s testimony, if ultimately accepted, is capable of supporting a finding that these social media messages are an accurate representation of her conversation with R.R.: see R. v. C.B, 2019 ONCA 380 at para. 67. They were admitted into evidence as Exhibit 1.

[15] T.L. explained that R.R. had been teasing her about her nipple piercings in the Snapchat messages. In the messages she captured R.R. apologizes for his conduct and states he will not “use alcohol... as an excuse.” T.L. informed him she was in “shock” that he was capable of something “so disgusting” and asked if he had the photo as she wanted it. He replied that he deleted it and did not want it on his phone. He was “not really happy” with his actions and was “sorry” to “fuck it all up.”

[16] In cross-examination she accepted the suggestion put to her by defence counsel that R.R. may never have explicitly stated that he took a photo of her breasts in such specific terminology. T.L. was adamant this conversation nevertheless was about the photo taken of her breasts.

[17] A second series of social media messages from August 29, 2019 was introduced into evidence as Exhibit 2. T.L. begins this conversation by asking R.R. if that was all he wanted to talk about. He responded that he was “just tryna troll u after over the ring but I realized I was very in the wrong.” He then provided a screen capture of his phone’s camera roll which is where his recent photos and videos are stored. The camera roll screen capture did not contain any nude photo of T.L. but did contain other pictures she allowed him to take on consent while she was at his studio. He sent two more messages in which he stated “being intoxicated isn’t an excuse I’m sorry” and “piercing cause u were being shy.”

[18] T.L. again acknowledged some of the messages that formed part of this conversation were not present in the document presented by Crown counsel but said they were not important. Counsel for R.R. did not object to their admissibility when they were tendered into evidence but during the trial asked the court to note that T.L. did not provide all of the messages in these electronic conversations even though she could have taken screenshots of all of them.

[19] T.L. also identified a series of messages she exchanged with R.R. over Twitter on October 5, 2019. In this conversation R.R. asks if he can “make it up to her”, and she responds by calling him a rapist. These messages are sent at 8:02 pm. He unfollowed her so they could not exchange further direct messages via Twitter. She was able to view his public profile however where he posted a tweet at 8:06 pm that seemed dismissive of her accusation without expressly mentioning it. He tweeted, “Some people and their claims man. Not entertaining this.” This tweet, unlike the direct messages, was open to public view. It was her belief that the tweet was a response to the last message she sent him. These were admitted as Exhibits 3 and 4 and were properly authenticated by her.

[20] In cross-examination T.L. initially stated she did not make a 911 call about what happened to her on August 24, 2019. Mr. Mota played a 911 call and she admitted she did contact 911 to provide some basic information about the assault before providing a formal police statement. She explained that she thought Mr. Mota was asking if she called 911 shortly after the events occurred which she did not. Rather, she called 911 nearly a year later in June 2020.

[21] Prior to calling 911 she posted a series of messages on Instagram explaining that she had been sexually assaulted. She wanted to share her story. These posts were not made an exhibit during the trial but she accepted she did post them. Shortly thereafter she heard that the accused was considering pursuing legal action against her for these online statements. It was at that point she decided to contact the police.

[22] Mr. Mota asked her questions about how she met R.R. She agreed she first met R.R. in person on March 16, 2019 when they attended at an escape room together. It was a friendly encounter. She did not see R.R. again in person until August 24. However, they did communicate over social media from time to time.

[23] She provided a formal statement to the police which was audio and video recorded on June 4, 2020. Mr. Mota asked her about several aspects of this prior statement. She agreed she told the police that when she is drinking she is normally aware of everything that happens, and denied the suggestion that by contrast she was not aware of what happened on August 24 due to her level of intoxication. She maintained she remembered what happened to her, but admitted she was not entirely sure of the timeline of events. She may have arrived at the studio any time after 12am, but before 1am, and could not always place everything that happened with confidence in precise chronological order.

[24] She was confident that she watched the movie near the end of her time at the studio. She remembered that she wanted to remain there even after she vomited as she considered R.R. a friend and up to that point had been enjoying herself. She felt better and decided it was fine to stay. She denied a suggestion she had vomited a second time. Mr. Mota presented her with a picture of Soho Lychee alcohol which was contained in yet another series of electronic messages between her and R.R. She accepted this might have been the bottle of alcohol they drank from, and not Captain Morgan rum as she had stated earlier. She was not familiar with alcohol and may have confused what they drank on March 16 and August 24.

[25] She accepted she told the police in her statement she was not sure if R.R. had refilled her cup. Despite several questions in cross-examination on this topic, she was nevertheless certain R.R. did in fact keep refilling her cup on August 24/25 as he asked her several times if she was drunk enough. Even though she warned him she could not “take alcohol well” he persisted. She believed he was trying to make her drink more, but acknowledged she made the choice to drink herself.

[26] She agreed she told the police she could not remember if R.R. put a blanket down in the studio but was clear she remembered that in her courtroom testimony. With respect to the acts of sexual touching that occurred, she admitted she did not remember all the details well but was able to testify about the main aspects of what happened to her. In her statement to the police officers, she was unsure if R.R. had tried to insert his finger into her vagina but she explained she was now sure that happened. She also agreed that the police officers had used the term “skin to skin” to describe the sound she believed was R.R. masturbating, and that was why she used that term herself when testifying about that aspect of the events in court. In her opinion, that was the best way to describe what she heard.

[27] Mr. Mota noted that twice in her police statement she stated that R.R. took her pants and underwear down to her ankles, but in court she stated he only took them down to her knees. She explained her initial statement to the police was inaccurate in this regard, but she volunteered a subsequent police statement in which she clarified this point when she realized her initial error. She took it upon herself to call the police and provide this clarifying statement before what had originally been the date for the trial into these matters in late 2021.

[28] She denied any suggestion she was not conscious during the time she claimed she was sexually assaulted. She was always aware, but kept her eyes closed and went “lifeless” hoping the assault would cease. She did not dispute she had her eyes closed when she noticed a flash from what she presumed was R.R.’s iPhone. She was certain this took place in between him removing her original shirt and then putting the second shirt on her so that he could capture an image of her breasts.

[29] Mr. Mota also showed her a series of social media posts from Instagram taken after the events that occurred on August 24, 2019. T.L. can be seen in these pictures wearing the hat she said R.R. gave her that night. She agreed they accurately portrayed her and she posted them herself.

Testimony of R.R.

[30] R.R. was 29 years old when he testified. He had been a professional dancer but currently worked in a new career. He was enrolled at George Brown College and had studied at York University previously.

[31] He developed an interest in dancing in high school and joined a dance team at York University. He decided this was a career he wished to pursue. In 2018 he applied for a government program to assist entrepreneurs and by June 1, 2019 he had enough funding to sign a lease for his own dance studio. He had his grand opening on June 15. His studio was located near the intersection of Carlisle and Dundas in east Toronto.

[32] He met Ms. T.L. through social media. He accepted the general narrative of their friendship that she described. They communicated online somewhat regularly. In March 2019 they attended together at an escape room. They did not meet again in person until August 24, 2019.

[33] On that date he invited her to his studio. She finished work around 12am and he decided to meet her there. She arrived first. Once he arrived he took her on a tour of the studio. They attended at a thrift shop at the back where she requested a hat but he said he could not give it to her for free. They continued to explore the studio for about 30-40 minutes.

[34] He had a MacBook with him and he showed her some YouTube videos involving dance routines. She brought Coca-Cola with her and they drank that mixed with a bottle of Soho Lychee alcohol he already had at the studio. As the night progressed, they watched a movie. The movie was boring and they ended up dancing again and he took photographs of her near the logo in his studio with his iPhone.

[35] T.L. started to get tired and then acted like she might be sick. She vomited and he took her to his washroom. He gave her some water to drink. He then placed her down on her left side to ensure that if she threw up again she would not choke on it. While he was cleaning up the mess he noticed her re-attend at the bathroom where she threw up a second time. He checked on her and she did not respond to him. She appeared “wobbly.”

[36] She sat down on the floor and leaned against a wall. He offered her food. He told her she could not go home with vomit on her shirt and went to the thrift shop to get a new shirt. He asked her if she needed help changing her shirt and she said yes. He assisted her using a technique he learned as a dancer. This technique allowed her to have her original shirt removed while the second, new shirt was placed on top of the original shirt. This would ensure she could maintain her privacy even as the original shirt was removed. He presented a video of this technique which was made Exhibit 8.

[37] Shortly afterwards she decided to leave and he arranged for an Uber. He offered her the hat she wanted earlier as he felt bad she’d had a terrible experience. He poked her in the nose and took a photo of himself doing this. This photo was presented as part of a series of photos that formed part of a screenshot of R.R.’s camera roll on his iPhone that constituted Exhibit 7. This photograph was never shown to T.L and she never had an opportunity to testify if this photograph was taken on the night of August 24, 2019.

[38] He denied the Crown’s suggestions he touched her sexually at any point during the evening. He also denied taking a photograph of her breasts. He assumed T.L. was confused by the light emanating from his iPhone when he was using it to assist himself with cleaning up her vomit. She must have mistakenly assumed it was a flash from his phone’s camera, even though he never shone the light directly in her face.

[39] On June 2, 2020 he learned of the allegations against him when he discovered T.L’s Instagram posts. He was shocked. He decided to approach the police himself approximately two days later and provided a written statement before he was arrested or charged. That statement did not form part of the Crown’s case but was relied upon by Crown counsel for cross-examination with the consent of the defence. No issue was taken with respect to its voluntariness.

[40] In cross-examination R.R. was asked if he recalled T.L. telling him she knew nothing about alcohol. He did not recall that. Ms. Glaister presented him with social media messages they exchanged in which T.L. stated she knew nothing about alcohol. He claimed her response was merely in relation to a specific bottle of alcohol that was sent as an image in that conversation rather than a general remark about her familiarity with alcohol.

[41] He was asked if he knew she was only 18 and thus not of legal age to purchase alcohol. T.L. testified previously he was aware of her age. He said she never told him that and he did not know she was only 18. He was presented with more social media messages he exchanged with T.L. prior to their meeting in March 2019. In those messages she expressed concerns about getting carded and he said he knew a place that didn’t card. He denied the Crown’s suggestion that this was because he did in fact know she was too young to drink and thus did not have appropriate identification. Rather, he explained his responses in the social media messages should be understood as his belief that she didn’t have a form of identification she could use, but not that she was underage.

[42] He did not remember the size of the bottle of Soho Lychee alcohol they consumed on August 24 but accepted it could have been as large as 750 ml. He mixed and poured the drinks over the course of the evening but denied noticing she had become increasingly intoxicated. He did not know exactly how much of the bottle they consumed. It was only when she sat down and vomited that he became concerned. At that point, he thought the night was basically over.

[43] The only photographs he took of her were the ones of her posing near the logo in his studio and one of him poking her in the nose before she left. He initially claimed he did not use the flash on his phone to take the photographs, but subsequently in cross-examination he stated that “now I remember I had the flash on” when taking photographs of her because it would highlight or illuminate the stripes on her pants which was visually appealing.

[44] He confirmed that Exhibits 1 and 2 were social media messages he exchanged with T.L. His references to trolling her were just another way of saying he was joking around. He claimed any reference in the messages to a photograph was the photograph he took of himself poking her in the nose. When asked by Ms. Glaister why the messages referenced a “ring” and “piercing” he said he did not remember and without a complete record of the conversation he could not refresh his memory. He was also asked why he wrote to her he was “very in the wrong” and again claimed he could not remember without access to the entire conversation. He could not offer any explanation for why he made these remarks.

[45] In these messages he also stated “being intoxicated isn’t an excuse” in relation to his own actions on August 24. He claimed that was a reference to the photograph he took of touching her on the nose. That was the only unfortunate event that could have upset her during their time together, other than her vomiting.

[46] He admitted that Ms. T.L. was in a vulnerable state by the end of the night due to her consumption of alcohol. However, he denied she was incapable of responding to him or that she was so drunk she needed help with basic tasks. He had no explanation for why she could not simply have changed her own shirt that night without his assistance. He claimed she asked for help and he decided that changing her shirt in the manner he described was a means of respecting her privacy while assisting her.

Position of the Crown

[47] Ms. Glaister submits that I should accept the evidence of T.L. She was a credible witness. While she was intoxicated at the time of the sexual assault, she never denied this and it did not render her evidence unreliable. She provided sufficient detail of the nature of how she was touched and that I should be confident I can accept her testimony. That she was scared and did not know how to respond was entirely believable, as was her conduct after the incident. She cautioned me not to make assumptions about how a victim might respond to a sexual assault and rely on any form of forbidden reasoning.

[48] The defence evidence should be rejected as it was illogical and contradicted by the proper interpretation of the social media messages. T.L. did not consent to any touching of a sexual nature. On the voyeurism charge, she submits that the photograph was taken surreptitiously as R.R. took the photograph assuming T.L. was unaware of his actions. His intention, therefore, was to avoid detection, even if he failed in that regard.

Position of the Defence

[49] Mr. Mota submits that I should have serious concerns about T.L.’s credibility and reliability. In addition to her memory issues stemming from her degree of intoxication, various aspects of her evidence simply do not withstand scrutiny. She admitted that she had doubts about what was happening to her on the evening in question. She kept her eyes closed and thus could not directly observe any of the alleged touching. There were inconsistencies in her evidence when compared to her prior statements to the police. He asked me to consider that the reason she kept adding details to her version of the events was because she was attempting to amend and tailor her answers to her narrative’s obvious frailties. The problems with the timeline of events she described is further proof of her shifting narrative.

[50] T.L. did not report any of these allegations to the police until after she posted them publicly on social media and then heard R.R. might be pursuing legal action against her. This should also raise a reasonable doubt about her credibility. Her decision to post pictures of herself on Instagram in a hat given to her from her alleged abuser is also inconsistent with her allegations. Overall, she simply lacked the hallmarks of a truthful witness.

[51] By contrast, R.R. testified directly and should be believed. At a minimum, the totality of the evidence should leave me with a reasonable doubt on both charges.

Presumption of Innocence

[52] R.R. is presumed innocent. The Crown bears the onus of proving each element of both offences beyond a reasonable doubt. In R. v. Lifchus at para. 39, the Supreme Court of Canada held that “[a] reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.”

[53] In R. v. Starr, 2000 SCC 40, the Supreme Court held that reasonable doubt fell “much closer to absolute certainty than to proof on a balance of probabilities”: see para. 242.

Sexual Assault

[54] The actus reus of sexual assault requires the Crown to prove:

1. touching
2. of a sexual nature
3. to which the complainant did not consent.

See R. v. G.F., 2021 SCC 20 at para. 25; R. v. Ewanchuk at para. 25.

[55] The sexual nature of the touching must be determined on an objective standard, but the third element is determined by reference to the complainant’s subjective, internal state of mind at the time of the touching: R. v. Goldfinch, 2019 SCC 38 at para. 44; Ewanchuk, supra at paras. 25-26.

[56] The mens rea of sexual assault requires the Crown to prove that

1. the accused intentionally touched the complainant; and
2. the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent.

See G.F. at para. 25; Ewanchuk, at para. 42.

[57] How the accused perceived the complainant’s consent (or lack of consent) is analyzed as part of the mens rea requirement of the offence: see R. v. Barton, 2019 SCC 33 at para. 90; G.F., supra; R. v. H.W., 2022 ONCA 15 at para. 46.

[58] Consent is defined in the Criminal Code for the purpose of sexual assault in section 273.1(1). It means “the voluntary agreement of the complainant to engage in the sexual activity in question.” This requires the conscious agreement of the complainant to “every sexual act in a particular encounter”: see R. v. J.A., 2011 SCC 28 at para. 31.

[59] Section 273.1(2) of the Code lists the circumstances in which consent cannot be lawfully obtained. These include that the complainant is unconscious or incapable of consenting for any other reason.

[60] In G.F., the Supreme Court of Canada summarized the requirements for a complainant to be capable of providing subjective consent to sexual activity at para. 57. The complainant must be capable of understanding each of these four elements:

1. The physical act;
2. That the act is sexual in nature;
3. The specific identity of the complainant’s partner; and
4. That they have the choice to refuse to participate in the sexual activity.

Voyeurism

[61] In R. v. Trinchi, 2019 ONCA 356 at para. 12, the Ontario Court of Appeal held that Criminal Code section 162(1)(b) requires proof of the following elements:

1. The accused observed or recorded the subject;
2. The accused's observation or recording was done surreptitiously;
3. The subject was in circumstances that gave rise to a reasonable expectation of privacy;
4. The subject was nude or exposing sexual parts of her body or engaged in sexual activity; and
5. The observation or recording of the subject was done for the purpose of recording them in such a state.

[62] A surreptitious observation or recording is one conducted in such a manner that the accused attempted to avoid being noticed or acted secretively. The Court of Appeal held that a key element of the offence of voyeurism is that the accused had the intent that “the subject not be aware that she is being observed or recorded.” This may be inferred from relevant circumstantial evidence: Trinchi at paras. 46-47.

[63] The concept of a reasonable expectation of privacy in the context of the crime of voyeurism was addressed by the Supreme Court of Canada in R. v. Jarvis, 2019 SCC 10. The Court provided a non-exhaustive list of considerations for a court to consider when determining whether a person who was observed or recorded was in circumstances that give rise to a reasonable expectation of privacy at para. 29:

(1) the location the person was in when she was observed or recorded; (2) the nature of the impugned conduct (whether it consisted of observation or recording); (3) awareness of or consent to potential observation or recording; (4) the manner in which the observation or recording was done; (5) the subject matter or content of the observation or recording; (6) any rules, regulations or policies that governed the observation or recording in question; (7) the relationship between the person who was observed or recorded and the person who did the observing or recording; (8) the purpose for which the observation or recording was done; and (9) the personal attributes of the person who was observed or recorded.

Witness Testimony, Credibility and Reliability

[64] Credibility refers to a witness’ honesty. When assessing a witness’ credibility, a court should consider the nature of any inconsistencies contained within a witness’s testimony or between a witness’s testimony and any prior statements he or she made: see R. v. A.M., 2014 ONCA 769 at para. 12. Inconsistencies on important, significant aspects of the complainant’s allegations that are in dispute at the trial will be more important than those on minor, peripheral matters: see R. v. Mills, 2019 ONCA 940 at para. 220; R. v. G.M.C., 2022 ONCA 2 at para. 38. When determining what weight should be afforded the witness’ testimony, especially where there are inconsistencies on important features of that testimony, the court should review all other sources of independent, reliable evidence and determine whether or not that evidence supports, or contradicts, the witness’ testimony: see Barton, supra, at paras. 127-128.

[65] The plausibility, coherence and logic of a witness’ testimony will also be of crucial importance: see Goldfinch, supra, at para. 123.

[66] Credibility is distinct from reliability. The reliability of a witness’ evidence is concerned with the witness’ ability to observe, recall, and recount events accurately: G.F. at para. 81; R. v. H.C., 2009 ONCA 56 at para. 41. A credible witness can nevertheless be an unreliable witness: R. v. Slatter 2019 ONCA 807 at para. 60; reversed on other grounds, 2020 SCC 36. Honest witnesses are sometimes simply mistaken. They may sincerely believe events occurred that are based on unreliable sources of information, including memories.

[67] A court should consider the witness’ perspective and vantage point when she made her observations. An important consideration will be the degree of intoxication of a witness: see R. v. Patrick, 2020 BCCA 259 at para. 19. If a witness was overcome by emotions such as fear or anger when her observations were made that must also be considered: see R. v. Soulami, 2013 ABQB 435 at para. 48. In G.M.C., supra, the Ontario Court of Appeal noted that observations made by a witness “in the course of traumatic events may be difficult to recall and to describe accurately at a later date”, and a witness should not be expected to have a “faithful memory of minor incidents that occurred during a traumatic event”: see para. 38.

[68] In sexual-based offence trials there are specific cautions to keep in mind before assessing the evidence of the witnesses. The first is that there is an important, and significant difference between assessing evidence in light of “human experience and common sense” and relying on stereotypical myths. The latter, clearly, is a form of impermissible reasoning: see R. v. P.F.J., 2018 ABCA 322 at para. 13.

[69] I must caution myself against presuming I will know what a victim of a sexual assault will do in any given circumstance. Any findings I make need to have some supportive basis found in the evidence and should not be based simply on my own preconceived notions of human behaviour. There is no inviolable rule about how a victim of sexual abuse will behave. This includes how she may behave towards her abuser even after the events have occurred: see R. v J.L., 2018 ONCA 756 at paras. 46-47.

[70] The Ontario Court of Appeal in R. v. J.C., 2021 ONCA 131 articulated two overlapping rules to protect against stereotypical reasoning that I must follow:

(1) The rule against “ungrounded common sense assumptions” and (2) The rule against “stereotypical inferences”.

[71] The first rule demands that judges must avoid “speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice”: see para. 58. The second rule requires that “factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour”: see para. 63.

[72] Sexual assaults are often committed in private, where the only witnesses to the assault itself will be the complainant and the alleged perpetrator. While this may make credibility or reliability findings difficult to articulate, they remain crucial to a court’s fact-finding function: G.F., supra at para. 81. A trial judge may convict based on the unconfirmed evidence of a witness even where there is a significant delay in reporting the sexual assault: see R. v. A.G., 2000 SCC 17 at para. 30. Where there is confirmatory evidence, that may impact the court’s credibility assessment of a witness’ testimony, even where that evidence may not directly confirm the offence itself: see R. v. J.B., 2022 ONCA 214 at para. 34; R. v. Demedeiros, 2018 ABCA 241 at para. 8, aff’d 2019 SCC 11.

[73] In any criminal trial where the Crown’s case turns almost exclusively on the testimony of a single witness, the testimony of that witness must be carefully and critically reviewed in the context of all the evidence presented at the trial. Any inconsistencies or discrepancies within the witness’ evidence must be addressed especially in light of the position of the defence and the legal arguments raised in support of that position: R. v. Parr, 2020 NUCA 2 at para. 42; R. v. Wanihadie, 2019 ABCA 402 at para. 38; R. v. Williams, 2018 ONCA 138 at paras. 33-40.

[74] A criminal trial is not a “credibility contest where the trier of fact must choose whether to believe one side or another”: R. v. I.W.S., 2017 ONCA 409 at para. 14. Rather, I must be guided by the Supreme Court of Canada’s decision in R. v. W.D. (1991) and approach the evidence with the following framework:

1. If I accept the testimony of the accused he must be acquitted.
2. Even if I do not believe the testimony of the accused, if I find I am nevertheless left with a reasonable doubt, I must acquit the accused.
3. Even if the defence evidence does not leave me with a reasonable doubt, I must consider all of the evidence including the evidence adduced by the Crown when determining if the Crown has proven beyond a reasonable doubt all of the essential elements of the offences against the accused.

Assessment of Evidence and Findings

Evidence of T.L.

[75] Most of what occurred on the evening of August 24, 2019 and in the early morning hours of the next day is not in dispute. Both T.L. and R.R. acknowledged they were acquaintances who had met once previously. They had a friendly online relationship. He invited her to his dance studio and she wanted to attend. The start of their evening together was pleasant and fun. It was only after she had consumed too much alcohol that their evidence diverged.

[76] T.L. presented very well, providing detailed and comprehensive evidence. She testified in a straightforward manner, answering all questions asked of her by both counsel without hesitation. While admitting she had a significant amount of alcohol to drink and that this caused her memory lapses, she was able to recall and recount the important details of that night. When she was unsure of what happened, she admitted to frailties with her memory. She accepted there were some inaccuracies in her original statement to the police but did her best to correct them. She was able to provide a specific description of all features of the assault she experienced and her reasons for concluding a naked photograph of her breasts had been taken without her consent. She remembered the flash and that he had been using his phone to take pictures earlier that evening. She never denied or attempted to minimize she was heavily intoxicated and eventually passed out.

[77] She did not embellish her evidence nor attempt to denigrate the character of R.R. She was forthright that they had a friendly relationship online, he had been kind to her, she had a good time prior to the touching, and he offered to get her food and water. She was never forced to drink, but rather chose to do so.

[78] While I appreciate the absence of embellishment, like the absence of inconsistencies, “cannot be used as a makeweight in favour of a complainant’s credibility”, T.L.’s evidence was detailed and consistent and withstood cross-examination: see R. v. J.L., 2022 ONCA 271 at para. 12; R. v. Jaraar, 2021 ONSC 8277 at para. 38; R. v. Alisaleh, 2020 ONCA 597 at paras. 16-17; R. v. Kiss, 2018 ONCA 184 at para. 52.

[79] When Mr. Mota put suggestions to her in cross-examination she denied them when she believed they were incorrect, but admitted and clarified matters she agreed were true. The inconsistencies in T.L’s evidence were, for the most part, of little significance. For example, I accept her explanation that she was initially confused by the question about when she made a 911 call. She thought counsel was asking her if she made the call immediately after the events on August 24 and answered honestly, that she did not. Rather, she made the call nearly a year later when she was ready to report what happened.

[80] The discrepancies between her courtroom testimony and prior police statement were also mostly minor. Her timeline of the events remained almost entirely consistent. That she was confused about the type of alcohol they consumed on August 24 as opposed to the type they shared on March 16 is of no moment. She was very young, not even of legal drinking age, and was not familiar with different types of alcohol. Similarly, her recollection that R.R. put a blanket down on the floor before they watched the movie which was not a detail she provided in her police statement is not significant.

[81] Of potentially more significance is that she told the investigating officers she was not sure if R.R. attempted to put his finger into her vagina, whereas in court she testified she remembered that occurring. She also testified that R.R. pulled her pants down to her knees, but in her police statement she said it was near her ankles. Those are important details. However, I may accept some, none or all of her evidence: see R. v. C.P., 2021 SCC 19 at para. 35. Furthermore, as she was both intoxicated and experienced a traumatic event, it is understandable that she might have difficulty recalling some of these details with precision: see G.M.C., supra at para. 38. She explained she “froze” due to her fear, just wanted it to stop, and acted still or lifeless as a survival instinct.

[82] I note as well she contacted the police herself to provide a second statement and clarify any errors she thought she made in her first statement after she reviewed it in preparation for the first scheduled trial date in 2021.

[83] She accepted she described the sound of R.R. masturbating as “skin to skin” when she testified because she had first heard those words during her police interview. She considered this the best way to describe it. Nothing, in my view, hinges on this turn of phrase or when she first heard it.

[84] Despite being subject to a lengthy cross-examination on various details of her prior statement, she did not depart from the main aspects of her evidence with respect to the sexual touching she experienced, how she felt, and why she acted the way she did in response to the assault. The chronology of her narrative was not disrupted either. She was unshaken on the salient points of her evidence which speaks highly of her credibility and reliability. Furthermore, her evidence is not rendered less worthy of belief because her initial response to the trauma was that she did not want to believe it was really happening: see R. v. M.R., 2021 ONCA 572 at para. 40.

[85] Not calling the police immediately following the assault, accepting of a hat from R.R. and posting pictures of herself wearing the hat on Instagram do not detract from her credibility whatsoever. In my view the argument Mr. Mota makes about these features of her evidence is akin to suggesting there was something abnormal about her behaviour following the abuse which should cause me to make an adverse finding about her credibility. There is no inviolable rule about how someone subjected to trauma will react. It may take her time to appreciate what has happened, and process internally how she wishes to respond. She may present outwardly as if nothing bothered her due to embarrassment, guilt, a lack of understanding or denial. A delay in reporting, by itself, will never make a victim less credible. To draw negative inferences from these examples of her conduct following the sexual assault is to risk delving into forbidden stereotypical myths: see R. v. D.R., 2022 NLCA 2 at paras. 39-40; Kiss, supra, at para. 101; R. v. D.D., 2000 SCC 43 at para. 65.

[86] T.L. explained she did contact her friends as soon as she left the dance studio but given the time of day no one was awake and thus did not respond to her immediately. It was not until June 2020 that she decided to tell her story about this evening through social media posts. R.R. became aware of these posts and attended at the police station voluntarily in response. It was suggested to T.L. that she heard he was contemplating legal action and this prompted her to speak to the police herself. There may be some limited circumstances in which the timing of disclosure of a sexual assault to the authorities may be relevant to assessing a complainant’s credibility: see R. v. J.M., 2018 ONSC 344 at paras. 66-67; R. v. L.S., 2017 ONCA 685 at paras. 87-89. I accept T.L.’s explanation for how and when she shared her experience, first online and then with the police. Mr. Mota did not argue recent fabrication as part of his defence and I find nothing turns on this aspect of her evidence.

[87] Overall, I found T.L. to be an honest witness who answered questions in both chief and cross-examination fairly and accurately. Her demeanour in the witness stand was calm and dispassionate, although such observations should be afforded limited weight: see J.L., supra at para. 6; R. v. Hemsworth, 2016 ONCA 85 at para. 44. I accept her evidence with respect to how the sexual assault occurred subject to a few qualifications. While she was intoxicated that evening and admitted to some problems with her memory, by the time the sexual assault occurred I find she was alert and aware of what was happening to her.

[88] I approach with caution the social media evidence that was presented during the Crown’s case. Courts must always be “rigorous in their evaluation” of digital evidence, “both in terms of its reliability and its probative value”: R. v. Aslami, 2021 ONCA 249 at para. 30. Trial judges must be cognizant of the dangers of placing too much trust in text messages, social media evidence and other forms of digital evidence generated from “apps” without a proper scrutiny of the authenticity of that evidence: Aslami at para. 11. It is not difficult for someone to manipulate a conversation consisting of electronic messages with the intent to mislead by either removing messages or even altering the content of the messages themselves. In this case, even with those considerations in mind, I accept T.L.’s explanation regarding the contents of the messages she exchanged with R.R. both over Snapchat and Twitter. There was no suggestion put to her that they were inaccurate or manipulated, only that the omission of some of the Snapchat messages failed to capture the full context of that conversation. R.R. himself accepted their accuracy when he testified, although he insisted some of the messages were missing.

[89] The messages confirm a very important aspect of her testimony – that R.R. took a photo of her breasts while he thought she was unaware and had her eyes closed. I have no reason to doubt T.L.’s description of the Snapchat messages as being in relation to the photograph taken of her breasts and R.R.’s attempt to apologize for taking it without her consent. She told him that she was in “shock” that he was “capable of something so disgusting” and asked if he still had the photo. He told her he deleted it and was “not really happy with my actions.” He also wrote to her that he was simply trying to “troll” her “over the ring” and realized he was “in the wrong.” He also referenced her piercing. He sent her a screen capture of his camera roll to demonstrate to her the offending picture was no longer present. The only logical interpretation of these messages is that he was referencing the picture taken of her breasts which were pierced.

[90] While not disputed at the trial, this photograph was taken in circumstances that established a reasonable expectation of privacy. In Jarvis, supra, the Supreme Court of Canada held that individuals have “heightened privacy expectations with respect to intimate or sexualized parts of the body”: see para. 82. T.L. never consented to this photograph being taken. At the time she was intoxicated and essentially helpless. From R.R.’s perspective, she was also unaware of what was occurring. It was taken of her breasts, which are a sexual part of the female body. She had a reasonable expectation of privacy with respect to a digital image of her own naked body and it was violated when he took this photograph.

[91] Furthermore, the photograph was taken surreptitiously. R.R. took this photograph when he thought Ms. T.L. was not fully awake and she would not know he took it. His intention was to avoid being noticed and therefore had the requisite intent required by Trinchi, supra. I find that he did take this photograph in these circumstances.

Testimony of R.R.

[92] By contrast, R.R.’s evidence was not believable. It was internally inconsistent, contradicted by the social media exhibits, and his answers to various questions during cross-examination were simply illogical. He also had convenient memory lapses when it suited him.

[93] He was asked if he knew T.L. was younger than 19 and thus unable to lawfully purchase alcohol. He denied having this knowledge. The social media messages presented to him from March 2019 wherein she expressed concerns about being carded and he responded that he knew a location that didn’t card demonstrate he did know she was younger than 19. His denial of this entirely common sense inference from these messages is simply not worthy of belief and his answers were an attempt to mislead the court.

[94] Concerning the events on August 24, 2019, his evidence regarding the use of a flash on his phone was inconsistent. He first testified he did not use the flash but later admitted when Ms. Glaister pressed him on this point that he remembered he did have the flash on so he could take photographs that would illuminate the stripes on her pants. Those photographs were taken prior to the naked photograph of T.L.’s breasts providing evidence to confirm her belief that a flash was used.

[95] I found R.R.’s explanation of why he had to change T.L.’s shirt implausible. He testified that she was vulnerable and intoxicated but also insisted she was responsive and mobile. When asked why she could not change her own shirt he simply said, “I don’t know.” He also accepted it would have been just as easy for T.L. to change her own shirt as to go through the complicated mechanics of changing her original shirt while wearing the second shirt (and as depicted in Exhibit 8.) Certainly, he could have simply offered to leave her alone in the washroom in the studio with the new shirt. I find this explanation was fabricated to try and conceal his true intentions for removing her shirt – to take a naked photograph of her breasts.

[96] The most troubling evidence with respect to R.R.’s credibility comes from his testimony surrounding the social media messages contained in Exhibits 1 and 2. He had no explanation whatsoever for why he used the terms “ring” and “piercing” and feigned memory loss. While I appreciate some of the messages that formed part of this conversation were missing, he was part of this conversation and had no difficulty remembering any other details of his prior interactions with T.L. He also could not explain why he wrote he was “very in the wrong.” He insisted that the photograph they were discussing was not a photograph of T.L.’s breasts but rather the photograph of him poking her in the nose. He told her he deleted the photograph and showed her a screen capture of his camera roll which did not have a copy of a picture of her breasts. But it did have a photograph of him poking her in the nose, which makes no sense if his point was to show her that photograph had been deleted. The nose-poke photograph clearly had not been deleted. I do not accept his evidence that this photograph was even taken on the night of August 24 / 25 and I heard no other evidence about its origins.

[97] He also testified he was not very intoxicated on the night of August 24 as he was intending to take a flight to Los Angeles the next day. Yet in these messages he admits he was “intoxicated” and that did not excuse his actions. The messages suggest he was far more intoxicated than he presented during his testimony in chief.

[98] These messages confirm T.L’s evidence that a photograph of her breasts had been taken without her consent. R.R.’s responses are essentially a confession. His testimony that his responses are properly characterized as referring to the nose-poke photograph is not worthy of belief and does not raise a reasonable doubt in my mind.

[99] R.R.’s testimony regarding the messages he exchanged with T.L. over Twitter on October 5 and the public post he made that same evening is similarly noteworthy for its implausibility. The messages culminate in her accusing him of being a “rapist” at 8:02 pm. He then made a public post at 8:06 pm, only four minutes later: “Some people and their claims man. Not entertaining this.” It was obviously a response to her accusation. His testimony that he did not receive this final message and his tweet was about accusations involving a prior dance competition he was involved with that generated some public outcry instead was unbelievable. T.L. explained in her testimony that he blocked her on Twitter after she sent the final direct message which included the rapist accusation. This is logical and I accept her evidence in this regard.

[100] I do not accept the defence evidence and nor do I find it leaves me with a reasonable doubt on any of the essential elements of the offences before the court when considered in light of all of the evidence presented at the trial: see R. v. Thomas, 2012 ONSC 6653 at para. 24. It is illogical, contains inconsistencies, and was contradicted by the evidence I do accept, including T.L.’s testimony and the social media messages.

[101] Fundamentally, I must then determine whether or not the Crown has met its burden based on the evidence I do accept: R. v. Knezevic, 2016 ONCA 914 at paras. 30-31. I conclude that T.L. was sexually assaulted. I find that while T.L. was lying on the ground after she passed out at the dance studio, R.R. put his hand under her shirt and touched her breasts. This caused her to awake but she kept her eyes closed out of fear. He then moved his fingers down to her vaginal area. I am uncertain that he inserted his fingers into her vagina and thus will not find that aggravating fact. I find that he next unbuckled his pants and began to masturbate to gain an erection. He then removed her pants and underwear down to her knees and tried to penetrate her vagina with his penis. Instead, he penetrated her anus just slightly and she made a grunt as this caused her some pain. She did not consent to any of this activity and consent was not raised as a possible defence in any event.

[102] As previously stated, I accept that R.R. took a photograph of her naked breasts surreptitiously and in circumstances that give rise to a reasonable expectation of privacy. This occurred after he removed her shirt following the sexual assault. He simply took advantage of a young woman who had placed her trust in him while she was vulnerable.

Conclusion

[103] I find R.R. guilty of both counts.

Released: April 7, 2022 Signed: Justice Brock Jones