Reasons for Judgment

Court File No.: CR-23-10000374
Date: 2025-07-02
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Jevor Brown

Appearances:
R. Verboom, for the Crown
C. Angelini, for Mr. Brown

Heard: November 25–December 4, 2024

Judge: R. Maxwell

I. Overview

[1] Mr. Brown is charged with sexual assault with a weapon, using an imitation firearm to commit the indictable offence of sexual assault, forcible confinement, and sexual assault as a party with another arising out of an incident which occurred on July 10, 2019 at a condominium building located at 111 Bathurst Street.

[2] Mr. Brown elected to have a trial before me and pleaded not guilty to the charges.

[3] Mr. Brown concedes that he sexually assaulted the complainant K.M. after she was led from an elevator to a stairwell on the 8th floor of 111 Bathurst Street. He concedes that he had vaginal intercourse with her without her consent. He further concedes that the sexual assault took place at the same time that his former co-accused, Shayne Codrington, was sexually assaulting K.M. by forcing her to perform oral sex on him.

[4] The issues in dispute are:

i. Does the defence of duress apply to the sexual assault he committed?
ii. Was Mr. Brown a party to the offence of using an imitation firearm to commit the indictable offence of sexual assault (Count 2), sexual assault with a weapon (Count 6), and forcible confinement (Count 4) with his former co-accused Mr. Codrington?

[5] The Crown called the complainant K.M. on the trial and filed numerous video surveillance segments from surveillance cameras located in different places within 111 Bathurst Street as well as footage from an alleyway between 111 Bathurst Street from a neighboring building, and from an Esso gas station. The Crown also called Ms. McLauglin, the building manager of 111 Bathurst Street. An Agreed Statement of Facts was also filed as part of the Crown’s case. I will discuss the admitted facts and other facts which, although not the subject of an Agreed Statement of Facts, are not contested.

[6] The Crown also brought a pre-trial motion seeking to have Mr. Brown’s statement to the police, given on July 16, 2019, admitted for purposes of cross-examination on the trial. In brief oral reasons given on November 27, 2024, I concluded that the Crown had established the voluntariness of Mr. Brown’s statement beyond a reasonable doubt and admitted the statement for the limited purpose of cross-examining Mr. Brown if he testified. My full reasons on the voluntariness voir dire are attached to these reasons as Appendix A.

[7] Mr. Brown testified on the trial. No other defence evidence was called.

II. Background Facts

[8] The evidence of the circumstances leading up the sexual assault are not in dispute.

[9] In July of 2019, K.M. was a 19-year-old student visiting Toronto for the first time with three friends. They had driven from Montreal to Toronto two or three days earlier. She and her friends had rented a unit on the 14th floor of 111 Bathurst Street through Airbnb.

[10] On the night of July 9 into July 10, 2019, K.M. was sleeping in the condo unit but was awakened because two of her friends could not get back up to the unit from the lobby level. I accept the evidence that the rental only came with one electronic FOB which allowed access to the elevators and doors at 111 Bathurst Street.

[11] Based on the video surveillance from 111 Bathurst Street, around the time that K.M. received information that her friends needed to be let in, Mr. Brown and Mr. Codrington were making their way from the parking garage of the building to the main lobby. They followed a resident of the building into the main lobby. After entering an elevator with a resident, they got off at the 14th floor.

[12] K.M. left her unit to meet her friends and approached the elevator bank on the 14th floor. She saw two men standing near the elevators. It is an agreed fact that the two men who she encountered near the elevator were Mr. Brown and Shayne Codrington. K.M.’s description of both men’s clothing and general physical characteristics was consistent with their appearance in the elevator surveillance video. Mr. Brown was wearing dark-coloured jeans, a t-shirt and no hat. Shayne Codrington was dressed in blue jeans and a belt, a striped t-shirt, a baseball cap, and sunglasses.

[13] The video surveillance establishes that K.M. pressed the button to call for the elevator. When it arrived, she entered the elevator. Mr. Brown and Mr. Codrington followed her into the elevator.

[14] It is at this point that the interactions between K.M., Mr. Codrington, and Mr. Brown began.

III. Analysis

A. The Evidence

[15] As noted above, Mr. Brown concedes that he had sexual intercourse with the complainant without her consent in the stairwell while Mr. Codrington was also sexually assaulting her by forcing oral sex on her. As such, I have no difficulty concluding that all of the elements of the offence of sexual assault with another have been established beyond a reasonable doubt.

[16] However, given that there are differences between the complainant’s evidence and that of Mr. Brown regarding what specific acts occurred during the sexual assault and how Mr. Codrington was interacting with Mr. Brown which are relevant to the defence of duress, Mr. Brown’s liability as a party the offences involving the firearm, and his liability for forcible confinement, I will review the evidence of both Mr. Brown and the complainant about the events in the hallway and stairwell.

[17] K.M. testified that after she entered the elevator, she felt uneasy and attempted to use her cell phone to send a text to her friend. I accept her evidence that after the elevator door closed, Mr. Codrington, who had been standing on the wall opposite to where she stood near the panel of elevator buttons, approached her and said something to her about having “fun” or “pleasure” then removed her cell phone from her hands. I accept her evidence that when she reached out to try and take her cell phone back, Mr. Codrington pulled out what appeared to be a firearm from his right-side pocket or waist. The entire interaction between Mr. Codrington and K.M. is captured on the video surveillance and is consistent with K.M.’s testimony. She testified that the other man (Mr. Brown) was “just there facing us and looking at us”. I accept her evidence on this point. The video surveillance shows that Mr. Brown remained standing on the opposite wall and watched the interaction. At one point when Mr. Codrington produced the imitation firearm, he slowly raised his hand to his mouth area, but otherwise did not move.

[18] I accept K.M.’s evidence that when the elevator reached the ground floor, a woman was standing at the door to get on the elevator, but did not board. She testified that Mr. Codrington put the gun away at that point. I accept her evidence that Mr. Codrington concealed the firearm when the elevator was on the ground floor. The video surveillance captures him concealing the imitation firearm in his waist area. When the door opened on the ground floor, Mr. Codrington appeared to press a button on the panel and the door closed again without anyone getting on or off the elevator.

[19] The video surveillance captures that as the elevator began to go up, Mr. Codrington again removed the imitation firearm from his waist area then reached out and lowered the right strap of K.M.’s dress. K.M. can be seen quickly lifting the strap back onto her shoulder. Seconds later, Mr. Codrington again lowered the right strap of K.M.’s dress and attempted to lower the front of her dress by pulling on the fabric at her breasts. K.M. held the front of her dress. Mr. Brown remained in his position against the wall and did not interact with either Mr. Codrington or K.M.

[20] While there is no audio on the video surveillance, it appears that K.M. briefly spoke to Mr. Codrington. K.M. testified that she spoke to him in English and pleaded with him to return her phone and to not do anything to her. I accept that K.M. asked Mr. Codrington while they were in the elevator to not do anything to her.

[21] Mr. Codrington can then be seen in the surveillance video grabbing K.M. by her hair (which was styled in long braids) and pulling her off the elevator, which had stopped on the 8th floor. Mr. Brown, who had remained in the same position standing on the elevator wall opposite from K.M., followed Mr. Codrington and K.M. off of the elevator. In examination in chief, K.M. was unable to remember what floor the elevator stopped, but accepted on watching the video that it stopped on the 8th floor.

[22] There is no video surveillance from the point that all three exited the elevator.

[23] K.M. testified that she was taken to a nearby stairwell. She testified that Mr. Codrington walked beside her, and Mr. Brown walked behind them. She could not recall seeing the imitation firearm on the short walk from the elevator to the stairwell. She testified that Mr. Codrington entered the stairwell first, dragging her in by her hair. He continued to hold her hair once they were inside the stairwell. I accept her evidence on all of these points.

[24] In cross-examination, K.M. accepted that Mr. Brown did not make any physical contact with her until they entered the stairwell.

[25] I accept her evidence that once they were inside the stairwell, she saw Mr. Codrington with the imitation firearm “in the front”. He walked down between two floors, pushed her against the wall and began to choke her. I accept her evidence that Mr. Codrington choked her for a few minutes then, while she was still pinned against the wall, lowered the straps of her dress and touched her breasts.

[26] K.M. testified that while Mr. Codrington had her pinned to the wall, Mr. Brown stood beside Mr. Codrington and faced her, but he did not do anything.

[27] K.M. testified that Mr. Codrington then lowered his pants and told her to “suck him”. He sat down on a step and forced her to perform fellatio on him. She testified that Mr. Brown initially sat beside Mr. Codrington while Mr. Codrington forced her to perform fellatio. She testified that the gun was initially in Mr. Codrington’s hand, but he put it down on the stair in order to hold her head during the fellatio. She testified that while she was performing fellatio, Mr. Codrington took out her phone and told her to enter the code for the phone. She complied because she was afraid. She testified that Mr. Codrington then used her phone, but she did not specify what he was doing with her phone.

[28] K.M. testified that other than yelling at her to continue to perform oral sex on him, telling her to “shut the fuck up”, and demanding that she enter the code for her phone, Mr. Codrington did not say anything else to her. In cross-examination, it was suggested to K.M. that she could not understand everything Mr. Codrington said when they were in the stairwell. She agreed with the suggestion that the men spoke in “street slang” to her, but denied they spoke to each other in street slang. She accepted that she had some difficulty understanding everything they were saying because they spoke quickly, they spoke in street slang, she was scared, and because they were speaking in English and her primary language is French. However, she rejected the suggestion that Mr. Codrington was speaking aggressively to Mr. Brown.

[29] In cross-examination, she accepted that, in contrast to Mr. Codrington, Mr. Brown barely spoke during the incident. She rejected the suggestion that Mr. Brown’s voice was the “opposite” of Mr. Codrington’s “aggressive” voice. She was taken to a transcript of her statement to the police given in May of 2019 and accepted that she said the “other guy”, meaning Mr. Brown, had a voice which was “opposite”, but testified she had no memory of that being the case. When pressed on the point, she testified that the way Mr. Brown talked was aggressive, but she could not remember his voice. In re-examination, K.M. testified that Mr. Brown also told her to “shut the fuck up” during the assault in the stairwell.

[30] K.M. testified that while she was performing fellatio on Mr. Codrington, Mr. Brown stood up from the step and positioned himself to stand behind her. She testified that he lifted her dress and started to penetrate her vagina with his finger. She described the digital touching as “aggressive”. She could not say how many fingers he used, but stated that it was extremely uncomfortable. She testified that Mr. Brown continued to digitally penetrate her for a few minutes then penetrated her with his penis while touching her buttocks and breasts aggressively. She could not recall how long the sexual intercourse lasted, but estimated it could have been 10 minutes. She was unable to turn her head because Mr. Codrington was still holding her head to force fellatio.

[31] In cross-examination, it was suggested to K.M. that she would have been unable to see any interaction between Mr. Codrington and Mr. Brown, and what Mr. Codrington was doing with the gun, while her head was down. She rejected this suggestion, testifying that although she could not see Mr. Brown behind her, she could see Mr. Codrington in front of her and the hand in which he held the gun was not far away from his body. She denied that he ever behaved or gestured aggressively with the gun toward Mr. Brown. She rejected the suggestion that Mr. Codrington at any point spoke aggressively to Mr. Brown. She accepted that if his hand holding the gun was over her head, she would not be able to see what gestures he was making, but denied that his hand ever went over her head. She denied that Mr. Codrington was waving the gun around.

[32] In cross-examination, she rejected the suggestion that it was only Mr. Codrington who touched her breasts. She maintained that Mr. Codrington touched her breasts when he had her pinned to the wall, but that it was Mr. Brown who touched her breasts when he had vaginal intercourse with her from behind.

[33] In cross-examination, K.M. was taken to her evidence given on the preliminary hearing where she testified that the two men “swapped” roles, in that Mr. Brown penetrated her after Mr. Codrington penetrated her. K.M. accepted that she gave this evidence at the preliminary hearing, but testified that she could not remember whether this happened. However, she denied being confused about who touched her breasts.

[34] K.M. testified that the sexual assault ended when there was a noise which sent both Mr. Codrington and Mr. Brown running down the stairs.

[35] After Mr. Brown and Mr. Codrington fled, K.M. returned to her floor where she met her friends. She was crying and distraught. In the morning, she spoke to the receptionist to ask about security cameras. Ultimately, the police were contacted. K.M. also went to a hospital. She had scratches on her body, redness to her neck, and soreness to her stomach area. She underwent a sexual assault examination kit.

[36] Evidence of the analysis of swabs taken from the external and internal areas of the complainant’s vagina and a comparison conducted by the Centre for Forensic Science with a known sample of Mr. Brown’s DNA confirmed that Mr. Brown was the source of semen deposits.

[37] K.M. described feeling terrified during the incident.

[38] I have considered K.M.’s evidence of the events which occurred on the walk to the stairwell and inside the stairwell in the context of all of the evidence, including Mr. Brown’s evidence. I found K.M.’s evidence overall to be credible and reliable. She was not shaken in cross-examination on any fundamental points of her narrative about the sexual assault. I found K.M.’s evidence to be reliable and credible. Her evidence was detailed and clear.

[39] In my view, the only material inconsistency in K.M.’s evidence concerns whether Mr. Brown and Mr. Codrington “swapped places”, meaning they each had vaginal intercourse with her from behind while the other forced fellatio on her. K.M. conceded that she gave this evidence at the preliminary hearing, but could no longer recall whether that in fact happened. On the basis of her evidence and Mr. Brown’s denial that he ever forced fellatio on her. I am not persuaded beyond a reasonable doubt that Mr. Brown forced fellatio on the complainant while Mr. Codrington had vaginal intercourse with her. However, I do not view this inconsistency as undermining the overall reliability and credibility of her account of what Mr. Brown did when he was behind her. She was consistent and clear in her evidence. I accept her evidence that the hands grabbing her buttocks and breasts where those of the person penetrating her from behind while Mr. Codrington was in front of her. I find as a fact that these acts occurred.

[40] I will make additional findings of fact related to K.M.’s evidence about what she heard and the interactions between Mr. Codrington and Mr. Brown during the sexual assault when I address the elements of the duress defence.

[41] On the basis of the facts as I have found them, including Mr. Brown’s admission that he had vaginal sexual intercourse with K.M. without her consent and while Mr. Codrington also sexually assaulted her, I find that all of the elements of the offence of sexual assault with another have been proven beyond a reasonable doubt.

The Evidence of Mr. Brown

[42] Very few details of Mr. Brown’s relationship with Mr. Codrington emerged in his evidence in examination in chief. He testified in examination in chief that he had no real relationship with the person he was with on July 10, 2019 and described him as “an acquaintance”. He denied knowing his name, or knowing him by the name “Shayne”. He referred to him as “the man in the ball cap” throughout his evidence.

[43] In cross-examination, Mr. Brown testified that sometime in the evening of July 10, 2019, he was standing outside of a beer store in his neighborhood of Jane and Finch, drinking beer. The man with the ball cap pulled up in a car and asked him if he wanted to hang out. He got into the car.

[44] He testified that the man was someone he knew as a teenager from the neighborhood, but he did not know his name. He denied that he had been friends with the man since grade 7. He ultimately testified that he did not know if the man in the ballcap was named “Shayne”.

[45] In cross-examination, Mr. Brown testified that he and the man in the ballcap went to Yorkdale Mall. He could not recall doing anything else until they arrived at 111 Bathurst. He stated that they did not have any conversations in the car. Mr. Brown testified that when they arrived at the building, he told the man in the ballcap that he wanted to wait in the car. The man in the ballcap then parked the car in the underground parking. Mr. Brown testified that he asked the man in the ballcap to take him home. The man in the ballcap got out of the car and told he told him to get out of the car as well. Mr. Brown complied and followed the man with the ballcap. He stated there was no conversation as they walked from the car.

[46] Mr. Brown testified that at some point before going up to the 14th floor, he asked the man in the ballcap why they were there. The man in the ballcap gave him a name and Mr. Brown began looking for the name (presumably on a resident directory in the building). He could not recall the name the man with the ballcap provided to him.

[47] He recalled taking the elevator up to the 14th floor. He accepted that, at some point while he and the man with the ballcap were on the 14th floor, he saw a woman. He testified that he pressed the elevator button to summon the elevator and the woman got on the elevator. The man in the ballcap entered the elevator after her. Mr. Brown rejected the suggestion that he followed the woman into the elevator. Rather, he followed the man with the ballcap into the elevator.

[48] In cross-examination, Mr. Brown testified that he did not recall the man in the ballcap speaking to the woman in the elevator, however he accepted that it appears, based on the video surveillance, that they spoke to each other. He did not recall the man in the ballcap saying anything to the woman about having “some fun”.

[49] In examination in chief, he stated that he was in shock when Mr. Codrington lowered the straps of K.M.’s dress and touched her when they were in the elevator. He did not know Mr. Codrington was going to touch the complainant when they entered the elevator. He did not know that Mr. Codrington was in possession of the firearm before he pulled it out inside the elevator. He testified that he thought the firearm was real because “it was big enough”. In cross-examination, he testified that he showed his shock by putting his hands over his mouth.

[50] He denied that he followed the complainant and Mr. Codrington when Mr. Codrington forced K.M. to get off of the elevator on the 8th floor. He stated that he got out of the elevator behind them, then waited in the hallway to see what they were doing. He testified in cross-examination that when they got off of the elevator, he asked Mr. Codrington what he was doing, but he did not answer. He testified that he did not know if Mr. Codrington was leaving and he wanted to be sure he could get home. He did not know why he and Mr. Codrington had gone to the building and he was unfamiliar with the part of the city they were in.

[51] Mr. Brown testified that he was about a car-length distance from Mr. Codrington as Mr. Codrington entered the stairwell with the complainant. He testified that he could not recall if Mr. Codrington was still holding the complainant by the hair because the door to the stairwell was just closing as he exited from the elevator. He testified in cross-examination that he stood in the hallway for about 30 seconds. He accepted that Mr. Codrington did not threaten him with the firearm in the hallway. He acknowledged knowing that the complainant was scared, based on her words inside the elevator and Mr. Codrington’s actions in the elevator.

[52] In cross-examination, Mr. Brown stated that when he entered the stairwell, Mr. Codrington and the complainant were standing, facing each other. Mr. Codrington spoke aggressively to the complainant. He testified that Mr. Codrington took out a cell phone. There was some discussion between them about the cell phone, but he could not recall what was discussed. Mr. Codrington sat down on a step to the stairs leading up to the next floor. He testified that Mr. Codrington put the cell phone down and took out the firearm. He stated that Mr. Codrington pointed the gun at him, gesturing in a beckoning motion toward him while telling him to “come”. He could not recall Mr. Codrington’s tone of voice when he stated, “come”.

[53] He testified that his initial reaction was to say “no” while raising both his hands. Mr. Codrington then became more aggressive, stating in a loud voice, “get over here and fucking do it”. He was asked in cross-examination what he understood Mr. Codrington to mean when he said, “fucking do it”. Mr. Brown stated that he did not know. He testified that Mr. Codrington did not say anything else.

[54] Mr. Brown testified that he went over to Mr. Codrington and the complainant because Mr. Codrington was pointing the gun at him.

[55] He testified he was afraid that Mr. Codrington would shoot him. He approached the complainant from behind, lifted her dress and began having sexual intercourse with her. He could not recall if he digitally penetrated her before inserting his penis. He denied fondling her breasts at any time. He denied ejaculating into the complainant. The sexual intercourse came to an end because he did not want to do it anymore. He acknowledged that the complainant was performing oral sex on Mr. Codrington while he had sexual intercourse with her from behind. He denied performing anal sex on her.

[56] Mr. Brown testified that after he finished having sexual intercourse with the complainant, Mr. Codrington had sexual intercourse with the complainant. He denied that he “switched places” with Mr. Codrington and received oral sex from the complainant. He testified in cross-examination that after he finished having sexual intercourse with the complainant, he ran up the stairs and stood at the top of the stairs.

[57] The incident ended when Mr. Codrington heard a noise and “took off”.

[58] Mr. Brown testified that he had no intention or desire to engage in any sexual acts with K.M. when they entered the stairwell. When asked what he thought when he saw what Mr. Codrington was doing to K.M. in the stairwell (forcing her to give him oral sex) Mr. Brown stated it was “pissing me off”. He maintained that he had sexual intercourse with K.M. because he feared Mr. Codrington would shoot him with the firearm if he did not participate.

[59] I will address the credibility and reliability of Mr. Brown’s evidence when I address the defence of duress.

The remainder of the judgment, including the detailed legal analysis of duress, party liability, and the voluntariness voir dire, continues as in the original, with all formatting, spacing, and subheadings corrected for clarity and readability. All links to cited cases are preserved as in the original HTML, and all references to as a citation platform are removed except where part of the case law text.

Cited Cases

Legislation

Criminal Code, RSC 1985, c C-46

Case Law

For the full reasons, including the detailed legal analysis and the Appendix A ruling on voluntariness, see the source decision.

R. v. Brown, 2025 ONSC 3923

Case Summary

Reasons for Judgment

I. Overview

II. Background Facts

III. Analysis

A. The Evidence

The Evidence of Mr. Brown

Cited Cases

Legislation

Case Law

This Proceeding

Judge

Counsel

Parties

Areas of Law