WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the 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.

Court Information

Ontario Court of Justice

Date: September 26, 2017

Court File No.: Ottawa 15-SA5037

Between:

Her Majesty the Queen

— and —

D.S.

Before: Justice P.K. Doody

Heard: August 28 – September 1, 2017

Reasons for Judgment Released: September 26, 2017

Counsel:

• D. Lem, counsel for the Crown
• N. Calvinho, counsel for the defendant

DOODY J.:

Part 1: Overview

[1] The defendant is charged that he sexually assaulted the complainant on March 8, 2014.

[2] The complainant and the defendant knew each other through their association with a group of people who used a portion of the Reddit.com website – a "sub-Reddit" – as a forum to exchange views. Periodically, the group would organize parties, brunches, or "meet-ups". The complainant and defendant were friends before the alleged assaults and both would frequently attend parties organized by the group.

[3] One such party was organized in an apartment building in downtown Ottawa on March 8, 2014. About 15 or 20 people attended. Most, if not all, had met each other through the sub-Reddit and had been to other such parties. This party, like most, was a bring-your-own-booze affair. Some people brought food which was shared pot-luck.

[4] Almost all of the people were drinking alcohol in significant amounts throughout the party. Some were also smoking marijuana. It is apparent that many of the partygoers were significantly affected by the alcohol or drugs or both.

[5] The party began sometime after 8:00 p.m. It ended sometime after 4:00 a.m. when a group of approximately 7 people took the elevator to the ground floor together. The complainant and the defendant were in this group.

[6] The complainant testified that the sexual assault took place in four separate locations:

(a) She testified that the defendant pinned her up against the wall in the elevator with his body weight and tried to kiss her. She tried to dodge the kiss and as a result the defendant's saliva was all over her face. She testified that she believed that he also touched her on her breasts and her butt. She said that she continuously yelled at him to stop from the moment he started. He was pulled off her by K.L., another partygoer, who was also telling him to stop.

(b) She and the defendant got on a bus together after leaving the others because they lived quite close to each other and their friends lived elsewhere. The complainant testified that the defendant sat next to her on the bus, blocking her exit from the seat. She said that he kept feeling her thighs above her clothing and grabbed her breast through her jacket. She asked him to stop and took his hand away. He persisted, but then eventually stopped.

(c) When they got off the bus together, the complainant ran up a set of stairs. She said the defendant ran behind her and playfully smacked her on the buttocks and back of her legs. She asked him to stop but he did not do so.

(d) In an attempt to get to her apartment building as quickly as possible, the complainant walked through the parking lot of a government building. The defendant came around in front of her and tried to kiss her. She testified that she became very annoyed and said no again. The defendant then hit her in the face with the back of his hand. She started screaming at him to stop and to get away from her. She said she ran toward the government building, hoping to attract the attention of the overnight security guards, but they were not at their post. She waited a while and then returned to her apartment.

Part 2: The Defendant's Evidence

[7] The defendant testified that he was extremely intoxicated at the party, drinking most of a 6 pack of strong beer, 1 or 2 bottles of lager which could have been as large as 1 liter each, and a flask containing at least 3 shots of vodka mixed with Red Bull, an energy drink. He arrived at 10:00 p.m. He also had at least two puffs from a marijuana joint being passed around on the balcony.

[8] He testified that the last thing he remembered on the night of the party was when he suggested to the party's host that they go to a bar, and her telling him that it was after 3:00 a.m. and all the bars were closed. He said the next thing he remembers is waking up the next morning to a number of text messages and Facebook messages. He was told by a friend who was not at the party that it was being said that he had hit someone, perhaps the complainant. He had no memory of the elevator ride, the walk to the bus, the bus ride, or anything else before he got home.

[9] The defendant admitted that he had sent two Facebook messages to the complainant, one on March 9 at 9:27 a.m. saying "Really sorry. Not sure what I did at this point but fuck I am sorry. Please forgive me (if possible)." Nine minutes later he wrote again, saying "Okay, Mike says it is serious and will take more than an apology. Fuck. Will do whatever it takes to make this right. Did not have any intent to hurt you. Sorry." He received no response to these messages. On March 25, he sent her an "edible arrangement" (a presentation of fruit dipped in chocolate) at the suggestion of the party's host.

[10] The defendant testified that he had sent these messages because "I was born and raised in Canada. If you step on my foot I will apologize." He said that he had heard that he had struck someone and been kicked out of the party. He said he also apologized to another person who had been at the party, who was apparently saying that he had struck "everyone at the party". Although he had no memory of any of this, he was trying to do damage control and stop rumours from spreading.

Part 3: How I Must Decide This Case

[11] The defendant testified. Even if I believe his evidence, however, he is not entitled to an acquittal on that basis alone. He did not testify that he did not do these things, only that he does not remember doing them.

[12] Often cases of sexual assault turn on evidence of the complainant and the defendant or a witness or witnesses whose evidence assists the defendant. In such cases, where the defendant would not be guilty if his or her evidence, or the evidence of other witnesses, is true, the judge (in a case decided without a jury) is required to determine if he or she believes that evidence. If so, there must be an acquittal. Even if the judge does not believe such evidence, he or she must decide whether it leaves him or her in a state of reasonable doubt – whether, as a result of the defence evidence, he or she is unsure of whether the Crown has proven all elements of the offence. If so, there must be an acquittal.

[13] This is not that kind of a case.

[14] Crown counsel asked me to conclude that the defendant was lying when he testified that he had no memory of the events. He points to the apologies sent the next morning and the fruit sent 2 ½ weeks later, and submits that they were post offence conduct in which the defendant acknowledged his guilt.

[15] I am not prepared to make that finding.

[16] It is clear that the defendant was very intoxicated the night of the party. The complainant testified that she had never seen him act this way – boisterous, yelling and screaming, and also acting playful. K.L. testified that the defendant was very drunk at the party and shortly before everyone left he became extremely aggressive, slapping K.L. in the face and grabbing another guest's shirt and ripping the buttons off. K.L. also testified that the defendant punched the elevator door several times, so hard that he dented the door. K.L. said that when he told him to stop, the defendant grabbed his shirt and pulled his right arm back as if he was going to punch K.L. This was corroborated by the complainant, who testified that after she yelled at the defendant to stop kissing her, K.L. pulled the defendant off her, causing the defendant to cock his fist as if he was going to punch K.L., only to stop and punch the elevator door a number of times. Another witness, I.K., testified that he came to out of a drunken fog in the elevator to see the defendant punching the door quite hard at least twice. The defendant testified that he had a sore hand the next morning.

[17] Furthermore, it is likely that there were stories circulating among the group at the party and their friends about what had happened. The face-slapping and shirt-ripping at the party would have been seen by all who were there. The defendant's punching of the elevator door would have been seen by the group of seven or so partygoers there. In my view, it is likely that the defendant had been told of these stories by the next morning.

[18] Consequently, I cannot find that the defendant is fabricating his blackout. Nor can I find that the apologies were an acknowledgement that he had sexually assaulted the complainant.

[19] This is not a "he said – she said" case. The only witness with a professed memory of all of the alleged acts of sexual assault is the complainant. As I will explain, while there is another witness to the elevator incident who may have been able to see the attempted kiss if it happened, his evidence is uncertain. And there was no other witness who testified who had been on the bus, on the stairs from the bus station where the defendant and complainant got off the bus, or in the parking lot.

[20] Even if I were prepared to conclude that I do not believe the defendant's evidence (and that it does not raise a reasonable doubt), I could not use that lack of belief as a basis to find him guilty. In such a circumstance, I would be required to determine whether the Crown has proven the defendant's guilt beyond a reasonable doubt on the basis of all of the other evidence which I have not rejected.

[21] That is what I must do in this case. I will analyze all of the evidence and determine whether it satisfies me beyond a reasonable doubt of the defendant's guilt – whether, on the basis of that evidence and all of the evidence, I am sure of the defendant's guilt. In making that determination, I will consider the inherent credibility of the complainant's evidence, its reliability, its internal consistency, and its consistency with other evidence. While it is not necessary that I find a motive for the complainant to fabricate her evidence in order to conclude that she is doing so, such a motive is relevant. While corroboration is not necessary in order for me to accept her evidence as credible and reliable, it is appropriate for me to consider whether it is corroborated. I will also consider to some extent the demeanour of the complainant and the other witnesses, although demeanour is a very poor way to decide credibility or reliability.

[22] It must be remembered that this analysis starts with the presumption that the defendant is innocent, and that presumption continues unless the Crown establishes each element of the offence beyond a reasonable doubt. This is not a comparison of the evidence of the defendant and the complainant to determine which is more believable. I may well conclude that the complainant's evidence is probably correct, yet still acquit if I am left with a reasonable doubt – if I am not sure that it is correct about each element of the offence.

[23] As Molloy J. wrote in R. v. Nyznik, 2017 ONSC 4392, at paragraph 16:

It is sometimes said that the application of these principles is unfair to complainants in sexual assault cases, that judges are improperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused. In my opinion, those critics fail to understand the purpose of a sexual assault trial, which is to determine whether or not a criminal offence has been committed. It is essential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideas about how victims of assault will or will not behave. However, the focus of a criminal trial is not the vindication of the complainant. The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye-witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring that innocent people are never convicted. [emphasis in original]

Part 4: Analysis

(a) Complainant's Demeanour

[24] The complainant gave her evidence in a straightforward manner. She appeared to be careful about her evidence, often pausing to consider her answer. She is clearly an intelligent person who, as she put it when it was suggested to her that all of her key evidence was a lie, has a reputation that she wants to protect. She was diligently and persistently cross-examined for the better part of two days. While the cross-examination did point to some inconsistencies in what she had said to police and testified to at trial, and issues were raised about her motivation for pursuing these charges, she had explanations for many of these issues.

[25] Demeanour is not a very accurate tool to measure credibility – that is, whether a witness is honestly doing her best to tell the truth. Keeping that in mind, however, the complainant's demeanour was consistent with truth.

(b) Complainant's Reliability

[26] This case mainly turns on the question of the complainant's credibility. It is important, however, that I consider her reliability – that is, her ability to recall and explain accurately what happened, and her ability to see and understand what was happening at the time.

[27] There is a dispute on the evidence about whether the complainant was intoxicated that night. The defence witness C.H. testified that she was extremely drunk, to the point that she all but passed out some time before 1:00 a.m. Even on her own evidence, the complainant had consumed all of a 1.5 litre bottle of wine – the equivalent of ten 5 ounce glasses of wine – over 4 to 6 hours. This may have affected her ability to accurately recall what happened. The complainant said more than once in her evidence that her memory of everything that happened that night was not perfect, particularly given the length of time that had passed – some 3 and a half years.

(c) Complainant's Motive to Fabricate

[28] Defence counsel submitted that the complainant had a motive to fabricate the charges because she was hoping to get compensation – either from the defendant in a civil lawsuit, or from the Criminal Injuries Compensation Board. The complainant had been off work since late December 2013 or early January 2014 as a result of an incident in December. During that time, she was receiving money from the Employment Insurance program, during the waiting period before she was eligible for payments from the disability insurance she had from her government employer. Counsel noted that EI payments for being unable to work due to illness lasted only 15 weeks, a period which ended very close in time to April 7, 2014, the first date she reported the attacks to the police. The EI payments were less than her pay had been before the leave. She was not assured of being accepted as disabled by the disability insurer, and so she was financially stressed when she reported to the police.

[29] Counsel also referred to a posting by the complainant in an online forum in January, 2015 in which she had written:

I am back at work, have been for 4 months and the leave was granted after an attack last December. Complete with police reports and very slow police investigation. I mean snails pace, don't think they've done anything in six months. I keep fighting but it's more than I can handle … I'm barely well enough to go to work, I returned early so I wouldn't lose my house. I have another option of suing my attacker but the police is being so slow with their investigation I'm drowning in payments.

[30] Later in the same forum, someone wrote "you may be eligible for compensation from the Criminal Injuries Compensation Board. Not much, but it might help." The complainant responded "I've already done half the paperwork with them. They require more steps and the detective asked me to wait before completing the application."

[31] I note that these posts, like any prior consistent statement, do not boost the complainant's credibility merely because she said the same thing some time ago. A prior consistent statement is presumptively inadmissible. To the extent that a prior statement is inconsistent with evidence given in court, and the inconsistency cannot be explained, it may diminish the credibility of the evidence given in court. A prior consistent statement can be used to rebut an allegation that the statement was fabricated at some point after the statement was made. And a prior statement may be admissible as circumstantial evidence that can be used to assist in determining credibility. (R. v. Kahn, 2017 ONCA 114)

[32] When confronted with these posts in cross-examination, the complainant testified that she never had any intention of suing the defendant, and she had merely written that doing so was an option, not one she would pursue. She said she first went to the police in April 2014 in order to get advice about assistance she could access, both in terms of counselling and any financial assistance to which they could direct her. The police suggested both the Criminal Injuries Compensation Board and the Ottawa Rape Crisis Centre, and she was grateful for that. She did not ask the police to pursue the investigation until she returned and gave a video statement in August 2014. She admitted that the detective in charge of the investigation had suggested she should wait until the criminal case was complete before pursuing the Criminal Injuries Compensation Board, and said she was still considering whether to make that application. She also testified that her financial situation in January 2015 was more dire than it had been in April 2014 when she first went to the police.

[33] She also testified that even though she did successfully come to an agreement with her creditors in 2015 after making them a proposal under the Bankruptcy and Insolvency Act, and lost her condominium as a result, her finances were now in very good shape. She had been retroactively accepted as disabled, receiving significant back pay. Her brother, tragically, died and she received significant money from a life insurance policy. And she was now back at work in a better job than she had been doing. She has significant funds in the bank.

[34] The complainant was in financial stress at the time she went to the police in April 2014 and when she decided to ask them to pursue the investigation in August 2014. She knew that suing the defendant was one of her options. She also knew that making an application to the Criminal Injuries Compensation Board was one of her options.

[35] This prevents me from concluding that the complainant had no motive to fabricate these allegations, as judges sometimes do when justifying credibility assessments. But it does not, in my view, make it more likely that the complainant is intentionally fabricating. Every person who suffers a criminal or civil wrong is entitled to pursue whatever remedies they see fit. If the defendant did what he is alleged to have done, the complainant is perfectly justified in suing him. If doing so made her evidence less credible, the same could be said for anyone who chooses to exercise his or her rights to seek compensation in the courts for wrongs done to them. That would not be right.

(d) "Evolution" of the Complainant's Allegations

[36] Defence counsel submitted that the complainant's allegations had evolved over time, becoming significantly more detailed as time passed. She submitted that this showed a lack of credibility.

[37] An example of this is her evidence that the defendant grabbed her breast in the elevator. This evidence was given in her examination in chief when she was asked if the defendant did anything else to her. She responded that when he pushed her up against the wall in the elevator "I believe he also touched me". When asked how or where she responded "My breasts and my butt that is what I do believe."

[38] Defence counsel submitted that no such allegation is in the written statement given in April 2014 or the video statement given in August 2014. The complainant admitted that there was no reference to touching her breasts in the elevator in the video statement. She said, however, that there was a reference to it in the April statement.

[39] The April 2014 statement was written by the complainant in the lobby of the police station on her own, after she had told the officer on duty that she wanted to make a complaint of sexual assault. She was told to make it as complete as possible. And she knew that it was important to be accurate. She admitted that she was not rushed. When confronted with the assertion that there was no reference to the defendant touching her breast in the elevator in that statement, the complainant explained that when she wrote "Once off the elevator, we walked to the bus stop where David continued to touch me" she was referring to the touching of her breast in the elevator.

[40] Defence counsel submitted that the trial evidence was "bolstering and embellishment" and weakened the credibility of the complainant. I do not agree.

[41] It is rare that evidence at a trial or proceeding does not provide details not given in earlier statements. This is a function of the trial process where the answers to questions asked on earlier occasions spark further questions which in turn produce further details. This can be, and often is, a function of the witness' memory being refreshed and not necessarily a sign of embellishment.

[42] Furthermore, individuals who have been subjected to violence will not necessarily disclose all the details at once. Persons who experience such things will react differently. Some will want to talk about it early and often; others will be more reticent, with details emerging over time. The fact that more details are given some time after an incident than immediately following it does not necessarily, in my view, suggest that the evidence lacks credibility or reliability.

(e) Prior Inconsistent Statements of the Complainant

[43] Defence counsel pointed to a number of inconsistencies between the evidence given by the complainant at trial and what she had said in either the April 2014 statement or the August 2014 video statement.

[44] At trial she testified that her decision to go to the police and make a formal complaint was sparked, at least in part, by her fear of the defendant, particularly because she was running into him at places like a bus stop. In the April statement she wrote "Today I am making a report to allow me to access services that will help me put my life back together. I do not fear my attackers, if anything they are uneasy about their situation." When this apparent inconsistency was put to the complainant in cross-examination, she pointed out that earlier in her statement she had written that the prior week she had run into the defendant at the bus stop and "no communication was had but I did have a panic attack right after." The statement itself thus seems to be somewhat contradictory. The complainant did say, however, in cross-examination, that when she wrote the April statement it was true that she did not fear the defendant.

[45] At trial the complainant testified that she had walked home after social events with the same group as was at the March 8 party on two occasions – that night, and one other. In the April statement she wrote "due to us being neighbours, we often walk home together from our friends' dinner parties and such." The complainant said that what she had written in the statement was an exaggeration.

[46] At trial the complainant testified that the defendant attempted to kiss her in the elevator, and that although his lips had connected with her cheek and chin they did not come in contact with her lips. In her April statement she wrote "he kissed me and I tried to push him away." In the video statement, she said he attempted to kiss her.

[47] The complainant testified at trial that from the time she and the defendant left the elevator until they got on the bus he did not attempt to touch her. In her April statement, she wrote "Once off the elevator, we walked to the bus stop where David continued to touch me and try to kiss me." When confronted with this, the complainant testified that when she wrote that she meant the touching and attempts to kiss occurred in the period of time between walking to the bus and arriving at their destination, and that that included while they were on the bus. She testified that while that sentence in her statement was ambiguous, and it could be interpreted so that it occurred at the bus stop, her recollection was that it happened moments after they got on the bus and sat down.

(f) Inconsistency Between the Complainant's Evidence and That of Other Witnesses

(i) K.L.

[48] The complainant testified that when the defendant pushed her against the back of the elevator, she continually asked him to stop. She said she did not cease asking him to stop until K.L. pulled the defendant off her. At one point, she said, K.L. was saying stop at the same time "so he had multiple people telling him to stop." She testified that K.L. grabbed the defendant from behind and pulled him off her, saying "stop, man". She said that when K.L. did this, the defendant grabbed him by his coat below his neck, raising his fist in the air. K.L. looked at the defendant and said "you don't want to do this, man". She said the defendant then turned and began to continuously punch the elevator door.

[49] K.L. said he was "an acquaintance to a friend" of the complainant. He did not know her that well at the time of the party but they ran in the same circles. He said he did not know the defendant. He testified that when he got on the elevator, the defendant and the complainant were already on it. He testified that he could not "picture in his mind" the complainant with hands on the defendant or the defendant with hands on the complainant in the elevator. He was asked if he had a recollection of taking the defendant off the complainant and replied "no, I don't think so" and "I am a pretty skinny guy". He testified that the defendant was upset about having earlier slapped K.L. and ripped another partygoer's shirt at the party, and he started punching the elevator door repeatedly and hard. It was his evidence that he punched the door "a handful of times not fifteen but like three". The punches were hard enough to leave dents in the door. K.L. said he told the defendant not to do that, at which point the defendant grabbed K.L.'s shirt and pulled his right arm back as if he was going to hit him. K.L. told him not to hit him and he stopped.

[50] K.L. did not recall anyone else in the elevator saying anything to the defendant. When asked, he said that he could not recall the complainant saying anything but said "but I was more concerned with what was happening to me." When asked specifically if he heard the complainant saying anything when he got in, he testified "not to my recollection it might have happened it might not have happened; those are details I would not have paid attention to."

[51] K.L. was not an outstanding witness. He did not appear to understand the seriousness of the proceedings, often grinning at inappropriate moments. I accept his evidence that he was more concerned with what happened to him than what happened to others, including the complainant. But his inability to recall pulling the defendant off the complainant certainly gives me pause. It is difficult to understand how one could not recall doing that if it happened the way described by the complainant.

(ii) L.B.

[52] L.B. was the complainant's roommate on March 8, 2014. The complainant testified that when she got back in her apartment after being assaulted by the defendant in the parking lot, she locked her front door and ran to her bedroom, locking the door behind her. She said that at that point her friend she had texted while hiding near the government building called her back and she told her what had happened.

[53] She testified that she could not recall if her roommate was at home when she ran into the apartment. She said if she was home, she was "definitely sleeping because it was very early in the morning" but she could not say with certainty that she was home.

[54] L.B. testified that when the complainant arrived home that night, she was in the living room. She was not sure what she had been doing, suggesting that she might have been on her phone or watching television. She described the complainant as being "very distressed". She said the complainant was crying and breathing heavily. This went on for quite some time. She sat and talked with the complainant for an hour or more. She testified that the complainant was crying throughout this time. She could not recall the complainant making any phone calls.

[55] L.B. was an excellent witness. She was careful in her evidence. She thought about questions before she answered them. She did not easily agree with suggestions put to her in cross-examination.

[56] It is difficult to explain the inconsistencies between L.B.'s evidence and that of the complainant.

(iii) C.H.

[57] C.H. was at the party but left around 1:00 a.m. because she was not drinking. She said that at the time she knew the complainant "not intimately but she ran in the same social circles I did". She said she had met the defendant only once before March 8, 2014.

[58] She testified that the complainant was extremely drunk at the party on March 8. She testified that the complainant was telling fanciful stories about being nearly murdered by her cousin in the bathtub when she was much younger. She said she had to take a wine glass out of the complainant's hands to stop her from spilling it. She described in extreme detail a number of times that the complainant poured herself a drink, purporting to remember whether a faucet had been running in the background when a wine was uncorked and a glass filled.

[59] The complainant denied being intoxicated. She also denied knowing anything about a story that she had been almost murdered by her cousin in the bathtub.

[60] C.H. also testified that she attended a brunch at noon on the day following the party. The others at the brunch had all been at the party the night before. She testified that the complainant was "talking animatedly" and was "excitable almost in her behaviour. Whenever someone asked her when she was the center of the topic she seemed glad to share the information." She said that the complainant "appeared jovial almost, not upset at all" and described her as "enjoying the topic of conversation." She said that at no point during the brunch did she see the complainant crying.

[61] The complainant gave quite a different picture in her evidence. She testified that at the brunch the next day she spoke of what had happened to her the night before. She said she was very visibly upset, both in her voice and in the tone of her body. She testified that she "pretty much was weepy" for a significant amount of the time at the brunch.

[62] C.H.'s evidence about the demeanour of the complainant at the brunch was called by the defence, and was not objected to by Crown counsel. In his closing argument, however, Crown counsel submitted that it was inadmissible because it offended the rule against leading evidence of collateral facts. I allowed both counsel an opportunity to submit written submissions on this point after oral submissions had concluded.

[63] Crown counsel, relying on R. v. Kutynec (1992), 7 O.R. (3d) 277, submits that it is not inappropriate to consider, at a later point in a trial, the admissibility of evidence which was tendered without objection. I agree.

[64] He also submits that the evidence in issue was inadmissible because it went only to collateral facts – that the complainant's demeanour the day after the alleged assaults "were neither material nor relevant to the material facts." As a result, he says, the complainant could be cross-examined on her actions at the brunch but rebuttal evidence to contradict her account was prohibited.

[65] The collateral fact rule is described in this way in Watt's Manual of Criminal Evidence 2016 at p. 216:

The collateral facts or collateral issues rule prohibits the introduction of evidence for the sole purpose of contradicting a witness' testimony concerning a collateral fact. The rule seeks to avoid confusion and proliferation of issues, wasting of time and introduction of evidence of negligible assistance to the trier of fact in determining the real issues of the case. It endeavours to ensure that the sideshow does not take over the circus. In general, matters that relate wholly and exclusively to the credibility of a non-accused witness are collateral, hence beyond the reach of contradictory evidence.

A collateral fact is one that is not connected with the issue in the case. It is one that the party would not be entitled to prove as part of its case, because it lacks relevance or connection to it. A collateral fact, in other words, is one that is neither

i. Material; nor

ii. Relevant to a material fact.

If the answer of a witness that a party seeks to contradict, is a matter that the opponent could prove in evidence as part of its case, independent of the contradiction, the matter is not collateral. Contradictory evidence may be elicited. [emphasis in original]

[66] In R. v. C.F., 2017 ONCA 480, the Court of Appeal approved this summary of the rule. Huscroft J.A., however, writing on behalf of a panel of the Court which included Watt J.A., held that the collateral fact rule was not absolute and that, following the Supreme Court of Canada's decision in R. v. R.(D.), [1996] 2 S.C.R. 291, "evidence that undermines a witness' credibility may escape the exclusionary reach of the collateral fact rule if credibility is central to the case against the accused."

[67] I asked counsel to consider the one-sentence decision of the Supreme Court of Canada in R. v. S.B., 2017 SCC 16, which adopted Green J.A.'s dissent in the Newfoundland and Labrador Court of Appeal decision reported at 2016 NLCA 20. It appears that Justice Green agreed with the views of the majority in that court to the effect that the collateral fact rule was absolute and not flexible even in circumstances where the witness' credibility was central to the case against the defendant. This raises the issue of whether the Supreme Court of Canada has endorsed that view.

[68] I note that the Court of Appeal's decision in C.F. was released after the Supreme Court's decision in S.B. It makes no mention of it. Furthermore, the Supreme Court did not discuss the collateral fact issue at all in its brief decision. In any event, I am bound by the decision of the Court of Appeal for Ontario even if it was made per incuriam.

[69] In my view, this is a case in which credibility of the complainant is central to the case against the defendant. If C.H.'s evidence about her demeanour at the brunch was collateral, it would escape the exclusionary reach of the collateral fact rule. I note that the evidence was not lengthy or convoluted. It was not a sideshow that threatened to take over the circus.

[70] In any event, the evidence was not collateral. The brunch took place less than eight hours after the alleged attacks on the complainant. Evidence of her demeanour and emotional state is relevant to a determination of the effect, if any, of the alleged attacks on her. This evidence is as relevant and material as would be evidence of physical bruises, or lack thereof, following an alleged attack which would be expected to have left such bruises.

[71] This was implicitly acknowledged by Crown counsel when he led the evidence of L.B. about the complainant's demeanour on her return home immediately following the alleged attacks. As I have indicated, L.B. testified that the complainant was very distressed and crying for at least an hour. The passage of 6 or 7 hours more before the brunch did not make such evidence any less relevant or material.

[72] Furthermore, this evidence is not prohibited merely because it is, in part, opinion evidence. As the Court of Appeal noted in R. v. H.B., 2016 ONCA 953 at para. 69, lay opinion evidence was recognized by the Supreme Court of Canada in R. v. Graat, [1982] 2 S.C.R. 819 to be admissible where, among other things, it speaks to "the emotional state of a person – e.g. whether distressed, angry, aggressive, affectionate or depressed".

[73] The evidence is admissible.

[74] C.H. was not a good witness. Her purported ability to recall insignificant details of how much the complainant had to drink, and when, begs credulity. She modified her evidence – for example the colour of the wine being drunk by the complainant and how many bottles of wine she brought to the party – when it became apparent to her that Crown counsel was pursuing a certain point in cross-examination. She was unable to recall similar details about any other attendee at the party. She appeared to relish being a witness and delighted in the spotlight. I do not believe much of her evidence. Evidence which would assist the defence which I do not believe, however, may still raise a reasonable doubt about the accuracy of the complainant's evidence.

(g) Conclusion

[75] This case has been very difficult to decide. As I have indicated, the complainant presented as a credible witness. There was no evidence to directly rebut any of her allegations of sexual assault. But there were pieces of evidence which, if true, are inconsistent with the complainant's evidence being accurate. Those are:

(a) the inconsistencies, albeit minor, between the complainant's evidence and the statements she gave to the police;

(b) K.L.'s inability to recall the defendant having his hands on the complainant or him removing the defendant from the complainant in the elevator; his evidence that he was a "pretty skinny guy" suggesting that it was unlikely that he would have done so; and his inability to recall the complainant or anyone else saying anything to the defendant in the elevator; contrasted with the complainant's evidence that K.L. and "multiple people" were telling the defendant to stop assaulting her; and that K.L. pulled the defendant off her;

(c) L.B.'s evidence that she was in the living room when the complainant returned home, and that she sat and talked with her for more than an hour, contrasted with the complainant's evidence that she ran right into her bedroom, her inability to recall whether her roommate was home, and her certainty that if she was, she was asleep; and

(d) C.H.'s evidence that the complainant was extremely intoxicated, to the point of passing out, before 1:00 a.m. (3 hours before the complainant left the party), and that the complainant was jovial and not upset at the brunch the next day, contrasted with the complainant's evidence that she was drinking slowly and was not intoxicated, and that she was weepy and visibly upset at the brunch.

[76] I accept L.B.'s evidence. As I have indicated, K.L. and C.H. were not good witnesses. I cannot say that I believe C.H.'s evidence, or that I am satisfied that K.L.'s memory of the events in the elevator is complete or accurate. But these three are the only witnesses I heard who could have corroborated part of the evidence of the complainant and not only did they did not do so, but their evidence contradicted hers.

[77] The sexual assaults described by the complainant may very well have happened. But the evidence I have set out above leaves me with a reasonable doubt. I am not sure what happened. Consequently, the charge against the defendant is dismissed.

Released: September 26, 2017

Signed: Justice P.K. Doody