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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 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.

Court Information

Ontario Court of Justice

Date: February 17, 2017

Court File No.: OTTAWA 16-5116

Between:

Her Majesty the Queen

— and —

Jamal Henry

Before: Justice Jacqueline Loignon

Heard on: February 9th and 10th, 2017

Reasons for Judgment released on: February 17th, 2017

Counsel:

• Ms. Kerry McVey — counsel for the Crown
• Mr. Jonathan Boss — counsel for the accused Jamal Henry

Decision

LOIGNON, J.:

Introduction

[1] The accused is charged with sexual assault, forcible confinement, criminal harassment and breach of an order of probation, all arising from the same incident on August 16, 2016 involving the complainant O.W.

[2] At the beginning of the trial, the parties agreed to the following admissions: date; jurisdiction; identification; that the accused was subject to an order of probation with a condition to keep the peace and be of good behaviour; and that following an examination, semen was found on the complainant's external genitalia as well as on a swab taken from her vagina.

[3] The Crown's case consisted of the evidence from the complainant as well as a worker, Kate Muscat with the Ottawa-Carleton Life skills Program. Defence called the accused, Mr. Henry.

Legal Framework

[4] There is no dispute as to the legal principles to be applied: this is a matter to be decided according to the principles laid down in R. v. WD, [1991] SCJ No 26 (SCC). Using the traditional language from that case I must consider the following: If I believe the defence evidence, I must acquit; if I do not believe the defence evidence but it raises a reasonable doubt, I must acquit. Finally, I must be satisfied that the evidence called by the Crown proves the accused's guilt beyond a reasonable doubt.

[5] While it may be trite, I begin by iterating that the Crown has the onus of proving all elements of the offences beyond a reasonable doubt and that this burden never shifts. The accused need not prove his innocence and I am to presume that he is innocent until, having considered the entirety of the evidence; I am satisfied beyond a reasonable doubt as to his guilt. When considering the evidence of a witness, I may accept all, some or none but I must ensure that it is weighed within the broader context of the entirety of the evidence called at trial. It is important to keep in mind that in considering the evidence called, the objective is not to choose one witness over another; it is to determine whether, on the whole of the evidence called and accepted, the Crown has met its burden.

[6] Credibility and reliability are the filter through which to assess a witness' evidence. In R. v. A.M., 2014 ONCA 769, the Ontario Court of Appeal issued at para 12-15, this reminder when assessing trial evidence:

[12] …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

Evidence

Kate Muscat's Evidence

[7] In August 2016, Ms. Muscat worked with Ottawa-Carleton Life skills Program in their supported independent living or SIL program. She assisted the complainant with various things such as getting to appointments, doing groceries, and maintaining housing. She saw her approximately 4 times per week, depending on what was on the schedule. By the time of the incident, she had known the complainant for about 6 years, 3 of those working with her fulltime. This witness was also the accused's worker and had been assigned to him about the same length of time.

[8] In terms of her involvement with this particular incident, she became aware of it as a result of a message left on her home at 3am by the complainant. She received this message only once she turned her phone on at 10am. By this time the complainant was already calling her. Initially the complainant gave her very few details other than that she had been raped. Shortly after a conversation with her supervisor, she met with the complainant at the Shepherds of Good Hope. Again she was very reluctant and would not say the name of who had assaulted her, only saying that it was a male client. Through a process of elimination Ms. Muscat determined that the accused was involved. Ms. Muscat assisted the complainant with a written statement for the police. She wrote it out for her, confirming its accuracy with her prior to it being given to police. Prior to beginning the report, and being knowledgeable of the complainant's developmental limitations, she stressed the importance of being detailed about what occurred. To Ms. Muscat, the complainant seemed uncomfortable, nervous but relieved once it was done.

[9] Later that same day, Ms. Muscat received a phone call from the accused, though she had not been expecting one. She did not mention the incident to him or the complainant's name. When he asked if they would be meeting later, she told him that another staff member would assist in his support. He asked if this was in relation to O. Ms. Muscat did not answer. The accused yelled and swore at her causing her to hang up. She received several other calls from him but did not answer them. He left a voicemail which she turned over to police and told the complainant of because of its threatening nature. A transcript of the call was filed as exhibit 2. It refers to O., her going to be beat up, having been drinking, being at his friend's place and owing him money.

[10] Ms. Muscat also gave very helpful evidence to better understand both the accused and the complainant and their development difficulties. In that regard, the complainant has a diagnosis of a pervasive developmental disorder not otherwise specified, attention deficit hyperactivity disorder. She also experiences anxiety and depression. She does take medication. Her disability will manifest itself in terms of a difficulty with verbal expression and comprehension. In that regard, questions have to be made clear and she has trouble explaining and she may skip things. The complainant sees a Doctor for a dual diagnosis, meaning she has addiction issues. The witness related that when she dealt with her on the day she gave her statement, the complainant was not under the influence of any alcohol of drugs.

[11] With respect to the accused, he has a mild developmental delay and a weakness in available working memory. Ms. Muscat illustrated this stating that the accused can come out of a scenario that just happened in your company but his explanation will be different. He may deny something but also simply not remember it. She also noted that he can have trouble with comprehension and react quickly; he does not listen but jumps to being defensive.

[12] In terms of describing the accused and complainant's relationship, Ms. Muscat, who has dealt with both and seen them in social setting, did not qualify their relationship as friendly. By the same token, she did not describe there being any animosity between the two. The witness recalled an instance approximately 1 year prior to August 2016 when the complainant mentioned to her that the accused had taken her cigarettes. In her recitation, she did not suggest that there was any anger on the complainant's part, but rather that she just wished that he had asked. Other than this incident, she was aware of an issue that had arisen between the accused and one of the complainant's friends but that did not have an impact on her. There was never any cause for reports being written because of the relationship between the two. They simply did not care for each other.

Complainant's Evidence

[13] O.W. is 24 years old. In August 2016, Kate Muscat was her worker with OCLS. At the time she was living in a shelter having lost the apartment she shared with her boyfriend. When they could get one they would live together but if they were kicked out, they would go to the shelters. She stated knowing Jamal for a long time. She first met him through an ex-boyfriend and then her worker since they were in same program. She would sometimes see him downtown or when she was hanging out with friends. She estimated that she had seen him in that type of situation perhaps 4 times. Overall she described them as kind of friends though she agreed that there was friction between the two over time with Kate. She said that he would get mad and she would get mad back but that would be the end of it.

[14] On August 16th 2016, the complainant was with her boyfriend as well as Christian and Amanda. They had come downtown to hang out and had all been drinking a lot. Ms. W. spoke of two 40 oz. bottles being shared by all four drinking straight from the bottle. It was impossible for her to estimate how much she had to drink but recognized that she was drunk. As the afternoon and evening progressed, she recalled Christian returning to the Shepard's to sleep; Damian wanting to go on a beer run, and Amanda running around. While she looked for Damian, she found Amanda passed out, or nearly passed out on a grassy area by the Shepard's. She flagged someone down to help her but Jamal arrived. He was on an ebike and offered to take her to an apartment. Ms. W. said no because she did not want to leave Amanda alone given her intoxication. Amanda who had woken up at this point, wished to go with Jamal. Although at first he said only one of them could come, he agreed to take both of them, though only one at a time on the bike. Ms. W. conceded that she also wanted to go and continue to drink since there would be alcohol at the apartment. She was not aware of there being drugs at the apartment. When the suggestion was put to her in cross-examination that she flagged the accused down and asked him for speed, she firmly replied no, that she has ADHD medication, which has the same effect if sniffed. If she wanted speed, all she had to do was go home. She did agree that she has in past bought marijuana from the accused.

[15] Amanda went on the bike with the accused first. Ms. W. arranged to meet him to pick her up. True to his word, the accused returned to pick her up and they made the 2-3 minute bike ride to an apartment. The apartment was one she had never been to before. There was a bedroom and a bathroom though it appeared that the shower was in the hallway and shared with other tenants. When she entered, she saw Amanda passed out in a chair. Jamal's friend Dave, whose apartment it was, was there, as well as a girl she has never gotten along with, who was watching TV. This girl was someone who had bullied and beat her up in the past. Throughout the time she spent there, people came and went from the apartment. She spoke with Jamal and other people as she drank. Amanda also drank though she spent most of her time passed out. At one point the complainant saw speed on the table in the apartment and asked Jamal for some. She wanted to wake up. He said no and so they continued to drink. After an exchange with him, he told her not to speak to him. He then went in and out of the apartment. She also at one point spoke to the girl in the apartment and asked "why don't you like me". The girl told her to leave her alone. Ms. W estimated that she spent approximately 3-4 hours at the apartment. In that time she may have had 3 or 4 more drinks. As she spoke of this consumption, she noted that the environment was a buzzkill with the girl, and Amanda being mostly passed out. When asked why she did not prevent Amanda from drinking, she very astutely noted that it's impossible to stop an alcoholic from drinking.

[16] The accused ultimately returned and asked to speak with her. He had her follow him to the hallway shower room. Once the door was shut a bit, he said to her "you owe me". He said "Amanda took 4 speed and you owe me". She replied, "I don't owe you shit". She then tried to open the door and he pushed her from behind, closing the door. Her state of intoxication caused her to fall against the door. She repeatedly stated that he did not push her hard. When she fell, he pulled down her pants, and raped her. It was very fast: 3 minutes though she did not count the time. She tried to push him off and kick him but her level of intoxication made it ineffectual. As she pushed and kicked him, she also told him to fuck off, to leave her alone. The accused did not wear a condom and she noted ejaculation when she stood and pulled her pants back up. She said that the accused penetrated her though could not say to what extent. She disagreed with the suggestion that the accused made the attempt but did not succeed. She also disagreed that she provided the accused with a condom. When asked whether someone opened the door and she said to that person that they were busy, she responded no.

[17] Once the accused let her up, the complainant left the shower room. She returned to the apartment to get Amanda. Once in the apartment, she did not want to say or do anything because of the girl who bullied her. She kicked Amanda to wake up, which she did. She took one speed pill from Jamal as they left. She did not say anything. Had she not been able to wake Amanda up, she thought she may have to call police. She recognized however that this would be problematic because of the drugs and activity in the apartment.

[18] Once Amanda was awake, they left the apartment and made their way to the young women's shelter. She was ultimately brought to Shepard's where she passed out. Once she woke up, she told staff who in turn called police. She went to the hospital with police because she was scared she would get a disease. By the time police were with her she no longer felt intoxicated. When asked about the effects of the speed pill, she explained that speed generally does not make her high, it just wakes her up, countering the effect of alcohol. Once the tests were completed at the hospital, she returned to the shelter and left a message on her worker Kate's phone. She ultimately spoke with Kate the next day, who assisted her in completing a statement. She also told her boyfriend the next day. She told him that it was his fault because he had left her. Following the assault and report to police, various friends of the accused's approached the complainant and, in her words, "kept coming after me". She has since reported these incidents to police and moved away from the downtown core. When asked whether she wanted to go to police, her answer was yes and no. Yes because what if this happened to someone else and no because she is now worried about people coming after her. Indeed she stated: "A lot of people are after me. I don't go downtown anymore. A lot of people want to beat me up."

[19] When asked whether she wanted to have sex with Jamal, she replied that she did not want to, that she had a boyfriend, and that he and Jamal were friends. When asked whether she agreed to have sex in exchange for one speed pill, she answered "why would I for a $3 pill?" When it was suggested that there were 8 pills, she answered that no, the accused only gave her one.

[20] A few weeks after this incident, the complainant saw the accused by chance at Westboro beach. Though she knew he played music at the beach, she did not know it was at Westboro. That day, she approached the accused and began to hit him in the head. She was drunk at the time.

[21] At one time during cross-examination, the complainant's prior video statement was put to her in relation to the number of pills given to her by the accused. The statement referred to read: "he gave me more speed". The complainant disputed the accuracy of the statement and stated she said "one" because that was what had happened. Counsel verified the audio recording and agreed that the transcript was indeed in error and that complainant said "he gave me one speed". A similar issue arose with respect to a reference to her having a lot of speed. "But I would have got killed because I had a lot of speed right?" The complainant again disputed the accuracy of the statement saying that she only had the one pill. When the recording was verified, the transcript was corrected to "But I would have got killed because they have a lot of speed right?"

[22] Counsel also raised with the complainant that during her video interview with the police, she referenced the sexual assault taking 5 seconds, not 3 minutes. Ms. W. explained this saying that it was really quick, that they spent no time in the washroom. It bears noting that in her written statement to police the complainant also referenced 3 minutes.

Accused's Evidence

[23] Defence elected to call evidence and the accused, Mr. Henry, testified. He is 32 years old and at the time his OCLS worker was Kate. Mr. Henry acknowledged having a learning disability and that various organizations help him with housing, employment and getting around. The accused finished high school at Sir Guy Carleton and went on to take a few courses at Algonquin College. He would like to return there at some point and pursue further courses. He recently worked DJing at Westboro beach as well as two clubs on the market. He is also involved with various music bands.

[24] The accused did not describe himself and the complainant as friends. He said that she was manipulative and an attention seeker. By way of example he offered that, if she did not get her way, she would threaten to kill herself. According to him, she made up stories. He found that Kate spent her time with the complainant rather than himself or other clients with disabilities. This made him angry. In cross-examination the accused agreed that he would be happy about news of being assigned a new worker, though he would miss Kate, having been with her for so long. He also added that he himself had been asking for a new worker though he had been told he should stay with Kate.

[25] On the date of the incident, the accused left Dave's apartment and went down King Edward to buy some smokes. This is when he ran into the complainant. She stopped him and asked him for speed. He said he could help her from his personal stash, which was at his friend's place. She showed him her money. Amanda was there and he brought her on the bike to the apartment. He then returned to get the complainant. They then went into the building. According to him, Amanda was OK, not drunk. Prior to bringing the two women to the apartment, the accused said that he had to vouch for them with his buddy. In cross-examination he said that he did this via his phone, prior to bringing them on the bike.

[26] In the apartment were the accused, the complainant, Amanda, and his buddy. There was no change to this number throughout the time the women were there. No one came and went from the apartment. According to the accused, it is not a place where there is partying therefore the need for him to vouch for the women. Once in the apartment, Amanda passed out. The others listened to music and he himself had a few beers. The complainant was not drinking and he offered no alcohol as she was not his girlfriend.

[27] The complainant then asked for speed. He said how much, to which she replied $40. This was the equivalent of 8 pills. He put them in a baggie that he found on the table and gave the bag to the complainant. She put the baggie on the table. According to the accused, he did not immediately seek payment for the drugs: today or tomorrow, that was fine with him. He explained this saying he's not a dealer; he's not there to hustle her. Five to 10 minutes later the complainant got up and asked to speak with him. He said ok and followed her to the main hallway, taking the speed pills from the table and putting them in his pocket. She said they could not talk there and went to the shower room. She said that she needed her $40 for alcohol later on and could not pay him for the speed. She offered sex in exchange so long as he did not mention it to her boyfriend. Though he said he needed the money to repay a debt to his friend Dave, he agreed, saying that he would figure another way to repay his friend.

[28] She gave him a condom; he put it on. The sex lasted 3 minutes. He could not recall their positions or how it finished. He could not recall if he ejaculated. At one time someone came to the door and asked if everything was ok. The complainant responded that they were busy and closed the door. When they were done, he gave her the speed pills. They returned to the apartment where he went to the washroom and flushed the condom while she kicked Amanda to wake her up. Amanda and the complainant left.

[29] The accused was presented with his criminal record. He began by saying that he knew everything about it. He then went on to say that he did not know when it started. He could not recall how many domestic violence convictions he had. He disputed ever having spent time in jail for assault bodily harm convictions. He disputed a break and enter conviction stating that he took a vehicle without consent. He could not recall many of the more recent convictions including theft, utter forged document and being in possession of drugs.

[30] With respect to the phone message he left for Kate, the accused did not recall leaving it, other than being mad. He mentioned that a lot of people want to bang out the complainant and go to him, though it has nothing to do with him.

[31] During cross-examination he was asked several questions about the conversations with the complainant and the message left for Kate. Though he agreed that he was happy about the news about the new worker since he had been asking for one, he also got mad and swore at her. When asked to confirm that Kate said nothing about the complainant, the accused disagreed and testified that Kate said that she was sitting in the car with her and that he could in fact hear her. He then went on to say that there were two actual conversations and that he heard the complainant during the second conversation. Minutes later while trying to explain his reaction whereby he yelled and swore at Kate, he disputed that he said he did not hear the complainant till the second conversation.

[32] When asked again to explain the message left for Kate and why he was mad, he referenced the complainant's preferential treatment. He agreed though that he had no reason to believe at that time that the complainant was alleging that he had sexually assaulted her. As far as he knew, she had left a happy customer. When the actual details of the message were put to the accused, he disputed it being about a sexual assault and insisted that it related to his discontent with the complainant monopolizing Kate.

[33] Concerning the accused's access to speed to sell to the complainant, he testified that he did not carry drugs with him on the street; that he usually kept them at his apartment. That day, the pills were at Dave's as earlier that day he had gone to Quebec to buy them though he had no expectation of taking any or of selling any that day. In fact, he does not typically sell drugs. He was simply prepared to help the complainant out on this day from his own personal stash, despite his distrust and dislike of the complainant.

[34] The purpose in bringing the complainant to Dave's was the sale of drugs and not to hang out. He did recognize that he could have had the complainant wait where she was, instead of bringing both her and Amanda to Dave's to get the speed. Despite the accused's sole purpose in bringing the complainant to the apartment being the sale of speed, the accused estimated that between one hour and 1.5 hours passed prior to the sale taking place. During the exchange with the crown as to whether he trusted the complainant, the accused argued about what he had previously said in response, suggesting that he never said that he did not trust her. This same contradiction was repeated when the accused was asked to explain why he did not insist on payment immediately upon providing the complainant with the 8 pills.

Analysis

[35] Mr. Boss for the defence acknowledges that his client's evidence suffered from some difficulties but suggests that on the crux of the allegations, his evidence was consistent, unshaken and should at the very least raise a doubt. Crown argues on the other hand that the accused's evidence is not worthy of belief being riddled with internal and external inconsistencies. By contrast, she argues that the complainant's evidence did not suffer from the same frailties but rather was detailed, unshaken and un-contradicted allowing this court to find that the offences have been made out beyond a reasonable doubt.

[36] In approaching the evidence of both parties, I am of course conscious of their disabilities and that this may in some cases impact on their manner of giving evidence, without necessarily impacting on their credibility and reliability.

Assessment of Defence Evidence

[37] Beginning with whether I accept the defence's evidence, it suffered from both internal and external contradictions. With respect to important internal inconsistencies, I begin with the denial of any intention to hang out with the complainant. If there was no intention to hang out, as professed by the accused, especially since he did not like or trust the complainant, then there was no need to invite her to Dave's house. All he needed to do was get the speed and sell it to her. The efforts made to bring both women to the apartment illustrate this contradiction. Indeed, it makes no sense to do two trips to bring the complainant and Amanda to the apartment for a quick drug transaction. It makes no sense to make the effort to "vouch" for them with Dave for a quick drug sale. All of the conduct exhibited is more consistent with plans to hang out. Similarly, the time the complainant spent at Dave's, even on the accused's evidence, prior to the drug sale taking place, is more suggestive of hanging out.

[38] Another issue that makes little sense is the laid back attitude in relation to payment for the speed. Mr. Henry did not trust the complainant. Indeed, this was so much of a concern that he had her show him her money before agreeing to sell her the drugs. He furthermore owed money to Dave, making her being in funds that much more important. Despite all of this, once he bagged the speed pills, he did not insist on payment. He in fact is not concerned with payment – it can be at a later time. His actions are not at all consistent with the concerns he previously expressed.

[39] Ms. Muscat related a conversation the day after the incident where the accused blew up at her, yelling and swearing demanding to know if the actions being taken in terms of a change in worker were as a result of the complainant. The accused acknowledged the conversation took place but explained that it had to do with the change in worker, not the incident the night before. He also however testified that he had been asking for a change in workers because the complainant took up too much of Kate's time. Since the accused was in essence getting what he had been asking for – the change in worker – there would be no need for him to blow up at Ms. Muscat. His actions suggest that there was something more at play in the phone call to his worker.

[40] Finally, during his evidence, the accused suggested that when the offer of sex for drugs was made, he had no choice but to agree otherwise he would suffer a loss. This however was not at all the case since he pocketed the pills as they left for the shower room. He simply had to hold on to the pills and he incurred no debt.

[41] In terms of external inconsistencies, the most glaring is the presence of semen on the swabs taken from the complainant's external genitalia and vagina and the accused's professed use of a condom. There is no evidence that this condom broke or was defective and therefore no explanation for the presence of semen.

[42] By everyone's account, the complainant had never been to this apartment before. The accused says that she led him to the shower room. There is no way for the complainant to have known that such a room existed or that it would be an area that would remain private for their conversation and activities. The actions as reported by the accused do not therefore seem likely.

[43] In terms of the message left by the accused on Ms. Muscat's phone, again there is a level of anger left unresolved by the accused's explanation: he is getting what he wants, a new worker therefore why be furious? More importantly however, in this message the accused mentions the complainant, a debt she owed him, alcohol, and people looking for her to beat her up. The context has nothing whatsoever to do with favouritism and worker changes. It has to do with what happened the night before. In addition, one of the details relayed in that message does not match up with a detail he himself testified to, namely that the complainant was not drinking in the apartment.

[44] I do note that while the accused initially testified to be being very familiar with his criminal record and then disputed many of the entries, I do not ascribe any intention to mislead the court but rather agree with counsel for the accused that his position is likely as a result of his disability. Notwithstanding my conclusion as to credibility, it still however calls into question his reliability as a witness. There were other instances of this where the accused disputed having testified to certain things when moments before he had said that very thing. His evidence as to trusting the complainant is an example of his flip-flopping. Again, though this evidence may be a manifestation of his disability, I remain concerned as to its reliability.

[45] Defence suggests that in his evidence about the sexual assault the accused was clear and unshaken as to the details and ought to be believed. I have to disagree with defence's characterization of the accused's evidence being detailed. His account of the interaction in the shower room was relatively sparse in that he could not recall how they were positioned or how the sex ended. All he could say is that she gave him a condom, he put it on, and they had sex for 3 minutes. When they were done they left and he disposed of the condom. I tend to agree with the Crown's characterization of the evidence in that it was so basic that it is not surprising that there were no real inconsistencies.

[46] Overall, I do not accept the accused's evidence. It is riddled with inconsistencies and is flawed by reliability concerns. Moving on to step two of the WD analysis, I am to consider whether the defence evidence is inconsistent with the guilt of the accused. This aspect of the analysis recognizes the possibility of a decision-maker being unable to resolve conflicting evidence and therefore being left in reasonable doubt. In other words, "I may not have confidence that the exculpatory account found in the evidence is an accurate rendition of what happened, but I may reasonably be left unsure about that. If so, I have a reasonable doubt that whether the allegation made by the crown is true." (See D. Paciocco. "Doubt about doubt: coping with R. v. W.(D.) and Credibility Assessment")

[47] Looking at the defence evidence within the broader evidence called at trial including that of Ms. Muscat, the admissions and the complainant's evidence, I am not left in a doubt. To begin with, the conversation and message left with Ms. Muscat do not fit in to the accused's narrative of what occurred the night prior where the complainant would have absolutely no reason for complaint. The details provided in those conversations do not marry up with his own narrative but rather support what was said by the complainant. Finally, the physical evidence does not support the accused's version of the unfolding of the events in the shower room.

Assessment of Crown's Evidence

[48] Moving now to the third aspect of the WD analysis: has the Crown proven the offences beyond a reasonable doubt? The complainant was straightforward and matter of fact in both examination in chief and cross-examination. She did not exaggerate or attempt to cast the accused in a negative light. In this I am referring to how the door closed to the shower room, namely her falling against it, as well as the amount of force used in the push causing her to fall. She did not suggest that during the assault there was any particular force or violence used. The complainant was forthcoming in terms of her own frailties namely her drinking that night, her use of the speed following the assault and her assault of the accused on a later date. She was candid in terms of her relationship with the accused and no animus was evident between the two.

[49] As to her reliability, two areas of inconsistency were put to the complainant in cross-examination. These related to the amount of speed she received from the accused and the length of time the assault lasted. Though the transcript of her video interview was put to her, the complainant remained steadfast that what was recorded was not what she had said. Counsel for the Crown and the accused reviewed the transcript and determined that the complainant was indeed correct. With respect to the length of time the sex lasted, in her written statement she said it was 3 minutes; in her video she said in was quick, 5 seconds and in court she said it was quick, 3 minutes. When asked to explain the difference between 5 seconds and 3 minutes, the complainant explained that what she was trying to convey was that the physical act did not last long – it was over quickly. She also advised that she did not count the time per se.

[50] While I agree that the numbers do not match up, the sentiment used to explain the time remained unchanged: namely, that the sex did not last long; it was over quickly. That explanation informs her evidence and as a result I put little weight on this issue. Otherwise, the complainant's recollection was clear and detailed. Indeed, at one time while being cross-examined, the complainant corrected counsel's recitation of the evidence. Though not on a key point necessarily, it was illustrative of the quality of her evidence.

[51] The complainant's account of the assault is also supported by the physical evidence and by circumstantial evidence of her demeanour as noted by Ms. Muscat. The complainant testified that there was vaginal penetration during the assault, the accused was not wearing a condom, and he ejaculated. The vaginal swab revealed the presence of semen. Ms. Muscat testified that while the complainant told her of the assault, she was uncomfortable, sad, ashamed, and shaky. Overall she was relieved when the statement was done.

[52] Overall, the complainant's evidence was logical, detailed, un-contradicted and supported by other evidence. I accept her evidence about how that evening and the sexual assault in the shower room unfolded. The accused is found guilty of sexual assault.

Findings of Guilt

Sexual Assault

[52] Overall, the complainant's evidence was logical, detailed, un-contradicted and supported by other evidence. I accept her evidence about how that evening and the sexual assault in the shower room unfolded. The accused is found guilty of sexual assault.

Forcible Confinement

[53] With respect to the forcible confinement count, the accused's actions prevented the complainant from leaving the shower room. She was kept in that room against her will. The accused is found guilty of this count.

Criminal Harassment

[54] Concerning the criminal harassment charge, counsel has argued that the words in the message are not threatening as evidenced by the fact that Ms. Muscat did not immediately go to police and thus the accused ought not to be convicted of this count.

[55] In R. v. George, [2002] YKCA 2, the Yukon Court of Appeal had the following to say about criminal harassment by threatening conduct:

39 Based upon the authorities set out above, I am of the opinion that in order to achieve the objectives of s. 264, the threat described in s. 264(1)(ii)(d), must amount to "a tool of intimidation which is designed to instill a sense of fear in the recipient." Whether or not this is the case is an objective question. Here, the question is as follows: did Mr. George commit an action which could be characterized as a tool of intimidation and by which he meant to instill fear in the complainant?

[56] As to the definition of threat, the Court stated at paragraph 41:

I do not see any difference, in substance, between defining a threat as a restraint on a person's freedom of action and an indication of something undesirable to come, or defining it as a tool of intimidation, designed to instill a sense of fear. Instilling a sense of something undesirable to come is indeed engaging in an act designed to instill a sense of fear. Intimidation may occur as a result of restraining a person's ability to act.

[57] Our Court of Appeal adopted the Yukon Court of Appeal's definition and followed it in R. v. Burns, [2008] ONCA 6 at para 2.

[58] A transcript of the message has been filed at exhibit 2. The following are extracts:

So because of her stupidity and nothing really happened right now there's about, there's about a bunch of people right now who are ready to bang her out. So if you don't wanna talk to me she's getting banged out…If you don't wanna talk to me about it, she's getting banged out by a lot of people because people are right now looking for her. Right …now. So if you don't want to talk to me about it and end…and…end it…and fix this problem, she's getting banged out whether I have anything to say or not…if you don't wanna talk to me about it, and I'm going to fix the problem, then she's getting banged out. Simple as that. There's nothing you can do about it. Nothing…

[59] The threat to beat up the complainant unless Ms. Muscat speaks to the accused and fixes the problem is intimidation. The reference to the prior incident contextualizes the words and refers to the sexual assault. On the face of the message therefore, or objectively, the words are meant to intimidate, instill a sense of fear. Though Ms. Muscat may not have immediately turned to the police, she did within a few days of receiving the message. She obviously thought it was threatening. She also told the complainant about it which is not at all surprising since she was the object of the threats and because Ms. Muscat herself was aware that she was having issues with intimidation. According to the complainant, she was indeed being threatened in relation to this incident, which caused her to move out of the downtown core. Given the person to whom the threats were communicated, namely his and the complainant's shared worker, it is inconceivable that the accused did not foresee the message being communicated to the complainant. At the very least he was reckless in this regard. The accused will be found guilty of this count as well.

Breach of Probation

[60] With respect to the keep the peace breach, given the convictions as above, the accused will also be found guilty of this count.

Released: February 17th, 2017

Signed: Justice Jacqueline V. Loignon