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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: July 13, 2018

Court File No.: Toronto 17-75000338

Between:

Her Majesty the Queen

— and —

Hugo Sicurani

Before: Justice S. Ray

Heard: May 7-10, 2018

Reasons for Judgment released: July 13, 2018

Counsel:

• H. Keating, counsel for the Crown
• H. Rubel, counsel for the defendant Hugo Sicurani

Judgment

Ray J.:

Introduction

[1] The Accused, Hugo Sicurani, has been charged with sexual assault contrary to section 271 of the Criminal Code. Sicurani was a first year university student and the Complainant was a high school student at the time of the alleged offence. They met for the first time at the student residence of the Accused, where a "pre" to which she had been invited by a mutual friend was being held for a fraternity party about ten minutes away by car. The Complainant returned after the party to the Accused's room at the residence following which the sexual assault is alleged to have occurred. There is no dispute that Sicurani had sexual intercourse with the Complainant. The issue is whether or not this was consensual, and whether or not a related allegation of forced oral sex occurred, which forms part of a continuing sexual assault.

[2] This case is not what is known in these criminal courts as a "he said/she said." There is a witness to the sexual assault. In fact, "she" didn't even "say" there was sexual intercourse. "She" says that she doesn't know. Neither does her mother, who had to phone "him" in order to find out. "He" says that there was sexual intercourse to which "she" consented. "She" says she did not agree, and said "stop," "no," and "get off." "She" even tried to push "him" off, "she" says. The roommate did not hear her say "stop," "no," and "get off." The roommate heard "her" giggling and moaning during the intercourse that "she" says she doesn't know took place. The roommate also did not hear "him" ask "her" for permission to have a sexual encounter. "He" says he did ask her if it was okay. Neither "he" nor "she" asked the roommate for permission, who took strong exception to this activity taking place in his room. The roommate heard "her" worry about whether the roommate could hear. The roommate heard "him" reassure her that the roommate would not hear. The roommate shone a flashlight on them, and saw that "she" was wide awake, while the sexual intercourse was taking place that "she" said she didn't know happened. I shall try and unpack all this in order to make factual findings.

[3] The Court has heard conflicting accounts with respect to what happened. As always, the Crown must prove the elements of the offence charged beyond a reasonable doubt, and the Court must make credibility assessments.

The Complainant's Stories

[4] The Complainant's story has changed over time. There is more than one version. Her evidence was incoherent, implausible, internally and externally inconsistent, and inconsistent with uncontradicted evidence. She also engaged in a pattern of lying to her mother, and she attested to behaving deceptively immediately following the alleged offence. She explained in her testimony that she looked happy the following morning, but that does not mean that she felt happy. She tried to make everything look normal to the school acquaintance, who invited her to the frat party (hereinafter her hostess). She stayed for breakfast with her hostess and Sicurani, and by all accounts she looked fine. Before they left she hugged Sicurani after her hostess did, and this is captured on surveillance videotape. Her acting was excellent. I could see for myself on the surveillance tape that she looked perfectly normal, not at all traumatized.

[5] She and her hostess met another mutual friend (hereinafter her or their common friend), who had attended the "pre" and the fraternity party with them, and there is evidence before the court that she seemed fine on the train ride home, and the girls were even joking about how she had "hooked up" with Sicurani. To be clear I am not suggesting that the fact that she looked happy and behaved normally, and she did not appear traumatized, means that a sexual assault did not take place. That would be buying into stereotypical myths about what constitutes appropriate demeanor and behaviour for woman after they have been sexually assaulted. What I am saying is that by her own admission, she was pretending and behaving deceptively, and this dove tails with lying to her mother, a pattern of dishonest behaviour.

[6] From the outset the Complainant lied to her mother about where she had been after the fraternity party. When she got home the next day, her mother noticed she was not herself, but she did not disclose what was bothering her. The Complainant attested to hearing "stories" that her hostess spread about her in school following which she argued with her and "unfriended" her. It was at this point that the Complainant decided that she had better tell her mother something. It was her friend S. who advised her to discuss it with her Mom. The Complainant told her Mom that there had been aggressive touching and aggressive physical behaviour towards her and that she thought Sicurani had sexually touched her, but she was "a little cloudy" on what happened. I shall discuss later in my analysis of her evidence why I find it implausible that she would be "a little cloudy" on the part that included sexual intercourse. Her mother phoned Sicurani, and it was from him that she discovered that there had been sexual intercourse and that a condom had not been used. She cursed the boy and hung up. She then did what I would expect any responsible mother to do. She bundled up her daughter and all her clothes from the evening and took her to a hospital, so that a medical investigation could be done into whether or not her daughter had contracted a sexually transmitted disease.

[7] On the evening of the party, the Complainant told her mother that she would be going out with two of her friends to a party at the University of Toronto. She told her that she was planning to come home, and she would not be staying overnight at either of her friend's places, because she had a lot of homework she needed to get done the next day. She came home around 2 pm the next day. This was her mother's evidence and it is not inconsistent with any other evidence I have heard in this case, and it is plausible given the context of all the evidence. She came in and her mother asked her where she had been, and she said she had stayed at her common friend's. The Complainant acknowledged on cross-examination that this was a lie. It is inconsistent with the uncontradicted evidence in this case that she stayed late at the fraternity party and then spent the rest of the night in Sicurani's room. Sicurani's room was the location of the alleged sexual assault itself, so she could not possibly have stayed at her common friend's place.

[8] The Complainant told her mother that she was late because they had lost track of her hostess and they had to go back and pick her up. She admitted on cross-examination that this was a lie, and it is also inconsistent with the uncontradicted fact that her hostess was asleep in the room, where the alleged sexual assault took place. Her mother testified that she found out later that this was not true. In direct contradiction later, she told her mother that she recalled seeing her hostess sleeping on the bed, while Sicurani was touching her, and she was so frightened that she urinated in her pants. She had previously told her mother that she was wearing a pair of her hostess's brother's pants, another lie. That she urinated in her pants is a plausible reason for returning home in another pair of pants, but for other evidence in this case that her pants were clean and did not smell of urine, which I will discuss later.

[9] The Complainant told her mother that she tried to wake her hostess up, but she was not responsive because she had been drinking quite a bit and was also on medication. She wanted to sleep on the bed with her, but there wasn't enough room. So Sicurani put out a sleeping bag on the floor for her to sleep in and persuaded her not to go home because an Uber would be too expensive. She lay on the sleeping bag and did not "really remember a lot of detail after that" save that he was touching her and asked her whether she was on birth control. This is what she told her mother. For reasons that will be analysed later, I do not believe that she did not really remember much detail after she lay on the sleeping bag. First she told her mother that she stayed at her common friend's, leaving out everything that happened that evening. Later she said she stayed in Sicurani's room and she furnished excuses as to why she could not sleep in the bed with her hostess and made it took like Sicurani persuaded her to stay and then aggressively touched her sexually. But she claimed she was cloudy on what happened and did not remember much detail after that, avoiding the prospect of telling her mother what happened.

[10] The Complainant told her mother that when she woke up the next morning, she wasn't wearing her jeans or her shirt. She saw her hostess on the bed with no shirt on. She said her hostess looked surprised that she had no shirt on and went to the bathroom. While she was in the bathroom, Sicurani tried to get the Complainant to touch him, he was touching her, and he tried to get her to perform oral sex, "suck his penis." Her in court testimony directly contradicted this. She said on cross-examination that this did not happen in the morning and there was no reason why she would have told her mother this. This is what her mother testified that she was told. Then she disclosed she stayed for breakfast because her hostess wanted to, because she didn't see what the rush was to leave. She wasn't aware of what had happened.

[11] Following these disclosures, the Complainant's mother obtained Sicurani's phone number from her daughter, and called him. Sicurani's and the Complainant's mother's evidence on what was said during the phone call are consistent except for one point, and that was on the issue of whether he said he was drunk. He testified that he said he was not drunk. Her recollection is that he said he was drunk. The Complainant's mother phoned and identified herself to which he replied, "This is a big misunderstanding." He seemed to know what the call was about, and there is other evidence that before the call, he knew the Complainant was alleging sexual assault. He learned this from her hostess, from whose evidence we learned that she believes that "lots of women cry wolf," and this is what she appeared to believe the Complainant was doing in this case. She phoned her friend Sicurani to warn him about what the Complainant was alleging. So he knew what the call was about and the Complainant's mother said, "Tell me what happened."

[12] Sicurani explained to the Complainant's mother that they were going to a party. They arrived around 10:30 at his place. They went to a party about an hour later. He said he took the Complainant's hostess back to his residence around 1:30, and then the Complainant showed up around 3:30. He provided details as to what happened. In response to direct questions from her, he admitted that he had sexual intercourse with her daughter and he did not use a condom. Her daughter told her that she didn't know until after the phone call that there had been sexual intercourse. For reasons I shall explain later, I do not believe that she did not know, and I have concluded that this is yet another lie that she told her mother, the police, and the Court.

[13] The Complainant told police in her statement to them that her hostess drank "way too much" and Sicurani took her back to the residence. She and their common friend remained. Their common friend decided to go to Saint Michael's College overnight after the party and meet them the next day. She took an uber with a friend from the party to Sicurani's place to meet up with her hostess, pick up her things and go home. Sicurani came down to sign her in and they went upstairs to her room. When she got to the room, she saw her hostess passed out and sprawled over the bed. She tried to rouse her and she was unresponsive.

[14] The Complainant told the police that Sicurani persuaded her to stay, because her hostess would need her in the morning. She decided to remain until her hostess woke up. He invited her to take out her contact lenses, which she did. There was no room for her on the bed, so she lay down on a blanket and pillow on the floor in the clothes that she was wearing. He became aggressive with her. At first he was going to sit in a chair, but then he lay down beside her moving closer and closer. He touched her and made her touch him. He got very aggressive, and she tried to push him off. He tried to put his hands down her pants. He kept trying to put her hand on his penis, skin was touching skin. She did not want to do any of this. He grabbed her shoulder and neck and tried to make her put her mouth on his penis. She said no and kept resisting, and she did not do it. She remembers passing out. She remembers him asking her if she was on birth control and he didn't know if he finished in her. She does not know if she got into the washroom to change. She had urinated in her pants and she was having her period. She ran out of tampons at the party and started using paper towels from the washroom.

[15] The Complainant said in her video that she remembered the whole night at the party clearly. She did not drink much. She suspects that someone could have put something in her drink. She was fine in the cab. She was only mildly intoxicated after the party. But when she got to Sicurani's room, probably around 2, she was "in and out" and only remembers certain parts. It was "all pretty fuzzy." At some time during the night she thought she had been naked, and she woke up wearing different clothes, which she understood belonged to Sicurani. She found her wet pants in the bathroom, and her shirt falling off the end of the bed. She left all Sicurani's clothes in his room and changed into a pair of pants that her hostess had brought for their common friend, because they had expected that their common friend would spend the night with her hostess in Sicurani's room, and the Complainant would go home. She wore her dry shirt with it. According to other evidence in this case, her pants ended up in the purse of her hostess and they were hung in her closet. Her mother picked them up on their way to the hospital.

[16] In her police statement the Complainant says that when she woke up she did not have a headache. She felt "perfectly fine," just confused. This was all in her statement to police. When her hostess woke up she asked where her shirt was and had no recollections of removing it. She went to the bathroom, and while she was in the bathroom, Sicurani tried to kiss the Complainant again. She had to join her hostess and Sicurani for breakfast because her hostess wanted to eat and wait for their common friend. The Complainant hardly ate any food, because she was trying to "figure out what happened." She didn't want to tell her mother about what happened, because she didn't want to cause stress or say anything about which she was not positive. She was scared to tell her Mom, and this is why she told her Mom that she stayed with her common friend. What really happened is that their common friend stayed overnight at Saint Michael's College and they met at the GO station to catch the GO train to go home.

[17] On her video statement to the police, she discloses that she finally decided to tell her mother that "something really bad happened." Her mother asked her, "Do we have to call police?" She answered that she did not know. This conflicts with her mother's account, who testified that she answered in the affirmative. She said in her video statement that she said, "I don't know if I got raped." The Complainant's account of the phone conversation between her mother and Sicurani is not dissimilar to that of her mother. There are minor differences. I am mindful that Sicurani had the benefit of hearing the Complainant's mother's account of the evidence in court, before he gave his strikingly similar account. When the police officer in the video asked the Complainant whether or not she believed that sexual intercourse took place, she answered, "I don't know what happened." She maintained that she had no memory of intercourse with him.

[18] The Complainant's hostess and their common friend seem to have conveyed to her an attitude of having heard too many stories from women who say they have been sexually assaulted. Their common friend's opinion was that there are always "two stories." Her hostess told her, "It happens to every girl. It doesn't matter. You will get over it." This is consistent with what her hostess attested to in court. I should hope it doesn't happen to "every girl." It does matter. And it is easier said than done to just "get over it."

[19] In court the Complainant testified that she was almost one hundred percent positive that the lights were off, when she got to Sicurani's room. Before they left for the party, he was just working on his computer. When she got back from the party, he was just lying awake in bed on his laptop. He left about 20 minutes after she got there. He left while she was lying on the floor. It was Sicurani, who had suggested that she lie on the floor, and he was lying on the floor beside her doing nothing, when he left. He seemed pretty upset, "stormed out," and said he was "going to tell the Don the next morning." This was not explained on the video, and on cross-examination her explanation was that it seemed minor. The Complainant testified on cross-examination that sexual activity started after the roommate left. She denied that it occurred while the roommate was there and he yelled at them to stop, he demanded his sleeping bag back, and that is when he stomped out saying he would complain in the morning. She acknowledged that he "stomped out," but she thought it was because he did not like the idea of two women sleeping in the room. Her evidence directly contradicted that of the roommate.

[20] The Complainant was challenged on cross-examination over how she could say she didn't know if she had intercourse, when she remembered that Sicurani asked her if she was on birth control and said he didn't think he finished in her. When she was asked whether that would cause her to ask whether they had intercourse, she agreed that it would. She explained that she did not ask because she was scared. She maintained that she did not know whether she had intercourse. This is consistent with what she told her Mom and what she told the police. But it is highly implausible. He told her that he didn't think he finished in her. How could he not finish in her, if he did not have intercourse with her? There is no air of reality to the suggestion that she did not know. Her own evidence is that he was sexually aggressive, touching her, trying to force her to touch him, even attempting to force her to engage in oral sex. Her own evidence is that she passed out, she thought she might have been naked during the night, and she woke up wearing a different set of clothes. This was the context for being asked by Sicurani whether she was on birth control and then being told that he didn't think he finished in her.

[21] It defies reason that anyone would suggest in the face of these statements made in this context that she did not know she had had sexual intercourse until Sicurani confirmed this to her mother. Her explanation for the pattern of continuing lies in which she engaged also does not enhance her credibility. She explained in court that she was scared to tell her Mom what happened, because "it's everyone's worst fear…what I had to tell my Mom." She was embarrassed, scared, and she didn't want her to be upset. On cross-examination, she said that she did not want to admit what happened. She did not want to have to tell her the whole story. She "wanted it to be over and she didn't want to go through it." She wanted to forget about it. And her explanation for not asking Sicurani if they had intercourse after the two things he said that made it obvious they had was also that she was scared. So she did not want to find out what happened. She did not want to admit what happened. And she did not want to tell her story. The Court cannot find that something has happened if the person telling it does not want to know what happened, does not want to admit it happened, and does not wish to tell what happened, as sympathetic as the Court may be towards a witness, who is scared.

[22] When a witness tells a string of lies because she is scared, she is still lying, and this evidence does not instantly become credible, because one understands the reason for the lies. The evidence still has to be reliable in order for the Court to accept it. The Court cannot believe her. I also find it highly improbable that she was "in and out," and she "passed out" just before the sexual intercourse. There is highly credible evidence from the roommate in this case that he interrupted them twice while they were having sexual intercourse, once to ask for his sleeping bag back, and again to tell them they were going to continue doing this, they could have the room, and he would report them to the Don the next morning. On the way out, the roommate shone his flashlight on them, and saw that the Complainant was wide awake.

[23] It amounts to pure speculation on the Complainant's part that it may have been possible for someone to have quickly slipped something in her drink. She has a clear recollection of the evening party. She was fine in the cab on the way to Sicurani's place. She looked normal on the surveillance video, did not look as if she was having trouble with her motor skills, and she woke up the next morning without a headache, just confused. By her own evidence, she was not drunk and as such it is improbable that she passed out, and therefore she was unable to remember the sexual intercourse. By the roomate's evidence, she was giggling and moaning through it, concerned about whether or not they could conceal what they were doing from the roommate, again engaging in a pattern of deception involving concealment.

[24] The Complainant also testified on cross-examination that nothing happened, while Sicurani's roommate was there. This directly contradicts the evidence of the roommate, who testified that he heard sexual activity, heard her ask whether he thought his roommate would hear, heard Sicurani reassure her that he would not hear, and heard her say, "Are you sure?" The Complainant denied in her court testimony that these things were said. The roommate did not hear her say no or anything indicating that she did not wish to do this. To the contrary, he heard giggling and moaning. He believed they were both too drunk to be making the decision to engage in sexual activity, and he said so. His perception of their degree of drunkenness exceeded what can be observed on the surveillance video, where they appeared for the most part to be walking and moving normally, and he agreed when shown the video that this was the case. He said his original conclusion was based upon what he observed in the room. He stated in his evidence that he had seen Sicurani and his guests drunk before, and there had been previous experience with vomiting. It is my view that it may also be that his perception of how drunk they all were was influenced by what he expected based upon previous experience. He had something of a confirmation bias on the drunkenness issue. Nevertheless, for reasons that I shall explain later, I found most of the testimony of the roommate to be credible, compelling, believable, and reliable. The complainant's denial that she said things that Sicurani's roommate heard her say is not credible.

[25] The Complainant has told lies and created a web of deception, concealment, and other dishonesty in order to avoid facing the consequences of having sexual intercourse with a stranger, avoid "everyone's worst fear," which is that she would have to tell her Mom. Her explanation for the pattern of continuing lies in which she engaged arouses sympathy, but it does not make what she says true. She was embarrassed, scared, and she didn't want her mother to be upset. On cross-examination, she said that she did not want to admit what happened. She did not want to have to tell her the whole story. She "wanted it to be over and she didn't want to go through it." She wanted to forget about it. It appears that she did not want to even find out what happened. She did not ask Sicurani to clarify what he meant when according to her evidence he said that he is not sure whether he finished in her. She would rather not know. She would rather forget it. Right to the end she maintained that she did not know whether there was intercourse. I do not accept any of her evidence that she did not know until after the phone call between her mother and Sicurani.

[26] Whether or not Sicurani has done anything legally or morally wrong, the Complainant has evidently suffered a psychological trauma, and this is evidenced by her thoughts and feelings illustrated through her actions and words. I believe the evidence that the Complainant was genuinely scared, and it may be that our moral character is most tested when we are scared. No compassionate person would not feel some sympathy for her. But she chose lies, deception, and concealment as the approaches she would use to handle her fear. She could have chosen other options. I do not find that she was drunk or that this affected her memory or her evidence. Nor do I accept her speculation that something may have been slipped into her drink. There is no evidence at all that would support such vague speculation. There is evidence that the Complainant took her own drinks to the party, and did not drink the beer provided. The roommate observed her and her friends in the room concealing alcohol to take to the party.

[27] Because the dishonesty was repeated and continuous rather than momentary or minimal, I find that I cannot believe any of her evidence that was not confirmed by other evidence or that cannot be inferred from the totality of her actions and words and that is not plausible given the context of all of the evidence. She was not a credible or reliable witness.

The Roommate

[28] The roommate testified that he met Sicurani through a roommate matching program, and he thought they would be compatible. The relationship as roomates started off quite well, but then it started to go downhill when Sicurani would come home quite drunk. The relationship started to deteriorate due to the impact on him of Sicurani's behaviour in the room while intoxicated, and he applied for a transfer to another residence. The roommate was already frustrated with the arrangement and had discussed some behaviour that had occurred, but he had not yet told Sicurani that he planned on moving out.

[29] The roommate was completely sober and studying for mid-terms on the night in question. Sicurani walked into the room with three women before they all went to the fraternity party. They were in the room for about half an hour before they left. Hugo returned with one of the girls, whom the roommate described as the "brunette," and we know from other evidence was the hostess. He testified that she was heavily intoxicated. The roommate was in bed working on his laptop. The hostess ended up lying on Sicurani's bed, and he told his roommate that she had passed out. The roommate asked him to make sure she lay on her side in case she vomited. Sicurani moved her accordingly and he sat on the bed answering phone messages. The roommate wore his headphones to block out the noise.

[30] Sicurani tapped his roommate on the shoulder, while he was wearing his headphones, and asked him to watch her for him because he wanted to go downstairs and smoke marijuana outside. The roommate did not agree to watch her, but Sicurani left anyway. He left for 45 minutes. There is other evidence before the court that it was less than 45 minutes, and the video surveillance does not reflect that it was that long. There is no evidence before the Court that Sicurani smoked any marijuana. The roommate testified that when he came back up, he smelled of "weed," and he returned with a "blonde," whom we know from other evidence was the Complainant. The roommate lent them his sleeping bag, so that he could sleep on the floor, and the Complainant could sleep on the bed. She complained that her hostess was taking up a lot of space on the bed, and she ended up climbing down with the Complainant onto the floor and in the sleeping bag.

[31] Once in the sleeping bag Sicurani and the Complainant started talking quietly, and the roommate was still wearing his headphones. He took them off occasionally just to make sure that everything was okay. Based upon previous experience he wanted to make sure they were just talking and nothing intimate was happening, because this would make him uncomfortable. He had a sense that something intimate might be arising, because this had happened before. There wasn't any intimacy yet. He just expected something to happen along those lines. He kept working on his laptop and eventually took the headphones off. He heard some rustling and kissing. The Complainant was not on the bed anymore. He heard Sicurani say, "He won't know, he won't hear us," and the Complainant saying, "Are you sure?" Sicurani's voice was very dominant, and hers was quivering. The Complainant seemed apprehensive, and Sicurani was very assertive. The roommate became concerned that things were escalating to a point that would make him uncomfortable, and he thought Sicurani was trying to initiate sex.

[32] The roommate testified that the kissing sounds grew, and there were sounds of moaning emanating from both of them at the same time. He heard rhythmic sounds as if fabric and not skin was rubbing together and a "rhythmic kind of dull sound." He thought they were having sex without penetration and with clothes still on. He became very uncomfortable and texted his parents, who were not happy to hear this, and told him to leave. Before he left, he asked for his sleeping bag back, because he didn't want them to be doing this in his sleeping bag, which would be hard to wash. He was upset, sat up on his bed, and said, "Really, if you're going to do that, then at least give me back my sleeping bag." Sicurani threw him his sleeping bag and then used his own duvet and sheets, which he pulled off his bed. It was dark in the room and he could only make out two figures on the floor, but could not see what they were wearing.

[33] The roommate testified that after returning the sleeping bag, they simply continued as before. He got very upset because it was early in the morning and he had an exam the next day and had not been able to sleep. He got up and said, "If you want the fucking room, you can have the fucking room" and "Neither of you are in any state to be doing anything like this right now. I'm talking to the Don in the morning." He explained on cross-examination that this was not an open invitation for them to continue. It was to demonstrate how upset he was. He put on his clothes and prepared to leave as he said this. He shone his flashlight on them and he saw Sicurani in his underwear between the legs of the Complainant. Her legs were bare. He could only see up to her knee. Sicurani was on top of her, so that is all he could see. The Complainant's face looked startled, uncomfortable, and scared. Sicurani said, "Okay, okay, we're going to be finished. I promise we'll go to sleep."

[34] The roommate explained on cross-examination that he believed people who have been drinking should not be making decisions about whether they should have sex or not. They could be exercising poor judgment and they might do things that they regret later, so it is better if they don't do it. He did not recall anyone trying to rouse the woman on the bed (the hostess), but he had his headphones on at that time, and he was trying to study. The giggling he heard came from the Complainant and not the hostess. He took his headphones off for the rest of the night, when the conversation and the giggling started. The Complainant was still on the bed, when he took the headphones off. He did not hear the Complainant say, "No," or "No, get off me." He did not hear her say, "Stop." He did not see her push him off or try to get up and leave, but it was dark. It got quieter, when they were together in the sleeping bag. The Complainant looked awkward, uncomfortable, and surprised, when he shone his light on them on the way out. Both of them were awake at that time.

[35] The roommate was a very credible and reliable witness. His evidence was coherent and internally consistent. It made sense within the context of the totality of the evidence. He was honest about his emotions. He was very upset and he said so. He was frustrated with Sicurani's lifestyle, which was affecting him. His debauchery offended him. He was straightforward about his strained relationship with Sicurani, but he was still restrained in the evidence he gave. He did not embellish his account of the sexual activity he saw and heard. He was completely sober and trying to study on the evening in question. He did not go to the party. It was a small room that they both shared. The lights were off and it was dark, but he could hear. He took his headphones off, when the Complainant was still in the bed, and the conversation and giggling started.

[36] The roommate heard all the sounds of sexual activity described above, the words spoken, and saw them as he shone his flashlight on them on the way out. He confronted them over what they were doing, and they simply continued. When he told Sicurani to give him back his sleeping back if he was going to do "that," he simply tossed it to him, and continued what he was doing. On the way out, he saw Sicurani lying over the Complainant wearing underwear and the bare legs of the complainant, bare up to the knee. He could not see the rest, because Sicurani was lying on top of her. Sicurani's voice was dominant and assertive. Hers was quivering and apprehensive. The roommate was right to conclude that Sicurani initiated the sex. He did not hear her say no, get off me, or stop.

[37] The weakness in the roommate's testimony is in his account of how drunk everyone was. There is some evidence from other witnesses that they were drunk, but the surveillance videos are the best evidence, and they do not show the degree of drunkenness described by the roommate and other witnesses. One of the reasons why the roommate thought they were drunk was they were loud. I would expect young university students going to a party to be loud, whether or not they were drunk. They were having fun. It was a night out. As I indicated earlier, the roommate was frustrated with previous similar activity from Sicurani, and had seen him and his guests drunk before, so I believe his conclusions were influenced by what he observed in previous incidents. There is also no evidence to substantiate that there was any marijuana use that night. The roommate is also off somewhat with the respect to his observations regarding the timing of what occurred.

[38] The roommate's evidence of what he heard from when the sounds of giggling and quiet talking on the bed started to the sounds of sexual activity on the floor is reliable and credible. There is also an admission from the Accused that there was sexual activity and intercourse. I accept the roommates evidence that there was sexual activity initiated by Sicurani, who was dominant and assertive. He did not stop even after being confronted by his roommate, which in my view demonstrated an aggressive attitude. I accept the roommate's evidence that the Complainant was apprehensive and her voice was quivering, but that she was also giggling and moaning. And I also accept his evidence that he did not hear her say, no, stop, or get off. The roommates evidence taken as a whole tends to suggest that Sicurani was aggressive, but the Complainant did consent to the activity. She was apprehensive about getting caught, and she was startled, surprised, and scared, when they did get caught.

The Hostess

[39] The hostess testified that she started to feel sick at the frat party due to some medication that she took that should not be mixed with alcohol, so she left in a taxi with Sicurani to sleep at his place. She was feeling fine. She was just dizzy and nauseous, but she did not feel like vomiting. She drank that night but not excessively. She fell asleep very quickly after she got into Sicurani's bed. She took her top off and slept in her bra. She blacked out from exhaustion. They had made prior arrangements that she would sleep there. He made a bed on the floor, where he would sleep. She remembered hearing the Complainant coming in around 3:30, and then she just fell back to sleep. When she woke up in the morning, she saw Sicurani and the Complainant on the floor, and made a joke about them "hooking up" that night. She saw them "cuddling." She went into the bathroom, and when she came out, she saw Sicurani get in his bed, and she saw the Complainant follow him. They started cuddling again. She saw her arms around him, she looked comfortable, she saw them "snuggling," and he saw her kiss him. They got up, packed up, and went for breakfast. She hugged Sicurani when she left, and then the Complainant did.

[40] The girls met their common friend at the Go Station, and they went home together on the train. They made jokes about who their other friend "hooked up" with and that the Complainant "hooked up" with Sicurani. She took the Complainant's jeans home in her purse, and did not realize it until the Complainant's Mom came to her house to get them. The jeans were not damp, they had no odour, and she hung them up in her closet. She thought they were clean.

[41] The hostess testified that she did not believe the Complainant, when she said that Sicurani sexually assaulted her. She told her not to tell her mother because this would escalate things. She was concerned, "because a lot of times, girls often cry wolf." She said that the Complainant had a flirtatious personality and she can be extremely touchy. She was flirting with Sicurani earlier that night.

[42] My concern about accepting the evidence of the hostess is that she is clearly a biased witness. She has a fixed idea that the Complainant is flirtatious, flirted with Sicurani, escalated things, and she has a general attitude towards women that "a lot of times, girls often cry wolf." All of this in my opinion coloured her perception of the Complainant and of what little she observed that evening. Even if her evidence was credible, she was asleep during the alleged sexual assault. I do not find any of the evidence of her observations of the Complainant's behaviour towards Sicurani to be credible. I do accept her evidence about herself, that medication she was on may have enhanced the effects of alcohol, and this is why she had to leave the party early and why she slept so quickly and soundly. I also accept her evidence that she took off her own shirt, and slept in her bra. And I do accept her evidence regarding the cleanliness of the Complainant's pants.

The Accused

[43] The Accused is not a likable man, and his demeanor on the witness stand was not impressive. His evidence sounded rehearsed. Sicurani is not likable because he aggressively persuaded an apprehensive young high school student that he had only just met to have sexual intercourse with him, in a room at his residence that he shared with a roommate on a night when his roommate had been preparing for exams and needed to sleep, and with a friend of hers present, who was sleeping in one of the beds. It was a sexual encounter only for pleasure, and there was no relationship between them. He showed no respect or consideration for his roommate, disturbing his sleep when he had exams the next day, and making him so uncomfortable that he left the room. Even when confronted by his roommate, he cared only for his own physical pleasure, continuing what he was doing, even after the Complainant was startled, scared, and embarrassed. Whether or not the Complainant legally consented to this, she experienced regrets and a psychological trauma after the fact that was so serious, it was very difficult for her to tell her mother. After the fact he says he has done nothing wrong, and has exhibited a callous disregard and disrespectful attitude towards the feelings and dignity of others including the Complainant and his roommate, caring only for his own pleasure. He is insensitive, inconsiderate, and selfish. His demeanor on the witness stand reflected all this. I have had to sternly remind and instruct myself on the law on credibility assessments and appellate admonitions that demeanor can sometimes be misleading.

[44] It is precisely because Sicurani is obtuse and thinks he has done nothing wrong that he has some credibility as a witness. He has been completely open about what happened and he has not tried to hide what he did. As counsel pointed out in submissions, when the Complainant's mother called him, she asked him to tell her what happened. She asked him if they had sexual intercourse and if a condom was used. It was Sicurani who provided the information. He could have withheld it, and perhaps he may not have been charged, and there may not have been a reasonable prospect of conviction or a trial. After all, the Complainant claimed she did not have any recollection of sexual intercourse. Some of Sicurani's evidence is also confirmed by other evidence in this case, which also lends credence to his version of the facts.

[45] Sicurani testified that neither he nor the Complainant was intoxicated, nor did either of them consume marijuana that night. When she got back to his room from the party, she decided to stay instead of taking a taxi home. She went to the bathroom to take her contacts out, and he gave her a pair of his sweatpants and t-shirt to wear, so she would be more comfortable. She went to sleep in the bed next to her hostess, but she only stayed there a few minutes, because there was not enough space to sleep comfortably. So she came down to lie next to him. He got up and let her know that he would be comfortable sleeping in the chair. She let him know that "she would be fine" if he slept next to her. He was not wearing a shirt, and she said that was fine. He was only wearing a pair of sweatpants. They engaged in small talk and she was lying fairly close to him. The lights were off and they were under the blanket. They started touching each other. He rubbed most of her body including in between her legs, and she did the same, and rubbed his penis. He asked if this was okay, and she said yes. They were still wearing clothes. This is entirely consistent with the sounds that the roommate heard.

[46] Sicurani testified that things went past the touching stage. She whispered asking about his roommate. He answered that he wasn't going to know. He assumed that he was asleep. He hadn't been making any sound, and the lights were off. She asked, "Are you sure?" He said, "yes." This is entirely consistent with the roommate's evidence. He asked her to put him inside her. She grabbed his penis, and she did. He asked her if she was on birth control, and she replied that she was. He did not use a condom. Quite suddenly, the roommate asked for his sleeping bag back, if they were going to do this. They stood up, and he gave him back the sleeping bag, and retrieved a double sheet and blanket, and they continued what they were doing. Then they had intercourse. The Complainant was awake during the intercourse. She was giggling and moaning, which are signs of pleasure. They were interrupted again, when the roommate shone his flashlight on them. Sicurani recounted the same statements that the roommate earlier testified he made regarding how they could have the room, they were not in any state to do this, and he would be making a complaint in the morning. He proceeded to storm out of the room. So far this evidence is consistent with that of his roommate and what he told the Complainant's mother. The part about asking him to put him inside her was neither confirmed nor contradicted. They stopped having intercourse. He texted his roommate apologizing and asking him to come back. They went to sleep in each other's arms. They were both the initiators of this.

[47] When the hostess woke up and went to the bathroom, Sicurani got up and went to his bed. The Complainant followed him. They were kissing and cuddling. When the hostess came out of the washroom, she made some sort of joke about them "hooking up" the night before. They went for breakfast. Both girls hugged him goodbye. Everything seemed normal. After they left, Sicurani received information from the hostess that the Complainant was unhappy about something, and there was going to be a sexual assault complaint. The hostess also warned him that there would be a call from the Complainant's mother.

[48] Sicurani had the benefit of hearing from all the other witnesses in this case before he testified including the hostess. Normally the Accused would be the first defence witness. His evidence is consistent with that of the roommate and the hostess. It is at least confirmation that he agrees with what they said. It is, of course, consistent. He agrees on cross-examination that he asked the roommate to keep an eye on the hostess, when he went down to get the Complainant. He does not agree that he went down to smoke marijuana or that he was gone for very long. He does not agree that he and the Complainant were drunk. For the most part his evidence does not contradict that of the roommate. His evidence about offering to sit in the chair is partially confirmed by the Complainant's testimony. She said that at first he was going to sit in the chair. She did not explain how that changed.

[49] Most of Sicurani's evidence that points to the Complainant consenting to the sexual activity cannot be confirmed by the roommate's evidence. The hostess was sound asleep and cannot confirm it. There are other issues with her evidence about whether the sexual assault occurred and whether or not there was consent that I have already covered. The roommate cannot confirm that Sicurani offered to sit in the chair, that he asked if it would be okay, that he asked her to put him inside. The roommate did not hear all these indicators of consent, but he did hear the giggling and the moaning. He did hear the quiet words about whether the roommate could hear them. I am puzzled about how the roommate heard some of these things, but not others, when the earphones were off, and he was straining to hear if something that would make him uncomfortable was going to happen, given his previous experience with Sicurani. I am sceptical whether the Complainant consented as clearly to sexual activity including intercourse as Sicurani suggested in his evidence. I am also sceptical whether she communicated in some fashion that she did not mind him sleeping beside her. None of this was heard by the roommate. I also accept the roommate's evidence that Sicurani in a verbally aggressively way initiated sex, and that the Complainant was equivocating to start with due to concern over the roommate being able to hear. Sicurani persuaded her that there would not be a problem, and sexual activity started to which she seemed to respond favourably by giggling and moaning as if she were enjoying it. I do not believe the Complainant's evidence that she said no, stop, and get off, nor do I believe her evidence that she tried to push him off.

Conclusion

[50] The evidence in totality points to the Complainant having been apprehensive at first, then having been persuaded in a verbally aggressive way by Sicurani to have sex, and after being reassured that the roommate could not hear them, she consented to the sexual activity. The sounds heard by the roommate, which are credible evidence that I do accept show this. I am sceptical about some of the evidence of consent attested to by the Accused, but given that it is confirmed in part by the very credible evidence of the roommate, the evidence of the Accused does leave me with a reasonable doubt that there was a lack of consent. The Accused has admitted the sexual intercourse. I am not satisfied that the Crown has proved beyond a reasonable doubt that the sexual intercourse was non-consensual. I do not believe the evidence that there was an attempt at forced oral sex either in the evening or the morning after.

[51] The behaviour of the Complainant the morning after attested to by both the Accused and the hostess is after the fact conduct by the Complainant, which cannot be relied upon to show that the alleged sexual assault during the night did not or is less likely to have taken place, even if I did believe it. But I am sceptical about any testimony about consent originating from the hostess given her bias against the Complainant and sexual assault complaints generally. And the Accused gave exactly the same version as the hostess regarding the after the fact conduct of the Complainant, after listening to her testimony, so I am sceptical. But taking all of the foregoing into account, there is still sufficient evidence of consent to support a conclusion that the sexual assault was consensual, or that I should at least be left with a reasonable doubt as to whether it was not consensual. The Crown has not proved lack of consent beyond a reasonable doubt.

[52] For all of these reasons, I find the Accused Sicurani not guilty, and the charge is dismissed.

Released: July 13, 2018

Signed: Justice S. Ray

Footnotes

[1] Criminal Code, R.S., c. C-34, s. 1

[2] See Lynn Smith J, "The Ring of Truth, The Clang of Lies: Assessing Credibility in the Courtroom" (2012) 63 UNBLJ 10.