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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

(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.

And pursuant to s. 517.

Court Information

Ontario Court of Justice

Date: October 4, 2019

Court File No.: Toronto 4817 998 19-75001454

Between:

Her Majesty the Queen

— and —

Morteza Salehiashtarjani

Before: Justice Howard Borenstein

Heard on: April 15, 16, 17, May 10, June 4, July 26, and September 27, 2019

Reasons for Judgment released: October 4, 2019

Counsel:

• Ms. C. Glaister — counsel for the Crown
• Mr. Sourena Sarbazevatan — counsel for the accused Morteza Salehiashtarjani

BORENSTEIN J.:

Overview

[1] Morteza Salehiashtarjani is charged with sexually assaulting two young men and administering a noxious substance to one of them. The sexual assault against each complainant relate to events nine months apart.

[2] The accused is about 40 years old. He does not speak English well. He is from Iran. His first language is Persian.

[3] He met the complainants through the Grindr app. Grindr is sometimes used by men to meet other men for the purpose of sexual activity. That was the case here.

[4] He first met the complainant, 18-year-old B.S., on January 12, 2017 after contacting him late at night on Grindr. B.S. is transitioning from a woman to a man but has not yet had surgery. B.S. was living in residence at Ryerson. Following their contact on Grindr, B.S. went to the accused's apartment around four in the morning. There, they had consensual sexual activity, including kissing and both vaginal and oral intercourse. B.S. alleges that the accused then turned him around and repeatedly attempted to penetrate B.S. anally. B.S. said no and kept moving away, but eventually gave up and anal penetration occurred. B.S. testified that he had complicated responses trying to process what happened that evening and blamed himself for not moving that final time when penetration occurred. He chose to focus his upset on the hickeys he says he received. He contacted the police nine months later.

[5] The accused testified. He admitted much of the consensual activity with B.S. but denied any attempted anal penetration.

[6] The accused is also charged with a sexual assault upon another 18-year-old Ryerson student, I.C., nine months after the incident with B.S.

[7] The accused contacted I.C. on Grindr. The accused went to I.C.'s residence. Consensual sexual activity occurred. I.C. alleges the accused then kept attempting to penetrate him anally even though I.C. kept resisting. I.C. also alleges that, during the sexual activity, the accused took out a vial of what he called poppers, or poppy or rush, and held it to I.C.'s nose without his foreknowledge or consent. When he inhaled from the vial, he felt dizzy.

[8] Medical records were filed on consent. They show redness around I.C.'s anus and the accused's semen in that area. No testing was performed on B.S. as he went to the police more than nine months after the incident.

[9] The accused admits the sexual activity with I.C. and testified that the anal intercourse was consensual. He denies having a vial of drugs.

[10] The Crown has brought a similar fact application, asking the Court to consider the evidence of each complainant as supportive of the credibility of the other complainant and to rebut any suggestion of fabrication. The accused does not oppose the application.

[11] With that overview, I turn now to the relevant evidence in issue detail.

B.S.

[12] B.S. is a student at Ryerson. He downloaded the Grindr app in late 2016 and deleted it in March 2017, after his encounter with the accused. He re-downloaded the app again in July 2017 and deleted it again in December 2017. He then got the app again. Every time he deletes the app, he loses the conversations which are otherwise saved.

[13] On January 11, 2017, the accused messaged B.S. on Grindr. They had never met. B.S. was at his residence at Ryerson. B.S. testified that the accused asked him on Grindr if there was anything he did not want to do, and B.S. replied "anal". He testified that the accused sent B.S. a photo and said, "ok, come over". B.S. arrived at the accused's apartment around 4 a.m. The accused did not look like the photo he sent.

[14] When B.S. entered the accused's apartment, he asked for water. The accused did not understand and handed B.S. his cell phone with Google Translate open and B.S. typed in that he wanted water.

[15] They then went to the living room, clothes were removed, and they had consensual sexual activity, including kissing and vaginal intercourse. The accused then inserted his penis into B.S.'s mouth. B.S. did not like that and pulled away.

[16] B.S. testified that, while engaging in sexual activity on the couch, the accused grabbed him by his hips and turned him around so that B.S. was on his hands and knees on the couch. B.S. thought the accused was going to penetrate him vaginally from behind, but the accused tried to penetrate B.S. anally. B.S. turned around and said something like, "no, don't do that". B.S. was not sure he articulated the word "no" but believed he did so, at least once. B.S. then moved his body to stop the accused.

[17] The accused kept turning B.S. around in that position and kept trying to insert his penis in B.S.'s anus. B.S. kept turning around. This happened a few times. B.S. testified that the accused was not using excessive force when turning him and he himself did not try to break free from the accused's grip. B.S. just waited till the accused let go of him once he was turned and B.S. would then move, or sit, in order to prevent the accused from penetrating him anally. B.S. said this happened four or five times. Apart from moving his body or shaking his head no, the only specific thing B.S. recalled saying was "no", but he was not sure if he said that. Whatever he did or said, the accused responded by saying, "please".

[18] B.S. did not want to engage in anal intercourse, but the accused kept trying no matter what B.S. did. On the last attempt, B.S. hesitated too long and the accused penetrated B.S.'s anus, which hurt.

[19] When asked if he believed the accused understood that he was saying no, he said he did both by words and body language and said that, if the accused did not understand, he questioned why he be saying "please".

[20] After this penetration, the two then engaged in consensual vaginal intercourse. B.S. testified that, once the accused "finished", B.S. went to the washroom, dressed and left. The accused walked B.S. to the door and said thank you.

[21] B.S. was annoyed and uncomfortable when he left the accused's apartment. He testified that he attributed this to the hickey he received rather than the anal penetration that occurred as he did not want to think about the anal activity but, after a few months, he realized that it was the anal intercourse that was making him feel bad.

[22] B.S. went to the police on October 31, 2017; almost nine months after the incident. He testified that he deleted his Grindr app after this encounter. He downloaded it again in July 2017 and the accused messaged him on October 31st. When B.S. realized it was the accused who had messaged him, the following text exchange occurred:

Sender	Time	Message
Acc	2:43 p.m.	I live at 260 Wellesley
B.S.	2:45	Have we hooked up before
Acc	2:45 p.m.	Yeah
B.S.	2:45	What apartment are you again
Acc	2:47 p.m.	2107 – apt
B.S.	2:47	What's your name
Acc	2:47	Mores
Acc	2:49 p.m.	when are you here
B.S.	2:49	I'm not going
Acc	2:50 p.m.	Okay
B.S.	2:51	Last time I told you I didn't want to do anal and you did it anyways. Do you realize that's rape?
Acc	2:51 p.m.	When are you coming to my home
B.S.	2:51	I'm not
Acc	2:52 p.m.	No / Just oral? / No sex / I'm sorry
B.S.	2:52	No
Acc	2:52 p.m.	Okay
B.S.	2:52	Did that even occur to you that you did that
Acc	2:53 p.m.	No / Tnx for answer / Take care / Have a good day
B.S.	2:55	Keep thinking about that. A lot. Because I have

[23] After this exchange, B.S. contacted the police.

[24] In cross-examination, B.S. agreed that meeting people online is risky. He would not have met the accused if he knew anal intercourse would occur.

[25] He was cross-examined extensively on how he perceived the encounter at the time and not reporting it to the police right away.

[26] He testified that he had complicated feelings about what occurred. He did not report it right away because he was not willing to consciously think about what happened and instead, focused his discomfort on the hickey rather than the anal intercourse. He agreed that, if he had stepped back and thought about it at the time, he knew it was "rape" "to a certain extent" but was not processing it. He just wanted to leave and not think about it, so he convinced himself that it was fine even though he was in shock, and angry, and in some pain. If he had, he said he would have gone to the police.

[27] B.S. explained that he perceived the anal penetration as closer to consensual because he did not move away that last time having given up. He said he did not want anal intercourse to occur and indicated so, repeatedly. After it occurred, he tried to make himself feel better by thinking that it could have been consensual but did not believe it was. He testified, "so yes, I suppose I kind of perceived it as consensual sex at the time, but it is more complicated than that". He was asked when he realized it was non-consensual and answered, a couple of months later.

[28] When asked why he engaged in consensual vaginal intercourse after the anal penetration, he responded that, at the time, he did not feel he was in control of the situation and, "as strange as it now sounds", he did not want to assert himself and be rude. He said there is a "dynamic" about being 18 in someone else's home. He did not want to think about that penetration. He wanted to focus on something else to be distracted so the accused could finish, and he could leave.

[29] He agreed that, when he first went to the police, he told them the idea of it being consensual crossed his mind, but he did not believe it was consensual. However, when his actual statement to the police was put to him, what he said was that, because he did not move away, he convinced himself it was consensual.

[30] Defence counsel asked how he expected his lack of consent to have been communicated to the accused. Leaving aside the fact that question reverses the legal onus, B.S. replied that he had been saying no leading up to it, by saying no and shaking my head or moving. That made it clear". He was not certain he said no out loud but believes he said no at least after the first attempt but was not 100% sure.

[31] It was suggested that he kissed the accused when he left his apartment. He replied that he did not remember doing so but it was possible. If he did, it would have been a short final obligation type kiss.

[32] It was suggested to B.S. that the accused would testify that he has seen the accused and the second complainant and B.S. denied knowing him.

I.C.

[33] I.C. was the second complainant. He was an 18-year-old Ryerson student living in residence when he met the accused. The accused messaged him through Grindr. When I.C. asked how old he was, the accused said he was 26 years old. In his Grindr messages, I.C. wrote that he was a virgin and asked if the accused had condoms and then wrote, "no fucking though" and "no further than suck". They agreed to meet outside the accused's residence where they smoked a joint of marijuana. I.C. said language was a challenge, but he established the "ground rules" verbally and through hand gestures. He asked the accused if he knew what consent meant and he replied he did. I.C. then said, "do you understand that means no fucking?" and the accused said he understood. I.C. said, "only oral" and the accused agreed. I.C. used a hand gesture where he took his thumb and forefinger and made a circle and used a finger from the other hand to make a line through the circle to reinforce the point of no intercourse and the accused said he absolutely understood, though I.C. later said the accused did not use the word "absolutely" as he was not quoting him verbatim. After smoking a joint, they went inside I.C.'s residence and the accused had to show security his identification and I.C. learned the accused was born in 1976.

[34] They went into the residence. The accused immediately took off his pants and shirt. I.C. began taking off his pants and they had consensual sexual activity.

[35] The accused pulled out a vial from his shirt pocket and held it to I.C.'s nose without warning and made I.C. sniff it. The accused sniffed it himself and said it was fine and said it was called crush or rush and would make him feel "poppy". It made I.C. dizzy and lethargic. The accused pulled out the vial four or five more times that evening. I.C. sniffed it those times, although he only consented to the vial once. The other times were without warning.

[36] While engaged in consensual sexual activity, the accused tried to insert his penis into I.C.'s anus. I.C. said "no". The accused asked why, and I.C. said because they did not agree to do that. I.C. moved back to kissing and other consensual sexual activity. The accused kept trying to put I.C. in positions where he could be on top. The accused asked for a lubricant and I.C. asked why. The accused applied lubricant around I.C.'s anus and I.C. put his own hand in front of his anus to stop the accused. He also tightened his anal muscles to prevent the accused from penetrating him. He said no insertion and no fucking, but the accused kept trying, telling I.C. to let it happen, not to worry and it's fine. On the last occasion, the accused grabbed I.C.'s arms, held them behind his back forcefully while I.C. was face down and inserted his penis in I.C.'s anus but I.C. immediately got away and told him not to do that again. The accused replied, "Ok, I understand" but then did it again. I.C. repeated his comments but more angrily and the accused said, "Ok, ok". Thereafter, they continued engaging in consensual sexual activity.

[37] He said he fought off the accused from inserting himself for 30-40 minutes.

[38] In total, the accused penetrated I.C. anally three or four times without a condom and it hurt. That evening, through Google Translate, the accused asked I.C. if he was mad at him and I.C. said he was. The accused, through Google Translate, asked if he could take I.C. out for drinks the next night. I.C. replied that he does not drink and certainly not with him, as he sexually assaulted him and told the accused to get out. The accused kept apologizing, saying he was sorry if he upset I.C. or did something wrong.

[39] I.C. left the accused's apartment, called his mother and called 911. He was taken to the hospital and given Ativan for anxiety. A medical examination was conducted, and he spoke to the police. He said he was 100% truthful and did not think the Ativan impaired him heavily. The toxicology report found THC and therapeutic amounts of Lorazepam in I.C.'s blood. According to the report, the effects of Lorazepam may include, impaired judgment, memory, confusion and dizziness.

[40] He was asked why he was polite to the accused that night given what he has alleged and replied – why shouldn't I be polite? I show courtesy so it doesn't continue and, after about the 10th time, I did tell him to fuck off.

[41] The Crown asked if there was any force used during oral sex. I.C. replied no. In his statement to the police, however, he was asked if the accused forcefully held him and he replied, "yes he did force me a little". The officer then asked, How? and I.C. replied, "On his penis – I was choking on it". The officer then asked, "so he made you perform oral sex and I.C. replied yes. When confronted with this contradiction, I.C. explained that the oral sex was forceful but consensual and said he told the police that he made him do it because he grabbed I.C.'s head and put his penis in I.C.'s mouth and therefore it was forceful, but consensual.

[42] There was extensive cross-examination on minor inconsistencies, such as whether a jacket in a photograph was leather or not, which I find has no bearing on I.C.'s credibility or reliability in relation to the material matters. I.C. at times corrected counsel when counsel misstated his earlier evidence, including what the ground rules were or what I.C. told the police about the drug at the hospital. I.C. maintained he told the police he consented to the vial of drugs only once, not the other four times. When it was pointed out that he only spoke about the non-consensual administering of drugs to the police, I.C. replied he was focused on that and the non-consensual sex, not the one time he inhaled from the vial willingly. He denied knowing B.S. and, when challenged in a dramatic fashion by counsel, he maintained his denial without reaction.

[43] I.C. was adamant that he did not set aside his ground rule and consent to anal intercourse. He denied asking the accused his HIV status and, when the accused replied negative, denied consenting to unprotected anal intercourse.

[44] I.C. continually suggested different sexual activities to the accused other than anal intercourse. He agreed that the accused performed oral sex upon him after the first attempted anal penetration and explained, in his words, he wanted his end of the bargain.

[45] I.C. denied asking the accused for $700.00, saying he was not a prostitute and had more money at that time than ever.

The Accused

[46] The accused moved to Canada from Iran in 2016, a few months before the allegations involving B.S. His English is very poor, and he used Google Translate a lot, even for simple phrases.

B.S.'s Allegation

[47] The accused was home alone late at night, on Grindr, looking to meet someone to have sex with. Around 3 a.m., he contacted B.S. online. They had never met. B.S. arrived at his home around 4 a.m. B.S. asked for water, but the accused did not understand him. They used Google Translate and he gave B.S. water.

[48] They moved to the couch, got undressed and began hugging each other. B.S. performed oral sex on the accused. The accused then took out a condom and had vaginal intercourse with B.S. B.S. was on his back. The accused began lifting B.S.'s legs higher as he wanted to penetrate B.S. anally. The accused asked for lubricant, but B.S. waved his hand, indicating no, so they continued having vaginal intercourse. The accused denied ever turning B.S. around, as B.S. alleged, and denied any anal penetration. After the accused ejaculated, B.S. got dressed. The accused walked him to the door. They had a long kiss good at the door and B.S. left.

[49] In the fall, the accused messaged B.S. on Grindr but B.S. did not recognize him immediately. The accused gave B.S. his name and address and asked if he would like to come over and have fun again. The accused sensed B.S. did not want to have sex, so the accused wrote: Just oral? After a few minutes, B.S. replied no. The accused apologized and said thank you, take care and good bye. B.S. then blocked the accused. He explained that, in his culture, when you ask something of someone who says no, you apologize for taking their time.

[50] The accused denied giving B.S. the hickey depicted in the photo (Exhibit 5) but admits licking B.S.'s neck. He said the sex was mutually enjoyable.

[51] In cross-examination, he testified that he chose B.S. because B.S. described himself as a bottom on his Grindr profile. There were no messages discussing what type of sex would occur. The accused pointed out that B.S. only produced select texts, not the entire conversation. When asked what he expected that night from B.S., he replied that - at that time of night, it was clear what both parties wanted as he sent pictures of his genitals to B.S., he described himself as a top, and B.S. described himself as a bottom and "FTM" (which he says in an indication that the person was interested in vaginal and anal sex) and B.S. came over at four in the morning. He said that, if there was something B.S. did not want to do, he could have told the accused. His approach presumes consent unless a party indicates otherwise.

[52] He was cross-examined on the texts referred to and explained that he was answering quickly, as the texts were incoming and denied the apology was in response to an allegation of having had non-consensual anal sex. Given the timing of that exchange of texts, I can state now that I do not interpret the accused's comment sorry as an apology for having non-consensual intercourse. The timing and other comments made by the accused at the moment render that interpretation too ambiguous.

I.C.'s Allegations

[53] The accused was on Grindr and messaged I.C. who asked for a picture. They agreed to meet at I.C.'s place that day. I.C. asked the accused to bring weed and whether he had any other drugs he could bring. The accused said he only had weed. I.C. said they could not smoke inside his residence, so they met outside I.C.'s residence, where they smoked and spoke using Google Translate. There was no discussion about sexual boundaries. The accused agrees that, in their initial text exchange on Grindr (produced as an exhibit in the Crown's case), I.C. said he was a virgin and did not want any anal penetration and the accused replied, Don't worry. The accused testified that he took that seriously but that, in the Grindr community, everyone says things like that but sometimes they change their minds when they meet.

[54] Once inside I.C.'s residence, I.C. typed "take off my clothes first" in Google Translate. The accused removed I.C.'s clothes and then his own.

[55] They lay on the bed and I.C. performed oral sex on the accused. The accused went to get a condom but I.C., through Google Translate, typed: Could you have sex without a condom? They had earlier told each other they were HIV negative and the accused penetrated I.C. anally without wearing a condom.

[56] After the accused ejaculated, he went to the washroom and returned to the room. I.C. wanted to continue sexual activity as he had not climaxed. I.C. then produced and smoked his own marijuana without offering any to the accused. They then engaged in further sexual activity, not intercourse, and I.C. climaxed. They got dressed and, through Google Translate, arranged to meet the next night at Pizza Pizza, where they would pick up some marijuana and return to one of their places. I.C. then typed out a request for $700.00 as he needed help with his rent. The accused apologized and said he could not, and they will see each other tomorrow.

[57] The accused denied having any vial of drugs.

[58] The accused testified that he saw both complainants walking together in a park.

[59] In cross-examination, he agreed that I.C. said he was a virgin and did not want to engage in anal sex and understood I.C. when he said, "no fucking". He said that a lot of people say that at first but change their minds thought he did not have any expectations that anal sex would occur but thought it might.

[60] However, once in bed, after some sexual activity, I.C. asked him to have sex without a condom.

[61] He testified that he told I.C. that he was 26 because he did not translate the question and thought I.C. asked how old he looked.

[62] That was the evidence called together with the medical and toxicology reports.

Positions of Parties

[63] The Crown submits both complainants were credible and reliable. They both spoke about consensual sexual activity but the accused knowingly violated their consent and penetrated them anally. Their allegations are corroborated, to a limited extent, by the texts. The Crown submits the evidence of each complainant can be considered as similar fact to rebut any allegation of fabrication. The Crown submits the defence arguments as to why the complainants should not be believed are premised on discredited stereotypes about how a real victim behaves.

[64] The defence submits, regarding B.S., that it is incredible that anyone would allow themselves to be put repeatedly on his hands and knees when no force is being used. He submits it is incredible that B.S. did not resist more if he did not want to be put in that position. He submits it is likely B.S. consented to being put in that position. However, the accused denies any anal intercourse.

[65] The defence further submits that any or all of the following undermine B.S.'s credibility: He was not certain he ever said no and was inconsistent on that point; he did not remember how he got undressed at the outset of the encounter; he told the police that he thought this may have been consensual. However, as noted, what he told the police was he thought this may have been consensual because he did not move the last time; that he may have kissed the accused goodbye but did not remember but, if he did, it would have been a short, obligatory kiss; that he engaged in consensual vaginal intercourse after the sexual assault even though he said he wanted to leave right away; that he was more upset about the hickey than the non-consensual anal intercourse.

[66] With respect to I.C., the accused admits the anal intercourse but submits it was consensual. He submits I.C.'s credibility was undermined by his willingness to have consensual sexual activity after the non-consensual activity and his failure to tell the police about that fact; he was inconsistent with respect to whether he was forced to perform oral sex and he was inconsistent as to whether he was allowed to smoke marijuana in his room and was inconsistent as to whether the accused did or did not remove his shirt completely.

The Law of Sexual Assault

[67] The Crown must prove both the actus reus and mens rea of sexual assault. The actus reus has been established by proof beyond a reasonable doubt of sexual contact without consent. This is determined subjectively. If the Crown proves the complainant did not consent to the specific sexual activity in question, the actus reus has not been established.

[68] The Crown must also prove the mens rea; that the accused knew or was willfully blind or reckless as to the complainants' lack of consent to the specific sexual activity in question. If the accused raises the defence of honest but mistaken belief in communicated consent, he must show that he took reasonable steps to ascertain consent and that he honestly was mistaken. If the Court is satisfied the accused took reasonable steps, and he honestly believed the complainants were consenting to the activity in question, it will inquire into the reasonableness of this honest but mistaken belief in consent and the consent relates to the specific act in question; in this case, the anal penetration; not sex in general. The reason for these inquiries or requirements is because honest but mistaken belief in communicated consent arises only where the Crown has proved the complainants were in fact not consenting.

Similar Fact

[69] I now turn to the Crown's similar fact application which is on consent. Despite the consent, I will determine if the similar fact evidence should be admitted.

[70] Similar fact evidence is presumptively inadmissible unless the Crown establishes on a balance of probabilities that its probative value exceeds its prejudicial effect. This requirement exists even in a multi-count information where the evidence is already properly before the Court, before the Court can consider the evidence of one complainant as support for the evidence in relation to the other complainant.

[71] In assessing the probative value, the Court examines the strength of the proposed evidence, its connection to the accused, the extent to which that evidence supports the inferences sought by the Crown (i.e. the nexus or connectedness) and the extent to which those inferences tends to prove matters that are in issue at the trial.

[72] The probity of the evidence is then weighed against the risk of prejudice, specifically moral and reasoning prejudice.

[73] Moral prejudice refers to evidence which solely shows the accused's general disposition or bad character. The concern is that evidence adds nothing of value and risks convicting the accused because he generally has a bad character and therefore is more likely to have committed the offence.

[74] Reasoning prejudice refers to the risk that the trier of fact will be distracted by the similar fact evidence and be influenced in its reasons by the inflammatory nature of the similar fact evidence, will be confused by what evidence relates to each count, the trial will focus disproportionately on whether the similar fact evidence occurred and a concern as to whether an accused will be able to adequately respond to the similar fact evidence.

[75] Reasoning prejudice is less of a concern in a multi-count information, as the evidence is already properly before the Court. Further, it is less of a concern in a judge alone trial.

[76] With that overview, I turn to the similar fact evidence. I agree with the defence concession that the similar fact evidence is an admissible application in this case.

[77] Both complainants gave very similar accounts. They were both 18. They were both contacted on Grindr by the accused who was around 40. They both agreed to meet to engage in sexual activity. They both alleged that, before meeting the accused, they advised him that they were interested in sexual activity but not anal intercourse. They both allege they met the accused the same day and they both engaged in consensual sexual activity. They both allege that, during the course of the consensual activity, the accused attempted to engage in anal intercourse. They both allege they never were asked if they wanted to engage in that activity and did not consent to that activity. They both allege they made clear to the accused they did not want to engage in anal intercourse by resisting the accused's attempts, but he ignored their resistance and disregarded their lack of consent. They both allege he persisted and knowingly breached their sexual boundaries and engaged in anal intercourse. They both allege that, after the non-consensual actions, they returned to consensual sexual activity.

[78] The probative value of this evidence therefore relates to the improbability that two complainants, who do not know each other and had not heard of the other's allegations, both made very similar allegations against the accused. Does this conduct reveal a distinctive pattern such that it defies belief that two people who do not know each other would both be mistaken or lying about the accused engaging in this course of conduct?

[79] In terms of the nexus to a defined issue, the Crown submits the proposed evidence is relevant to rebut the suggestion that the complainants were mistaken or fabricating the allegations and in determining whether the acts in question occurred. The effect of the evidence may be to undermine the credibility of the accused and enhance the credibility of the complainants.

[80] Given the probative value lies in the improbability of coincidence, if there is an air of reality to the possibility of collusion, the onus is on the Crown to disprove collusion.

[81] The accused testified that he saw the two complainants walking together. Both complainants denied knowing each other.

[82] I am satisfied the complainants do not know each other and had not heard of the others' allegations and therefore, did not collude. I accept their evidence and reject the accused's evidence of having seen them together. His evidence in this regard was vague and the complainants, even when confronted with questions which implied that counsel was about to deliver proof of their contact, both were completely unshaken and naturally, credibly and convincingly denied knowing each other. I am satisfied there was no collusion.

[83] In my view, the evidence of each complainant, which is very similar and untainted by collusion, is one piece of evidence that can assist in determining whether non-consensual anal intercourse occurred and in responding to the allegation that the complainants were mistaken or fabricated the allegation of non-consensual anal intercourse. The prejudice in using the evidence in this manner is minimal. There is little to no concern about reasoning prejudice. The evidence is already properly before the Court and the matter is heard by a judge alone. As for moral prejudice, the evidence is not being led and will not be used to show the accused's general disposition or propensity to show that, due to a general disposition, he is likely to have committed the offences.

Findings

[84] The accused does not have to prove his innocence. Given that he testified, if his evidence is accepted or raises a reasonable doubt on any of the charges, he will be found not guilty of those charges. Even if his evidence does not raise a doubt, a conviction will only follow if the Crown proves, based on the evidence I accept, that the accused is guilty of any or all of these offences.

[85] Upon considering all the evidence, I am satisfied beyond a reasonable doubt that, during these sexual encounters, that started out consensually, the accused had non-consensual anal intercourse with both complainants knowing they were not consenting. I reject his evidence in this regard and it does not leave me in any doubt. I accept the evidence of both complainants that those events occurred. To the extent that honest but mistaken belief in communicated consent has been raised, there was no honest belief in consent. There was no communicated consent. I find the opposite – there was clear communication by both complainants that they did not want to engage in anal intercourse. It was communicated by text before they met, by I.C. when they met outside his residence and it was repeatedly communicated by words and actions to the accused when he first tried to engage in that activity. The accused understood that there was no consent to anal intercourse. In addition, there were certainly no reasonable steps taken to determine if they were consenting to the anal intercourse.

[86] I do have a reasonable doubt about the allegation of administering a noxious substance, and the accused will be found not guilty of that charge.

[87] My reasons for my findings are as follows.

[88] First, I accept the evidence of both complainants that the accused engaged in non-consensual anal intercourse without their consent. I found their evidence credible and compelling and nuanced where they revealed the complexities of their reaction to what was occurring. I will explain why I accept their evidence in this regard more fully shortly, but my acceptance of their evidence that this occurred is one of the reasons I am rejecting the accused's evidence that it did not occur. (See R. v. J.J.R.D., 215 CCC (3d) 252.)

[89] Second, I find the similar fact evidence persuasive in this case.

[90] I find it is highly unlikely that two strangers, whose evidence is untainted by collusion, would both be mistaken or fabricating allegations when they both describe sexual encounters with the accused demonstrating an extremely similar pattern of behavior. The similar fact evidence is an important factor that assists me in determining that these acts occurred and in rejecting the suggestion that the complainants were mistaken or fabricating these allegations.

[91] Third, both complainants were clear and explicit, before meeting the accused and later that they did not want to engage in anal intercourse. I.C. retained those initial texts, but I accept both men made that clear. Given those clear expressions, anal intercourse should never have been attempted without first seeking their consent, which the accused did not.

[92] Fourth, on his own evidence, the accused did not take the notion of consent seriously. He testified that he believes that it is the "bottom" who must say if he goes too far. Implicitly, absent a protest, he believed he could do anything. That is not how consent works. He must obtain consent prior to the specific activity in question.

[93] Rejecting the accused's evidence and not being left in reasonable doubt by it does not end the matter. I turn now to the credibility and reliability of the evidence of B.S. and I.C.

[94] Many of the same factors referred to already are relevant to my assessment in this case.

[95] Beginning with B.S.

[96] As already noted, I found his evidence that non-consensual anal intercourse occurred credible.

[97] His evidence revealed a passive young man who was not particularly willing to assert himself. But he was clear and consistent in relation to the essence of what happened.

[98] I agree with the Crown that most of the frailties raised by the defence are premised on discredited myths. In his written submissions, defence writes that even if the activity B.S. described occurred, "this acceptance to be put into a position that the complainant clearly knew was going to lead to anal sex and letting the anal sex happen, without the need of excessive force, was conduct [that] would lead to [the accused's] honest belief that the anal sex was consensual, particularly that B.S. did not show any conduct that was inconsistent with that communication of consent and the complainant's conduct further confirmed that consent; he willingly stopped at the door to kiss Mr. Salehi where he was under no force or obligation [to do] so. His further conduct to maintain his mental state about consent for several months after the event, also reconfirmed the communication of consent".

[99] That submission reverses the legal framework as to who bears the onus in relation to consent. Much like the accused's perception himself, this submission suggests that, absent any indication of non-consent, consent can be presumed. This is wrong in law. Those positions were echoed in oral submissions. Further, the submissions reflect discredited myths such as why did B.S. not resist more if he did not want to be put in that position or why did he possibly kiss the accused goodbye at the door if this happened.

[100] To the extent that the frailties alleged do not rely on stereotypical assumptions about how a victim of sexual assault should react, B.S. explained those matters in a credible, textured way, where he articulated the complexities of his reactions and feelings in a manner I found credible. He spoke of the dynamic of being 18 years old in the accused's apartment, unwilling to assert himself or appear rude, and therefore not wanting to focus on the non-consensual activity that had occurred and choosing instead to engage in and be distracted by matters he was prepared to consent to. B.S.'s statement to the police that he viewed the encounter as closer to consensual was understandably relied upon by counsel in submissions. But what B.S. told the police was that he thought it might be consensual because he did not move away fast enough. That is not consent and B.S.'s confusion about it does not amount to consent.

[101] For reasons already given, the similar fact evidence is another factor that bolsters my view of both complainants' evidence that this occurred.

[102] With respect to I.C., he was a more confident witness. The fact that he called his mother and 911 as soon as the encounter ended, is not corroborative of the allegations but did have mean that medical tests were performed and the texts were preserved.

[103] His evidence of telling the accused before and during the encounter and resisting the accused is corroborated by his texts to the accused and the similar fact evidence. His account holds together credibly.

[104] He made it clear in his texts that he did not want to engage in anal intercourse. I accept his evidence that he did not go from that position to then pleading with the accused to penetrate him anally without a condom. I accept that he resisted the accused's efforts and was upset when it occurred.

[105] There were two areas of concern with respect to his evidence, which I have taken into account: the issue of whether there was forced oral sex and whether the accused removed or simply unbuttoned his shirt, which has relevance to where he produced a vial of drugs.

[106] While I.C.'s explanation for what he told the police makes some sense, it causes enough of a concern that, if the offence related to forced oral intercourse, I would not convict the accused as the contradiction in his evidence would raise a doubt in my mind. But that is not the essence of the charge and this concern does not cause me to doubt his evidence in relation to the anal intercourse. Further, I find the accused not guilty of administering a noxious substance based on the inconsistency of whether the shirt was removed, together with his voluntarily sniffing from the vial once. I reject the accused's evidence that he did not have a vial but, those two factors raise a doubt in my mind about this charge and he will be found not guilty of that offence.

[107] For these reasons, I am satisfied beyond a reasonable doubt that, in these two highly sexualized encounters, the accused knowingly exceeded the boundaries of consent and engaged in anal intercourse. He will be found guilty of those two offences.

Released: October 4, 2019

Signed: Justice Borenstein