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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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: October 25, 2019 Location: Scarborough - Toronto

Between: Her Majesty the Queen And: M.E.

For the Crown: A. Penny For the Defendant: E. Prutschi

Heard: August 6, 7, 13, 22, September 6, 11, 2019

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] M.E. is charged with two counts of sexual assault and one count of indecent act arising out of an April 10, 2018 encounter between him and the complainant, R.D.

[2] Ms. D., and her boyfriend, S., were friends with the accused and his then fiancée, T.V.. Ms. T.V. and the accused are now husband and wife.

[3] On the evening of April 9, 2017, Ms. D.'s relationship with S. suffered a significant setback. Ms. D. was upset, and she arranged to visit the accused and his fiancée to discuss her situation, hoping it would make her feel better.

[4] The accused and Ms. T.V. picked up Ms. D. at her apartment late in the evening and drove her back to their apartment in Scarborough. They all drank and talked. Ms. D. alleges that shortly after Ms. T.V. went to bed in the early morning hours of April 10, 2017, she was sexually assaulted by the accused; once in the apartment, and then again in the accused's car when he drove her home.

[5] The accused admits that he and Ms. D. partook in some minor sexual activity, both at the apartment and in the car, but says that it was consensual.

B. EVIDENCE

(a) Introduction

[6] The sole witness for the Crown was R.D. Photos of bruising to Ms. D. were filed as exhibits as were many text messages sent and received by Ms. D. The Crown also submitted an agreed statement of fact concerning certain DNA findings.

[7] Mr. M.E. and Ms. T.V. testified for the defence.

(b) The testimony of R.D.

[8] Ms. D. is 21 years old and was a student at […] in April of 2017. She met the accused through her boyfriend, S. (whose last name was never given in evidence). She, S., the accused and the accused's fiancée, T.V. would sometimes spend time together. Ms. D. had never spent time alone with the accused although they had texted each other from time to time.

[9] Late in the evening of April 9 Ms. D. was upset because S. had moved out of their apartment. She intended to spend the night at the home of Ms. T.V. and the accused after talking to them about her emotions and seeking some distraction. She did not believe that she and S. had broken up.

[10] The couple picked up Ms. D. and brought her to their apartment, arriving shortly after midnight. All three drank alcohol. She drank the least of the three of them. Ms. T.V. and the accused drank a lot. In her opinion both the accused and Ms. T.V. were quite intoxicated. She described herself as "tipsy". All three spoke about generalities and about Ms. D.'s predicament but the discussion was mostly between the two women.

[11] At around 1:15 am the accused and Ms. D. left the apartment to buy cigarettes, which took about 15 minutes. Shortly after their return, Ms. T.V. went off to bed in the master bedroom. The accused then put on some music.

[12] The accused and Ms. D. continued conversing and approximately 20 to 30 minutes later the accused attempted to dance with her. She resisted those attempts and remained seated on the couch. He stood directly in front of her with his groin approximately two inches from her face. He then pulled his penis out of his pants. Ms. D. told him to stop repeatedly, reminding him that Ms. T.V. was in the next room. He put his penis back in his pants and apologized.

[13] The accused continued his attempts to get her to dance with him. He pulled her up off the couch and grabbed her by the arms and the breasts while trying to kiss her on the neck and the lips. He squeezed her breasts by putting his hands under her top, but not under her bra. She continued to implore him to stop.

[14] Ms. D. told him she had to leave. The accused apologized again, saying he was drunk. He put a movie on and they both sat on opposite ends of the couch and watched. At some point after the movie had begun, he again tried to caress her. Ms. D. got off the couch to get her phone charger. She wanted to call S.. As she reached down into her bag for the charger the accused stuck his hand down the back of her sweatpants and inserted his finger in her vagina for a few seconds.

[15] Ms. D. panicked and went out onto the balcony and lit a cigarette. She felt shocked, frozen, scared and violated, or as she put it "like a deer in the headlights". The accused came out and apologized again. She told him she had to leave. The accused went off to tell Ms. T.V. that they were leaving. Ms. D. did not call out for Ms. T.V.'s help because she was aware of how the accused tended to behave after drinking and knew that he and his fiancée had had arguments over his infidelity.

[16] When the accused came out of the bedroom after speaking to Ms. T.V., he told Ms. D. that she had kicked them both out. Ms. D. told him she wanted to speak to Ms. T.V., but he wouldn't let her, saying it wouldn't be a good idea. Ms. D. never saw Ms. T.V. again that evening after Ms. T.V. had retired to her room.

[17] Ms. D. grabbed her belongings and she and the accused left the apartment. He asked for permission to drive her home and promised not to touch her again. In her examination-in-chief she said she thought that they left between 2:00 and 2:30 am.

[18] While driving to her home in Ajax, Ontario in his BMW he asked if he could come upstairs to her apartment when they got there, and she said no.

[19] The accused got off the highway at Morningside and drove into a residential neighbourhood and pulled over, telling Ms. D. that he wanted to take a nap.

[20] The accused then pushed back his seat, pulled down his pants and underwear and began to masturbate. He tried to pull her towards him and attempted, with significant force, to lower her mouth onto his penis. He grabbed the right side of her face and struck her on the left side of her jaw. He grabbed her left arm as she resisted. While still intermittently masturbating he grabbed both her breasts under her bra and reached for her genitals over her clothes. Ms. D. was extremely scared and didn't know what to do.

[21] The accused's phone rang, and she yelled at him to pick it up. It was Ms. T.V. telling the accused that Ms. D. had left her keys at their apartment. The accused told Ms. D. to text Ms. T.V. and tell her they were coming back for the keys and that nothing had happened between them. The accused dictated the content of the texts. Ms. D. complied and sent four texts because she was afraid of the accused.

[22] When they got back to the apartment to pick up Ms. D.'s keys the accused parked near the front door and locked her in the car. She tried to call S., but he did not answer. She texted him as well. She desperately tried to get out of the car, pulling on the door latch several times, but she could not open the door. She did not call 911 because she was too scared, and the accused had her keys. S. responded to her text after the accused got back in the car. The accused asked her whom she was texting, and she told him.

[23] The accused and Ms. D. departed for Ajax. He asked her not to tell anyone what had happened, apologized again and asked if he could sleep at her apartment. She said no and promised she wouldn't tell anybody.

[24] Once home, Ms. D. took a shower. She received several texts and a phone call from the accused to which she did not respond. She also communicated with Ms. T.V.. It was quite some time before she revealed to Ms. T.V. what the accused had done to her.

[25] Ms. D. called her mother, S., and the police later that day. She went to the hospital and told the medical staff where she had been struck and grabbed. She felt numb and in pain, but she did not complain of any injuries. No bruises had yet developed. Within the following days she sent photos of her bruises to the police and re-attended at the hospital to show the medical staff her bruises, which were photographed.

(c) The bruises

[26] Photos of Ms. D. were taken at the hospital approximately two days after the incident. These photos show a dark 7 cm by 3 cm bruise on her right lower jawline, and lighter bruises to both her upper arms and both her forearms. There are very small scratches to her upper back and her left flank, just above her waist.

(d) The testimony of the accused

[27] The accused is a 30-year-old construction worker who is now married to T.V.. He has a criminal record for one count of carrying a concealed weapon, one count of theft over $5,000 and one count of theft under $5,000.

[28] His testimony concerning the history of his relationship with Ms. D. generally conforms with hers, as does his testimony concerning what led up to Ms. D.'s visit to his home on April 10, 2017.

[29] As concerns his relationship with Ms. T.V., it had been through some rough periods. She had recently caught him surfing internet dating sites. On the night of Ms. D.'s visit they were getting along better.

[30] According to Mr. M.E., Ms. D. made it clear to him and Ms. T.V. that she and S. "were done". She had kicked him out because of her belief that he had cheated on her and because of his inability to pay his fair share of their expenses.

[31] After Ms. T.V. went to her bedroom, leaving the door ajar, Ms. D. began to tell him that she had heard that Ms. T.V. had tried to kiss S. at an earlier party. The accused believed Ms. D. and his view of his relationship with Ms. T.V. changed.

[32] He and Ms. D. continued to talk and then began dancing with each other. Their groins were pressed against each other. The accused heard Ms. T.V. open the bedroom door and then saw her looking at them dancing. She stared for several seconds, went back in the room and then slammed the door shut. Even though he was sure she saw them, he assured Ms. D. that Ms. T.V. hadn't seen anything. She was worried about what Ms. T.V. might tell S..

[33] Ms. T.V. came out of the room 10 minutes later to get a drink of water. The accused and Ms. D. were standing up speaking to one another – not touching. There is no way that Ms. D. could not have seen Ms. T.V. as she made her way to the kitchen.

[34] The accused and Ms. D. decided to sit on the couch and watch a movie. Ms. T.V. came out of the room again and said "M.E., what's going on?". The accused went into the bedroom with Ms. T.V. and spoke to her for 10 – 15 minutes. She again asked him what was going on between him and Ms. D. He assured her that nothing improper had taken place. Ms. T.V. then told him to leave and to take Ms. D. with him.

[35] Ms. D. asked him for a lift home. He grabbed some personal belongings and went down to the parking garage with Ms. D. On the car ride back to Ms. D.'s apartment she and the accused kept discussing what Ms. T.V. might have seen happening between them.

[36] Feeling tired, the accused pulled off the highway to both rest and continue their discussion about what Ms. T.V. had witnessed. Once parked on a side street, Ms. D. leaned towards him and put her hand on his chest. He kissed her on the cheek, on the neck, and on her cleavage. This contact lasted approximately 30 seconds. Their seatbelts remained buckled throughout. His phone rang, and he did not answer it. He then received a text from Ms. T.V. that said, "your girlfriend left her keys here". He showed Ms. D. the text message and she began to worry. Ms. T.V. then called Ms. D. and they had a conversation. Ms. D. assured Ms. T.V. that nothing was going on between her and the accused and that they were returning for the keys.

[37] On the way back to his apartment the accused and Ms. D. discussed what Ms. T.V. might say to S.. Upon arriving back at his apartment building the accused left Ms. D. in the unlocked car with the windows down. She smoked a cigarette as he left to retrieve her keys.

[38] On the way to Ajax for the final time Ms. D. asked if the accused would leave Ms. T.V. for her and he said he would not. She told him that she didn't want to be anyone's "side-chick". She expressed dismay at the notion that S. might find out what had happened and leave her with no-one. She again asked him if he would leave his fiancée for her and he again refused. He then asked if he could sleep for a while at her apartment and she said that unless they were "together" he could not.

[39] After leaving her at home the accused drove to a nearby plaza to take a nap. He then went to his parents' house.

(e) The testimony of T.V.

[40] Ms. T.V.'s version of the history of the relationships among the four protagonists is consistent with that of the accused and Ms. D., as is her testimony concerning the lead-up to the events at her apartment on April 10.

[41] During the discussions amongst her, the accused and Ms. D. in the early morning hours of April 10, Ms. D. did not mention the incident when S. had purportedly tried to kiss Ms. T.V.. Ms. D. did not mention this to her until the next day, at the earliest. It was clear to Ms. T.V. that Ms. D. was still very attached to S..

[42] The accused had problems with alcohol, and he tended to act unfaithfully towards her when he drank. He was drunk that night. Ms. T.V. had also had a fair amount to drink.

[43] Just before Ms. T.V. retired to her bedroom it appeared to her as if the accused and Ms. D. were flirting with each other. She hadn't seen anything explicit but the two of them seemed "too comfortable" with each other. Once in the bedroom she continued to suspect something was going on and she tried to open the door surreptitiously, to catch them in the act.

[44] The first time she did so, she saw them standing close to each other but not touching. Music was playing. She gave them both a dirty look. On the next occasion she left the room and walked past them to the kitchen to get a drink of water. The accused and Ms. D. seemed happy and were having a good time. Ms. T.V. saw no signs of distress on the part of Ms. D. She might have checked on them again, but she was not certain.

[45] On the third occasion she again saw nothing explicit but demanded that the accused come in the room. She told him she was convinced that something was going on between him and Ms. D. He denied it. She came out of the room and while facing them both told him and Ms. D. to leave. Ms. D. asked the accused for a lift. She did not seem at all upset, nor did it appear as if she'd been crying.

[46] She soon realized that Ms. D. had left her keys behind. She called the accused, but he did not answer. She then called Ms. D. who did answer. Ms. D. told Ms. T.V. that she didn't know what Ms. T.V. suspected and assured her that there was "nothing going on" and that the accused was simply driving her home. Ms. D. did not seem upset. Ms. T.V. then sent the accused a text telling him that "his girlfriend" had left her keys behind. He did not respond.

[47] Ms. T.V. did not see the accused when he returned for the keys.

(f) The elevator videos

[48] There are four elevators in the accused's apartment building. The time stamps on the silent videos taken by on-board cameras in each elevator are demonstrably inaccurate. (They do not show any of the three protagonists going to the accused's apartment shortly after midnight, when the evidence clearly shows they indeed arrived at around that time). The evidence does suggest however that the four elevator time stamps are synchronized with each other.

[49] The elevator #1 video shows the accused and Ms. D. taking the elevator down at 1:16 am on their trip to get cigarettes. This trip clearly took place later than 1:16 am, but the exact time of this trip down the elevator is not particularly significant. Ms. D. and the accused seem to be getting along well, standing about a meter apart, which isn't surprising since on everyone's evidence nothing of note had yet occurred between the accused and Ms. D. They are seen coming back up to the apartment in elevator #2, 16 minutes later. Again, there is nothing out of the ordinary in their behaviour or posture towards each other.

[50] They are then seen going down in elevator #2 at 4:02 am. Other evidence, particularly the text messages I will address below, makes it clear that this descent happened later than 4:02 am. The accused and Ms. D. stand approximately the same distance apart as they did on their earlier elevator trips. There are no overt signs of aggression on the part of the accused and no signs of fear or hostility displayed by Ms. D.

[51] The accused is alone going up in elevator #1 approximately an hour later (the inaccurate time stamp reads 5:04). It is agreed by the parties that this video captures his return to pick up Ms. D.'s keys. He comes down 13 minutes later.

(g) The text messages

[52] On consent, both parties filed several series of text messages as exhibits.

(a) Old text messages between the accused and Ms. D. – some of them dating back to December 4, 2017.

(b) Text messages from the accused to Ms. D. on the night and morning in question.

(c) A collection of text messages between Ms. D. and S. between 6:00 am and 8:20 am on April 10, 2018.

(d) Text messages between Ms. D. and S. between 11:17 pm on April 11, 2018 and 7:45 pm on April 30, 2018.

(e) A collection of text messages between Ms. D. and Ms. T.V. between November 13, 2017 and November 15, 2017.

(f) All the text messages between Ms. D. and Ms. T.V. between 1:32 pm on April 9, 2018 and 12:45 pm on April 12, 2018.

[53] Ms. D. sent Ms. T.V. four text messages from the accused's BMW shortly before 6 am. I find that these messages were sent while she and the accused were returning to retrieve her keys. They read as follows:

5:50 T.V., M.E. just told what you're thinking. I was ranting about S. this whole time. I wish you were with me trust me.

5:50 Nothing is happening between me and M.E. I wouldn't do that to you ever

5:52 I just miss my S.. And I'm hurting so bad.

5:53 I wish you were the one I was up with. And yes I forgot my keys. But you're (sic) fiancé was sweet enough to wait. Trust me. Nothing is going on between me and M.E. – I promise.

[54] At 6:00 am on April 10 Ms. D. sent a series of text messages to S. that read:

M.E. tried to have sex with me and kiss me and I refused S. help me

Please pick up

I'm scared

S. I'm scared

I feel violated he tried touch me and I told him no

[55] At 6:31 am Ms. D. tells S. by text message that the accused was "dropping me off now". Based on the undisputed evidence that the trip from the accused's apartment to Ms. D.'s apartment in Ajax takes under 30 minutes, I find that the flurry of 6 am messages was sent while Ms. D. was sitting in the accused's car waiting for him to return with her keys.

[56] The Crown argues that the text messages sent by the accused to Ms. D. after he left her at home and went to sleep in a nearby plaza, are inculpatory. The defence argues that they are consistent with Mr. M.E.'s version of events. They read as follows:

6:56 Have good sleep parked buy (sic) the condo I'm sorry

6:57 I wish I could have come up to sleep

6:59 Have a good sleep

7:01 I'm sorry

7:02 Bye

7:05 R u OK

7:06 ?? Just let me know ur OK I'm worried

7:47 Nothing happened remember

8:07 What u say to T.V. call me

8:08 Just drove all the way to my parents drunk

[57] The text messages sent back and forth between by Ms. D. and Ms. T.V. beginning at 7:53 am on April 10 need not be set out in full. They can be summarized as follows:

[58] Ms. T.V. is extremely angry with the accused and clearly believes that he and Ms. D. were engaging in consensual sexual contact both at her apartment and in the car. Ms. D. initially continues to insist that "nothing happened" between her and the accused, saying that she is still in love with S. and would never do anything to hurt Ms. T.V..

[59] At 8:11 am Ms. D. starts to tell Ms. T.V. that "nothing happened from my side" and that she was "really upset" and was "not alone in this". She asks Ms. T.V. to call her, but she refuses.

[60] At 8:24 Ms. D. tells Ms. T.V. that she's "terrified now".

[61] There are no messages exchanged between 8:28 am and 9:39 am. I find that the two spoke to each other on the phone during this interlude.

[62] At 9:39 Ms. T.V. asks for a screenshot – presumably of the texts that the accused sent Ms. D. from the plaza. She also tells Ms. D. that she never tried to kiss S.. Ms. D. sends Ms. T.V. a screenshot of the accused's plaza texts at 9:48 am.

[63] At 10:36 am Ms. D. assures Ms. T.V. that she did not kiss the accused but that he "tried repeatedly", she said no, and he "kept forcing it" and she kept pushing him away. At 10:41 Ms. D. tells Ms. T.V. that she felt violated and disrespected.

[64] After many more text messages between them, Ms. D. tells Ms. T.V. at 6:53 pm on April 11 that the accused "just fucking lost his mind all of a sudden and wouldn't stop and he got violent – I have bruises too".

[65] At 10:13 pm on April 11 Ms. D. tells Ms. T.V. that while at the apartment the accused "held my mouth shut and told me not to say anything 'or else'". She also asked Ms. T.V. if what the accused told her was true, i.e. that Ms. T.V. had kicked him out of the apartment and told him that Ms. D. had to leave as well.

(h) The DNA evidence

[66] The parties concede that Mr. M.E.'s DNA was found along the top edge of Ms. D.'s bra. An agreed statement of fact summarizing the DNA findings was made an exhibit at trial. The DNA could have come from Mr. M.E.'s saliva as he kissed her cleavage or from groping her as she described, with pre-ejaculate from the end of his penis on his hand. The DNA evidence is consistent with both their versions of events and thus not helpful in my ultimate determination.

C. ANALYSIS

(a) Introduction

[67] The law governing my approach to this case has its foundation in R. v. W.D..

[68] First, the accused is presumed innocent and the burden of proof is on the prosecution throughout. To secure a conviction, the Crown must prove the sexual assault and indecent act allegations against the accused beyond a reasonable doubt.

[69] The accused concedes that the acts complained of by Ms. D., if proved beyond a reasonable doubt, constitute two sexual assaults and one indecent act.

[70] Second, because Mr. M.E. testified, and called a supporting witness, I must approach the evidence as follows: if I believe Mr. M.E.'s denial, I must of course find him not guilty. Even if I do not believe him, his evidence alone, or in conjunction with supporting evidence may nonetheless, when examined in the context of all the evidence, raise a reasonable doubt. If it does, I must find him not guilty. If it does not raise a reasonable doubt, I must examine the evidence that I do accept to see if it proves the allegations beyond a reasonable doubt. If it does not, Mr. M.E. must be acquitted. If it does, he must be found guilty.

(b) The testimony of Ms. T.V.

[71] The evidence leads me to conclude that, as testified to by Ms. D., Ms. T.V. consumed a large amount of alcohol during the events she testified about. She frankly admitted as much in her April 21, 2018 statement to the police and in her text messages to Ms. D. on April 10 and 11. Her significant consumption of alcohol that night reduces the reliability of her testimony. Her tendency to minimize the extent of her drinking in her trial testimony reduces her credibility.

[72] At trial she claimed to clearly recall coming out of her room on three, or perhaps four occasions before kicking the accused and Ms. D. out of her apartment. She testified that there was no doubt that Ms. D. saw her on at least two of these occasions. Yet, in her statement to police wherein she set out to tell the police "exactly what she saw" she only reports coming out of her bedroom once. I find this earlier report far more reliable than her trial testimony.

[73] For these reasons I do not accept the bulk of what she testified to concerning the night in question, but there are some aspects of her trial testimony that I do accept, largely because they are consistent with her statement to police given at a time when she was still extremely angry at the accused: before she reconciled with him, married him and, as Ms. Penny suggested, developed a motive to testify favourably for him. Given the Crown's implicit allegation of recent fabrication as concerns her testimony, the consistencies between her trial testimony and her police statement can be used to support the credibility of her trial testimony. R. v. D.B., 2013 ONCA 578.

[74] I refer to her testimony that when she did go into her bedroom, she was suspicious of them as a result of seeing them behaving in a flirtatious manner towards each other, and to her testimony that when she did emerge from her bedroom, Ms. D. appeared to be quite engaged with the accused and did not appear in any distress. I accept her evidence on these points because it logically explains her having surreptitiously opened the door to watch them, and then eventually kicking them both out of the apartment.

[75] The extent to which these observations are probative of the issues I must decide will be discussed below.

(c) The testimony of the accused

[76] There are several problems with the testimony of the accused.

[77] I do not accept his evidence as concerns how many times Ms. T.V. emerged from her room. Even though it is corroborated by Ms. T.V.'s trial testimony, as set out above, I prefer, and accept Ms. D.'s testimony on this issue.

[78] I am also not convinced of the truth of Mr. M.E.'s explanation of what transpired on the initial car ride back to Ms. D.'s apartment.

[79] According to him he pulled off the highway because he was tired, and he and Ms. D. wanted to further discuss what Ms. T.V. had seen going on between them at the apartment. Neither of these explanations makes much sense.

[80] It was very late, and Ms. D. wanted to go home. They were only a few minutes from Ms. D.'s apartment when the accused pulled off the highway. If he had really wanted to take a nap it would have made far more sense to drop her home first, then find somewhere to sleep (which he did in fact end up doing) rather than making her sit in his car while he slept.

[81] I also find it difficult to believe that pulling off the highway was necessary to further discuss what Ms. T.V. had seen going on between them in the apartment. The trip from his apartment to Ms. D.'s apartment took approximately 20 – 25 minutes. Mr. M.E. had told Ms. D. that he was sure she'd seen nothing. Regardless of how concerned Ms. D. might nonetheless have been, the issue could have been canvased completely without pulling off the highway.

[82] Nor do I accept Mr. M.E.'s explanation for why he twice told Ms. D. he was "sorry" in his text messages sent to her from the plaza. Mr. M.E.'s testimony to the effect that Ms. D. was heartbroken because Mr. M.E. wouldn't leave his fiancée for her after some dancing and 30 seconds of cuddling in the car strains credulity, especially considering the abundant evidence that Ms. D. continued to be attached to S. notwithstanding their recent conflict.

[83] Mr. M.E.'s version of what occurred between him and Ms. D. in the apartment is supported to some degree by Ms. T.V.'s testimony describing flirtatious behaviour between them, although it must be borne in mind that her observations were of quite a short duration.

(d) The testimony of Ms. D.

[84] The Supreme Court and the Court of Appeal for Ontario have made it clear that reliance on myths or stereotypical assumptions about how sexual assault complainants are expected to behave is an error in law. The defence cannot rely on generalizations about sexual assault victims even if based on "common sense". It is an error in law to conclude how a person would act if sexually assaulted. R. v. A.R.J.D., 2018 SCC 6, at para. 2, aff'g 2017 ABCA 237; R. v. A.B.A., 2019 ONCA 124.

[85] That having been said, Ms. D.'s explanations for her behaviour after the alleged sexual assaults in the apartment and the accused's car are properly the subject of scrutiny. The extent to which those explanations are either supported or contradicted by other evidence may have an impact on the credibility of her explanations and on her credibility generally.

[86] The same goes for Ms. D.'s pretrial disclosure of the alleged sexual assault. A sexual assault victim's decision as to whether to tell anyone, when to tell them, and whether to tell them everything all at once is a complicated one and is not amenable to scrutiny through the lens of "common sense". R. v. D.D., 2000 SCC 43; R. v. Nyznik, 2017 ONSC 4392.

[87] However, inconsistencies between statements to others and a complainant's trial testimony are properly the subject of scrutiny.

[88] Ms. D.'s testimony suffers from some weaknesses.

[89] She testified on cross-examination that if Ms. T.V. had come out of her room after Mr. M.E. had sexually assaulted her, she'd have told her what had occurred. It raises the question of why, even though she hadn't emerged, Ms. D. didn't go to the bedroom and tell her. Ms. D. explains that she did not do so because she was prepared to forgive Mr. M.E. and didn't want to cause further turmoil in her friends' relationship. But one would expect this reluctance to apply equally if Ms. T.V. had indeed come out of the room.

[90] Another reason given by Ms. D. for not telling Ms. T.V. what had occurred before leaving the apartment was that she feared what he and Ms. T.V. were capable of. When asked to elaborate she referred to a text message conversation she'd had with Ms. T.V. concerning an auto mechanic who had not done a proper job fixing Ms. T.V.'s car. Ms. D. testified that she interpreted Ms. T.V.'s comments in those messages as threatening bodily harm to the auto mechanic.

[91] The text messages in question are relatively old, dating back to November 2017, and in any event do not support this interpretation. At worst, Ms. T.V. said that she was going to "fuck up his parole", and that she wasn't "going to let it go".

[92] It was only in re-examination that Ms. D. expanded on the story to include oral references by Ms. T.V. and Mr. M.E. to hiring a hoodlum of some sort to hurt the mechanic. And it was only in her testimony that Ms. D. first complained that the accused had put his hand over her mouth after Ms. T.V. had retired to her bedroom.

[93] Ms. D.'s testimony as to what occurred in the apartment, and the way she reacted to it, is inconsistent with Ms. T.V.'s observations from the bedroom.

[94] According to Ms. D. she tried to escape from the accused's BMW when he went upstairs to retrieve her keys. According to her, he closed the windows and locked the doors before leaving her locked in the car alone. She testified that she pulled on the door latch several times but that the door would not open. I do not accept this evidence. Rather, I accept the evidence of Ms. T.V. and Mr. M.E. to the effect that when their BMW is locked, two pulls on the door latch will open the door – the first unlocks it, and the second opens it.

[95] Mr. Prutschi points out that after the alleged sexual assaults, in messages sent to Ms. T.V. while returning to retrieve her keys, and in several messages sent after getting home at around 6:30 am, Ms. D. told her that nothing had occurred between her and Mr. M.E.. These messages were false and radically inconsistent with her testimony, and he argues that, unless these false messages are convincingly explained they are enough to raise a reasonable doubt.

[96] Ms. D. explains that she lied to Ms. T.V. in these texts because of the violence perpetrated on her in the car by Mr. M.E. and that he forced her to tell Ms. T.V. that nothing had occurred and that he in fact dictated the messages to her. As for why she continued to tell Ms. T.V. after getting home that nothing had occurred between them, she says that she simply didn't feel comfortable telling her.

[97] If the accused did assault her as she claims, these explanations make perfect sense. Yet, these statements to Ms. T.V. remain inconsistencies that must be considered in my assessment of the evidence.

(e) The bruises

[98] Ms. Penny called no expert evidence to support her argument that the bruises are consistent with Ms. D.'s description of the force used by the accused on her in the car. Judges can take judicial notice of the fact that blunt force trauma causes bruising and that bruises do not appear immediately. This is entirely within the realm of common sense and human experience. R. v. Theoret, 2018 ONCA 700 at paras. 7-8. I conclude that the diffuse bruises to Ms. D.'s arms are consistent with her testimony as to what occurred in the car and in the apartment. They were either caused by the accused, or by some other blunt force trauma that occurred after she got home and long enough before the pictures were taken for the bruising to have appeared.

[99] As for the relatively large dark bruise to Ms. D.'s right jaw, the same cannot be said. My common sense and human experience do not support the proposition that this bruise was caused by the accused grabbing her on the right side of the face, as she said he did. Rather, my common sense and experience suggest that this large bruise was caused by a blow of some sort. Ms. D. testified that the only blow to her face was to the left side. There do not appear to be any bruises to the left side of her face.

[100] If my opinion, based on my common sense and experience, is wrong, then the Crown can hardly complain, having asked me to rely on it, instead of calling expert evidence on the issue.

[101] One possible explanation for this incongruity is that Ms. D. simply mixed up her left and right-side while testifying, although she herself did not offer that as an explanation. Or, the bruise may have been caused by something or someone else.

[102] The reasonable possibility that the bruise to the right side of Ms. D.'s face might have come from some event other than the alleged assault by the accused, contributes to the likelihood of the possibility that the other bruises were also caused by that same other event.

D. CONCLUSION

[103] As I stated in paragraphs 67-71, I must start by examining the testimony of the accused and ask myself if I believe his denial. For the reasons set out above, there are simply too many incredible aspects of his testimony for me to be convinced by his denial.

[104] I must then consider whether his testimony, in the context of all the evidence raises a reasonable doubt. In other words, even though I am not convinced by his denial, might it reasonably be true?

[105] I have considered the content, strengths and weaknesses of the testimony of the accused, Ms. D. and Ms. T.V., in conjunction with the other evidence in this case. For the reasons set out above, I find that all three witnesses' testimony suffer to some degree as concerns credibility and reliability. My considered examination of the evidence leaves me unsure of the accused's guilt. Put another way, I have a reasonable doubt as to whether Mr. M.E. sexually assaulted Ms. D., or performed the indecent act alleged. R. v. Lifchus, 1997 S.C.J. No. 77 at para. 34.

[106] The charges are accordingly dismissed.

Released on October 25, 2019

Justice Russell Silverstein