Youth Criminal Justice Act Warning

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 06 16

Y 190721-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

I. A. , a young person

Before: Justice M. L. Cohen

Heard on: April 15, 16, and June 16, 2021

Reasons for Judgment released on: June 16, 2021

Counsel: Sarah De Filippis................................................................................ counsel for the Crown Ronald Chu.................................................................................... counsel for the defendant

COHEN, M. L. J.:

[1] This is my judgment after a Zoom trial on a charge of sexual assault, alleged to have been committed by the accused between the dates of September 27, 2019, and October 19, 2019 [1].

[2] The trial took place on April 15 and 16, 2021, and originally proceeded as a blended voir dire. The Crown sought to introduce a video statement the complainant made to the police on November 29, 2019, as well as screenshots she had taken of text communications between herself and the accused subsequent to the alleged incident. Early in the blended voir dire, the defence conceded, based on the viva voce testimony of the complainant, that the requirements of section 715.1 of the Criminal Code had been met [2]. I was also satisfied and ruled the videotape statement admissible. The defence subsequently conceded that the screen shots satisfied the requirements of the Canada Evidence Act, s.31, and were admissible in evidence. Thus the voir dire portion of the trial was resolved.

[3] Both the complainant and the accused are students. The accused is an international student from Nigeria. He has been in Canada since August 2019, and has completed his first year of college. He is studying criminology.

[4] The complainant is in grade 9 and currently resides with her mother in Alberta.

[5] The accused was 17 at the time of the alleged offence and 19 when he testified. She was 15 at the time of the alleged incident, and 17 at the time of the trial. On the date in question, both accused and complainant were residing in Toronto.

[6] The accused and the complainant generally gave their testimony in a clear and articulate manner. They both struck me as intelligent and likeable. However, as I shall discuss later in this judgment, at times each gave confusing, inconsistent, or even incoherent answers to some questions.

[7] I begin with the undisputed facts. The parties met over social media in the fall of 2019, shortly after the accused had arrived from Nigeria. There is no dispute about the initial stages of their relationship. They met on a social media app called Monkey and began to communicate daily over Monkey as well as a variety of other platforms. The complainant stated she and the accused “were actually like good friends”. After communicating for a week, they agreed to meet in person.

[8] The accused lived in downtown Toronto and the complainant in Scarborough. They agreed to meet at a park near the complainant’s house. The accused was not yet entirely familiar with the transportation system. He missed the first meeting because he took the wrong bus. He and the complainant made fresh arrangements and eventually met up at the park. The complainant was there with her younger brothers, and she and the accused played and chatted with the children for a few hours.

[9] After this first meeting the accused and the complainant continued to exchange messages, texts and phone calls. They arranged a second meeting at the park. The complainant told the accused she would be coming after school, which ended in the late afternoon. The accused was coming from downtown, but again took the wrong bus to the wrong park. When he texted the complainant and advised her of the problem, she told him to hurry because she had to meet up with her mother after seeing him. She had told her mother she was going to the library after school. The accused called an Uber so he could reach the park without delay.

[10] The accused arrived at the park around 5 pm. It was beginning to get dark and no one was around. The complainant and the accused went to a picnic table located behind a shed. They were not easily visible from the park. They sat next to one another on a bench at the table.

[11] The complainant and the accused had different expectations about what would transpire when they met for the second time at the park. The complainant testified that she thought “...we were going to hang out and like make these like silly little dance videos I do with like most of my friends and stuff.” The accused testified that the complainant “said she would bring a condom and I told her we would have sex.”

[12] I now turn to the disputed facts.

[13] The complainant testified that after a few minutes of sitting next to one another on the bench, the accused turned her around to face him. The complainant said that she thought they were going to talk some more, but the accused suddenly pushed her from sitting to lying on her back on the bench. She said he grabbed her arms, pinned her down and climbed on top of her. Her legs straddled the bench. She stated the accused pulled down his pants and pressed his penis partially into her vagina. She said he had “easy access” because she was wearing a skirt, part of her school uniform. She stated she tried to push him away, and repeatedly told him to stop and get off her, but he would not stop. After a few minutes of struggle, they both fell off the bench and onto the ground. The complainant got up, grabbed her knapsack and ran. She then met up with her mother as arranged. She did not tell her mother what had happened. The accused went home.

[14] The complainant did not remember if the accused said or yelled anything when she was running away, but he did message her after she left the park. She stated the accused was upset. “He was like ‘Oh, I wasted my time and my money coming over here’.”

[15] At the time of the incident the complainant was living with her grandmother. According to the complainant, her grandmother noticed that she was unhappy, moping, and not wanting to leave the house. The grandmother pressed her for the reason. Eventually the complainant told her grandmother what had happened. Thereafter, on November 29, 2019, the complainant went to the police and gave the videotaped statement about the alleged assault.

[16] Both parties agree that in the days following the incident the accused made many attempts to contact the complainant over social media and different telephone numbers. The complainant testified that at first she did respond to him. She stated he pleaded with her to resume the relationship, and she refused. The complainant told the accused over social media that he had raped her and destroyed her life. The accused said he was sorry and that “...it wouldn’t happen again.” After this exchange, the complainant stated she did not pick up when the accused called her. She blocked him on social media.

[17] The complainant took screenshots of some of the messages on Monkey that she exchanged with the accused, and she provided these to the police. She said she deleted messages from the accused on other platforms as she did not want to be reminded of the incident. The photos of the screen shots were introduced into evidence on consent.

[18] The accused gave a dramatically different version of the second meeting. He denied the complainant’s account of the event. He agreed that they were sitting next to each other on the bench. The accused testified that, after a few minutes, he told the complainant he was cold. She “volunteered to give him a cuddle.” By ”cuddle” the accused meant consensual hugging and kissing. The accused says they moved closer to one another and cuddled.

[19] The complainant testified that she had condoms in her knapsack. The accused says she reached into her knapsack, took out a condom, and put the condom on top of her knapsack. After three minutes of cuddling, the complainant asked the accused what time it was. When he told her it was 5:20 or 5:30, she said she was late and had to go to see her mother. The accused objected that they had spent very little time together, but the complainant said she had to go and told him to call her. She then ran off.

[20] The accused denied any sexual conduct, and any interest in sexual conduct, involving the complainant other than the consensual kissing or cuddling on the park bench which lasted for three minutes. He said he “would never” rape the complainant. The accused said he knew the complainant was upset because she yelled at him. He thought the only reason she was yelling was because he asked her why she was leaving so early.

[21] The accused says he was “pissed” when the complainant ran off.

[22] The accused and the complainant communicated briefly after she had left the park and he was on his way home. Again, he asked her why she left, and she said because she had to go see her mother. He said “I just came. You could have told me to go back.” On the second call he said: “You could have just told me to go back home, then I wouldn’t have to waste my money and time.” He said: “I was pissed because I just came, and I haven’t spent time with her.” The accused testified that by “pissed” he meant “shocked and concerned”, not “angry” as suggested by the word’s usage in this context.

[23] The accused testified that he called the complainant from the GO station and told her “You could have told me to go back home, and then I wouldn’t have to waste my money and time.” According to the accused, the complainant then said “OK, you know I can just call 911 and tell them you raped me.” He replied: “I didn’t even touch you.” According to the accused, the complainant said “...if you keep saying that I am going to call 911”. The accused said he spoke in a calm voice, and that the complainant told him to “...Just leave me alone. I have to go and see my Mom.”

[24] The accused stated he was “scared and shocked” by the complainant’s threat to tell the police that he had raped her. At the same time, he testified that he did not take the threat seriously, because he knew he had done nothing wrong.

[25] There is no dispute that, in the days following the incident, the accused repeatedly tried to contact the complainant. The accused testified that he wanted to continue to be friends with her because he had no friends in Canada. He says that, after the day of the incident, he and the complainant texted as often as they had before, but when pressed about the duration and frequency of the contact, he became unclear and inconsistent. He said they were talking “a couple of days”, “like maybe a week”, and then stated: “I don’t remember how long we were talking for. No idea.” In any event, there is no question all communication between the parties ceased November 8, 2019.

[26] The accused stated that in the texts he and the complainant talked about meeting again and going to the cinema. However, as the accused acknowledged, they did not go to the cinema, because a few days after he said they made the plan, he realized that the complainant was blocking him on social media. They never met up again.

[27] The content of the screenshot of November 8, 2019, raises evidentiary issues. In that screenshot the complainant confronts the accused with her allegation that he raped her. The accused repeatedly apologizes and “promises not to do it again”. The complainant’s statements in the exchange are prior consistent statements and as such are not admissible for the truth of their contents. It is, however, agreed by counsel that the complainant’s statements are admissible as narrative, because they give essential context to the accused’s apologies: R v Langdon 2019 BCCA 467. As in R. v. Tso 2020 BCCA 358,

The conclusion that the conversation contained the admission required a reading of both sides of it. The complainant’s side provided the context for understanding what [the accused] was acknowledging.

[28] On their face, the apologies of the accused in the screenshots constitute admissions by the accused to the complainant that the sexual conduct she alleges had occurred. Such statements are admissible for the truth of their contents. Nonetheless, admissions may be contradicted or explained in testimony. In the absence of a credible explanation or contradiction, the admissions can amount to proof of guilt.

[29] While acknowledging the admissibility of the screenshot evidence, the defence contends that the accused has provided credible explanations inconsistent with guilt. The accused maintains that the repeated apologies were not admissions that he had sexually assaulted the complainant, but simply efforts to placate her so she would resume her friendship with him.

[30] Having reviewed the texts and the testimony of the accused, I do not find the explanations credible. In coming to this conclusion, I have considered the following:

[31] First, I have considered the texts themselves. They are simple and logical. There is a conversation taking place. The plain and sensible meaning of what the accused says is that he is apologizing for his behaviour, undertaking that he would not behave this way in the future, and promising that he would “make it up” to the complainant.

[32] Secondly, I have assessed the credibility of the accused’s explanations for his apologies in the texts. Before elaborating, I set out the texts and some extracts from the questioning by counsel and the accused’s responses:

Text: Acc.: [name of complainant]. It’s me I.A. Please let us be together again. I promise to make it up to you.

Defence Counsel: What did you mean by that? Acc: I meant for her to unblock me and be friends again.

Crown counsel: Will you - would you agree with me that when you say “I promise to make it up to you”, it - that you know what it is that is making her angry? Acc: ...No because she said that she wanted to be my friend. So after the - like, me stating that, “I promise to make it up to you”, was me saying I’ll do whatever she wants, and then for us to be friends again.

Crown : ...What’s “it” - I promise to make “it” up to you. What does “it” refer to? Acc: “Make it up to you”. I just say that’s something. Make it up to you, like, that’s the word we can-just a sentence, the phrase “Make it up to you”

Text: Comp: I just can’t believe you raped me Acc: I’m so sorry [name of complainant] I promise this won’t happen again Can we go to the cinema tomorrow I promise I’ll make it up to you

Defence counsel:...and so did you rape [the complainant]? Accused: No I would never.

Defence counsel: ...so, Why are you apologizing for raping her? Accused: So that was because - that wasn’t the first time she had brought the conversation up. And every time she brought the subject up, I already said No. I didn’t. She threatened to call the police every time I denied it. So I just gave in. And then I was new to Canada, and didn’t really know what rape was in Canada. And on that day (transcript: indiscernible- “the case”. From my notes: “the kissing”). So I really thought that was what she was talking about.

Defence Counsel: Okay. And so the next message after you say “I am sorry”, you say, “I promise this won’t happen again.” What are you promising her? Acc: That’s a promise not to upset her again.

Crown: Okay. So when she says “you raped me”, you say “I am so sorry Ani. I promise this, this won’t happen again”. What’s “this” refer to? Accused: She said I raped her.

Crown: So you’re saying “I promise I won’t rape you again.” Accused: No. but all this - the one that says “I promise this won’t happen again”?

Crown: Yeah. Why did you write that? Accused: Cause she said - I I was explaining to you this happened to me before when she said, I got her mad.… when she said she was mad at me . So I am saying - I was saying I promise I won’t upset her anymore. That was what I meant.

Crown Counsel…. So you think when she says “I raped you” (sic), that’s just her code for saying I’m mad at you? Accused: No, I’m just - this , “I promise this won’t happen again”, was just random too, what she said before because I knew she was mad at me that’s why she brought it up. ... I’m not from Canada so I didn’t know how anything is meant to flow, or what I am meant to do. So I just wanted to be her friend…

Text : Complainant: We were never together I met you twice and you raped me the second time. You destroyed me well being I never wanna see you again.

Acc: I’m so sorry [name of complainant] Please I promise you.

Comp: Leave me alone

Acc: I’m sorry [name of complainant]

Crown counsel: I am going back to the text, page 2, “Can we go to the cinema tomorrow? I promise I’ll make it up to you”. What are you making up to her? Acc.: Just the impression to be friends with her again.

Q. Okay. So you’re desperately trying to mend this relationship…., right? A. That’s right.

Crown counsel: Okay. So I am going to the next page. And [name of complainant] writes, “We were never together. I met you twice, and you raped me the second time. You destroyed me(sic) well -being. I never want to see you again.” And you say “I am so sorry [name of complainant]. Please I promise you. So, again, Please I promise you” what does that refer to? Accused: I said I’ll make it up to you

[33] Upon reviewing these portions of the evidence, I find the explanations proffered by the accused to be self-serving, evasive, illogical, and at times incoherent. The words “I’ll make it up to you” and “I promise this won’t happen again” simply cannot bear the interpretation the accused wants to place upon them.

[34] Furthermore, the explanations rest on the accused’s characterization of his relationship with the complainant as a friendship, and his denial that he had any sexual interest in her. Indeed he denied that the phrase: “HMU (Hit Me Up) Ladies” on his profile signified he was looking for any females to date. In any case, his contention that he had no sexual interest in the complainant is belied by the testimony he gave when asked by his counsel what he and the complainant planned to do when they met up: “She said she would bring a condom and I told her we would have sex.” In addition, his claim that he had no sexual interest in the complainant is belied by his description of what occurred on the park bench, which is that he and the complainant were kissing and cuddling.

[35] The accused seeks to portray his admissions as mere statements intended to placate the complainant, or because he genuinely wished to see the complainant again as a friend, or to forestall a complaint to the police. I have indicated why I reject these characterizations.

[36] In arriving at this conclusion, I have also considered the credibility of the explanations advanced by the accused in the context of his credibility on other issues. One such example which affected my assessment of his credibility arose from the question of whether and why the accused was angry, and whether and why he believed the complainant was angry after the incident. The accused manifestly wanted to avoid a finding that he and the complainant were angry, a conclusion which might suggest that something untoward had occurred.

[37] I found the interpretation advanced by the accused of the word “pissed”, as meaning “shocked and concerned” unpersuasive. It was clear that the accused was angry with the turn of events based on his complaint that he had wasted time and money coming to meet the complainant.

[38] More significant was his response to questions about why the complainant was mad at him, a conclusion which he had previously acknowledged, but then obfuscated. When questioned about whether he ever asked the complainant why she was mad at him, the accused gave a variety of answers: declaring that he was not sure she was mad at him, that he had asked her why, that he “must have asked why,” and that he had not asked her why, “because every time [he] tried she got mad...”

[39] In the result, I find the apologies by the accused to be admissions of guilt. I did not believe the testimony of the accused, nor did his testimony raise a reasonable doubt in my mind.

[40] The burden of proof is on the Crown to prove the charge beyond a reasonable doubt. Even if I disbelieve, or am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of his guilt: R v W(D), [1991] 1 SCR 742 at 758, 3 CR (4th) 302. To answer this question, I now turn to the evidence of the complainant.

[41] There were instances in which I doubted the evidence of the complainant. The complainant stated she did not recall kissing the accused. This statement does not rule out the possibility that the accused and complainant did “cuddle” on the park bench.

[42] The accused says the complainant took condoms out of her knapsack, and she denies this. She agrees that she had condoms in her knapsack. There was no evidence of any conversation at the park about condoms, so it seems unlikely that the accused would know that she had them in her knapsack had she not taken one out.

[43] Of course, the Court can believe some, all or none of a witness’s testimony. Whether or not these portions of the complainant’s evidence are or are not credible, in the context of her description of the assault, the instances I have described regarding the cuddling on the bench, and the source of the accused’s knowledge of the condoms, do not detract from the complainant’s credibility on the relevant facts supporting the allegation of sexual assault.

[44] Certainly there were inconsistencies in the complainant’s testimony. For example, she was inconsistent about whether or not the accused wore a condom. While she stated she believed he wore a condom, she also stated she didn’t know and didn’t really remember. She stated that she told the police that he was wearing a condom because she was nervous and was frightened at the thought she might have to go to a hospital “to get checked out.” I find this is a plausible line of thought and behaviour for a fifteen-year-old and did not affect my assessment of her overall credibility.

[45] The complainant testified that her legs were straddling the park bench when the accused allegedly put his penis in her vagina. The defence questions how her legs could have straddled the bench when she had stated her underwear was around her knees. The complainant stated that she could not remember whether the accused took her underwear off, or it was a little past her knees, or that it was just around one knee. The complainant was wearing a skirt and underpants. There was little evidence about the type of underpants she was wearing, other than that they were not made of tight elastic. There are many kinds of female underwear, and whether her underpants were just around one knee or around both, in my view an assault in the manner she described could have taken place [3].

[46] There are other examples where the complainant was uncertain. For example, she could not recall whether the accused’s underwear was on or off, how he grabbed her arms and held them, whether he pulled his pants down before or after he pinned her, and how he was able to continue pinning her to the bench as he was pulling his pants down.

[47] The inconsistencies in the complainant’s testimony, and her inability to recollect some matters, bear on the issues of her credibility and reliability. Ultimately the inconsistencies and the lack of recollection must be viewed in the context of the complainant’s entire testimony, which I found credible. The complainant was unshaken in her testimony that the accused had intercourse with her, and she provided a reasonably detailed account of the event. She was a calm and steady witness who displayed no animus towards the accused. She did not embellish. Other than on matters I considered to be of minor importance, she was straightforward in her responses to questions. The complainant acknowledged not remembering everything that happened, and I do not find it surprising that a fifteen-year-old unexpectedly finding herself being forcibly sexually assaulted would have an unclear recollection of many details.

[48] In the result I accept the evidence of the complainant and I am satisfied of the guilt of the accused beyond a reasonable doubt.

Dated: June 16, 2021 “ Justice M. L. Cohen”

Footnotes

[1] Although the information specifies a time period of September 1, 2019 to September 30, 2019, the charge was amended on consent to conform with the evidence.

[2] See: R. v. C.C.F., [1997] 3 S.C.R. 1183

[3] See R v Kiss 2018 ONCA 184, [2018] O.J. No. 1011 (Ont. CA) pars. 28-31