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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

( b ) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

R. v. Ali

Date: 2021 06 18 Court File No.: St. Catharines 19 – S0437

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Mohamed ALI

Before: Justice David A. Harris

Heard on: March 29 and 30 and May 4, 2021 Reasons for Judgment released on: June 18, 2021

Counsel: Todd Morris, counsel for the Crown H. A. Patrick Little, counsel for the accused Mohamed Ali

D.A. HARRIS J.:

Introduction

[1] Mohamed Ali has been charged with sexually assaulting LSM at the City of St. Catharines on January 2, 2019.

[2] Crown counsel elected to proceed by indictment. Mr. Ali elected trial in the Ontario Court of Justice. He pled not guilty and the trial began.

[3] Date, time, jurisdiction and identity were all admitted at the outset of the trial. In addition, it was conceded that a statement made by Mr. Ali was made voluntarily for the purpose of cross-examining him. A report from the Centre of Forensic Sciences was admitted into evidence on consent and it was conceded that swabs of the internal genitalia of LSM generated a hit for semen belonging to Mr. Ali. Finally, text messages and social media communications between LSM and Mr. Ali were also admitted on consent.

[4] The Crown called LSM as a witness.

[5] Mr. Ali testified in his own defence.

[6] LSM testified that Mr. Ali engaged in non-consensual vaginal intercourse with her.

[7] He denied having vaginal intercourse with her. He admitted to other sexual touching but testified that this was done with her consent.

[8] Accordingly, the principles in R. v. W. (D) are applicable.

[9] If I believe Mr. Ali’s evidence, I must find him not guilty.

[10] Even if his evidence leaves me with a reasonable doubt regarding any essential element of the alleged offence, I must find him not guilty.

[11] Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.

[12] In determining this, I must keep in mind that Mr. Ali, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities". R. v. Starr, 2000 SCC 40, at para. 242.

[13] This is a tough standard and it is so tough for very good reason. As Cory J said in R. v Lifchus:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted. R. v Lifchus, at para. 13

[14] The case against Mr. Ali depends on my assessment of his evidence and that of LSM.

[15] In that regard I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether he is speaking the truth as he believes it to be. Reliability relates to the actual accuracy of his testimony. In determining this, I must consider his ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence R. v. Morrissey, per Doherty J.A. at para 33; R. v. H.C., 2009 ONCA 56, per Watt J.A. at para. 41; R. v. Slatter, 2019 ONCA 807, per Trotter J.A. at para. 60; Paciocco and Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), pp. 32 to 33. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt. R. v. J.J.R.D., per Doherty J.A. at para 47; R. v. J.W., [2014] O.J. No. 1979 (Ont. C.A.) per Benotto J.A. at para. 26.

[16] Finlayson J.A. stated in R. v. Stewart that:

I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record. R. v. Stewart, at para. 19.

[17] At this point I will say that while my decision with respect to the credibility of the witnesses is based, in part, on their demeanour while testifying, I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record. R. v. Norman; R. v. Stewart, supra at para. 19; R. v. G.G., at paras. 14 to 19; R. v. Gostick, at paras. 15 to 17; Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (Ont. C.A.) at para 66. The credibility and reliability of a witness must be "tested in the light of all the other evidence presented" R. v. Stewart, supra at para. 27; R. v. M.G., at para. 23; R. v. Gostick, supra at para. 14.

[18] I also stress that while I am satisfied that I may rely on the demeanour of the witnesses as a factor in assessing their credibility, I consider it to be of very little, if any, assistance in assessing the reliability of their evidence.

[19] Crown counsel pointed out inconsistencies in Mr. Ali’s evidence.

[20] In assessing the credibility of a witness, it is appropriate to examine any inconsistencies in what a witness said at different times. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies. R. v. R.W.B., [1993] B.C.J. No. 758 (B.C.C.A.) at para 29; R. v. M.G., supra at para. 24; R. v. Stewart, supra at para. 27; R. v. A.M., 2014 ONCA 769, at paras. 12 to 13.

[21] Crown counsel also argued that LSM had no motive to fabricate the allegations against Mr. Ali.

[22] The absence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact-finding process. R. v. Jackson, [1995] O.J. No. 2471 (Ont. C.A.) at para. 5. It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the witness’ evidence in the light of all of the other evidence R. v. R.W.B., supra at para. 28; R. v. L.L., 2009 ONCA 413, at para 44; R. v. O.M., 2014 ONCA 503, at para 107. Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate. R. v. Czibulka, at para. 44; R. v. L.L., supra at para 44; R. v. O.M., supra at para 107.

[23] I did not believe Mr. Ali.

[24] His evidence did not leave me with a reasonable doubt.

[25] My reasons for this are as follows.

[26] There were serious inconsistencies in his evidence.

[27] LSM testified that he ejaculated inside her vagina.

[28] During the trial, Mr. Ali testified that he ejaculated but he did so outside of her vagina.

[29] This is inconsistent with his statement to police.

[30] There he stated, “I did not ejaculate at all”.

[31] He attempted to clarify this at trial suggesting that he meant that he did not ejaculate inside her vagina at all. The context of the questions and answers leading up to this statement should have made it clear that it was a given fact that he had ejaculated. The only question was where he had done so.

[32] There are three problems with this suggestion.

[33] Firstly, he was not directed to, and he did not refer to any particular parts of his statement to police which might have provided such context. Accordingly, there was no basis for me to determine if his suggestion might be plausible.

[34] Secondly, he told the police that he “did not ejaculate at all”. That is very different from “inside her vagina at all”.

[35] Finally, he also stated in a text to LSM, “I didn’t ejaculate”.

[36] To be fair to him, I note that he makes some contradictory statements in that text, writing:

And to be honest with you I didn’t ejaculate, it was the semen.

It takes me more than 40 minutes for me to ejaculate.

The reason why I told you to go to the washroom is that I wanted you to wash off the semen.

[37] My first reaction to this seeming contradiction was that Mr. Ali must not know the meaning of the word “ejaculate”. He made it clear in his evidence however that he correctly understood the meaning of the word.

[38] Knowing this, his initial response during the exchange of texts with LSM and then to the police was a denial. He said that he did not ejaculate.

[39] Other exchanges in the text messages are also inconsistent with his assertion that he never penetrated her vagina with his penis and are even more damaging to his case.

[40] At 4:57 pm she wrote:

You don’t care I told you no so many times

Just get me the pill

[41] At 4:59 pm, she wrote:

I begged you not to do it to

Too*

[42] At the same time, he wrote

Alright

[43] At 5:00 pm, she wrote

I meant I told you not to fuck me you still did it.

[44] He wrote;

Ouch

I am sorry

I was overcome by the feelings

And I really like you

[45] Then at 5:01, he wrote:

I was overpowered by the feelings

Please forgive me

[46] At trial, Mr. Ali explained that he had not read her accusation “I told you not to fuck me you still did it”. He was responding to her earlier comment “I begged you not to do it”.

[47] There are two problems with this explanation.

[48] Firstly, I do not believe it.

[49] His evidence was that she had initiated cuddling. She had removed her own clothing except for the tiny bikini underwear. She had done that without any prompting by him. She had been kissing and caressing him. That included caressing his penis. Under those circumstances she was at least equally responsible for him ejaculating on her. There was no reason for him to say all of the things that he said if all that he had done was to ejaculate as a result of her caresses. He had done nothing wrong.

[50] In court, he stated clearly that he did not feel that he had done anything wrong. He stated:

it was consensual, everything came from her, cuddling came from her, kissing came from her, she removed her own clothes except the small bikini, and therefore I was not feeling I was, I was doing anything wrong. [13]

[51] His response to her was not in keeping with that. Nor was it in in keeping with an attempt on his part to “deescalate the situation and make her happy”. [14]

[52] His response was however totally in keeping with the accusation that he had “fucked” her after she told him not to.

[53] The second problem with Mr. Ali’s claim that he had not read the lines “I told you not to fuck me but you did it anyway” is that her earlier comments, the ones he claimed to have been responding to, were still very different from his explanation of what happened.

[54] According to him, they were in the midst of cuddling and caressing each other when she suddenly said, “stop!” He stopped cuddling and caressing, but he was already ejaculating, and he simply could not stop that.

[55] That version of events where she told him to stop once and only once and he stopped is very different from “I told you no so many times” or “I begged you not to do it”. So, when he responded, “Ouch” and apologized and asked her to forgive him, I took that to be a clear admission that he had done those things that she accused him of.

[56] He stated in his evidence that he wanted to keep her happy so that she would not say anything about this incident on social media. [15] This is inconsistent with his version of what happened that day. Why would he think that she would go public with a story where she had been the sexual aggressor, and his only wrongdoing was to ejaculate as a result of her caresses.

[57] On the other hand, he had good reason to fear that she might out him on social media or go to the police if she had told him not to “fuck” her and he had done it anyway.

[58] There are also problems with his explanation of why he was concerned about STD’s or pregnancy if he was certain that his penis had never entered her vagina and that her vagina had always been covered by the flimsy material of her tiny bikini underwear.

[59] He suggested that her panties were wet before he ejaculated leading him to believe that this had been caused by vaginal emissions and that he might have been exposed to possible STD’s when his penis had touched the outside of those panties. She on the other hand might have been exposed to STD’s or to the possibility of pregnancy if any of his semen had made its way, on its own, from her panties or from the toilet paper she placed in her panties into her vagina.

[60] I point out that no evidence was led to establish that either scenario was possible and that this is clearly not something that I might take judicial notice of.

[61] I do note that LSM testified that she was concerned about possible STD’s or pregnancy because he had ejaculated inside her vagina. I am satisfied that this would have been a very good reason for her, and him, to have had those concerns.

[62] Mr. Ali testified that he knew that LSM was concerned about getting home in time for a 4 pm appointment that day and he claimed that he shared her concern about this. This is inconsistent with his evidence that after he told her he was going to clean up quickly, he then took a shower for 10 minutes before he was ready to take her home.

[63] There were also other less significant inconsistences in his evidence that cumulatively impacted on my assessment of his credibility.

[64] During cross-examination, when questioned as to whether his bedroom door was locked or closed, he explained that in Arabic, ‘closed and locked just one in the same”. [16]

[65] Yet earlier, during examination-in-chief he had said “The door to my bedroom was closed, not locked but closed”. [17] He drew a clear distinction between closed and locked. They were not one and the same.

[66] Also, during cross-examination he said that he told LSM they should be quiet in the bedroom because “… my roommate came and my roommate is quite shy when it comes to women, and I never wanted him to feel uncomfortable knowing that there’s someone here in the room”. [18]

[67] Yet earlier, during examination-in-chief, he had stated that,

He was actually having lunch in the living room so he could tell that there are people there because we left our food there, okay? Her purse was also there. Her shoes was also, you know, once you come down we have a shoe rack so she put her shoes there. So definitely in one way or the other my roommate was, you know, like so to say he that he suspected that someone was inside”. [19]

[68] He said that he told LSM “let’s minimize our noise” so as not to make the roommate uncomfortable. [20]

[69] So in the one version of events, he did not want the roommate to even know they were there. In the other, he did not want the roommate to hear them “enjoying” and “making noise”. These two versions are inconsistent with each other.

[70] I note that I did not consider each and every other inconsistency in his evidence. I found some to be inconsistencies on minor matters or matters of detail that are normal and do not generally affect the credibility of a witness.

[71] Counsel for Mr. Ali argued that Mr. Ali gave his evidence in a straightforward fashion and that he was not shaken in his evidence by the thorough cross-examination. I disagree with both of these suggestions for the following reasons.

[72] Dealing firstly with the suggestion that he gave his evidence in a straightforward fashion, I make the following observations.

[73] At times, it seemed that Mr. Ali was taking his cue from present-day politicians who stick to their talking points when answering questions.

[74] Mr. Ali repeatedly referred to how “comfortable” LSM appeared to be.

[75] This point was not an issue for the most part. LSM freely conceded that she was “comfortable” in meeting with Mr. Ali in the Pen Centre parking lot, and in going to his apartment and in entering his bedroom and in lying on his bed. She only became uncomfortable when he tried to kiss her and to touch her in a sexual way.

[76] Counsel for Mr. Ali tried to argue that her level of comfort was evidence that supported the defence theory that she had consented to the sexual activity that had occurred. I rejected this reliance on “rape myths” (I will say more about this later). However, it would appear that Mr. Ali was stressing the fact that she was so comfortable in order to set the stage for these submissions.

[77] Mr. Ali was even more persistent in his repeated references to her “teeny underwear”, “very teeny underwear”, “teeny teeny underwear” and so on. References to her underwear without an adjective to stress its small size were few and far between.

[78] I do not know what he was trying to convey here. His counsel did not suggest that I should infer anything from the scantiness of her underwear. I suspect however that Mr. Ali was again trying to lay groundwork for an inference that a woman who wore such clothing would likely consent to sexual activity. Of course, that reasoning would also fall into the “rape myths” category.

[79] LSM was asked about her underwear during examination in-chief. She did not recall what underwear she was wearing that day. During cross-examination, when counsel for Mr. Ali referred to “a small bikini style panties” she interrupted him to say “I do not even recall what the panties looked like. I don’t know if they were a bikini or not. I don’t recall. I was just wearing normal panties.” [21] She was not asked whether her normal panties were “very teeny” or not.

[80] Further, the underwear, which had been collected as part of the “rape kit” was not made an exhibit.

[81] So, I do not know whether her underwear was particularly small or not. I do know however that Mr. Ali wanted me to know that, in his mind, her underwear was very, very small.

[82] The final talking point was that he repeatedly stated that LSM had suggested that they “cuddle”.

[83] She on the other hand did not recall the word “cuddle” being used by either of them. [22] In fact her evidence was clear that what happened between them was not cuddling. He was touching her and doing things that she did not want him to do and she tried to stop him and told him to stop.

[84] In addition, Mr. Ali became defensive at times during cross-examination.

[85] When asked whether he had told his “cousin” that he thought that LSM was attractive, he agreed but went on to point out that LSM had also commented favourably about his physique and how he dressed.

[86] On another occasion when Crown counsel was pressing him in cross-examination, he stated that “Okay, so sorry, English my fifth language so to speak”. [23] He immediately backed off from this acknowledging that he was 100 per cent comfortable proceeding in the trial in English. [24]

[87] Shortly afterwards, he stated “English as I said, it’s not my first language however I feel very comfortable speaking, writing and reading, so I’m good with that”. [25]

[88] It was apparent to me very early in these proceedings that English was not Mr. Ali’s first language and I was very conscious of the possibility that there might be issues as a result. I quickly concluded however that he was very adept at speaking and understanding English and that this was not going to be a problem.

[89] As a result, I interpreted his brief attempt to use his fluency, or lack thereof, in the English language as an excuse for something he had said. He quickly backed away from that attempt, but I still saw it as an example of him being defensive in his testimony.

[90] On another occasion, he became outright argumentative.

[91] When asked by Crown counsel if he had ever told the police in his statement that he had ejaculated on LSM and that maybe that was why she was upset that day, he replied:

Okay, you are right, I did not tell the police anything regarding about - but the police already had one side, and the side of the story they had was that, that I put my penis into the vagina of [LSM] and I ejaculated there. So my point ...is that my whole point of argument was that I did not ejaculate inside the vagina of, of [LSM] at all, at all. So and I know the police, with all due respect to the police, and I know the police will - I did not know before, now I know, that things can be taken out of the context. So you are right, I did not tell the police at any point that, that, that, that I, that I ejaculated, you know, that's what made, that’s maybe what made, made [LSM], you know, uncomfortable, and I don't think I was .obliged by law to tell them what I thought right then because … was involuntary, as I said, and I can stop at any time . Am I correct? [26]

[92] Mr. Ali was correct that he was not obliged to tell the police anything. However, he chose to speak to them. Further it was admitted that his statement was voluntary for purposes of cross-examination. So anything said by him then that was different from what was said by him in court, was fair game for Crown counsel to comment on.

[93] So I add this exchange to the list of inconsistencies in his evidence. He told the court that LSM might have been upset because he had ejaculated on her. He did not tell the police that. Rather he told them that he did not ejaculate at all.

[94] In addition, I am satisfied that Mr. Ali’s attempt to play lawyer on this occasion was also fair game for comment.

[95] With respect to the suggestion that Mr. Ali was not shaken in his evidence, I draw the following distinction. To the extent that he stuck to his story, it could be said that he was not shaken in his evidence. However, to the extent that his story began to unravel to the extent that it did in the examples set out above, his evidence was badly shaken during cross-examination.

[96] Crown counsel argued that I should apply R. v. J.J.R.D. and disbelieve Mr. Ali’s evidence on the basis that it was inconsistent with the evidence of LSM. [27] I was not satisfied that this was appropriate in this case.

[97] Crown counsel also argued that counsel for Mr. Ali failed to comply on several occasions with the rule in Browne v. Dunn (1893) and that I should take that into consideration in assessing the evidence of both Mr. Ali and LSM. I also declined to do this. I will set out my reasons for this below.

[98] Having determined that I did not believe Mr. Ali and that his evidence did not leave me with a reasonable doubt as to his guilt, I must still determine whether, after considering all the evidence that I do accept, I am satisfied beyond a reasonable doubt of Mr. Ali’s guilt. If not, I must acquit him.

[99] The relevant evidence is as follows.

[100] LSM testified that Mr. Ali kissed her and touched her in a sexual fashion. Ultimately, he inserted his penis in her vagina and had sexual intercourse with her. This ended only when he ejaculated inside her. All of this occurred without her consent.

[101] I believed her evidence to the requisite degree for the following reasons.

[102] LSM did testify in a straightforward manner.

[103] She did not exhibit any animus towards Mr. Ali. Crown counsel argued that I should be satisfied that she had no reason to fabricate her allegations against Mr. Ali. I am satisfied that there is no evidence of a reason to fabricate, but I am mindful of the warnings from the Ontario Court of Appeal referred to earlier, and note that there is no evidentiary basis for me to find that there was no such motive.

[104] I did note that she did not attempt to downplay her own role in what happened. She conceded that she was quite comfortable meeting up with Mr. Ali first in the Pen Centre parking lot and then the next day for lunch. She freely went to his apartment with him. She did not object to him taking a shower. She chose to lie down on his bed while he was in the shower. She acquiesced in his request that they keep quiet and not disturb his roommate.

[105] These could all be classified as statements against interest by her and enhanced her credibility in my view.

[106] In addition, she did not embellish her accusations against him. She conceded that she thought that he had a good physique and that he dressed well. She freely volunteered the fact that his unwanted kiss at the Pen Centre was just a “peck” on her lips. She did not suggest that he threatened her or struck her in any way.

[107] Counsel for Mr. Ali did not point out any inconsistencies in her evidence. Anything I saw in that regard would be considered inconsistencies on minor matters or matters of detail that are normal and do not generally affect the credibility of a witness.

[108] Counsel did suggest that I should consider her level of comfort with things that happened as evidence supporting the defence position that she had consented to the sexual activity that took place that day.

[109] I rejected that proposal, pointing out that this would be relying on myths and stereotypes about the behaviour of sexual assault complainants, myths and stereotypes that have long been rejected in Canadian law.

[110] In 1999, the Supreme Court of Canada stated in R. v. Ewanchuk, that:

Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. The Code was amended in 1983 and in 1992 to eradicate reliance on those assumptions; they should not be permitted to resurface through the stereotypes reflected in the reasons of the majority of the Court of Appeal. It is part of the role of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law. R. v. Ewanchuk, at para. 95.

[111] Since then, the Ontario Court of Appeal has regularly reinforced this direction. I refer to two recent decisions of that Court as being pertinent here.

[112] In 2019, in R. v. A.B.A., 2019 ONCA 124 the Court of Appeal stated that:

The use of a common-sense approach to credibility assessment is fraught with danger for it can “mask reliance on stereotypical assumptions”. R. v. A.B.A., 2019 ONCA 124, at para. 7.

[113] Earlier this year, in R. v. Steele, 2021 ONCA 186 the Court of Appeal stated:

[22] Although the trial judge refers to the inconsistency in A.V.’s testimony – not liking T.J. but going into the trailer with him anyway – as part of his credibility assessment, inherent in the analysis is a stereotypical assumption. The implication in the trial judge’s reasons is that consent can be inferred from the complainant’s entry into the trailer. This is wrong in law.

[23] In the emphasized text above, the trial judge went beyond assessing credibility and made an inference about consent because he could not imagine another reason to enter the trailer other than to have consensual sex. It was open to the trial judge to hold that the complainant’s inability to answer impacted her credibility, but he went further. In so doing, he relied on stereotypes and assumptions – that a woman would not enter a building at night with a man unless she wanted sex – to conclude that the complainant wanted to have sex.

[24] It may be that a person’s reasons for entering a premise – whether a trailer or a hotel room – may have relevance to a credibility assessment. I recognize the subtlety. But stereotypical assumptions are often couched as credibility assessments. R. v. Steele, 2021 ONCA 186 at paras. 23 and 24.

[114] R. v. Steele is particularly pertinent to the case before me where counsel has asked me to conclude that because LSM willingly went to Mr. Ali’s apartment, I should have a reasonable doubt about her claim that she did not consent to the subsequent sexual activity that took place there.

[115] While I did not do what counsel asked of me, I must point out that I did consider LSM’s behaviour that day as part of my assessment of her credibility.

[116] My concern was as follows.

[117] He kissed her the night before without her consent. He also tried to climb on top of her in the car

[118] I recognize that he subsequently apologized for his actions, and I have no difficulty accepting that she agreed to meet with him the next day for lunch or even that they went to his apartment to eat this.

[119] However, once they were there, he again kissed her without her consent.

[120] Then he suggested that he needed to shower to clean off loose hairs from his haircut. She not only agreed to that, but she also suggested that she would like to rest on his bed while she waited for him to come back. Both of these things did not make sense to me. Who suddenly showers in the middle of a luncheon date – a first luncheon date no less. I note however that Mr. Ali did not think this strange either. I was the only one to think this apparently. Stranger still to me though, after the second unwanted kiss in such a short time, why would anyone choose to rest on the other person’s bed while the shower took place. That made even less sense to me.

[121] I recognize however that people often do things that strike me as being strange and that I should not necessarily reject their evidence solely for that reason.

[122] In this case, I was satisfied that in all other respects her testimony was very credible. In addition, her evidence was corroborated in two significant ways.

[123] It was corroborated by the presence of Mr. Ali’s semen in her vagina.

[124] It was also corroborated by Mr. Ali’s responses to her accusations shortly after the event.

[125] I have discussed both of these pieces of evidence earlier in these Reasons and will not repeat myself here.

[126] I am satisfied beyond a reasonable doubt that Mr. Ali had non-consensual sexual intercourse with LSM.

[127] That clearly constitutes a sexual assault and I find him guilty of that offence.

[128] As I stated earlier, Crown counsel argued that counsel for Mr. Ali failed to comply on several occasions with the rule in Browne v. Dunn (1893). [32] While I agreed with this argument, the Browne v. Dunn breach was not a factor in my final decision. The following are my reasons for reaching that conclusion.

[129] The well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while she is in the witness-box. R. v. Henderson at para. 18; R. v. McNeill at para. 44; R. v. Giroux at para. 42; R. v. Dexter, 2013 ONCA 744 at paras 4 and 17; R. v. Quansah, 2015 ONCA 237 at para. 75 - leave to appeal denied at [2016] S.C.C.A. No. 203; R. v. Grizzle, [2016] O.J. No. 1159 (Ont. C.A.) at para. 13; R. v. Sutherland, 2016 ONCA 674 at paras. 38 to 44; R. v. Kirlew, 2017 ONCA 171 at paras. 8 to 14; R. v. Zvolensky, 2017 ONCA 273 at paras. 135 to 139; R. v. Vorobiov, 2018 ONCA 448 at paras 42 to 53; and R. v. Vassel, 2018 ONCA 721 at paras. 119 to 122 and 127 to 129.

[130] It is a rule of fairness that prevents the "ambush" of a witness by not giving her an opportunity to state his position with respect to later evidence which contradicts him on an essential matter. R. v. Verney, [1997] O.J. No. 2632 (Ont. C.A.) at para. 28; R. v. Henderson, supra at para. 19; R. v. McNeill, supra at para. 44; R. v. Giroux, supra at para. 42.

[131] It is not, however, an absolute rule and counsel must not feel obliged to slog through a witness's evidence-in-chief, putting her on notice of every detail that the defence does not accept. R. v. Verney, supra at para. 28; R. v. Giroux, supra at para. 46; R. v. Dexter, supra at para. 18; R. v. Quansah, supra at paras. 81 to 86.

[132] Defence counsel must be free to use his own judgment about how to cross-examine a hostile witness. R. v. Verney, supra at para. 28.

[133] The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness's credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness's story is not accepted. R. v. McNeill, supra at para. 45; R. v. Giroux, supra at para. 46; R. v. Quansah, supra at para. 81.

[134] It is only the nature of the proposed contradictory evidence and its significant aspects that need to be put to the witness. R. v. Verney, supra at para. 28; R. v. Paris at para. 22; R. v. Dexter, supra at para. 18; R. v. Quansah, supra at para. 81.

[135] In some cases, it may be apparent from the tenor of counsel's cross-examination of a witness that the cross-examining party does not accept the witness's version of events. Where the confrontation is general, known to the witness and the witness's view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so. R. v. Quansah, supra at para. 82.

[136] The potential relevance to the credibility of an accused's testimony of the failure to cross-examine a witness for the prosecution on subjects of substance on which the accused later contradicts the witness's testimony depends on several factors, including but not limited to the nature of the subjects on which the witness was not cross-examined, the overall tenor of the cross-examination, and the overall conduct of the defence. R. v. Paris at para. 23; R. v. Quansah, supra at para. 84.

[137] Where the subjects not touched in cross-examination but later contradicted are of little significance in the conduct of the case and the resolution of critical issues of fact, the failure to cross-examine is likely to be of little significance to an accused's credibility. On the other hand, where a central feature of a witness's testimony is left untouched by cross-examination, or even implicitly accepted in cross-examination, the absence of cross-examination is likely to have a more telling effect on an accused's credibility. R. v. Paris, supra at para. 23; R. v. Quansah, supra at para. 84.

[138] I was satisfied that the rule was breached here on a number of occasions.

[139] Having said that, I note that while certain suggestions were never put directly to LSM, some were certainly implied.

[140] Further, on a number of occasions, LSM had already testified to a version of events that directly contradicted the evidence that was subsequently given by Mr. Ali.

[141] In any event, having found that the rule was breached, what would the appropriate remedy for this have been?

[142] Crown counsel argued that I should view the failure to cross-examine into consideration as a factor that I am entitled but not obliged to consider in assessing the evidence of both Mr. Ali and LSM. R. v. Paris, supra at paras. 22 and 27 to 29; R. v. McNeill, supra at para. 49; R. v. Giroux, supra at para. 46; R. v. Dexter, supra at paras. 21 and 43; R. v. Quansah, supra at paras. 119 to 121 and 125 to 129.

[143] I declined both suggestions. In reaching that conclusion I was mindful of the fact that I must consider a number of factors in determining the appropriate remedy. These factors include but are not restricted to:

1. the seriousness of the breach;
2. the context of the breach;
3. the timing of the objection;
4. the position of the offending party;
5. any request to permit recall of a witness; and
6. the availability of the impugned witness for recall. R. v. Lyttle, 2004 SCC 5, at para. 65; R. v. Dexter, supra at para. 20; R. v. Quansah, supra at para. 117.

[144] I point out the obvious, that this case is being tried before a judge alone. Accordingly, there is no need for a jury instruction in order to overcome any prejudice resulting from any breach of the rule. R. v. Dexter, supra at para. 40.

[145] Crown counsel did not ask to recall LSM. When I raised the possibility, he declined.

[146] Further, I am satisfied that, in light of her overall testimony, there should be little if any doubt that LSM would have simply rejected all of counsel’s suggestions had they been put to her. This would have no effect on my assessment of the credibility and reliability of LSM or Mr. Ali.

[147] I am also satisfied that the failure to make those suggestions occurred inadvertently, rather than deliberately. Mr. Ali should not suffer any adverse consequences from his counsel’s failure to comply with this rule.

[148] Finally, I disbelieved Mr. Ali, even without factoring in Browne v. Dunn. I believed LSM to the requisite degree also without factoring in Browne v. Dunn. I did not need to consider the breach and I did not do so.

[149] Accordingly, although I found there to be a clear breach of the rule in this case, that breach was not a factor in the outcome.

[150] In conclusion, as I stated earlier, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Ali sexually assaulted LSM.

[151] I find him guilty of that offence.

Released: June 18, 2021 Signed: Justice D.A. Harris