WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

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

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

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

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

Court File and Parties

ONTARIO COURT OF JUSTICE DATE: August 4, 2021 COURT FILE No.: 18-36831

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ATU SEALY

Before: Justice P.K. Burstein

Heard on: March 16, 17, 18, April 22 and June 8, 2021 Reasons for Judgment released on: August 4, 2021

Counsel: K. Pollock, for the Crown R. Geurts and S. Sari, for the accused

Endorsement

BURSTEIN J.:

[1] In 2018, Atu Sealy and his family were living in Apartment 612 at […] Road in Oshawa. S.S. worked as the superintendent of that building. She also lived in an apartment on the first floor.

[2] On the morning of August 14, 2018, Mr. Sealy headed down to the laundry room in the building’s basement with his family’s laundry. He encountered S.S. as she was heading to the laundry room to perform some routine cleaning. They engaged in some small talk while each of them went about their chores inside the laundry room. After about 10 or 15 minutes, S.S. left the laundry room and returned to her apartment. She was extremely upset.

[3] S.S. claims that while the two of them were alone in the laundry room, Mr. Sealy suddenly cornered her by the door. According to S.S., Mr. Sealy reached up her shirt, fondled and then kissed her breasts. He also grabbed her crotch and kissed her neck. She did not consent to any of it. By contrast, while he admitted to encountering S.S. in the laundry room earlier that morning, Mr. Sealy denied the sexual assault allegations when confronted by the police later that day and again when he testified at trial.

[4] Mr. Sealy was charged with sexual assault. At his trial before me, the Crown called three witnesses: S.S. (the complainant), Katie Fitzsimmons (S.S.’s supervisor who saw and spoke with S.S. soon after the alleged sexual assault) and Cst. Reid (the officer responding to the initial report who seized S.S.’s clothing for forensic DNA analysis). On consent, the Crown also tendered a forensic biology report from the Centre of Forensic Sciences (“CFS”). Mr. Sealy testified in his own defence. He also called Ryan Whittick (another tenant of […] Road ) and his wife, Keisha Sealy, to testify.

[5] At the conclusion of the case, Mr. Geurts filed a 15-page written brief of submissions outlining why the Crown had failed to prove the charge against Mr. Sealy beyond a reasonable doubt. While my Judgment does not specifically address every point which Mr. Geurts has raised in his written submissions [1], I have carefully considered all of those submissions during my deliberations. For the reasons that follow, I reject Mr. Sealy’s denials (both in his police interview and in his trial testimony) and find that the evidence proves beyond a reasonable doubt that he sexually assaulted S.S. on August 14, 2018.

Summary of the evidence

[6] S.S. was 43 years old and unemployed at the time of trial. In August 2018, she had been working as the superintendent of the apartment building located at […] Road in Oshawa. She was also a resident of the building at that time. The building had approximately 120 apartments.

[7] S.S. knew Mr. Sealy. She was aware that he lived on the sixth floor of the building with his wife and two boys. She was also aware that the Sealy family was typically late with their monthly rent payment because that would result in S.S. having to deliver a standard notice to their door. The notices were prepared by the property management office and not by S.S. S.S. never had any conversation with either Mr. Sealy or his wife about the late payments. There were many other tenants at […] Road who similarly were regularly late in paying their rent. There was no evidence that the Sealys had ever been threatened with eviction as a result of their habitual tardiness in paying their monthly rent.

[8] On the morning of August 14, 2018, S.S. began her workday by going down to the basement level to her workroom to retrieve a mop and bucket. She was intending to clean the laundry room which was located on that same level. As she was heading down the hall towards the laundry room, she encountered Mr. Sealy coming off the elevator with a basket of laundry headed towards the laundry room.

[9] When she entered the laundry room, S.S. turned on the light. Mr. Sealy joked that he thought it would be romantic with the light off. After laughing off his remark, S.S. proceeded with her routine for cleaning the laundry room. While she did that, Mr. Sealy headed towards the washing machines. The two of them continued to chat about things like the weather and about the transition of superintendents in the building.

[10] S.S. eventually reached the point in her routine where she was mopping the floor. Mr. Sealy had made his way over to a counter that was near the door to the laundry room. As she was mopping near the door to the laundry room, S.S.’s back hit the propped-open door causing it to close. S.S. explained that the door to the laundry room functioned by opening inward and had a device that would cause it to close automatically if not held open. The door could be propped open as a result of the unevenness of the floor underneath the spot where the door would reach when fully open. While S.S. had turned to reopen the laundry room door, Mr. Sealy made his way to where she was standing. Because of a protruding wall on the hinged-side of the door, when S.S. turned back around, she found herself trapped between Mr. Sealy and the closed door.

[11] According to S.S., Mr. Sealy’s put his face within inches of her face. He then put one hand on her breast and another hand on her buttocks. He reached under her shirt with one hand and pulled her bra aside. He put his mouth on one of her breasts and then the other. He then started to kiss her neck. S.S. testified that Mr. Sealy told her that he had been waiting a long time to do that. S.S. kept saying that she did not get involved with married men. Mr. Sealy then took S.S.’s hand and placed it on the crotch of his pants. S.S. repeated that she did not get involved with married men and pulled her hand away. S.S. testified that Mr. Sealy then grabbed the crotch of her shorts. At some point, Mr. Sealy just stepped away from S.S.. At that point, S.S. opened the door to the laundry room and left. S.S. testified that she did not consent to any of the sexual touching.

[12] S.S. testified that she immediately texted a friend who was living in the building, Tracey MacKensy, to come down to S.S.’s apartment. According to S.S., Ms MacKensy insisted that they call S.S.’s boss, Katie Fitzsimmons, to report what had happened. S.S. testified that it was Ms MacKensy who called the office and left a message about what had happened.

[13] About 15 minutes after leaving the laundry room, the building intercom system in her unit “buzzed”, alerting S.S. to the fact that someone was at the building’s main entrance for her. Not knowing who it was, S.S. admitted the caller. As she came out of her unit, she saw that Mr. Sealy was rounding the corner of the hallway on the main floor. He told her that there was a bug in his apartment and that he and his family would be away. According to S.S., Mr. Sealy also said that he was sorry for what happened. S.S. told Mr. Sealy that she would notify the building’s bug removal specialist about the bug in his apartment.

[14] At trial, S.S. testified that Ms Fitzsimmons arrived at […] Road at 9:00 a.m. Ms Fitzsimmons said that she arrived some time before 9:30 a.m. Ms. Fitzsimmons had retrieved Ms MacKensy’s [2] voicemail message sometime between 8:50 and 9:00 a.m. Upon hearing the message, Ms Fitzsimmons called S.S. Ms Fitzsimmons described S.S. as having been very upset and having a very hard time communicating what had happened. S.S. did not recall speaking on the phone to Ms Fitzsimmons.

[15] Ms Fitzsimmons knocked on the door when she arrived at S.S.’s apartment. S.S. had all of the door’s dead-bolt locks engaged. According to Ms Fitzsimmons, S.S. was still very upset. She was crying. After hearing from S.S. about the alleged sexual assault, Ms Fitzsimmons called the police. Ms Fitzsimmons remained with S.S. for the rest of the day.

[16] The police did not arrive at […] Road to speak with S.S. until around 8:00 p.m. They asked S.S. to tell them what had happened. After hearing her account, the police asked S.S. for the clothes she had been wearing. During the long wait for the police to attend, S.S. had taken a shower because she “had the feeling of someone violating” her all over. Before doing so, S.S. removed the bra and t-shirt she had been wearing during the encounter in the laundry room. S.S. wrapped her bra in her t-shirt and left them in her room. On cross-examination, S.S. explained that the bra that was later seized by the police was the one which she had been wearing that day. Cst. Reid confirmed having seized a bra and t-shirt from S.S.’s bedroom on the evening of August 14, 2018 and having later submitted them both to the CFS for analysis.

[17] According to one of the two CFS biology reports admitted by the defence, forensic examination detected saliva on the right cup of S.S.’s bra. Analysis of that saliva sample showed that there were three contributors to the DNA in the saliva on the bra cup. The second CFS biology report indicated that:

The STR DNA results are estimated to be greater than one trillion times more likely if they originate from S.S., Atu SEALY, and one unknown person than if they originate from S.S. and two unknown people unrelated to Atu SEALY.

The reports said nothing about the quantity of saliva or DNA that were detected. The reports were also silent about the possibility of contamination, such as through innocent transference of either saliva or DNA between the bra and another item ( e.g. , the t-shirt)

[18] After speaking with S.S. on the evening of August 14, 2018, the police formed grounds to arrest Mr. Sealy. He was arrested at approximately 1:00 a.m. on August 15, 2018 and brought to the police. He agreed to an interview about S.S.’s sexual assault allegation. During his police interview, a recording of which was (on consent) introduced by the Crown as part of its case at trial, Mr. Sealy admitted to having encountered S.S. in the laundry room on the morning of August 14, 2018. He also admitted to having had some close physical contact with her. He explained that he had been trying to get past her as she stood in a narrow passage and had to effectively “hug” her as he squeezed by. He denied having kissed her or having intentionally touched her breast. Mr. Sealy acknowledged having gone to speak with S.S. outside the door to her unit within about 15 minutes of their encounter in the laundry room. He explained that after returning to his unit from the laundry room, he had seen a cockroach and so was reminded that his wife had told him to speak with S.S. about that problem. When asked by the officer, Mr. Sealy denied having apologized to S.S. while they spoke outside her unit as, according to him, he had done nothing meriting an apology. He had, however, noticed that S.S. looked like she had been crying just before the two of them were speaking outside her apartment. During this interview, Mr. Sealy said that he had no explanation for why his DNA might be found on S.S.. He did, however, later volunteer a sample of his DNA to the police.

[19] Mr. Sealy also testified at trial. From his testimony, I learned that he was a 45-year old truck driver who also worked part-time as a personal trainer. He was married to Keisha Sealy and had two boys. They had moved into a two-bedroom apartment on the sixth floor of […] Road about three years prior to August 14, 2018. As a result of S.S.’s sexual assault complaint, the Sealys were served a notice of eviction. [3] The family moved out of the building a few months later.

[20] On the morning of August 14, 2018, Mr. Sealy went down to the basement to do a load of laundry. He entered the laundry room and began loading a machine. S.S. came in behind him and turned on the light. He joked that it was more romantic with the light off. He was chatting with S.S. as he continued to deal with his laundry. S.S. was mopping the floor of the laundry room. He believed that, at one point, S.S. shut the door to the laundry room so that she could mop behind the door. When Mr. Sealy went to leave the laundry room, S.S. was standing between him and the door. As he went past her, S.S. stuck out her left hand at waist level towards him. In his testimony, Mr. Sealy claimed that he figured she wanted a hug. He found the situation awkward as the two of them had never before been in such close physical proximity. Mr. Sealy responded by putting his right hand up in the same manner but above her left arm. According to Mr. Sealy, his right hand went around her back such that his palm was on her upper back. He then patted her on the back and asked if she was ok. As he went to move past her, S.S. turned around and left the room. He followed her out, but a few feet behind. Mr. Sealy denied having touched S.S. in the sexual manner which she had described in her testimony.

[21] Mr. Sealy testified that, after leaving the laundry room, he went to the elevator and back up to his apartment. Once upstairs, he noticed a cockroach behind the toilet. He remembered that his wife had asked him to tell the superintendent about her having seen some cockroaches in their apartment earlier in the week. Mr. Sealy went back down to the basement to look for S.S.. When he did not find her there, he went to the main door and buzzed her unit on the building intercom system. It was about 9:00 a.m. According to him, he said that it was “Atu from 612” and then asked to speak with her. Mr. Sealy testified that S.S. said “okay” and that she would be right there. He waited for her by the elevator. She came down the hallway to a spot a few feet away from him. He told her about the cockroach. She said that she would send someone to take a look at it. She looked like she had been crying. Mr. Sealy denied having apologized to her about anything.

[22] Mr. Sealy went out that evening at about 7:30 p.m. to lead one of his physical fitness classes. He returned home shortly after 10:00 p.m. Upon learning that the police were looking for him, Mr. Sealy phoned them to inquire why. He was told that they would come to see him as soon as possible. The police did not arrive at the Sealys apartment until approximately 1:00 a.m. They arrested Mr. Sealy for sexual assault and took him to the police station. Soon after arriving at the police station, Mr. Sealy participated in a video recorded interview. He was released from custody later that same morning.

[23] As noted above, the defence also called Keisha Sealy and Ryan Whittick to testify at trial. Neither of those witnesses offered up anything material in relation to what happened in the laundry room on August 14, 2018. While I generally accept what both of these two witnesses had to say about other unrelated matters, for the reasons set out below, I found their testimony entirely unhelpful in resolving the real issues in this case; namely, whether the evidence of Mr. Sealy raised a reasonable doubt about the sexual assault allegation and, if not, whether the evidence of S.S. proved that allegation beyond a reasonable doubt. [4] Accordingly, I saw little value in summarizing the evidence of either Mrs. Sealy or Mr. Whittick in my Judgment.

Relevant legal principles

[24] There was no dispute that the person S.S. had accused of sexually assaulting her was Mr. Sealy. Nor was there any contest at trial that the conduct described by S.S. would satisfy all of the requisite elements of the sexual assault charge. The defence in this case focused on whether the evidence at trial satisfied the Crown’s burden of proving beyond a reasonable doubt that what S.S. said happened actually happened.

[25] In deciding whether the Crown has proven the sexual assault charge in this case beyond a reasonable doubt, I am well aware of the long line of cases emanating from the Supreme Court of Canada’s decision in R. v. W.D. [5]. The evidence of the Defendant need only raise a reasonable doubt and, even if it does not raise such a doubt, the Crown’s case must still prove the offence beyond a reasonable doubt. Appellate courts have long held that, even if I were to find S.S. to be a credible and reliable witness, were I to also find the defence evidence credible, I would then be left in a state of reasonable doubt by virtue of being unable to decide who to believe [6]. Put differently, the trial is not a credibility contest involving a choice of which side I believe more. If the defence evidence leaves me with reasonable doubt, I must acquit.

[26] There are, however, some cases where an assessment of the credibility of an accused’s testimony may properly involve a comparative analysis of the complainant’s evidence. The Ontario Court of Appeal has held that any such comparative analysis must be limited to cases where there has first been “a considered and reasoned acceptance beyond a reasonable doubt” of the complainant’s evidence: see R. v. J.J.R.D. (2006) , 215 C.C.C. (3d) 252 (Ont. C.A.) and R. v. Slatter, 2019 ONCA 807.

[27] Another factor which may be considered when assessing credibility is whether counsel for the defence has complied with the Rule in Browne v. Dunn [7]. In short, that rule requires that a party who will later seek to contradict a witness on a particular fact-in-issue first confronts that witness with the alleged contradiction so that the witness has had an opportunity to address the proposed contradictory proof. The Rule is primarily designed to promote fairness to the witness and to the other litigant. However, the Rule also ensures that the trier of fact will have a complete record upon which to assess the proposed contradiction: see R. v. Quansah , 2015 ONCA 237, [2015] O.J. No. 1774 (C.A.). A failure to cross-examine a witness about a proposed contradiction may support a finding that the contradictory proof should be given little weight. In some cases, the failure to honour the Rule may preclude the offending party from relying upon the alleged contradiction.

[28] In this case, I found that Mr. Geurts breached the Rule in Browne v. Dunn on a number of points which were later the subject of defence evidence and which he later advanced during final submissions. Those breaches of the Rule were discussed at the conclusion of the evidence but prior to me hearing final submissions. I determined that it would be inappropriate in this case to recall the complainant (or any other Crown witness) to testify as there was no reasonable explanation from Mr. Geurts as to why he had not simply complied with the Rule in the first place. Moreover, I was satisfied that, in the circumstances of this case, recalling the complainant to address counsel’s failings would risk causing her undue psychological harm. I decided that I could appropriately remedy the breaches of the Rule in Browne v. Dunn during my deliberations in the weight I would afford to some of the contradictions alleged by Mr. Geurts. Where applicable, I have referred to this factor in my reasons below.

[29] The assessment of whether the evidence proves a criminal charge beyond a reasonable doubt may, in some cases, also be impacted by a successful defence claim that the police failed to preserve important evidence during their original investigation. Where evidence helpful to the defence was readily available to the police, the failure to preserve that evidence may, in some cases, justify a remedy at trial. In the case at bar, Mr. Geurts did not provide advance notice to the Crown or the Court of an intention to formally seek a Charter (or any other) remedy for such alleged failings, nor did he otherwise formally engage the issue during the trial. Instead, Mr. Geurts simply complained at various points in the trial that the police had failed to pursue certain investigative avenues, but then failed to adduce any actual evidence which could have allowed me to assess the merits of his complaints. I will address the evidentiary deficiencies of those complaints below, however it is important to note that the Ontario Court of Appeal made clear over a decade ago that there is no free-standing constitutional right to an adequate investigation of criminal charges: R. v. Darwish , 2010 ONCA 124.

Analysis and findings

(i) Introduction

[30] For the purposes of explaining my analysis of the evidence at trial, I have organized these reasons in segments. However, to be clear, I have not considered any piece of evidence in isolation from the rest. The opinions and conclusions that I have expressed about each individual portion of the evidence were not formed without regard to the potential impact of other related portions of the evidence.

(ii) The alleged failure to adequately investigate

[31] During the trial and in closing argument, Mr. Geurts complained that the police had failed to adequately investigate S.S.’s sexual assault allegation. In making those complaints, however, Mr. Geurts fundamentally misunderstood both the constitutional limits on what is required of the police and the extent of his own obligation to try and remedy any resulting deficiencies before seeking relief from the court.

[32] Apart from the well-settled legal barrier to Mr. Geurts’ submission that the police failed to adequately investigate, his complete lack of diligence in attempting to rectify the alleged investigative failings would have been enough to dispense with his complaints. Waiting until a trial has already commenced before notifying either the Crown or the court about allegedly missing evidence due to investigative failings is unacceptable. If defence counsel is truly concerned about potentially exculpatory evidence having been missed or lost during the police investigation, he or she has two options: (1) ask the Crown to consider directing the police to pursue that evidence or (2) take steps to pursue it themselves, such as by hiring a private investigator. In this case, Mr. Geurts seems to have done neither. [8] For example, despite complaining that the police ought to have photographed or video recorded the laundry room at […] Road, Mr. Geurts waited until the end of the first day of trial before attending the laundry room to create his own images. Similarly, despite complaining about the police not having taken a statement from S.S.’s friend, Ms MacKensy, there was no evidence that Mr. Geurts ever attempted to interview Ms MacKensy, or any of the other building tenants he claimed the police should have interviewed. Were it necessary for the resolution of these complaints, I would have found that the Defendant is precluded from seeking a remedy because of his counsel’s own laches.

[33] There was also no basis upon which I could conclude that any of the alleged investigative failures prejudiced the Defendant’s ability to make full answer and defence. Mr. Geurts did not present any evidence that the investigative steps not taken would have produced anything relevant to the trial, let alone helpful to the defence. It is pure speculation for me to assume that the additional investigation proposed by Mr. Geurts would have generated anything of value. If further investigation would have produced anything helpful to the defence, it is reasonable to assume that Mr. Geurts would have pursued those investigative avenues. The failure to have pursued them suggests that Mr. Geurts expected they would not produce anything helpful to the defence. Absent any evidence of real potential prejudice, there is no basis upon which the alleged investigative failings, or any resulting missing evidence, would lead me to grant a Charter remedy or to somehow enhance the basis upon which I might be left with reasonable doubt. I am satisfied that the unsubstantiated defence complaints about the “failure to investigate” were nothing more than a proverbial red herring.

(iii) The complainant’s alleged motive to fabricate

[34] During the trial, counsel for the Defendant pursued various lines of inquiry in an attempt to suggest that S.S. may have had a motive to fabricate the allegation against Mr. Sealy. One such allegation was that S.S. was jealous or upset with the Sealy family because, despite regularly being late in paying their rent, Mrs. Sealy was seen frequently carrying in bags from different retail stores. Another allegation was that S.S. was upset with the Sealy family because somehow Mr. Sealy’s report about the cockroach seen on August 14, 2018 did or would cause employment problems for S.S. as it would reflect poorly on her performance. [9] While there were other similar areas of inquiry, none of those inquiries produced any evidence capable of suggesting that S.S. knew or ought to have known that there was some other basis for animus between her and the Sealy family.

[35] While there is certainly no burden on an accused to prove that a Crown witness had a motive to fabricate an allegation of misconduct, there must at least be an air of reality to the assertion. In this case, despite the court having allowed counsel for the Defendant considerable leeway to explore various alleged motives to fabricate, by the end of the trial there was not a scintilla of evidence to support any such claim. [10] Indeed, in cross-examination, Mr. Geurts never even suggested to S.S. that she had harboured any animus towards Mr. Sealy (or his family) prior to August 14, 2018. In both his police interview and his trial testimony, Mr. Sealy volunteered that his family never had any problems with S.S. and that he had always thought she was a “good person”. Mrs. Sealy confirmed that her family had no problems with S.S. prior to August 14, 2018. As for Mr. Geurts’ attempt to stitch together a motive to fabricate based on S.S.’s alleged concerns about her job, his submissions ignored the obvious fact that neither S.S. nor Ms Fitzsimmons testified [11] that any such concern existed prior to S.S. reporting the sexual assault on August 14, 2018 [12]. There was no evidence from anyone that, prior to August 14, 2018, S.S. would have had any reason to believe that she would be blamed for the building’s persistent cockroach problems if another tenant complained. I was satisfied that S.S.’s credibility was not impacted by any of the speculative motives hypothesized by Mr. Geurts.

(iv) The alleged spoiling of the clothing exhibits seized by the police

[36] In his closing argument, Mr. Geurts submitted that the DNA evidence proved little given the Crown’s failure to negative the possibility that the DNA detected on the bra cup had been transferred there from the t-shirt as a result of the two items having been wrapped together by S.S. or during their transport by Cst. Reid. I reject this contention as it too was entirely speculative.

[37] There was no expert opinion evidence at trial to provide an air of reality to the defence assertion of possible contamination. The fact that transference may have been possible does not mean that it was reasonably possible. There was no evidence from which I could determine how likely (or unlikely) transference would have been in this case. For example, there was no evidence explaining how the likelihood of transference might be impacted by the nature of the textiles, the length of time they were in proximity or the nature of the bodily substance that was present. As noted above, the defence admitted both CFS biology reports and thereby waived the right to question the forensic biologist for the purpose of adducing evidence capable of lending credence to its transference theory. The defence also chose to not call any expert opinion evidence of its own in support of that theory. It would be inappropriate for me to fill that evidentiary gap by taking judicial notice of the defence theory that the DNA or the saliva detected on the right bra cup could have originated from DNA or saliva on S.S.’s shirt and that Mr. Sealy’s DNA or saliva may have innocently ended up on her shirt by virtue of the contact he had described in his testimony.

(v) S.S.’s testimonial credibility and reliability

[38] Apart from its claims about motives to fabricate (which I have rejected above), the defence nevertheless contends that I should not accept S.S.’s evidence about what happened in the laundry room because of inconsistencies between her evidence and other evidence at trial. One such apparent inconsistency was the discrepancy between the evidence of Ms Fitzsimmons about having spoken with S.S. by telephone that morning and S.S.’s testimony that they did not. The defence also argues that S.S.’s evidence about bumping into the door and causing it to close accidentally is inconsistent with evidence led later by the defence about the operation of the laundry room door, such as the testimony of Mr. Whittick or the photographs and videos introduced through Mrs. Sealy. There are other minor discrepancies identified in the written submissions filed by Mr. Geurts.

[39] In relation to the alleged inconsistencies raised by the defence, I am satisfied that none of them were material to the credibility and reliability of S.S.’s evidence about the sexual assault. They were either minor or were explained by the broader context afforded by other evidence. For example, I am satisfied that having regard to the evidence that S.S. was very emotionally distraught in the immediate aftermath of the laundry room encounter, she simply forgot having spoken briefly on the telephone to Ms Fitzsimmons. Indeed, Ms Fitzsimmons testified that S.S. was so upset during the phone call that she had a very hard time saying what had happened. S.S.’s failure to recall a brief telephone call in those circumstances does not reflect adversely on her credibility. At most, it might impact the reliability of her evidence about what happened after the laundry room encounter, facts which are not really in issue at trial.

[40] Dealing specifically with the alleged inconsistency about how the laundry room door closed, as I noted earlier, Mr. Geurts breached the Rule in Browne v. Dunn by failing to give S.S. the opportunity to comment on the evidence which he later led on the door’s operation. His failure to present S.S. with an opportunity to respond to those apparent contradictions would have been enough for me to reject their putative significance. However, a close examination of the photographs of the laundry room that were introduced by the defence shows scratch marks in the area where S.S. had said that the floor was sufficiently uneven to cause the door to remain propped open. Mr. Whittick’s testimony about the door being so heavy that he always struggled to keep it open seems inconsistent with the fact that Mrs. Sealy can be seen in one of the videos holding the door open using only three fingers [13]. Put differently, apart from the diminished weight I have afforded to this defence evidence because of Mr. Geurts’ breach of the Rule in Browne v. Dunn, I would not have found Mr. Whittick’s testimony to be inconsistent with S.S.’s testimony on the point. More importantly, when considered in the larger context of this case, any apparent discrepancy on this point would not have been sufficiently material to call into question the credibility or reliability of S.S.’s evidence about the sexual assault.

[41] I found S.S.’s evidence about the sexual assault to be both credible and reliable for the following reasons:

(1) The level of detail provided by S.S. about the events on August 14, 2018 showed that she had a real present recollection of what happened that day.

(2) The details of the events which she provided in her testimony were consistent each time she was asked to repeat them, both in chief and in cross-examination. Indeed, at one point during the trial, Mr. Geurts remarked that S.S. had repeatedly given a clear rendition of how she was sexually assaulted.

(3) S.S.’s post-event demeanour offered some support for her claim that she had just been the victim of a very disturbing event: see R. v. A.(J.) , 2010 ONCA 491 at paras. 17 and 18. I accept Ms Fitzsimmons’ evidence that S.S. was very upset both on the phone and when Ms Fitzsimmons saw her shortly thereafter. Indeed, in his evidence, Mr. Sealy confirmed that S.S. looked like she had been crying when he saw her just after their laundry room encounter. The fact that S.S.’s emotional upset continued on through the day also leads me to infer that the event which had caused her to be so upset was something very significant. The confirmatory inference from S.S.’s post-event demeanour also finds some support in her testimonial demeanour. Whenever S.S. was asked questions at trial requiring her to testify about the details of the sexual assault, she clearly became anxious and short of breath. While there were other times in her trial testimony when she became angry or upset, the anxiety and shortness of breath only manifested when S.S. was asked to testify about the details of the sexual assault. To be clear, I do not rely on her testimonial demeanour as some hallmark of truthfulness, but only as confirmation that the post-event demeanour witnessed by others like Ms Fitzsimmons was related to the sexual assault and not something else.

(4) Most importantly, S.S.’s evidence about how she was sexually assaulted by Mr. Sealy was confirmed by the discovery of saliva containing Mr. Sealy’s DNA on the right cup of her bra. There was no evidence that S.S. would have known that forensic examination of her bra had discovered that saliva. In other words, there is no alternative explanation for why the saliva containing Mr. Sealy’s DNA would have been found in the very spot that S.S. said he had placed his mouth after lifting her shirt. The powerful confirmatory value of the DNA evidence on that key detail of her allegation also leads me to accept the balance of S.S.’s description of how Mr. Sealy sexually assaulted her.

[42] For all of those reasons, I accept S.S.’s evidence about the sexual assault beyond a reasonable doubt. In the circumstances of this case, the confirmatory effect of the forensic discovery of Mr. Sealy’s DNA in the saliva found on her bra leads me to a “considered and reasoned acceptance” of S.S.’s evidence in that regard: see R. v. J.J.R.D. , supra and R. v. A.N. , 2017 ONCA 647 at paras. 17-19.

(vi) Mr. Sealy’s credibility

[43] I need not accept Mr. Sealy’s evidence in order for him to be acquitted of the charge. If either his statement to the police or his testimony at trial leaves me with a reasonable doubt about S.S.’s sexual assault allegation, an acquittal would follow. Given the similarities between what he said to the police and what he said in his testimony at trial, I have analyzed Mr. Sealy’s version of events collectively. Although his trial testimony provided more detail, it was largely consistent with what he had told the police on August 15, 2018.

[44] I accept most of what Mr. Sealy has said in his police statement and in his testimony at trial. Both at trial and during his police interview, Mr. Sealy seemed composed. He responded to questions appropriately and was never argumentative. There was nothing about his demeanour which raised concerns about his credibility. Put simply, he was generally credible when talking about life at […] Road and when describing the events of August 14, 2018. Indeed, most of what he said was consistent with what S.S. said. Their stories really only diverged on two key points: the alleged sexual assault and the alleged apology.

[45] I reject the portions of Mr. Sealy’s police statement and trial testimony where he denied sexually assaulting S.S.. I am satisfied that his version of that event is materially inconsistent with my reasoned and considered acceptance of S.S.’s evidence. In contrast to S.S.’s evidence about what happened near the door to the laundry room, Mr. Sealy’s version fails to account for the discovery of his DNA in saliva found on S.S.’s right bra cup. Mr. Sealy acknowledged that he did not spit on S.S., that he did not have contact with her laundry and that he had never been inside her apartment. While there is no legal burden on an accused to ever explain the incriminating presence of their DNA on an item of interest, his version of events offers no innocent explanation for the presence of his DNA on S.S.’s bra cup. As I have already explained, there was no other evidence at trial capable of raising a reasonable doubt that Mr. Sealy’s DNA somehow ended up on the bra cup in a manner other than how S.S. had described in her evidence.

[46] I have also considered whether the consistency in Mr. Sealy’s versions of what happened at the door of the laundry room (as between his police statement and his trial testimony) is significant enough to nevertheless raise a reasonable doubt. The consistency in Mr. Sealy’s versions about that brief event does not lead me to reconsider my rejection of that portion of his account. In both his police statement and his trial testimony, Mr. Sealy’s account of that event contains very few details. The fact that he was able to repeat at trial the same short and simple narrative he had told the police during his interview does not, in this case, suggest it is more likely that he was telling the truth. This consistency did nothing to move me away from rejecting Mr. Sealy’s denial of the sexual assault.

[47] Given my rejection of Mr. Sealy’s exculpatory version of the physical encounter in the laundry room that he provided in both his police statement and his trial testimony, I need not resolve the credibility of his denial of the alleged apology. Suffice it to say that, while I would also have accepted S.S.’s testimony on this point, in the absence of some confirmatory evidence, I would not have been willing to apply the doctrine from J.J.R.D. to reject Mr. Sealy’s denials of the apology. Unlike her version of what happened at the doorway of the laundry room, there is no forensic or third party evidence confirming S.S.’s claim that Mr. Sealy apologized for what had happened. Using her evidence as the sole basis for rejecting Mr. Sealy’s denial about that would, in my view, amount to an improper reversal of the burden of proof and an undue extension of the J.J.R.D. approach.

Conclusion

[48] I am satisfied beyond a reasonable doubt that Mr. Sealy sexually assaulted S.S. in the manner she described in her evidence. I reject his denials.

[49] Mr. Sealy is found guilty as charged.

Released: August 4, 2021 Signed: Justice P.K. Burstein

[1] For example, in those written submissions, Mr. Geurts argued that the investigation and prosecution of this case suffered from “tunnel vision” and elements of racial bias. There was no evidence at trial suggesting even an “air of reality” to those claims. Similarly, there was no evidence to support Mr. Geurts’ claim that the Crown witnesses were motivated by racial bias in their testimony. Not only was it unnecessary for me to deal with those issues given the complete absence of supporting evidence, it would also have been inappropriate to dignify those baseless allegations by formally addressing them in my Judgment.

[2] The evidence at trial shows that Tracey MacKensy also went by the name “Tracey Delong” and that “Delong” was the name Ms Fitzsimmons had used in her police statement when referring to the message.

[3] The evidence at trial showed that the notice of eviction was prepared by the management office, not S.S. Indeed, there was no evidence showing that S.S. was aware on August 14, 2018 that her complaint could or would result in the office issuing such a notice. Mr. Geurts never asked her about that in cross-examination.

[4] In both regards it goes without saying that the determination of these issues must be made in light of other evidence in the case and not based solely on an assessment of the testimony of either Mr. Sealy or S.S. divorced from the rest.

[5] [1991] S.C.J. No. 742.

[6] See, for example, R. v. Challice , [1979] O.J. No. 1301 (CA) and R. v. Nimchuck , [1976] O.J. No. 1258 (CA).

[7] (1893) , 6 R. 67 (H.L.)

[8] Indeed, there was no evidence that the items which Mr. Geurts said the police should have obtained during their investigation were not still available at the time of trial and that they could not still have been procured by the defence with modest effort.

[9] The evidence from S.S., Ms Fitzsimmons, Mr. Sealy, Mrs. Sealy and Mr. Whittick clearly showed that […] Road was plagued by a persistent cockroach problem.

[10] To be clear, I am not finding that the Crown has proven an absence of motive to fabricate as a factor supportive of S.S.’s credibility. My finding is limited to the inability of the defence to point to any evidence capable of supporting a reasonable possibility that such a motive may have existed.

[11] Indeed, neither was even asked in cross-examination, contrary to the Rule in Browne v. Dunn.

[12] The termination of S.S.’s employment 18 months after August 14, 2018 related to the poor job performance which emerged in the months following the events of August 14, 2018 and, according to the evidence of S.S., flowed from the psychological harm she suffered as a result of the sexual assault. Nevertheless, I did not in any way consider that evidence to be supportive of her credibility. Rather, I simply point out this reality as a means of demonstrating the patent flaw in defence counsel’s argument concerning the alleged motive to fabricate.

[13] Mr. Geurts never showed Mr. Whittick any of the photographs or videos created by the defence and asked him to comment upon them.