ONTARIO COURT OF JUSTICE

CITATION: R. v. Attipoe, 2021 ONCJ 451
DATE: 2021·02·26
COURT FILE No.: 19-6688

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KEVIN ATTIPOE

Before Justice Wayne G. Rabley

Heard on October 18, 2020 and January 4, 2021
Reasons for Judgment released on February 26, 2021

M. Ross...................................................................................................................... for the Crown
B. Smart................................................................................................................... for the accused

RABLEY J.:

1. This is a case that deals with the evening’s events between Kevin Attipoe and DK. Some might call it ‘the date from hell’. As a result of what transpired, Mr. Attipoe was charged with sexually assaulting DK.

2. The couple met through an online dating service called Hinge which connects interested individuals with others who fit within their stated parameters. In this case, after a connection was made, there was interaction between the two parties and a date was arranged.

3. DK drove to Kitchener and attended at Mr. Attipoe’s residence so that they could get to know one another. After drinking some alcohol and smoking some marijuana, DK alleges that Mr. Attipoe sexually assaulted her by kissing her without her consent and touching her and forcing himself upon her. Mr. Attipoe pleaded not guilty to the offence and a trial was held before me. These are my reasons for judgment.

CASE FOR THE CROWN – DK

4. DK is 26 years of age and was working as a senior business consultant in Toronto at the time. Through the Hinge dating app, she was matched with an individual named Kevin. Initially, they communicated through the app but then exchanged phone numbers so that they could text one another. Eventually, they arranged to meet for a date, but DK cancelled it. Another date was arranged for the following evening and DK agreed that she would drive to Kitchener to meet Mr. Attipoe.

5. Mr. Attipoe tried to persuade DK to come to his residence. She refused to do so initially because she wanted to meet in public. After Mr. Attipoe explained that he had broken his ankle and was in a cast with crutches, DK succumbed to the request and drove to 152 Fallowfield Drive, in Kitchener.

6. When she arrived at the residence, DK texted Mr. Attipoe who opened the door and walked back into the home. DK followed and sat on the couch, which was the only piece of furniture to sit on. Mr. Attipoe also sat on the couch but looked straight ahead at the television.

7. DK engaged in a conversation with Mr. Attipoe, but quickly concluded that “things were off”. She noticed that Mr. Attipoe was wearing a baseball cap and that he did not match the picture in his Hinge profile. He appeared much older than his profile suggested. At that point, DK felt that things “weren’t right in my gut.” Unfortunately, she did not decide to leave at that point.

8. Mr. Attipoe announced that they were going to drink alcohol. DK was reluctant to have too much to drink because she had to drive home, but ultimately agreed to the pressure put upon her by Mr. Attipoe and had a mixed drink and then two shots of tequila.

9. Mr. Attipoe then convinced DK to smoke marijuana with him. Once again, she reluctantly agreed because of the pressure that she felt she was being put under, so she went outside with him and had a couple of hits.

10. When they returned inside, Mr. Attipoe started to pressure DK to consume some more alcohol and she continued to tell him that she didn’t want any more. When he got up to go to the washroom, she texted her friends to tell them that she had “messed up” because she had drank and smoked and wouldn’t be able to drive. When Mr. Attipoe returned, he sat down right beside. She started to move away but he told her “Move back to where you were.” She laughed nervously and moved back to where she originally was.

11. At this point, according to DK, Mr. Attipoe leaned “in front of me quickly and began to try making out with me. For the first – n so, I didn’t want him kissing me, but I also didn’t want to be so mean to him.” She then went on to explain:

“So, for the first second, two seconds max I kind of pacified the situation and like allowed it. He just shoved his tongue in my mouth. It was really quick and then I began to push him away.”

12. DK told Mr. Attipoe that she didn’t want to hook up with him that night, but at the same time was “trying to like buffer the rejection.” She was asked by the Crown if she was “fine” with the kiss. Her answer was:

“I wouldn’t say I was fine with it. I didn’t want the kiss at all. I just pacified it for a second or two because I wasn’t trying to be so mean and rejecting so I kind of pacified it and didn’t want it and then started the rejection.”

13. Mr. Attipoe said “ok” when DK told him that she didn’t want to hook up, but within a minute once again tried to kiss her but this time with more force. He grabbed her behind the head with his left hand and according to DK “planted his lips on mine and his tongue was very quickly just in my mouth.”

14. DK pried Mr. Attipoe’s hands off her head and told him that she didn’t want to kiss. He replied, “I just thought you would be down to have sex tonight.” She replied by asking what she had done to make him think that she would want to have sex with him, and he answered: “I just assumed. You didn’t do anything and that I’m being dumb.”

15. DK was very anxious as a result of what happened and brought her legs up on to the couch. Undeterred Mr. Attipoe tried again. He stood in front of her and pulled her legs apart and started humping her. DK tried to resist by pushing on his chest, but he weighed significantly more than her and wasn’t backing away.

16. At this point, DK began to worry that she was going to be raped. Mr. Attipoe had also grabbed her head and was kissing her and putting his tongue into her mouth. She was able to raise her knees to her chest and used her legs to push him away. He stood back up and sat on the couch not saying anything.

17. DK said that she had to go and got up to leave. Mr. Attipoe sternly said, “Sit back down” and pointed to the couch where she had been. DK debated in her head whether she should try for the door but was uncertain whether Mr. Attipoe’s ankle really was broken, so she sat down and took out her phone. Mr. Attipoe told her sternly “Put the phone down.”

18. Not wanting to escalate the situation, DK complied and sat on the couch with her legs up to her chest in a fetal position. Mr. Attipoe then stood again and grabbed DK to pull her into a position so that she was lying on the couch. She kept saying no but he was much stronger than her. Eventually she raised her voice and told him the reason she wouldn’t lie down was “Because I don’t want to.”

19. He let go. DK could see that Mr. Attipoe was angry. She was terrified. She told him that she had to go. He responded by trying to make out with her once again. This time she pushed him away, stood up started for the door. Mr. Attipoe came up behind her and put his arms around her waist. He pressed against her and tried to make out with her once again. DK resisted his attempts to kiss her, but he was able to grope her butt. He told her that she couldn’t leave because she had drank too much. She responded by telling him that she had to leave because she would have to go to work the next day.

20. Eventually, DK opened the door, crossed the porch and started towards her car. She heard Mr. Attipoe say “It was nice to meet you.” DK started the car and drove down the street where she parked it. At that time, she “text both my best friends again saying that I got out and that – what he had done and then I was going home.”

21. DK returned home and within a few days reported the matter to the police.

CASE FOR THE DEFENCE – KEVIN ATTIPOE

22. Kevin Attipoe testified on his own behalf. He works as a nurse and aspires to go to medical school. According to Mr. Attipoe, the evening went much differently than described by DK. Mr. Attipoe confirmed that the two of them met on the dating app Hinge. He agreed that he misrepresented his age and that the picture on his profile was that of a different male. According to Mr. Attipoe, this was not uncommon on dating apps and when DK put the picture from his profile up to his face, he said that it was “close enough” and the two of them had a laugh together.

23. Mr. Attipoe told a different version of events. He maintained that DK was not put under any pressure to drink tequila or to smoke weed. According to him, she did so voluntarily and took several hits, not just one or two as she described.

24. It was after they came inside, after smoking weed, that the conversation turned to tattoos and DK asked to see his. She then showed him her tattoos and since he thought things were going well, he leaned in to kiss her and she kissed him back before pushing him away and saying that she didn’t hook up with guys on the first night.

25. DK then told Mr. Attipoe that she had to go because she had to go to work the next day. He found this confusing because earlier she had said that she didn’t have to work. Mr. Attipoe then commented to her saying “I feel like you don’t like me” whereupon she suggested that they hang out on the following Saturday.

26. Mr. Attipoe denied that there were any other sexual advances. He testified that he texted DK and they spoke over the telephone and she said that she had been thinking about him. She then messaged him to tell him not to contact her anymore and the police showed up a few weeks later to charge him with sexual assault.

LEGAL PRINCIPLES TO BE APPLIED

27. The vast majority of sexual assault prosecutions turn on the evidence of the two principals, the complainant and the accused. In this case, Mr. Attipoe testified on his own behalf. As such, I am required to apply the principles of W.(D.) v. The Queen (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) as instructed by the Supreme Court of Canada.

28. The burden of proving innocence or guilt is upon the Crown. Mr. Attipoe is presumed to be innocent of the offences unless the Crown has proven beyond a reasonable doubt that he committed the crimes that he is charged with.

29. In attempting to do so, the Crown is entitled to rely upon the evidence of a single witness. Corroboration is helpful but it is not required in order found the basis of a finding of guilt. Therefore, a court is entitled to reject the evidence of an accused person even if his denial is unshaken in cross-examination: R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749.

30. To apply the law to the case before me, I am entitled, if I am of the view that the evidence supports it, to accept the evidence of DK and to reject the evidence of Mr. Attipoe even if I am not able to identify areas of weakness in his evidence. However, I am only entitled to do that after a considered and reasoned analysis of his evidence, to see if it might be true or leave me in a state of reasonable doubt.

31. As stated eloquently by our Court of Appeal in JJRD:

The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

32. It must also be emphasized that mere disbelief of the accused’s evidence does not satisfy the burden of persuasion upon the Crown. In other words, to use disbelief of Mr. Attipoe’s evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt, constitutes legal error: R. v. Dore, (2004), 2004 CanLII 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.) at p. 527.

33. Therefore, the court must not reach its verdict based on merely choosing between the defence and prosecution evidence. Instead, the court must be satisfied on the totality of all the evidence that there is no reasonable doubt as to Mr. Attipoe’s guilt.

ANALYSIS

34. There are two aspects of this case that must be determined. The central issue is whether the Crown has proven beyond a reasonable doubt that Mr. Attipoe sexually assaulted DK by his conduct throughout the evening. The second is whether the initial kiss by Mr. Attipoe was a sexual assault.

35. These issues are primarily determined by an analysis of the evidence of DK and Mr. Attipoe.

THE EVENING’S EVENTS

36. I would say in a general sense that I was impressed by DK. In my view, she was an excellent witness who was untouched in cross-examination. She handled difficult areas well. For example, she had reported to a friend that she believed Mr. Attipoe had a criminal record. He does not. When pressed on this issue, she gave a very good explanation and acknowledged that she was originally mistaken.

37. I found DK’s testimony to be detailed, well explained and logical. In my view, her decision making for staying at Mr. Attipoe’s residence notwithstanding so many red flags needed explanation. At each stage, she explained in detail why she acted in the way that she did. Dating someone you do not know is difficult in the best of circumstances.

38. The thrust of DK’s explanation was that she did not want to be rude to Mr. Attipoe even though she was not happy with the way things were unfolding and then she felt trapped by a much more physically dominant male. I accept those explanations as being truthful. They were offered without hesitation and once again made logical sense. In my view, DK was a very good witness and I found no reason to question her credibility or reliability.

39. I was not impressed with Kevin Attipoe as a witness and his conduct during the evening certainly did not help create any sympathy for him. He clearly lied about his age in the Hinge profile and acknowledged that he misrepresented himself with someone else’s photographs.

40. I don’t accept that he was trying to be romantic by inviting DK to his residence before meeting at the restaurant. For a first date, this would have meant that DK would be driving two hours from Toronto to Waterdown to go home and then another hour to Kitchener. By having her drive to his residence, he would have been adding another 20 minutes minimally each way before and after attending at the residence.

41. Obviously, this was very inconsiderate, but that is not the issue. In my view, Mr. Attipoe was attempting to maneuver DK to his home so that he could potentially ‘hook up’ with her. His stated purpose for being on the Hinge profile was for, to use his words, “casual encounters” and that “I’m on that app for hook-ups in between relationships. That’s why I’m there.”

42. I accept DK’s evidence that she was reluctant to go to Mr. Attipoe’s residence for a first date but was convinced to do so by him.

43. Mr. Attipoe testified that he was surprised that DK wanted to leave early because she had to work the next day. He repeated several times in his evidence that she had told him