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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

ONTARIO COURT OF JUSTICE

DATE: 2022 08 11 COURT FILE No.: Hamilton Information No. 20-9642

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

HEMRAJ LAKHAN

Before: Justice J.P.P. Fiorucci Heard on: February 14 and 15, 2022 Reasons for Judgment released on: August 11, 2022

Counsel: C. Gzik, for the Crown R. McCourt, for the Defendant Hemraj Lakhan

FIORUCCI J.:

INTRODUCTION

[1] On November 17, 2020, the accused, Hemraj Lakhan, and the complainant, K.L., were both residents of an apartment building located at M[…] Avenue, in the City of Hamilton. They lived in separate apartments. The building was operated by Indwell, a Christian charity that offers independent living with support to its residents.

[2] Mr. Lakhan is alleged to have sexually assaulted K.L. in his apartment on November 17, 2020, while bound by a probation order requiring him to keep the peace and be of good behaviour.

[3] Mr. Lakhan entered not guilty pleas to the charges of sexual assault and failure to comply with a probation order. The parties agree that the central issue in this case is whether the Crown has established beyond a reasonable doubt that K.L. did not consent to the acts of sexual touching she alleged in her evidence.

OVERVIEW

[4] At the outset, I wish to make some observations about the manner in which the trial proceeded, and the challenges encountered in receiving K.L.’s testimony.

[5] Mr. Lakhan was in custody pending his trial. Due to COVID-19 concerns, Mr. Lakhan was not tried at the courthouse. Counsel agreed that the trial could proceed with Mr. Lakhan participating remotely via Zoom from the correctional institution.

[6] The complainant, K.L., testified by videoconference. There were many times during K.L.’s testimony that counsel and I had difficulty understanding what she was saying. At times, the Court clerk and reporter interjected to advise that there were difficulties recording K.L.’s testimony.

[7] I agree with Crown counsel’s description of K.L. as a vulnerable complainant. In her testimony, K.L. admitted that she had used crystal meth in the past and that she was probably using the drug frequently around the time of the alleged offence. When questioned about her difficulty remembering things throughout the trial, K.L. attributed it to strong medication she was taking which caused her memory issues.

[8] K.L.’s manner of speech was, for the most part, slurred or mumbling which often made it difficult to decipher specific words in her responses. Her responses to questions were often nonresponsive which, coupled with her manner of speech, made it difficult to follow her evidence. The transcript of K.L.’s testimony reveals numerous times when either counsel or I asked K.L. to repeat her responses because we did not hear or understand what she had said.

[9] I say all this not to be critical of K.L., who I found to be a sincere and honest witness, who did her best to respond to the questions put to her and recount what had occurred on November 17, 2020. I merely point out that these were the challenges encountered when K.L. testified. Counsel and I did our best to cope with these challenges. [1]

[10] Counsel did not retreat from the agreement to proceed by way of a hearing over Zoom, request an adjournment, or a mistrial, and at no time did counsel suggest the difficulties being encountered in receiving K.L.’s evidence were of such magnitude as to compromise Mr. Lakhan’s ability to defend the charges, or the appearance of fairness in the proceedings. [2] The trial proceeded and the parties asked that I decide the case based on the trial record produced.

[11] The Crown’s case hinges on the testimony of K.L. regarding what occurred in Mr. Lakhan’s apartment, the testimony of witnesses who interacted with K.L. and observed her demeanour after the alleged assault, and forensic evidence that the male DNA profile, likely from semen, on K.L’s external genitalia swab and vaginal swab is estimated to be greater than one trillion times more likely to originate from Mr. Lakhan than from an unknown person, unrelated to him. The Crown also introduced an utterance made by Mr. Lakhan to an officer upon his arrest: “ [K.] wanted to have sex” and submits that this statement amounts to an admission by Mr. Lakhan that he had sex with K.L.. Mr. Lakhan did not testify or call any evidence in his defence.

LEGAL PRINCIPLES

The Crown’s Burden of Proof

[12] The accused is presumed innocent, and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus, [1997] 3 S.C.R. 320. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

[13] It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high. No adverse inference can be drawn from an accused’s decision not to testify or lead evidence.

[14] With respect to a sexual assault prosecution, as Paciocco J.A. stated in R. v. J.C., 2021 ONCA 131, “[t]he trial is to begin on the rebuttable premise that the accused is not guilty, not on the basis that the mere making of a criminal sexual assault allegation favours a finding of guilt”. [4]

The Distinction between Credibility and Reliability

[15] There is a distinction between the credibility of a witness and the reliability of the witness’s testimony. Credibility problems relate to a witness who “is intentionally offering, in whole or in part, entirely false, exaggerated, or minimized information.” [5] Credibility “addresses whether the witness is lying.” [6] Problems with the “reliability” of evidence relate to an honest witness who “is inadvertently offering inaccurate information.” [7]

[16] Doherty J.A. described the distinction between credibility and reliability in R. v. Morrissey (1995), 97 C.C.C. (3d) 193; 22 O.R. (3d) 514; [1995] O.J. No. 639 (Ont. C.A.), at para. 33:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. [8]

Assessing Inconsistencies in a Witness’s Evidence

[17] In R. v. M.G. (1994), Galligan J.A. pointed out the importance of assessing the significance of inconsistencies in a witness’s evidence:

I do not think the principle is different whether there is one or several inconsistencies. What is important is the significance of the inconsistency. If the inconsistency is a significant one then the trial judge must pay careful attention to it when assessing the reliability of the witness's testimony. [9]

[18] It is open to a trier of fact to accept or reject explanations offered by a witness for inconsistencies. [10] If the trier of fact accepts explanations offered by the witness for inconsistencies, those explanations may neutralize any doubt that may have been created by the inconsistencies. [11]

[19] In short, a trier of fact must grapple with and resolve any important inconsistencies and frailties in a witness’s evidence. In doing so, the court must keep in mind that “[t]he proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation.” [12] As Finlayson J.A. noted in R. v. Gostick (1999), this is particularly true where the Crown's case depends solely on the unsupported evidence of a complainant and where the principal issue is the complainant’s credibility and reliability. [13]

Elements of the Offence of Sexual Assault

[20] A conviction for sexual assault requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea.

[21] The actus reus of sexual assault comprises three elements: (1) touching; (2) the sexual nature of the contact; and (3) the absence of consent. [14] The mens rea consists of the "intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched." [15]

[22] "Consent" is defined in s. 273.1(1) of the Criminal Code as "the voluntary agreement of the complainant to engage in the sexual activity in question". It is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter", [16] and it must be freely given. [17] This consent must exist at the time the sexual activity in question occurs, [18] and it can be revoked at any time. [19]

[23] In R. v. Barton, 2019 SCC 33, the Supreme Court of Canada explained that, for the actus reus element, the focus is on the complainant’s state of mind:

Consent is treated differently at each stage of the analysis. For purposes of the actus reus, "consent" means "that the complainant in her mind wanted the sexual touching to take place" (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant's state of mind, and the accused's perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent -- plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see J.A., at para. 37). [20]

Corroboration not Required

[24] No corroboration is required for a conviction in a sexual assault prosecution. [21]

ANALYSIS

[25] K.L. was a vulnerable complainant. It was obvious that testifying in court was a very difficult experience for her. K.L. admitted to her use of crystal meth and conceded that it was possible that she was using crystal meth around the time of the alleged offence in November of 2020. When Defence counsel suggested to her that she was using crystal meth frequently at that time, K.L. replied, “ um, probably, yeah ”. When Defence counsel asked K.L. why it was so difficult for her to remember things throughout the trial, K.L. stated that she was taking strong pills. K.L. agreed with Defence counsel’s suggestion that one of the side effects of her medication was difficulty remembering things.

[26] There is ample evidence that there was touching of a sexual nature between Mr. Lakhan and K.L. on the date in question. The central issue is whether the evidence of K.L. is of sufficient reliability for me to find beyond a reasonable doubt that K.L. did not consent to the sexual contact between them.

[27] In her examination-in-chief, K.L. did not provide a clear chronology of how the sexual contact between her and Mr. Lakhan started and progressed. This was likely due to her limitations as a witness and is not fatal to her claim that there was non-consensual sexual contact.

[28] The essence of K.L.’s evidence-in-chief was that she met Mr. Lakhan, who she knew as “Richie”, in the lobby of the building, and he invited her up to his apartment for a coffee. The two of them took the elevator to his second-floor apartment. K.L. said that she and Mr. Lakhan were alone in his apartment. When first asked by Crown counsel to explain what happened, K.L. said:

Well, we, I and Richie met and ended up both sitting on his bench, and he was, “Do you want to come up for coffee?” I said, “Well, sure,” and so I did, and he closed the door and says, “Kim do you want sex?” Yeah, and he [indiscernible] sex and he was trying to take my clothes off.

[29] When Crown counsel asked K.L. to explain what happened in Mr. Lakhan’s apartment, the following exchange occurred:

Q. Okay. So, can you tell us, loudly and slowly, what happened between the two of you when you went into his unit? A. Now? Q. Yes, now, please. A. He uh, I forget what he said. He uh, I think he was nice, I need some help. No, it was, I can’t, I can’t think anymore. There’s [indiscernible] now. COURT CLERK: Can you make out what she’s saying? COURT REPORTER: I’m having a hard time understanding her. MS. GZIK: Q. Ms. [L.] I couldn’t hear you very well. A. I, I forget what I was just saying. Q. Okay. So, my question is, when you went into his unit with him what happened between the two of you? A. Um, we first sit down at his table. We had some, some coffee and then he wanted to do some you-know-what, sex. But he, he didn’t do it. He tried to do it and he touched me all over and everything.

[30] The above passage is one example of the difficulty K.L. had testifying at the trial. It is also an example of how, at times, when she was asked to describe what happened, K.L. made statements that were difficult to reconcile with other portions of her testimony, such as “ I think he was nice” and “ he wanted to do some you-know-what, sex. But he, he didn’t do it. He tried to do it and he touched me all over and everything”.

[31] K.L. testified that Mr. Lakhan said: “Let’s do sex … let’s have sex together”. Then, when Crown counsel asked K.L. whether she wanted to have sex with Mr. Lakhan, K.L.’s reply was less than unequivocal:

Q. All right. And did you want to have sex with him? A. Not really, no . Q. You also said he tried to touch you all over. Where on your body, did he try and touch you? A. With his [indiscernible]. Um, he touched my you-know-what. THE COURT: I’m sorry, I didn’t understand that. MS. GZIK: I believe she said he touched my you-know-what. Q. Can you tell us what he touched, Ms. [L.]? A. My breast and down below. And down below. And down below, too. Q. Okay. And when you say down below. I know it might be embarrassing, but can you tell us where on your body you mean when you say down below? A. My, what’s it called, a urine (ph)? What’s it called? Q. What do you, what do you call it? A. Water, [indiscernible]. Q. Pardon? A. Juice, juice snap (ph).

[32] However, at a later point in the examination-in-chief, in the following exchange with Crown counsel, K.L. unequivocally stated that she did not agree to have sex with Mr. Lakhan:

Q. ...when you were in the apartment with Richie, did your clothes stay on or did your clothes come off? A. Well, once in his room his clothes came off. Q. You said his clothes came off? A. And he said why. Q. Okay. Who took your clothes off? A. I think a man who’s named Richard. Richie? Q. Richie. Okay. Richie. Whose clothes did Richie take off, yours or his? A. They were mine. Q. Okay. Where, in his unit, did he take your clothes off? What room? A. Well, there’s different rooms, so. I just, it’s a room, it’s um [indiscernible]. It’s just a room, just a small room. Q. Did he take his own clothes off? A. He started to and then he put his hands on me, tried to [indiscernible] the sexual assault . Q. When you say sexual assault, what did he do to you ? A. Well, he pushed his you-know-what my, right up inside, he pushed with me right up vagina and then he uh, um.... Q. Okay . You just said you pushed his you-know-what in your vagina. Do you know the name of what he put in your vagina? Do you know what it’s called? A. Uh, no because there’s different names of [indiscernible] stem things . Q. Okay. What name do you use for it? A. That’s a tough one. What do I use for it? Q. Yeah, what do you call it? A. There’s a name for it. I forget the name [indiscernible] . Q. Okay. When it went in your vagina, how did it make you feel? A. Uncomfortable . Q. Did you want it in your vagina? A. No, I didn’t want to . Q. And what did you tell him . A. I told him, “Please get off, I don’t like it.” He would try to push me away, but I pushed him away and I took off. I took off to staff, to staff. Q. So, when you say you took off to staff, where did you go after leaving his unit? A. I went straight to the office ‘cause of what he did . Q. And who did you talk to when you went straight to the office? A. I think it was Lisa .

[33] K.L. never used the word penis in her testimony. In her own words she described the sexual assault as follows: “ Well, he pushed his you-know-what my, right up inside, he pushed with me right up vagina and then he uh, um… ”. However, the context of the surrounding questions posed by Crown counsel and K.L.’s responses lead to the reasonable inference that K.L. is saying that Mr. Lakhan put his penis in her vagina which made her feel uncomfortable and she told him to get off because she did not like it. K.L. goes on to say that she pushed Mr. Lakhan away and went to the staff because of what he had done.

[34] When Crown counsel asked K.L. questions about her attendance at the hospital for a “sexual assault test”, K.L. gave nonresponsive answers. Her answers, however, appeared to revisit the issue of what had occurred in Mr. Lakhan’s apartment:

Q. About the test. A. Yeah, it was. I tried to stop, to stop him, but he kept on doing it . Q. Did you just say I tried to stop him? A. Yeah, ‘cause he was.... Q. Okay. Where did you try to stop him ? A. At his house . Q. Okay. And who are you talking about ? A. Richie . Q. Okay. And when you tried to stop Richie, what did you say ? A. I said, “Get out of my house or I’ll call the cops or something,” so, I could find a way out of his house .

[35] In examination-in-chief, K.L. said that she told Mr. Lakhan “ p lease get off, I don’t like it ” when the two of them were on the bed. According to K.L., Mr. Lakhan was on top of her, and she was lying down with her “tummy” on the bed. K.L. said most of her clothes were off. When asked how her pants came off, K.L. stated, “ he was taking them off ”. The following exchanged then occurred between Crown counsel and K.L.:

Q. Did you agree to him taking your pants off ? A. No . Q. Did his pants come off or stay on? A. Just part of his pants came off. Q. You said one of his pants came off? A. Yeah. Q. Okay. What do you mean by that? A. His pants, he took his pants off . Q. Okay. How long did it last ? A. Not very long . Q. When you left his apartment and went down to the office did you put your pants back on? A. Uh, yeah.

[36] At the conclusion of the examination-in-chief, Crown counsel again asked K.L. whether she had agreed to have sex with Mr. Lakhan and received the following responses:

Q. Okay. Did you agree to have sex with Richie ? A. No, I haven’t . Q. And what did you tell him that day about sex ? A. I said I don’t want to do it .

[37] I found K.L. to be a credible witness who was doing her best to recall details of her interactions with Mr. Lakhan. However, I am mindful that “a reasonable doubt can survive a finding that the complainant is credible”. [22] An assessment of the reliability of K.L.’s evidence requires me to carefully examine any inconsistencies, contradictions and frailties in her evidence, in the context of the other evidence in the case, to determine whether I am left in a state of reasonable doubt about her allegations of sexual assault, and specifically her claim that she did not consent to the sexual touching.

[38] Subjective consent must be present at the time the sexual activity takes place. K.L. admitted to probably using crystal meth frequently in November of 2020, around the time of the sexual assault allegation. K.L. also admitted that, at the time of the trial, she was having difficulties remembering things because of medications she was taking.

[39] The following passage from her examination-in-chief is an example of the difficulty K.L. had at times during the trial understanding and responding to certain questions:

Q. Okay. The day that your pants came off, did you have coffee with him that day? A. Um, yeah, we had coffee. I don’t know, he did, I didn’t. Q. Okay. And you had coffee, so what happened after you had coffee? A. He just wanted to go upstairs. Q. Okay. Where, where did you have coffee? A. Um, I was going to have, I had something holding it down, but I think his arm and the uh, and um the room, aw shit, I can’t do this. Q. Okay. A. Excuse me, I can’t do this shit. Q. Do you need a break, Ms. [L.]? A. Yeah, because I don’t understand.

[40] In cross-examination, when Defence counsel asked K.L. whether she had discussed her evidence with Lisa, a staff member at Indwell, K.L. gave answers that were confusing and nonresponsive:

Q. Okay. So, I asked you a few moments ago, “Did you talk about what you had told the court”, and your answer was, “I told her some things.” So, my follow-up question is, what did you tell her about the court? A. Well, Lisa, I told the court, I told the court, that Richie likes time in jail. Q. Sorry, could you say that again? A. I said his time, excuse to say here’s enough, he wants to be in jail [indiscernible]. THE COURT: Sorry, I didn’t understand the answer, Ms. [L.]. Could I just have you repeat that slowly, again? A. [indiscernible] what say? THE COURT: What you just said. A. Probably it was, [indiscernible] in jail or come out on the button, the red button. I don’t even know what to say.

[41] When Defence counsel continued to question K.L. regarding any discussions she may have had with Lisa and others about her evidence, K.L. again provided nonresponsive answers and unsolicited information which was difficult to understand, possibly about an unrelated incident:

Q. All right. So, you’ve told us a bit about the part, the conversation where you said, you know, you’re scared, you’re nervous. Would you agree with me they were giving you some encouragement about being in court? A. Yeah. Q. Okay. A. Can I answer that other question? Q. Yes. A. Well, okay. The person who I saw upstairs, he had [indiscernible] and then went back downstairs and he was doing meth, a whole lot of meth and he says, “Come on [K.], let’s do some meth,” and I said “No.” THE COURT: I’m sorry, I didn’t understand the last part, Ms. [L.].... A. I said, this guy, this fat guy, we’re sitting on a bench and then we were at his house, and he ain’t got his shirt on too, but as he’s stripping maybe he’s making a move to take off [indiscernible] fentanyl. Fentanyl, and there’s another one. I know he was totally wanting to do drugs and I said, “No.” THE COURT: Okay. I didn’t hear, I heard somebody told you to do fentanyl, but I’m not quite sure that was responding to the question that the lawyer was asking about your conversation with Mel and Lisa today. Can you tell us what you meant by what you just said? A. About drugs? THE COURT: Right. A. I’m telling you already. He said, he was taking meth or another drug that he wanted me to do. THE COURT: And who’s he? A. Gerrie (ph) and Richie were doing this. THE COURT: Okay. All right. A. I don’t tell lies either, all this stuff, so I don’t tell lies.

[42] When Defence counsel asked K.L. questions about her use of crystal meth, K.L.’s answers were confusing and she again provided unsolicited information about another individual, “Kevin”:

Q. Okay. When’s the last time you can remember using crystal meth? A. Well, not this year. It’s been, it’s from just next year that I used crystal meth. And there was the guy named Kevin there. He bugs me so much. “Can I have money,” “Can I, let’s go do, just going to do drugs, [K.].” He did. It was a [indiscernible] joke. Here. He bugs me so much. Q. And you say, did you just say a guy named Kevin, and over there just go do drugs, he bugs me so much? A. Yeah. Q. Okay. When you say here, where are you talking about? A. He wants me to go in his house and my house. Q. Okay. And when, when is the last time you remembered using crystal meth? A. The last time? I’d say maybe a couple weeks, I don’t know when’s the last time. Q. A couple weeks ago. Is that what you said? A. Yeah. He doesn’t stay in one place. Q. Sorry, I didn’t hear that. A. I said he doesn’t stay in one place. Q. Okay. I’m not asking about where Kevin lives. I’m just asking is the last time you used crystal meth a couple weeks ago? A. Um, I think so. I think we did. Q. Did you say, “I may think so,” “I think we did?” A. Yeah, you see, I was all screwed up for a [indiscernible] and it makes me slur and not feel well. And I can’t talk.

[43] In addition to the manner in which K.L. gave her evidence, including her nonresponsive and confusing answers to certain questions, as set out in the above examples, the reliability of K.L.’s testimony regarding the core of her sexual assault allegations was called into question during cross-examination when she agreed with suggestions put to her by Defence counsel that were inconsistent with her claim that she did not agree to have sex with Mr. Lakhan.

[44] When Defence counsel began to question K.L. about the testimony she gave in-chief regarding the incident with Mr. Lakhan, and specifically her evidence that she told Mr. Lakhan to “ please get off, I don’t like it” and pushed him away, K.L. did not recall giving that evidence:

Q. Okay. Do you remember telling us in response to a question you were asked earlier today, what did you tell him, and I think your answer was, “I told him please get off, I don’t like it.” “He tried to push me away, but I pushed him away and I took off to staff.” Do you remember saying that earlier? A. No, no. Q. Okay. A. I don’t remember that at all. Q. Okay. But do you agree with me that you did say that earlier? A. I guess. Q. Sorry? A. I said, I guess. Q. Okay. Well, it needs to be a more definite answer. Do you agree or disagree that you said that earlier? A. Do I agree? Q. Yeah, do you agree that you said that earlier? A. I think so.

[45] Shortly thereafter, the following exchange occurred between Defence counsel and K.L.:

MS. McCOURT: Q. Okay. So, Ms. [L.], you agree with me, you think you agree with me that earlier today you answered a question by saying, “I told him please get off, I don’t like it, he tried to push me away, but I pushed him away and I took off to staff.” Would you, I’m going to suggest to you that you never said that to Richie. Do you agree? A. Yeah, I agree, I did not say that. I agree. It was make believe . THE COURT: All right. Just so the record’s clear. The witness said, “I agree, I did not say that.” “It’s make believe.” Is that, that’s what I’ve heard. MS. McCOURT: That’s what I heard, as well. THE COURT: Okay. A. What? What did he say? THE COURT: So, I just repeated.... A. Am I going to jail ? THE COURT: No, no, no. Ms. [L.], I just repeated your last answer. You said, “I agree, I did not say that.” It’s make believe.” A. Yeah . THE COURT: Okay. Go ahead, Ms. McCourt. A. How many more times is this?

[46] In the above passage, K.L. agreed with the suggestion that she did not tell Mr. Lakhan to “ please get off, I don’t like it”. In doing so, she also used the phrase, “ it was make believe”. This portion of the cross-examination caused me to have significant concerns not only about the reliability of K.L.’s claim that she told Mr. Lakhan to get off because she did not like it, but also about the overall reliability of K.L.’s testimony.

[47] In re-examination, when Crown counsel tried to clarify what K.L. meant by the phrase “ it was make believe” , K.L. gave nonsensical answers which did not assuage my concerns about the reliability of her evidence:

MS. GZIK: Yes, I do need to clarify something. Q. Ms. [L.], you said something was make believe and I want to know what are you saying is make believe? A. I don’t know. I didn’t know it was make believe. Q. Pardon? A. I don’t know I didn’t make believe. Q. I.... THE COURT: Sorry, can you repeat that one more time? A. I’m saying I don’t why it was unbelieve. MS. GZIK: Q. Unbelieve? A. Yeah.

[48] During cross-examination, the following exchange occurred between K.L. and Defence counsel which suggests that K.L. was the one who initiated sex with Mr. Lakhan, and that she wanted to have sex with him:

Q. So, I’m going to explain a scenario to you, Ms. [L.], that I’d like you to listen to carefully and, if need be, we can break it down. Okay? I’m going to suggest to you that you had wanted to have sex with Richie. Do you agree ? A. Maybe . THE COURT: Sorry, what was the answer? Sorry, what did you say, Ms. [L.]? A. I don’t know what I said. [indiscernible] what you mean. THE COURT: Okay. MS. McCOURT: Q. So, Ms. [L.], if I suggested to you that you were the one who initiated having sex with Richie and that you wanted to have sex with him, would you agree with that ? A. What, are you saying that I did it ? Q. I’m just asking whether, or not you agree with that . A. Yeah, I agree . Q. If I suggested to you that that day you took your own clothes off, would you agree ? A. Um, I didn’t know if I did take my clothes off . Q. Okay. If I suggested to you that you got onto Richie’s bed yourself that day, would you agree ? A. I guess . Q. Sorry, what did you say? A. I said, I guess. Q. Now, if I were to suggest to you that that day you started touching Richie’s penis with your hands and that he ejaculated from you doing that, would you agree? A. I guess. Q. I just want to make sure I heard that because you spoke a little soft, and what did you say? A. What? Q. Can you just repeat what you said for me? A. I don’t remember what I said. Q. I said, so do you want me to ask the question again? A. Sure. Q. Okay. All right. So, I’m going to suggest to you that that day you started touching Richie’s penis with your hands and that that made him ejaculate. Do you agree with that? A. No. Q. Okay. I’m going to suggest that that day after you and Richie finished what you were doing on the bed, you got up and got dressed. Do you agree with that? A. Yes.

[49] During the trial, Crown counsel alluded to video surveillance from Indwell. However, no video surveillance was introduced at the trial. Without objection from the Defence, the Crown called P.C. Scott Nelson to testify about the existence of a “hallway video on the floor in question”. However, P.C. Nelson testified that he did not recall watching the hallway video himself. Crown counsel, also without objection from the Defence, asked P.C. Nelson about two times he had noted in his notebook: 12:35 and 12:49. P.C. Nelson testified that he got these times from another officer, who was one of the original officers dispatched to Indwell. According to P.C. Nelson, based on the information he received from this other officer, 12:35 was the “entry time for the individual” and 12:49 was the “exit time”. P.C. Nelson did not identify who “the individual” was or what location the individual entered and exited. Furthermore, P.C. Nelson’s testimony about the times recorded in his notes was hearsay from another officer. The evidence of P.C. Nelson does not provide any assistance to the Crown in the prosecution of the charges against Mr. Lakhan.

[50] In her examination-in-chief, K.L. stated that after leaving Mr. Lakhan’s unit, she went straight to the office because of what Mr. Lakhan did, and she spoke with the staff. K.L. testified that she believed she spoke with Lisa. The Crown called Lisa Colbert as a witness. Ms. Colbert was a peer support worker at Indwell in November of 2020. On November 17, 2020, Ms. Colbert arrived for her shift just before 1:00 p.m.. When Ms. Colbert came in the door, K.L. ran towards her highly agitated and upset. Ms. Colbert held K.L. for a moment and let her cry. She also did some breathing exercises with K.L. to help her calm down. Then, Ms. Colbert brought K.L. to the program office. By the time they arrived at the program office, a colleague of Ms. Colbert’s had already called police. When Crown counsel asked Ms. Colbert to describe what she meant by “highly agitated”, Ms. Colbert stated that K.L.’s body language was very animated, her voice was loud, she was moving very quickly, she was crying, and it was hard to understand her because she was speaking quickly.

[51] P.C. Diego Sanchez was dispatched to attend M[…] Avenue at 1:27 p.m.. When he arrived there, staff members directed him to K.L.. He stayed with K.L. in one of the rooms in the lobby. P.C. Sanchez observed that K.L. was very upset and that she was speaking at a very fast pace, which made it difficult for him to keep up when he was making notes. P.C. Sanchez noted that K.L. was crying at times, she was restless, and she was very anxious.

[52] Even without admissible evidence regarding the time at which K.L. left Mr. Lakhan’s apartment, I am prepared to accept K.L.’s evidence that she went straight to the office after she left his apartment. By the time Ms. Colbert brought K.L. back to the program office, other staff had already called the police. I find that Ms. Colbert and P.C. Sanchez made their observations of K.L.’s demeanour a short time after K.L. had left Mr. Lakhan’s apartment.

[53] Evidence relating to the out-of-court demeanour of the complainant “during the factual narrative of the events of the case” can be relevant to an issue in the trial. [23] A witness’s description of a complainant’s demeanour following the events in issue is circumstantial evidence which may be employed substantively “as proof of state of mind, corroboration or confirmation of the credibility” of the complainant’s in-court testimony. [24] K.L.’s distraught condition a short time after she left Mr. Lakhan’s apartment, as observed by Ms. Colbert and P.C. Sanchez, is admissible to corroborate the complainant’s evidence that she was sexually assaulted. [25]

[54] However, the weight to be given to the complainant’s “post-event emotional state”, as it is described by the Ontario Court of Appeal in R. v. A.(J.), 2010 ONCA 491, [26] is a matter for the trial judge’s discretion, and must be assessed in the context of all of the trial evidence. [27] Like the testimonial demeanour of a witness, post-event emotional state “cannot become the exclusive determinant of his or her credibility or reliability”. [28]

[55] Having considered the totality of the evidence, including K.L.’s post-event emotional state, I am unable to find that the Crown has established the element of the absence of consent beyond a reasonable doubt.

[56] K.L. was a witness who had difficulty responding to questions and she admitted to having problems with her memory when she testified. Her responses to questions were often confusing and lacked cogency. K.L. provided inconsistent, contradictory testimony regarding the core issue of consent to the sexual touching. As outlined above, at one point in her cross-examination, K.L. agreed that she did not say “ please get off, I don’t like it ” to Mr. Lakhan and she added the phrase “ it was make believe ” to her response. In re-examination, K.L was unable to provide a satisfactory explanation of what she meant by “make believe”. In cross-examination, K.L. agreed with the suggestion that she initiated and wanted sex with Mr. Lakhan. I find that K.L.’s evidence lacks the reliability necessary to find that she did not consent to the sexual touching that happened with Mr. Lakhan on November 17, 2020. I am left in a state of reasonable doubt on this element of the actus reus of the sexual assault offence.

[57] In arriving at this conclusion, I have considered the totality of the evidence, including K.L.’s post-event emotional state. As I explained above, I have significant concerns regarding the reliability of K.L.’s testimony. K.L’s emotional state after leaving Mr. Lakhan’s apartment does not, together with the other evidence in the case, establish that the sexual touching between Mr. Lakhan and K.L. was without K.L.’s consent. If I were to find otherwise, I would be placing undue weight on K.L.’s post-event emotional state.

[58] The Crown led evidence of the discovery of blood on K.L.’s underwear after she left Mr. Lakhan’s apartment. Ms. Colbert saw the blood, which she described as two lines or streaks of blood. This evidence provides no corroboration for the sexual assault allegation. It would be speculative to infer that the blood was caused by or connected to the sexual activity that took place. It would be even more speculative to infer that the blood corroborates that the sexual activity was non-consensual.

[59] I have considered the statement that Mr. Lakhan made to P.C. Nathaniel Gagnon after he was arrested and cautioned, and while the officer was transporting him to the police station: “ [K.] wanted to have sex ”. The Crown says that Mr. Lakhan’s statement to the officer, together with the DNA results, establish that Mr. Lakhan had sex with K.L.. I have no difficulty finding that Mr. Lakhan and K.L. had sex based on K.L.’s evidence and the DNA results, and I agree with the Crown that Mr. Lakhan’s statement to P.C. Gagnon bolsters my finding that sex did in fact occur between them.

[60] However, Mr. Lakhan’s statement “ [K.] wanted to have sex ” is not relevant to the assessment of whether K.L. in her mind wanted the sexual touching to take place. At the actus reus stage of the analysis, the focus is placed squarely on the complainant's state of mind, and the accused's perception of her state of mind is irrelevant.

[61] The forensic scientist in biology, Jennifer McLean, testified that the male DNA profile on the external genitalia and vaginal swabs from K.L. was likely generated at least in part from semen or more specifically sperm cells. Based on the results of her testing, Ms. McLean was unable to determine whether it was from ejaculation or pre-ejaculatory fluid. It is reasonable to infer, based on the results of the DNA testing and K.L.’s testimony, that the sexual touching included Mr. Lakhan putting his penis in K.L.’s vagina. However, for the reasons outlined above, I cannot find beyond a reasonable doubt that K.L. did not consent to Mr. Lakhan putting his penis in her vagina or to any other sexual touching that may have occurred in Mr. Lakhan’s apartment.

[62] With respect to the failure to comply with probation charge, Defence counsel made submissions that Mr. Lakhan was not bound by probation on November 17, 2020, since the probation order filed as Exhibit 3 on the trial was not signed by Mr. Lakhan and there was no other evidence establishing that he was bound by the conditions of the order. I find it unnecessary to address these arguments since Mr. Lakhan’s acquittal on the sexual assault charge results in his acquittal on the failure to comply with probation charge.

CONCLUSION

[63] I find Mr. Lakhan not guilty of the offences of sexual assault and failure to comply with probation.

Released: August 11, 2022 Signed: Justice J.P.P. Fiorucci

[1] For instance, Mr. Lakhan was in a room at the correctional facility which, at times, had loud noise in the background. This made it even more difficult to decipher K.L.’s testimony. I had the Court clerk mute the correctional facility during K.L.’s testimony to eliminate the background noise in the hopes that it would improve our ability to hear and understand K.L.’s evidence. Although muting the correctional facility eliminated the background noise, it provided only a marginal benefit because the real issue with hearing and understanding K.L.’s testimony arose from her manner of speech as detailed in my reasons.

[2] R. v. Moolla, 2022 ONCA 433, at para. 9.

[3] R. v. Lifchus, [1997] 3 S.C.R. 320.

[4] R. v. J.C., 2021 ONCA 131, at para. 89.

[5] The Honourable Mr. Justice David M. Paciocco, “Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, at p. 58.

[6] Ibid, at p. 58.

[7] Ibid, at p. 58.

[8] R. v. Morrissey (1995), 97 C.C.C. (3d) 193; 22 O.R. (3d) 514; [1995] O.J. No. 639 (Ont. C.A.), at para. 33.

[9] R. v. M.G. (1994), 93 C.C.C. (3d) 347; [1994] O.J. No. 2086 (Ont. C.A.), at para. 26.

[10] R. v. Francois (1994), 91 C.C.C. (3d) 289 (S.C.C.), at p. 298.

[11] Ibid, at p. 298.

[12] R. v. Gostick (1999), 137 C.C.C. (3d) 53; [1999] O.J. No. 2357 (Ont. C.A.), at para. 15.

[13] Ibid, at para. 15.

[14] R. v. Ewanchuk, [1999] 1 S.C.R. 330 (S.C.C.), at para. 25; R. v. J.A., 2011 SCC 28, at para. 23; R. v. Barton, 2019 SCC 33, at para. 87; R. v. G.F., 2021 SCC 20, at para. 25.

[15] R. v. Ewanchuk, supra, at para. 42.

[16] R. v. J.A., supra, at para. 31.

[17] R. v. Ewanchuk, supra, at para. 36.

[18] R. v. J.A., supra, at para. 34; R. v. Ewanchuk, supra, at para. 26.

[19] Criminal Code, s. 273.1(2)(e); R. v. J.A. supra, at paras. 40 and 43.

[20] R. v. Barton, supra, at para. 89.

[21] Section 274 of the Criminal Code; R. v. McDougall, 2008 SCC 53, [2008] S.C.J. No. 54 (S.C.C.), at para. 81.

[22] R. v. J.W., 2014 ONCA 322, at para. 26.

[23] McWilliams’ Canadian Criminal Evidence, 5th Edition, The Honourable S. Casey Hill, David M. Tanovich, Louis P. Strezos, Aurora, Ont.: Canada Law Book, 2013, 31:160.40, p. 31-132.

[24] Ibid, at 31:160.40, p. 31-134.

[25] R. v. James, (2014), 8 C.R. (7th) 87 (S.C.C.), at para. 5; R. v. Murphy (1976), 29 C.C.C. (2d) 417 (S.C.C.), at pp. 420, 426, and 430-31; R. v. A.H.M., 2018 ONCA 503, at para. 6; R. v. Mugabo, 2017 ONCA 323, at para. 22; R. v. Warkentin, Hanson, and Brown (1976), 30 C.C.C. (2d) 1 (S.C.C.), at pp. 4 and 15; R. v. Chau (2010), 2010 ABCA 86, 253 C.C.C. (3d) 211 (Alta. C.A.), at para. 32; R. v. A.(J.) (2010), 2010 ONCA 491, 261 C.C.C. (3d) 125 (Ont. C.A.), at paras. 9-10 and 16-18, revd on a different basis 2011 SCC 17, 268 C.C.C. (3d) 135 (S.C.C.).

[26] R. v. A.(J.), supra, at para. 17.

[27] Ibid, at paras. 17-18.

[28] McWilliams’ Canadian Criminal Evidence, 5th Edition, The Honourable S. Casey Hill, David M. Tanovich, Louis P. Strezos, Aurora, Ont.: Canada Law Book, 2013, 31:160.40, p. 31-139; R. v. Syed, 2018 ONCA 161, at para. 7; R. v. E.O., 2018 ONCA 141, at paras. 3-5; R. v. A.(A.), 2015 ONCA 558, at para. 132; R. v. A.(K.) (1999), 137 C.C.C. (3d) 554 (Ont. C.A.), at para. 44.