WARNING

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

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

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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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

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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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

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

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

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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

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

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

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 06 06 COURT FILE No.: Peterborough 22-Y0034

BETWEEN:

HIS MAJESTY THE KING

— AND —

A.H., a young person (or “young persons”)

Before: Justice S.W. Konyer

Heard on: January 30, February 2, March 3, 6, 13, April 3, 4, 12, May 11, 2023 Reasons for Judgment released on: June 6, 2023

Counsel: Lisa Wannamaker ............................................................................. counsel for the Crown Trevor Lau............................................................................ counsel for the defendant A.H.

KONYER J.:

Introduction

[1] In the fall of 2021, A.H. and A.M. were both students at Thomas A. Stewart Secondary School (TASSS) in the city of Peterborough, and were briefly involved in a relationship. A.H. is now charged with a series of offences against A.M. Specifically, he is charged with three counts of assault, three counts of sexual assault, one count of uttering threats to kill A.M.’s father, and one count of disobeying a lawful order that required him to keep the peace and be of good behaviour. These are my reasons for judgment after hearing his trial.

[2] On the assault charges, the Crown must prove that he intentionally applied force to A.M. without her consent. On the sexual assault charges, the Crown must prove that he intentionally touched A.M. in a sexual manner without her consent. On the threatening charge, the Crown must prove that he uttered a threat with the intent that it be taken seriously. On the breach charge, the Crown must prove that he was bound by a lawful order, and that he intentionally failed to keep the peace.

[3] There is no dispute that A.H. was in a relationship with A.M. in the fall of 2021. They disagreed whether or not it was a romantic relationship. There is no dispute that A.H. was bound by a lawful order to keep the peace. Consent is not is issue on either the assault or the sexual assault charges. What is in dispute is whether A.H. ever applied force to A.M., whether he touched her in a sexual manner, and whether he made threats to kill her family. She says that he did, while he denies doing any of these things. I must decide if the Crown has proven beyond reasonable doubt that he committed any of these acts.

[4] A.H. is presumed innocent of these charges, and the onus is on the Crown to prove his guilt beyond reasonable doubt. If the Crown fails to do so, then he must be found not guilty. Proof beyond reasonable doubt does not mean proof to an absolute certainty, which is an impossible standard, but it does mean much more than proof of likely or probable guilt. A reasonable doubt is not a frivolous or fanciful doubt. It can arise from the evidence or lack of evidence. At the end of the day, I must consider all of the evidence and ask whether I am sure that A.H. committed any of these offences. If I am not sure, then he must be found not guilty.

[5] This was a credibility case. I heard different versions of events from A.M. and A.H., the central witnesses. A criminal trial is not a simple credibility contest, however. The question is not which version of evidence I prefer, or which witness I find to be more credible or reliable. The only question is whether the Crown has proven A.H.’s guilt beyond reasonable doubt. I am not required to firmly believe one version of events. If I am unsure where the truth lies then the Crown will have failed to prove its case beyond reasonable doubt.

[6] A.H. testified in his own defence and denied committing any of these offences. Clearly, if I believe his testimony, I must find him not guilty. Even if I do not believe his testimony, if it leaves me with a reasonable doubt when considered in the context of all of the evidence, I must find him not guilty. Further, even if his testimony does not leave me with a reasonable doubt, I must go on to consider whether I am satisfied of his guilt beyond reasonable doubt based on the evidence which I do accept.

[7] I must also keep in mind that A.M. is a young person, who testified about events that happened 18 months ago, when she was 14 years old. Though A.H. is now an adult, he too testified about events that occurred when he was a young person, aged 17 at the time. I must be approach their evidence with common sense and be careful not to apply an adult standard of scrutiny to their testimony. For example, details like dates and times which may be important to an adult may be less important to a young person.

[8] With these principles in mind, I will first summarize the evidence that I heard at trial. I will then make findings of credibility and reliability. This will allow me to decide whether the Crown has proven any of the charges against A.H. beyond reasonable doubt.

Summary of the evidence

[9] The Crown called A.M., her mother and a vice principal from TASSS, the high school that A.M. and A.H. attended, as witnesses. A.H. testified in his own defence. I will begin by reviewing the testimony of A.M.

[10] She adopted the contents of a video statement that she provided to the police on March 11, 2022. This statement was admitted on consent, pursuant to s.715.1 of the Criminal Code. Unfortunately, her police statement contained some inadmissible evidence, including evidence of other misconduct by A.H., as well as evidence of other sexual activity involving herself. The Crown did not apply to have this evidence admitted, and this material should have been edited out of the video statement. I have not considered this inadmissible evidence in reaching my conclusions.

[11] A.M. described four separate incidents that form the basis for the charges. Three of the incidents occurred in a wooded area near TASSS. One incident included hair-pulling and is the basis for one of the assault charges. The second incident included non-consensual fellatio, and is the basis for one of the sexual assault charges. The third incident included slamming her head against a tree, non-consensual vaginal intercourse, and threatening to kill her family if she told anyone. This forms the basis for a sexual assault, assault and threatening charge. The fourth incident occurred in a vehicle belonging to one of A.H.’s friends a short distance from the school during lunch break. This included slamming her head into the dashboard and non-consensual vaginal intercourse. This forms the basis for the last assault and sexual assault charge. I will describe her narrative in more detail.

[12] A.M. was 14 and starting grade 10 in September 2021. A.H. was 17 at the time and in grade 12. Although she knew who he was from the previous year at school, they had never spoken. In 2021 they shared classes, and she found herself seeing him regularly at school. Shortly after the start of the school year, she provided him with her Instagram address and they began communicating online. Due to the nature of this platform, most of their communications were not saved.

[13] Although he was sweet to her online, incidents of unwanted touching began almost immediately. On the day he received her Instagram address he told her that he wanted to go out with her and get to know her better. At lunch break the same day, “he walked up to me from his car. And like, he was trying to like pull me in closer and like he’d be like – really squeezing me tight but around like my ass. It was really weird.” [1] A.M. said that “a couple of weeks later” [2] A.H. asked her to be his girlfriend. She accepted.

[14] The next incident which troubled A.M. occurred in his car after he picked her up from a football game. She had gone with a friend to watch the TASSS team play at Holy Cross, another Peterborough high school, when he showed up and demanded that she leave the game and come with him. He drove her to a secluded location where they parked and “we were making out, and he started to get like more than I wanted to do, ‘cause I told him at the very start that like I don’t wanna have sex.” [3] This incident was interrupted when her father called. He asked where she was, told her to turn on the location app on her phone, and told her to come home right away. At this point a car then pulled into the area where they were parked. They were both startled and mistakenly believed at first that it was her father.

[15] A.H. then drove her home. Her father and brother were in the driveway when they arrived. A.M. got out and her father started interrogating her. A.H. did not get out of the car or speak with her father. Her father was upset and told A.H. that he would not be allowed to see A.M. again if he was not going to have a conversation.

[16] The next incident happened in a wooded area between TASSS and the Otonabee River. There are paths through the woods used by students and the public. One day, while walking in the woods they agreed to skip class. He then started getting “super touchy” [4] and pulled her into a secluded spot in the woods. “And I was like, why are we here? Like I thought we were going to get something to eat… like why are we skipping down here? And he’s like because I wanna do this. And he goes behind me and he starts trying to do stuff.” [5]

[17] He began rubbing against her from behind. She told him to stop, and he did. They then talked for a couple of hours. “And then he starts to like violently kiss me. Like instead of a normal, you know make out with someone. It was like a violent, like pushing your head back and everything. And he pulled my hair, really hard. And I like had hairs coming out.” [6] He then pulled and dragged her forcibly by the wrist, causing an injury to her shoulder. They returned to school after having skipped “half – more than half the day”. [7] She called him after school, and “I was like, like listen, that’s not okay, like you can’t be doing that stuff to me… Like you actually scared me and he’s like I don’t give a fuck. You’re my woman, you’re gonna do that shit. And I’m like, I’m not a woman, I’m a girl. I’m in tenth grade, you’re in twelfth. I don’t wanna be doing stuff like that. And he’s like well, too bad. Like, you’re mine.” [8]

[18] As a result of this incident, A.M. had clumps of hair missing from where it had been pulled out. She said she was asked about this by her family, and she told them she had done it herself. She explained that when she was younger she regularly used to pull out her own hair due to an anxiety disorder. She was not asked which members of her family observed the missing hair.

[19] After this incident, she was distant with him for a few days. Then, about a week later, they hung out again at lunch and walked down to the path in the woods. They talked and he promised not to hurt her again. However, he once again pulled her into the woods and took her to a secluded spot. He pushed her down to her knees, told her to open her mouth, dropped his pants and forced her to perform fellatio for about 20 minutes. She told him she didn’t want to. She asked him to stop. She was crying. “And he just kept doing that. He would grab my hair in like a bunch. And if I didn’t do that, he just like, pushed me harder, or pulled me harder. Like he’d make me do it.” [9] He only stopped when she pretended to get a phone call from her mother. She told him that her father had been in a car accident and was in the hospital. He stopped and they ran back to the school.

[20] She did not describe, nor was she asked, about the aftermath of this incident – for example, what happened when she returned to the school. I don’t know whether she pretended to go to the hospital or if she returned to class for the afternoon. I don’t know what follow up conversation, if any, she had with A.H. about the fiction concerning her father’s hospitalization.

[21] The next incident occurred a couple of days later, again in the same woods. “We went down the path again, at this point I was so scared he was gonna like – he threatened me. He was like if you tell anybody we’re doing this, I will kill your entire family. I’ll kill your dogs, I will hurt you so bad. I will hurt your friends. I will hurt everything you love. I won’t let you come to school. I won’t let you do anything. And this is kind of a blur for me ‘cause it all happened so quick.” [10] Once again he dragged her off the path into the woods. He kissed her and told her that he loved her. He pulled down her pants, removed her shirt, held her wrist and had forcible vaginal intercourse with her. She tried to yell but he covered her mouth. She described her memory of this incident as being a blur, and does not know if he used a condom. Afterwards, he told her again that he loved her. “And after that, he was like, don’t tell anybody, I love you. Like I want us to be together. […] Like – I was like okay, I won’t tell anybody. And he’s like, I love you. And I’m like, I love you too. And, ‘cause I like – I don’t know. I was, now looking back on it and I was so stupid to keep doing that and not telling my parents. But I was so scared that, that was gonna keep on happening.” [11]

[22] Later in her video statement she provided more details about this incident. She said that when he first pulled her into the woods he asked her if she wanted to see his penis. She said no, but he exposed himself anyways and then forced her to masturbate him. Then he pushed her against a tree, bashing her head, before removing her clothes and forcibly penetrating her.

[23] After this incident, she called her mother, who worked at a store on the other side of Peterborough. She told her mother that she and A.H. had argued, that she was upset and scared that he was going to break up with her. She told her mother that she was going to walk to her place of work. Her mother left work and met her at a park close to the school. Using text message records, she was able to pinpoint the date of this incident as being September 20, 2021. She did not disclose the sexual assault to her mother at that time.

[24] The last incident occurred sometime in mid-October. She knows this because they broke up just before her birthday in early November, and this incident occurred about two weeks before they broke up. On this occasion, he asked her to meet him at one of the school entrances on lunch break. She did so, and he picked her up in a white Honda Civic. He had driven her around on many occasions, each time using a different car. He drove her to a secluded spot near Trent University. They both ate lunch. He then “grabbed my hair and he was like pretending just to like try and hug me, whatever. He smashed my face on the dashboard. I was like, what are you doing? And at that point like, you just heard ringing in your ears. That’s all I really remember. And then I know he did something because my clothes were almost all the way off. And then he’s like, don’t tell anybody, I love you.” [12] Later in her video statement she said “he pulled me over him, and he took off my pants, and his pants, and he started having sex with me.” [13]

[25] A.M. explained that she disclosed these events to her mother in early March 2022. At that time, she had become aware of rumours swirling at school about her sexual promiscuity. She blamed A.H. and his friends for these rumours. She felt harassed and disclosed the harassment to a guidance counselor. She then had what she described as a mental breakdown. She began cutting herself. Her father discovered this and as a result, she was hospitalized. She then disclosed the sexual assaults to a nurse, to her mother and then to the police.

[26] A.M. participated in pre-trial applications, as was her right. These included defence applications for production of school records, to admit evidence of prior sexual activity, and to admit records in the possession of the defence. As a result of these proceedings, she said she examined her phone and discovered that she had preserved a series of Instagram messages between herself and A.H. from October 2021. The username of the account she said A.H. used was “a…_alk…” . These were only disclosed shortly before the start of the trial.

[27] These messages include A.M. telling him “I feel fat”. He responds by telling her not to eat so much, and to go to the gym. She questions whether he likes her body, and he assures her that he does. She calls him “baby” at one point. At the end of this excerpt, he tells her “I love you” and she responds in kind. [14]

[28] During cross-examination, A.M. said that she was confused about the timing and sequence of the assaults and sexual assaults. All she knew for sure was that the incident of non-consensual vaginal intercourse in the woods happened on September 20 because this was the date of the text messages between herself and her mother prior to their meeting in the park near the school. She could no longer be certain about the timing of the other incidents, but knows they all occurred between the start of the school year and her birthday in early November, when she broke up with A.H. School attendance records were put to her, which show no marked absence on September 20.

[29] She agreed that she described her father to police as a “grade A racist” who warned her that A.H. was “not good” and that “he’s gonna do something to you, like that’s his culture.” [15] It was not clear to me from her evidence when during the course of their relationship her father made these statements. In cross-examination however, she disagreed with the suggestion that her father held racist beliefs, or that he was prejudiced against A.H., a Syrian refugee, on the basis of his ethnicity. She attributed her father’s comments about A.H. to him being an over-protective parent.

[30] A.M. has an older brother, whom she had not seen for five years before these incidents. He came home a couple of weeks after the football game incident and met her one day as she got off her school bus. She was wearing a hoodie that A.H. had given her. She described what happened next. “And he’s like, what are you wearing? I’m like, oh, it’s my boyfriend’s hoodie. And he’s like, you have a boyfriend? I’m like, yeah. And he goes, is he white? And I’m like, no. And he’s like, is he brown? I’m like, yeah. He’s like no, you can’t date that. So then he’s like I wanna meet this kid. Like he’s going on, and on, and on. I need to meet him, whatever.” [16] She said that she told A.H. that her brother wanted to meet him, but that he declined.

[31] She also denied any suggestion that her brother was prejudiced against A.H. on the basis of his race or ethnicity. Like her father, she believed that her brother was simply trying to protect her.

[32] It was suggested to her that it was impossible for the sexual assault inside the Honda Civic to have occurred in the manner she described. She is 5’3” and estimated A.H.’s height as 5’6”. She said that after he slammed her head against the dashboard that she was sitting cross-legged on the front passenger seat. He was in the driver’s seat and reached across, grabbing her and pulling her over the centre console and gearshift onto his lap, where he managed to pull both her pants and his own pants down, and inserted his penis into her vagina while she was straddling his body. She insisted that the sexual assault occurred in this manner.

[33] She was shown an Instagram profile of the current holder of the “a…_alk…” account. She agreed that the person in the profile is not A.H., but maintained that A.H. used this account when he sent her these messages.

[34] She was also cross-examined on a series of text messages she exchanged with her brother. They discussed her relationship with A.H. These messages were all exchanged between October 20 and 26, 2021. In these messages, A.M. complained about her relationship with A.H. She said that he was bothering her and that he called her fat. Her brother responded by telling her to dump him and not put up with his “bullshit”. When she said that she loved him, her brother responded dismissively. He also told her that he did not want to continue hearing about her “boy issues” and that “unless they physically harm you I’m not getting into it.” [17] A.M. denied that she fabricated these allegations against A.H. in order to gain sympathy from her brother, or anyone else in her family.

[35] It was also put to her in cross-examination that A.H. had never driven her anywhere in a vehicle. In re-examination, she was shown a series of text messages downloaded from her phone by police from September 21, 2021 between herself and her mother. At 4:37 p.m., she told her mother that she was at A.H.’s soccer practice and that he was driving her home. This prompted her mother to respond by insisting that he bring her to the driveway to drop her off. A.M. said that she was at his soccer practice after school that day, and that he did drive her home.

[36] It was suggested to A.M. that A.H. never touched her in a sexual manner, and that she in fact had made sexual advances towards him on two occasions. The defence was permitted to put these suggestions to her as a result of my ruling on a s.276 application. It was suggested to her that she invited A.H. to her home on an evening where they could be alone in order to have sex, but that he refused on the basis of his Muslim faith. This prompted her to apologize and tell him that she was unaware that his faith forbade sex outside of marriage. She denied that this ever occurred.

[37] It was also suggested to her that, a few days later, she approached A.H. in the school cafeteria, sat next to him, placed her hand in his crotch and touched his penis. This prompted him to get up and leave. She denied that this ever occurred.

[38] The Crown also called Karen Cummings, a vice-principal at TASSS. She explained that due to Covid-19 restrictions, in the fall of 2021 the school operated on a quadmester system. This meant that students only had two classes per day – one which lasted the entire morning, the other lasting the afternoon, with a break in the middle of each class. This was a change from the normal routine of students having four classes per day, two in each of the morning and afternoon. She said that teachers were responsible for tracking attendance, but that the attendance tracking tool they used had not been updated to account for the change to the quadmester system. For example, if a student was present at the start of the class but left at the break, the teacher had no way to enter this information, so the record would simply show the student as present for the class. Similarly, if a student was not present at the start of class when attendance was taken they would be marked absent, with no way to change this if the student showed up late. In addition, the system relied on teachers to properly record absences, and was therefore subject to human error.

[39] A.M.’s attendance records for the fall of 2021 were made an exhibit. It shows no recorded absence for September 20, the date of the non-consensual intercourse in the woods after which she called and met her mother. The record does show absences recorded for other dates. Some are excused absences for illness. Some entries on the attendance record are unclear, and neither party clarified the entries with the vice principal who testified. For example, on September 16, there is a notation from the morning attendance that reads “S(11:15 AM)”. The initial S was never explained. I did hear that the morning period ended at 11:15, with lunch from 11:15 – 12:15, and the afternoon period from 12:15 to 2:45. For the afternoon period on September 16, there is a notation “A(11:15 AM)”. Other unexplained notations were made for the following dates: September 21, 24, 27, 29 and October 5, 20, 26 and 27.

[40] Ms. Cummings also explained that the cafeteria was not in operation during this time, also due to Covid-19 restrictions. Students were expected to eat lunch in their classrooms with the same group of students that they had classes with in order to reduce contacts. However, this was not possible for students in science and gym classes, so these students were permitted to go to the cafeteria to eat lunch. The cafeteria was monitored by staff who were responsible for ensuring that only students from those classes were in the cafeteria. She agreed, however, that the system was not foolproof. The cafeteria had 3 entrances, and she did learn of complaints that students in the cafeteria had been letting other students in, contrary to the rules.

[41] A.M.’s mother also testified. She said that on September 20, 2021 she received a phone call from her daughter during the school day while she was at work. A.M. was upset and crying, and asked her mother to pick her up from school right away. She told A.M. to try and make it until the end of the school day, but A.M. said she couldn’t and that she would walk to her mother’s workplace, which is located on the other side of the city. Her mother finished up her tasks at work and drove to meet her daughter at a park which is about a 20 minute walk from TASSS. She said that A.M. was upset, and had been crying. She asked her daughter what was upsetting her, but was told “there’s not much you can do” and “it’s just something I have to deal with on my own.” [18]

[42] She was able to date this incident as occurring on September 20 from text messages exchanged between herself and A.M. She believed that A.M. had a boyfriend at the time. She met the boyfriend once when A.M. was dropped off on the road in front of their house. She, her husband and A.M.’s brother were all outside the house. She said a white sedan pulled up with two males in the front seats and that both her daughter and a third male got out of the back seat. She identified this male as A.H. She said that he introduced himself as “A.” and shook her hand.

[43] She also confirmed that the school attendance system was not reliable at this time. She used an online application to report lateness or excused absences for her daughter, and was supposed to receive notifications if her daughter was late or absent. She said there were days she knew her daughter was late or absent, but never received a notification.

[44] Her mother also said there was another date during this period where A.M. asked her to pick her up early from school because she was having a bad day. She was able to place this date as October 19 from a review of her text messages. There is no corresponding entry in A.M.’s attendance record for this date.

[45] She agreed that she did not observe any evidence that her daughter had any hair pulled out. She also denied that A.M. had any history of pulling out her own hair. She said that A.M. had been complaining to her about being uncomfortable at school because of things people were saying about her. Then A.M.’s father found her cutting herself and took her to hospital. A.M. then disclosed the abuse she had suffered from A.H. She encouraged A.M. to report these matters to the police.

[46] I turn now to a review of A.H.’s testimony. He denied that he ever assaulted, threatened or sexually assaulted A.M. He said that they began talking to each other at the start of the school year, that they became friends, then something more than friends, but never had a romantic relationship. He never considered her to be his girlfriend. He denied that he ever met any member of her family, explaining that he was concerned about meeting them due to his poor English skills.

[47] Specifically, he denied the claims of A.M. and her mother that he was present with A.M. when she was dropped off at her house. The only time they were ever in a vehicle together was a single occasion when a friend of his gave them a ride home following a soccer practice. This was in a white sedan as A.M.’s mother described, but he said that his friend dropped him off first before taking A.M. home. He has never been to her home and does not know where she lives. He never picked her up from a football game at Holy Cross HS, made out with her in his car, drove her home or met her father either.

[48] He was only “more than friends” with her for a period of 1-2 weeks. They never went out on a date together, but would hang out while at school, normally with other people. They never skipped classes together. He never drove her anywhere in a car. He did not own a car at the time, and only had access to his mother’s car to work as a Doordash driver, to drive to Oshawa to work with his brother-in-law at an auto shop, and on rare occasions to go to school on days where he had to leave early for appointments.

[49] During their relationship, they often communicated by phone, text message or social media. It was a regular occurrence that she would become upset with him for not promptly returning her calls or messages.

[50] Their relationship ended after he twice rejected her sexual advances. On the first occasion, she approached him outside the school and invited him to come to her home that evening to have sex. She told him that she would have the house to herself. He refused, and explained that it was contrary to his Muslim beliefs to have sexual relations outside of marriage. She was unaware that his beliefs forbade premarital sexual activity and was apologetic. When he saw her later that same day, however, she appeared angry with him, and they stopped communicating.

[51] About two days later he was inside the cafeteria during lunch. Though he was not in one of the classes that was permitted to be in the cafeteria, he explained that students often let others in and that the teachers did not seem to be concerned about who was in the cafeteria. He was sitting alone at a table on this occasion, watching a video on his phone, when A.M. approached and sat next to him. This was the first time she had communicated with him since he rejected her earlier sexual advance. This time, she placed her hand in his lap and touched his penis over his clothing, prompting him to get up and leave the cafeteria.

[52] This incident ended their relationship. They stopped communicating. Whenever he would see her afterwards at school, she appeared angry and would glare at him. He told his friends about her sexual advances. He was aware that news of her conduct had spread throughout the school. He believed that she was angry with him because he had rejected her and told other people about her sexual advances. After they stopped communicating, he unfollowed her social media accounts and said that she also blocked him on her accounts.

[53] He denied that he authored the messages exchanged over Instagram between A.M. and the holder of the “a…_alk…”” account. He never had an Instagram account in this name. He did his own research after these messages were disclosed at the start of the trial, and provided a photo of this account holder, which clearly is not A.H. He does have his own Instagram account with the username “1a…_k…”. This account was created in February 2020. He agreed that someone can have more than one account at a time, as he does himself at present. He denied that he had previously used an account with the username “a…_alk…”.

[54] This completes my review of the evidence, and I turn now to an analysis of the credibility and reliability of the witnesses.

Analysis and conclusions

[55] I have heard two different accounts of their relationship from A.M. and A.H. She says that he was violent throughout, including serious acts of sexual violence. He denied that any of these things occurred. As I said earlier, this is not simply a credibility contest. The issue for me is not which version of events I prefer. The only issue for me to decide is whether I am satisfied beyond reasonable doubt that any of the charges have been proven. I will begin by considering the evidence of A.M.

[56] I found her to be a generally credible witness, and I found her testimony to be reliable. Her narrative was understandable and logical. She fell in love, or so she thought at the time, with an older student who became controlling and possessive of her. He became violent towards her, engaged in violent sexual acts with indifference towards her consent, and used threats in an effort to maintain control. She kept everything that had happened to her a secret until the relationship was over and she felt harassed at school due to rumours being spread by his friends about her sexual promiscuity. She began harming herself and finally disclosed these events to her family after they sought help for her. There is nothing implausible or unusual about this narrative. Her evidence was detailed, vivid and compelling.

[57] There is also nothing about the manner in which A.M. testified that made me question her credibility. Her testimony was clear and understandable. She did become combative at times during cross-examination, but this seemed to me a natural response to being challenged about the truthfulness of her narrative and her inability to recollect the timeline of events with precision.

[58] The defence argued that her evidence was internally inconsistent in several respects. For example, at different points in her statement to police, she said different things about what was spoken between them as they walked along the path in the woods immediately before the September 20 sexual assault. First, she said “we went down the path again-, at this point I was so scared he was gonna like-, he threatened me. He was like if you tell anybody we’re doing this, I will kill your entire family. I’ll kill your dogs. I will hurt you so bad.” [19] Later in the statement when describing the same incident she said “we were walking down the path, and we were just like talking, we were laughing, you know. And then he’s like, let’s go over here. And I’m like okay.” [20]

[59] I do not agree that this is a significant inconsistency. A.M. had already been assaulted (the hair-pulling incident) and sexually assaulted (the fellatio incident) by A.H. in the same general location. As they walked the same path on this date it would be surprising if she were not fearful, even if they were talking and laughing. She also said repeatedly that her memory of these events was blurry and jumbled. These were traumatic events. A.H. had a pattern of being nice one moment and violent the next. There is no material inconsistency when she recounts at different points in her statement that she was both talking and laughing with him and being threatened by him at roughly the same time during this event.

[60] The defence also claimed that there were numerous inconsistencies in the account of this incident in her police statement. The first time she described this event to police, she did not disclose that he had slammed her head into a tree, that she had slapped him in response, that he forced her to masturbate him, that he struck her and swore at her in Arabic during the forced intercourse, and that she struck her head against a log. When the police went over this incident with her again, she provided these additional details. In my view, these are not inconsistencies. She simply added more details as the interview progressed. She was 14 at the time of the interview, talking about traumatic events that had occurred several months before, events which in her mind were still jumbled. It is entirely natural that more details would emerge over time as the incidents were reviewed.

[61] The defence claimed that there were inconsistencies in relation to the hair-pulling incident as well. These relate to the date of this incident, and when during the school day the incident occurred. While I agree that A.M. was inconsistent in her evidence on these points, these are minor, peripheral details about traumatic events being recalled months later to police and then more than a year later in court, by a young person who acknowledged that her memory was blurry. The core of her evidence, however, remained unshaken. In my view these minor inconsistencies are unimportant.

[62] In relation to this same incident, A.M. said that she had a visible clump of hair missing that was noticed by “my whole family […] that was home.” [21] Her mother testified that she never noticed anything. However, I don’t know if her mother was part of the family that was home when this discovery was made. Without that important detail, there is no contradiction. Her mother simply may not have been home at the time. A.M. also said that she explained away the missing hair to the family that did see it by telling them that she had resumed an old hair-pulling habit. She said she used to pull her hair when she was anxious. Her mother denied that A.M. had any history of pulling out her own hair. While this is undoubtedly a contradiction, it is an unimportant one in the context of the issues I have to decide in this case. Whether she had a history of pulling her own hair when she was a younger child, and the extent to which her mother noticed or now recalls such behaviour is simply unimportant.

[63] The defence claimed that A.M. was inconsistent and evasive in her evidence about the incident of forced oral sex. According to her, this also occurred in the woods behind the school, but close to the river. She told police that they were near the river and would have been visible to people on the other side. When asked at trial if people on the other side could have seen them she responded “I don’t think so, maybe. I’m not sure. I wasn’t on that perspective.” [22] In my view her testimony was entirely reasonable. There is no evidence before me about the width of the river in question at the location where this incident occurred, but I can take judicial notice of the fact that the Otonabee River is a major body of water in the City of Peterborough. The distance across the river is significant. Her answer was not evasive, in my view. It was sensible. She could not be sure what someone on the other side of the river could see. There is no contradiction between this response and what she told the police – which was that because she could see the river, she assumed that she could be visible to someone on the other side.

[64] The defence claimed that A.M. was inconsistent in her evidence about the sexual assault in the car. This is because she disclosed additional details to the police during her statement. In my view there is no contradiction. In her first recounting of all of the incidents, the officer asked her to relate events as she recalled them. The officer then later brought her back to each incident and asked for further details, which she supplied. There is no contradiction just because she did, in fact, provide additional details when asked.

[65] In relation to this same incident, the defence claimed that A.M.’s narrative was implausible because of the physical limitations of the environment. It would have been impossible for A.H. to have moved A.M. from the front passenger seat to a position where she was straddling him on the driver’s seat, removed her pants and penetrated her vagina with his penis. The defence called no evidence to prove that this series of actions would be impossible. Rather, it invites me to use common sense to infer that such a scenario was unlikely. I decline to do so. Contested facts need to be resolved through evidence. A.M. said these events happened. A.H. says they did not. He did not say it would have been impossible for him to pull a 5’3” teenager from the front passenger seat to the driver’s seat to lie on top of him. He did not say that it would have been impossible for him to have lowered her pants, or penetrate her vagina with his penis from that position. In the absence of evidence, it would be speculation to draw an inference that the sexual violence described by A.M. could not have occurred inside a vehicle.

[66] The defence claimed that A.M. had a motive to fabricate allegations of sexual violence against A.H. as a result of the mental anguish she was experiencing at the time she began cutting herself. This anguish was the result, at least in part, of bullying or harassment at school from other students, mostly friends of A.H. They were spreading rumours about her sexual promiscuity and she was being called derogatory names. These rumours were the result of A.H. telling his friends about the sexual advances he says she had made to him. The defence theorizes that A.M. lashed out at A.H. by falsely claiming that he had sexually assaulted her as means of exacting revenge on him for spreading these rumours.

[67] Further, A.M. knew that her family would support her. Both her father and brother were already hostile towards A.H. She could be confident, according to the defence, that they would believe her fabrications of assault and sexual assault without question. She thus had the perfect means to exact revenge on A.H. for being the source of the rumours at school.

[68] I cannot accept that A.M. had any real motive to fabricate based on the evidence. I believe her testimony that she never made sexual advances towards A.H. It is nevertheless true that she would have had reason to be angry with him, for there were still hurtful rumours being spread about her at school. She was aware of the rumours and blamed A.H. No doubt this had an impact on her mental health and contributed to her breakdown. That being said, the claimed motive to fabricate rests on long-discredited myths that women are particularly fickle, vindictive and prone to concocting allegations of sexual violence in order to exact revenge. Such myths have no place in a rational system of justice. I decline to draw an inference that A.M. was motivated to fabricate these detailed and vivid incidents in order to exact revenge on A.H. The mere fact that she had good reason to be angry with him does not undermine her credibility as a witness, or the reliability of her evidence.

[69] It may well be that A.M.’s father or brother held racist views. Either or both may be prejudiced towards A.H. on the basis of race or ethnicity. Based on what each of them said to A.M., this seems likely. But their beliefs are a collateral issue and too remote from the issues I have to decide in this case to be of any real significance.

[70] A.M.’s account was also confirmed in some important ways. Her mother, who appeared to me to be a credible witness, confirmed that A.M. phoned her at work on September 20, that she was upset, and that she met her at a park some distance from the school. She also confirmed that A.H. attended at their home on one occasion in a vehicle to drop off A.M. I am not troubled by the fact that she did not mention to police that there were other people in the vehicle, that A.H. was not the driver, or that she and A.H. introduced themselves to each other by name. She provided a logical and credible explanation for the fact that these things formed part of her testimony but were not in her police statement – she was never asked these questions by the police.

[71] A.M.’s account of her relationship with A.H. was also confirmed through the text messages she exchanged with her brother. In these messages, she at various times said that she loved A.H., that she was upset about his treatment of her, and finally that she had dumped him.

[72] Finally, her account is confirmed by the Instagram messages exchanged between A.M. and the account holder “a…_alk…”. It is inconceivable that the messages sent to her were authored by anyone other than A.H. It defies common sense that another account holder with a username so similar to A.H.’s username would have exchanged text messages of a romantic nature with A.M. in the time frame where they both agree that they were in a relationship of some sort. The language used by the author of these messages is consistent with the language A.H. agreed that he used when speaking to A.M. and the subject matter is consistent with a romantic relationship between the two of them.

[73] I am not troubled by the fact that A.M.’s attendance records show no recorded absence on September 20, the one day she can pinpoint with precision, and where she knows she left school early. I accept the testimony of A.M’s mother and the vice-principal about the frailties of the record-keeping system at the time. I also believe A.M.’s mother that she removed A.M. from school early on October 19, a date also confirmed by her text message records. There is no recorded absence in the school attendance record for this date either. I am satisfied that the attendance records are ultimately unreliable.

[74] For all of these reasons, I find that A.M. was a credible witness. Her evidence was reliable. That is not the end of the matter, however, as A.H. testified and denied committing any of these offences. I must consider his evidence and determine whether I believe his testimony, or if it leaves me with a reasonable doubt when considered in the context of all of the evidence.

[75] A.H. was a difficult witness. He answered the questions put to him in a calm manner, but his answers were often non-responsive and evasive. Questions had to repeated over and over. His testimony shifted on straightforward matters. For example, on whether he was employed in the fall of 2021. This was peripheral to the core of his testimony, but his account raised concerns about his truthfulness generally. At first he said he was not employed. Then he said that he worked for Doordash as a delivery driver. When pressed on the inconsistency, he said that he did not consider this to be employment because all of his wages went to pay for car insurance.

[76] He was questioned about the Holy Cross football game, where A.M. said he picked her up, drove her to a secluded lot, made out and then drove her home. He denied that any of this happened. When asked if he had ever been to Holy Cross, he first said that he had been to another local high school for a football game. Then he said that he had never been to Holy Cross for a football game, then that he had never been to Holy Cross at all, then that he had been there once, but only to play soccer. While these details are peripheral to the core of his testimony – that he never assaulted, threatened or sexually assaulted A.M. – the shifting nature of his narrative does little to inspire confidence in his credibility or the reliability of his account.

[77] I believe A.M.’s mother that he brought A.M. home with friends in a vehicle. I believe her that they spoke, that he introduced himself and shook her hand. The mother’s account of this incident was detailed and specific, and I found her to be credible. I rely on her evidence and reject the testimony of A.H. where it conflicts. These are not peripheral details.

[78] A.H.’s testimony was also contradicted by his own words elsewhere. I find that he authored the Instagram messages preserved by A.M. on her phone. His refusal to admit the obvious – that he wrote these words – is fatal to his credibility as a witness. The messages contradict his own testimony about the nature of his relationship with A.M.

[79] Most importantly, however, his evidence conflicts with the testimony of A.M., which I do believe. Her narrative was rich in detail and confirmed in several important ways. I find that she was an entirely truthful witness. Her narrative was compelling and corroborated. I am entitled to use her testimony as a basis to reject the contradictory testimony of A.H. Where their evidence conflicts, I reject his testimony.

[80] For all of these reasons, I do not believe the testimony of A.H. I reject his evidence, and it does not leave me with a reasonable doubt when considered in the context of all of the other evidence.

[81] Having rejected the testimony of A.H., I must now go on to consider whether I am satisfied of his guilt beyond reasonable doubt on the basis of the evidence which I do accept. For the reasons previously given, I found A.M. to be a credible witness. Her testimony is reliable. After considering all of the evidence, I am sure that A.H. applied force to her on the three occasions she described. I am also sure that he touched her in a sexual manner on the three occasions that she described. I am also sure that he threatened to kill her family if she told on him. At all times he was bound by a lawful order requiring him to keep the peace and be of good behaviour, which he failed to do. He is therefore found guilty on all counts.

Released: June 6, 2023 Signed: Justice S.W. Konyer

[1] Ex. 1B, p.8, ll.9-13 [2] Ex. 1B, p.8, l.19 [3] Ex. 1B, p.12, ll.22-24 [4] Ex. 1B, p.17, ll. 4 [5] Ex. 1B, p.17, ll.21-27 [6] Ex. 1B, p.18, ll.18-25 [7] Ex. 1B, p.19, l.8 [8] Ex. 1B, p.19, ll.12-19 [9] Ex. 1B, p.20, ll.13-15. [10] Ex. 1B, p.21, ll.4-11 [11] Ex. 1B, p.22, ll.2-9 [12] Ex. 1B, p.23, ll.13-24 [13] Ex. 1B, p.55, ll.25-6 [14] Ex. 2 [15] Ex. 1B, p.8, ll.28 [16] Ex. 1B, p.15, ll.23-29 [17] Exhibit 3 [18] Transcript of April 12, 2023, p.5, ll.22-24 [19] Ex. 1B, p.20 [20] Ex. 1B, p.38 [21] Transcript of April 3, 2023, p.100, ll.15-16 [22] Transcript of April 4, 2023, p.36, ll.14-15