WARNI NG

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 pub lished 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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 res pect 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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 of fence punishable on summary conviction.

Court File and Parties

DATE: 2023-07-11 Toronto

B E T W E E N :

HIS MAJESTY THE KING

— AND —

MARK GLADKIKH

Before: Justice Michael Waby

Heard on: September 27, 2022, December 5, 2022 and June 21, 2023 Reasons for Judgment released on: July 11, 2023

Counsel: G. Meyers, Counsel for the Crown D. Pledge, Counsel for the Accused

Waby, M.

[1] Mark Gladkikh is charged with a single count of sexual assault.

[2] The Crown proceeded summarily. Date, time, jurisdiction and identity are not in issue. No Charter applications or other applications were brought during the proceedings.

Introduction

[3] The complainant in this matter H.G. and the accused, had previously known each other in high school some years prior to the alleged incident on August 26, 2021. Having reconnected on social media, H.G. and the Accused Mr. Gladkikh exchanged messages over the course of about three weeks and then made arrangements over text to meet late on the evening of the day in question for something to eat and to catch up.

[4] At around 10:30 p.m., the Accused picked up H.G. from her home in his car. After deciding that they did not want anything to eat, the two of them agreed to drive around for a while and then after about 20 minutes of ‘meandering’, they parked up in a parking lot situated in Downsview Park in Toronto. They were the only vehicle in the parking lot.

[5] After talking for a short while and sharing pictures with the Accused on her phone, H.G. alleges that the Accused sexually assaulted her. She alleges that without her consent he grabbed and squeezed her buttocks, that he digitally penetrated her vagina and that he repeat­ edly placed her hand on his erect penis while saying words to the effect that “she do some­thing about the situation he said she’d created.’’ After refusing and demanding to be taken home, H.G. alleges that the Accused ultimately drove her home and made her promise that she would not tell anyone what had happened.

[6] Mr. Gladkikh’s testimony provided a starkly different account of the events on the night in question. He gave evidence that after they had parked the car and chatted, H.G. had shown him some naked and semi-naked pictures of herself from her phone. The Accused said he then complemented H.G. and asked if he could “see her ass” and that H.G. manoeu­vred herself and bent over in the front seat and partially lowered her pajama bottoms and showed him her bare buttocks and she then shook her backside in his direction.

[7] The Accused then asked if he could touch her backside and H.G. agreed. This he says he briefly did and that he then asked to kiss H.G. At this point, Mr. Gladkikh gave evidence that H.G. said she would not let him kiss her and she raised the fact that he had a girlfriend. After a short conversation during which the Accused says nothing further of a physi cal nature happened between them, he then drove H.G. home and testified that he did not ask H.G. to avoid mentioning anything to anyone.

Position of the Parties

[8] The Crown alleges that the Accused sexually assaulted H.G. in his car through a series of acts that formed part of a single chain of events. Ms. Meyers submits that H.G. was consistent in her evidence as to the core of all significant matters and that any inconsistencies that were raised in cross-examination or that materialized in-chief were not of a nature such as to cause concern. Indeed, the Crown submits that the court would have been cautious to accept in its entirety the evidence of a witness who appeared too perfect in her recall of events and described the contours of her evidence as reliable.

[9] The Crown submits that the Accused’s version of events strains credulity and ap­pears contrived and that there is no reason to conclude that the Complainant is fabricating her evidence and that her version can satisfy the court beyond a reasonable doubt.

[10] The Accused denies sexually assaulting H.G. in any way and denies pressuring her to remain silent after the alleged incident. Ms. Pledge, as counsel for the Accused, submits that the Complainant was materially inconsistent in important aspects of her evidence in terms of what she told the police in her statement and what he told the court during her evidence. The Defence submits that the evidence of Mr. Gladkikh should satisfy the court beyond a reasonable doubt and that in the alternative H.G.’s evidence was diminished by a series of inconsistencies, exaggerations and memory lapses that clearly raise a reasonable doubt within the context of the necessary W.D. analysis.

[11] The following is not disputed:

• H.G. and the Accused knew each other and renewed a high school acquaintanceship and reconnected over social media some weeks before the alleged incident.
• The Accused arranged to pick up H.G. in his white four-door sedan and the two of them drove around for a short while chatting before parking up in an otherwise empty parking lot at some point after 10:30 p.m. and before 11:30 p.m.
• The only evidence before me is that of the complainant H.G. and the accused Mark Gladkikh.
• While I am mindful of the fact that corroboration is not required in cases of sexual assault, there is no independent evidence before me to assist in determining what events occurred on the night of August 26, 2021.
• As such, the question for me to decide is whether the evidence before me establishes that there is no other reasonable conclusion other than Mark Gladkikh sexually assaulted H.G. as alleged.

[12] I now turn to that issue on the facts of this case.

[13] It is clear that the Crown’s case stands or falls on my findings of credibility and re liability on the whole of the evidence tendered at this trial.

Credibility and Reliability Analysis

[14] The test that governs the analysis of credibility in this context is proof beyond a reasonable doubt. It was explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) and other case law as follows:

If I believe the Accused’s evidence, I must acquit him.

Even if I do not believe his evidence but I am left in reasonable doubt by it, or any of the other evidence, I must acquit him.

Finally, even if I am not left in doubt by his evidence, I still must consider it, and ask myself, on the basis of the evidence that I do accept, whether the Crown has proven guilt beyond a reasonable doubt.

[15] In assessing a witness’s testimony, I must consider the credibility and reliability of the account provided. In assessing the credibility and the reliability of the evidence of the witnesses, I have distinguished between credibility and reliability. Credibility relates to a witness’ sincerity, whether he/she is speaking the truth as she believes it to be. Reliability relates to the actual accuracy of his/her testimony. In determining this, I must consider his/her ability to accurately observe recall and recount the events in issue. A credible witness may give unreliable evidence. See R. v. Morrissey, [1995] O.J. No. 639 (C.A.) at para 33; R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A.) at para 41. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt. See R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.) at para 47; R. v. J.W., [2014] O.J. No. 1979 (C.A.) at para 26.

[16] The credibility and reliability of a witness must be “tested in the light of all the other evidence presented”. R. v. Stewart, [1994] O.J. No. 811 (C.A.) at para 27.

[17] As I assess a given witness’ testimonial account, I am mindful that I may accept some, none, or all of their account.

[18] One of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what he/she said on other occasions, whether or not under oath. See R. v. A.M., 2014 ONCA 769 at para 12; R. v. G.M., (1994), 93 C.C.C. (3d) 347 (Ont. C.A.) at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390.

[19] Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on another. See R. v. A.M., supra, para 12.

[20] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned. See R. v. G.M., supra at page 354.

[21] Proof beyond a reasonable doubt goes hand in hand with the presumption of innocence which is a fundamental principal of our system of justice. The burden of proof in a criminal trial always rests with the Crown. The burden of proof is a heavy one.

[22] A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense and arises from the evidence.

[23] To be clear, a criminal trial is not a credibility contest and it is not enough for me to think that the Accused is probably guilty.

[24] Applying these tests to the facts in this case, I am faced with two very different and competing versions of events by the parties. H.G. describes a scenario in which she rejected the accused touching her sexually. The Accused described an initially sexual and consensual encounter that H.G. then brought to an end and that at her direction, he then drove her home without further incident.

[25] H.G. presented as a very methodical, deliberate and cautious witness who in giving her evidence was very careful in her choice of language to the point that at times she ap peared somewhat mechanical when providing some of her answers, particularly where there were inconsistences or memory lapses that were put to her in cross-examination.

[26] H.G. did not over-embellish her evidence and did not seek to guess or speculate on issues and she was very careful to make sure that she understood a question before she answered. This often made her appear extremely cautious and deliberate in the manner in which she presented her evidence. The manner and delivery of a witness’ evidence are significant but not determinative of their credibility and reliability.

[27] H.G. is not to be criticized for being a careful and thoughtful witness. In giving her evidence, she was articulate and intelligent and sought to provide reasonable explanations as to why she could not recall specific information she previously gave to the police and why things were fresher in her mind now than closer to the time of the alleged incident. These included the trauma of the incident effecting her and her ability to better process events with the passage of time. In her evidence, she described feeling violated and disgusting after the alleged incident and took a long shower after getting back home.

[28] While much of her evidence was consistent, there were contradictions between her evidence at trial and her police statement. H.G. accepted that the first time she had given information about the accused reaching over and touching and squeezing her buttocks over her pyjamas was in her evidence and she hadn’t told the police about this. Similarly, H.G. accepted she had told the police that the Accused put his hand down the waistband of her py jamas when he tried to touch her vagina whereas her evidence was that he tried putting his hand up the leg of her pyjamas shorts.

[29] In fairness to H.G., she explained these discrepancies by fairly stating that the inci­ dent was some time ago and she did not have perfect recall of what she had told the officers and that she had tried to repress some of the memories of the incident which she found traumatic. H.G. also clearly rejected defence counsel’s suggestions that she was fabricating her version of events.

[30] H.G. further accepted that she was inconsistent in her account when she testified that the Accused never asked her to remove any of her clothing but acknowledged that she had told the police that in fact the Accused did ask her to remove her clothing and she re fused.

[31] The evidence H.G. gave with respect to the initial part of the alleged incident and the showing of photographs by her to the Accused does cause me some concern as to her re liability.

[32] It was accepted by H.G. in cross-examination that after parking the Accused had asked her whether she had any nude pictures of herself on her phone that she could show him. H.G. agreed she had shown the Accused some pictures of herself from her phone and testified that “I did not show him photos in which I was fully nude.”

[33] When this answer was explored in cross-examination, H.G. then indicated that she had shown pictures of herself in which she was wearing a bikini. After attempting to provide further clarification, she acknowledged that she also showed the Accused pictures of her just in her underwear but said that although she would describe this as “half-nude”, this was not intended to be provocative.

[34] As her evidence in cross-examination continued, I found that on this issue H.G.’s evidence became increasingly evasive and she appeared unwilling to clearly answer defence counsel’s questions. When asked whether she showed pictures in which her breasts or buttocks were exposed, her answer was “not fully exposed, no.”

[35] Defence counsel was compelled to expand significantly on simple questions to try and elicit clear answers and ultimately, when it was again put to her that she had shown na ked photos of herself to the Accused, H.G. responded that she did not recall whether she had in fact shown him any naked pictures of herself and accepted that she could not say one way or another with certainty.

[36] It is entirely understandable that H.G. may have been embarrassed to admit show­ing such photos to the Accused. It is also important to note that if she did show such photos to the Accused, this in no way legitimized any non-consensual sexual activity as between them. However, I have difficulty accepting her evidence on this issue and believe that H.G. was less than forthcoming about what actually happened in this regard at the outset of the alleged incident. In doing so she undermined her credibility and reliability.

[37] It is the evidence of the Accused that he and H.G. parked up and had a sexual con­versation in which he asked her whether she had any nude pictures and that she opened her phone and showed him a number of nude images. The Accused’s evidence is then that he asked to see H.G.’s ass and that she turned her buttocks towards him and lowered her shorts and briefly shook her backside at him. He testified that he asked to touch her backside and she agreed and using one hand he squeezed her buttocks after which she pulled up her shorts. According to the Accused, it was only when he turned towards H.G. after this and asked to kiss her that things came to a halt after she referenced his girlfriend.

[38] The accused denies any further physical contact of any kind between him and H.G. after this point and testified that at no point did H.G. seem upset during their time together. He denies grabbing her as she left his car and denies asking her not to tell anyone about “what had happened.”

[39] The version of events provided by the Accused is significantly different from that provided by H.G. and his version of events presents a much shorter and simpler account of the events of that night. The Crown submits it is a version that is lacking in credibility and does not reflect reality.

[40] The reality is that the only two people who know precisely what occurred in the car that night are Mr. Gladkikh and H.G. The Accused was consistent in his evidence with respect to the extent of any physical contact between him and H.G. and maintained that it was all consensual and far more limited in scope than alleged. He presented as a credible, and consistent witness and his evidence was not undermined in any obvious way during cross- examination. With the exception of her evidence relating to the showing of photographs to the Accused, H.G. also presented as a largely credible witness who made reasonable conces sions in her evidence and who accounted for several apparent inconsistencies in the account she had provided.

[41] I find that based on the two conflicting, equally plausible but irreconcilable accounts before me, I am unable to be sure beyond a reasonable doubt that the Accused acted as alleged.

Conclusion

[42] Proof beyond a reasonable doubt goes hand-in-hand with the presumption of inno cence which is a fundamental principal of our system of justice.

[43] As previously indicated and to be clear, it is not sufficient that, on the whole of the evidence that I am satisfied that Mr. Gladkikh is probably guilty.

[44] Having considered all of the evidence and the absence of evidence, I find the Crown has not proven to the necessarily high standard of proof beyond a reasonable doubt that Mr. Gladkikh committed the offence of sexual assault.

[45] Accordingly, I find the Accused not guilty.

Released: July 11, 2023 Signed: Justice Michael Waby