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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 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 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: May 8, 2023

COURT FILE No.: Toronto 20-75000345

BETWEEN:

HIS MAJESTY THE KING

— AND —

BRANDON WISDOM

Before Justice Hafeez S. Amarshi

Written reasons for judgment released on

Counsel: C. Glaister, counsel for the Crown G. Smith, counsel for Brandon Wisdom

H.S. Amarshi J.:

REASONS FOR JUDGMENT

A. Introduction

[1] Brandon Wisdom is charged with one count of sexual assault. Specifically, it is alleged between January 17 and January 18, 2020, at a high school house party, Mr. Wisdom sexually assaulted A.L. in a bedroom, while she was sleeping. The complainant says she woke to find Mr. Wisdom on top of her, penetrating her vagina.

[2] The Crown proceeded summarily and called three witnesses – A.L., C.N., a friend of the complainant and A.H. a witness at the house party.

[3] Mr. Wisdom testified.

[4] The central issue in this case is credibility. The defence further raises concerns over the reliability of A.L.’s evidence given her level of intoxication. The defendant says A.L. invited him into the bedroom and that the sexual activity was consensual.

B. Relevant Evidence

Events of January 17

[5] A.L. is 19 years old. At time of the alleged incident, she was 17 years old and in high school.

[6] The complainant testified that on January 17, 2020, she attended a high school party at an Airbnb in Toronto. The party was both to celebrate a birthday of one of her friends and as a graduation party.

[7] Prior to the party she went to her friend Luke’s house. Several of her friends were also at Luke’s including a close friend C.N. At Luke’s house, the complainant says she had a few shots and drank Smirnoff ice.

[8] The group left Luke’s house and went to a party at an Airbnb later in the evening. When they arrived, there were not many people, although the party eventually grew to 30-40 people. Most of the people at the party attended A.L.’s high school.

[9] The house had three floors, a basement, a main floor, and a top floor with multiple bedrooms.

[10] The group of friends proceeded to the top floor to one of the bedrooms to leave their jackets and bags in a room.

[11] The top floor bedroom is the first time the complainant encountered Mr. Wisdom. She had never met him before. She said the defendant approached her and her friend C.N., that he was speaking in a flirtatious manner, specifically asking the pair if they were single. She told the defendant she was not single.

[12] A.L. left the bedroom and proceeded to the main floor of the house where she started socializing with other people that had joined the party from her high school.

[13] When asked what her level of intoxication was at this point, the complainant responded that she was passed tipsy but not “super drunk.” She added that over the course of the night she became progressively more intoxicated.

[14] The complainant encountered Mr. Wisdom a second time, this time on a couch on the main floor. A.L. says the defendant was again being flirty. His tone was friendly. She told him she had a boyfriend. She testified that Mr. Wisdom asked her when her boyfriend would be coming and if they could talk or “do something before my boyfriend came to the party.” She continued to deflect his advances telling him she wasn’t interested and that she was in a committed and monogamous relationship.

[15] The complainant did share her Snapchat with Mr. Wisdom, specifically they exchanged usernames so that each could send Snapchat messages to the other.

[16] Approximately an hour after she arrived at the party her boyfriend E.L. arrived. They spent some time together and smoked marijuana.

[17] The next time she saw Mr. Wisdom he was handing out shots of alcohol with Olivia, one of the hosts of the party. She drank one of those shots.

[18] A short time later she was with her immediate friend group in the basement. She recalls her friend Luke being sick and throwing up. She was also feeling ill and had stomach cramp pain and was feeling dizzy. She also felt really tired. She sought out C.N. to tell her she wasn’t feeling well.

[19] A.L. found Olivia and asked her if she could go upstairs to a bedroom and lie down. Olivia agreed.

[20] The complainant found the bedroom where she originally left her bag at the beginning of the night. She was by herself, and no-one was in the room. She closed the door. She went to lie on the bed and fell asleep instantly. She recalled lying on her back.

[21] A.L. testified that she woke up to find the defendant on top of her, that her zipped tank top had been unzipped and slipped down her arms. That it had been pushed to the side. That her pants and underwear were around her ankles. The lights were on. The complainant says she was wearing black carpenter jeans, which she described as baggy at the bottom, but fitted around her waist.

[22] A.L. says the defendant’s full weight was on her and she was on her back. That he was wearing a shirt, but no pants, that their bodies were parallel.

[23] She could see his body on top of hers, but mostly saw his head which was very close to hers.

[24] The complainant testified that she could feel pain and pressure in her vagina, that there was an insertion. She didn’t know if the pressure came from Mr. Wisdom’s penis or fingers or something else, but that it felt like sex.

[25] At first, A.L. was confused and thought it was her boyfriend, coming to lie beside her, but quickly concluded it wasn’t E.L. She remembers the defendant was trying to talk to her, trying to calm her down, but that she pushed him back into an ensuite attached the bedroom. That she was really scared. She felt panicked.

[26] The complainant was standing as she pushed Mr. Wisdom. She specifically remembers that he was wearing a condom and that his penis was erect.

[27] A.L. pulled up her underwear and pulled her jeans up partway. She says she sprinted out of the room. She zipped up her shirt in the hallway. She says she was crying “pretty profusely” and yelling for C.N.

[28] Outside the bedroom she saw someone from school – A.H. She remembers asking him if he knew where her friend C.N. was.

[29] A.H. testified that he was on the second floor speaking to a friend when a male, he did not know, approached him asking for a condom. A.H. agreed and gave the male a condom. He saw the male enter the master bedroom.

[30] Shortly after he says he observed the complainant running out of the same bedroom with her pants unzipped. He described her demeanour as distressed and scared, that she was screaming and crying.

[31] He also saw the same male that had earlier asked him for condom emerge from the same bedroom.

[32] In cross-examination, A.H. was challenged on the reliability of his observations. He had been drinking that night, by his estimation three or four beers, which he did not deem to be a lot of alcohol. He conceded that his observations would have been slightly impaired by consuming alcohol. He further agreed that his judgment would be impaired “to some extent” when he was drinking but he maintained that he could still see and understand what was going on around him.

[33] A.L. testified that she did not see the defendant after she left the bedroom. She found C.N. and E.L. and left the party soon thereafter. The complainant took an Uber to Luke’s house where her parents met her. They took her to a hospital that night and police were called.

[34] The complainant was adamant that she did she did not consent to any sexual activity with the defendant, nor did she have any romantic interest in him.

Evidence of C.N.

[35] C.N. was 18 years old at the time of the party on January 17, 2020. She described herself as a good friend of the complainant. They both attended the same high school.

[36] She travelled to the house party in a group of seven people that included A.L.

[37] The first time she encountered Mr. Wisdom was in a second-floor bedroom, where she had gone to put her jacket away. The defendant asked for a vape. She recalled being complimented by Mr. Wisdom, specifically he told her and A.L. that they were pretty.

[38] C.N. said she was uncomfortable with the exchange because she did not know the defendant and felt he was hitting on the pair.

[39] The next time she encountered Mr. Wisdom was in the presence of A.L. when all three were sitting on a couch. She recalled that he was mainly speaking to A.L., telling her to take shots and asking her if she wanted to go upstairs and have sex. C.N. says the complainant responded by saying no and that she had a boyfriend.

[40] According to C.N. she was seated on the couch for the full duration of the conversation between the defendant and A.L. which she says occurred about 10 minutes after she and A.L. had first encountered Mr. Wisdom.

[41] C.N. left the main floor and headed to the basement. She says she was comfortable leaving A.L. because her boyfriend was at the party.

[42] She described the complainant as being “fairly intoxicated” at the party. She described herself as being sober. That she hadn’t consumed any alcohol that afternoon or evening.

[43] When asked about the defendant’s state of sobriety, C.N. testified that he seemed like he was high from marijuana, but that he didn’t seem drunk.

[44] A short time after she left the couch, A.L.’s boyfriend joined the complainant in the basement. C.N. says A.L. complained to her that her liver was hurting and that she seemed “freaked out.” That she was holding her stomach and she wanted to lay down. The complainant proceeded to lay down on the floor in the basement for about a minute before getting up and saying she was going to go to the bedroom on the second floor.

[45] C.N. did not accompany A.L. to the second floor but sent E.L. with her. She specifically recollects telling E.L. to go after the complainant and look after her. She watched the couple go up the stairs, but she was not sure if E.L. went up to the bedroom with A.L.

[46] The next time C.N. saw the complainant was about a half hour later, when she encountered A.L. crying on the steps leading from the main floor to the second floor. Specifically, she observed the complainant to be crying and sobbing. She observed A.L.’s pants to be undone.

Defence evidence

[47] Brandon Wisdom was 21 years old at the time of the house party.

[48] He first met A.L. and C.N. in the master bedroom on the second floor. He called them beautiful, he says he was being a little flirtatious. They responded, he says, by laughing it off. A.L. and C.N. left the bedroom after he asked them for a vape.

[49] Mr. Wisdom soon went downstairs and chatted with his friend Lex. He asked him for a condom, in the “hopes that if I get laid.” Lex did not have a condom.

[50] The defendant then went to the kitchen and gave out shots with the host of the party Olivia. He recalled he went over to the couch where A.L. and C.N. were sitting. He spent most of the time speaking to the complainant and he asked her if she wanted to go someplace more private because he says he wanted to have sex with her. He says A.L. laughed it off, but she did not say no.

[51] The defendant asked for her Snapchat. A.L. was reluctant because she had a boyfriend, so Mr. Wisdom proposed they connect as friends. He did not have access to Wi-Fi or data on his phone, so he asked the complainant to add him on the social media app.

[52] The next time Mr. Wisdom encountered the complainant was while he was sitting at the top of the stairs leading to the second floor of the house. He was sitting there because his friend Mackenzie had asked him to guard the stairs, because someone was sleeping in the bedroom. He did not know at the time who was in the bedroom. He noticed the complainant come out from a bedroom, approach him, while holding on to the railing. He thought A.L. was drunk.

[53] According to the defendant, A.L. whispered to him, “Do you want to come sleep with me.” He asked about her boyfriend, to which the complainant replied, “Don’t worry it’s ok.”

[54] A.L. led the defendant into the bedroom and asked him to close the door behind them. The complainant goes to the bed and lies down, propped on her left hand. He follows and sits on the bed.

[55] Mr. Wisdom asks A.L. if she wants to kiss or make out, she says yes. They kiss for about two minutes before the defendant asks her if he could sexually please her. She says yes.

[56] He pulls the complainant’s pants and underwear down together and proceeds to lick and use his fingers on her vagina.

[57] He says the complainant was moaning and enjoying the sexual act. Mr. Wisdom stopped to put a condom on, by pulling down the zipper to his jeans, but he kept his jeans buttoned.

[58] According to the defendant he got the condom earlier that night when he was in the basement. He did not receive a condom from Lex, but from someone else in the basement.

[59] Once Mr. Wisdom puts the condom on, he asked the complainant if she was ready for him to “put my penis in.” The defendant says A.L.’s demeanour changed as a result, like a switch had been flipped and she responded, “I told you no, I have a boyfriend.” He replied, “I thought you said it was okay.”

[60] The defendant backed up from the bed. He says A.L. jumped off and scurried for the door. She was fixing her pants on the way out. As the complainant is leaving Mr. Wisdom again says, “Wait I thought you said it was okay.” There was no response.

[61] Mr. Wisdom said he had no shirt on but was wearing pants. He left the bedroom a short time later after putting on his sweater.

[62] The defendant was adamant that the sexual activity in the bedroom was consensual. He denied A.L. was sleeping. In cross-examination, he denied he unzipped A.L.’s top.

C. Applicable Principles

[63] Credibility and reliability are the central issues in this case. The framework in R. v. W.(D.), [1991] 1 S.C.R. 742, applies in this case and requires me to find Brandon Wisdom not guilty if I accept or I am left with a reasonable doubt by his evidence or any evidence inconsistent with his guilt. In other words, I need not believe the defendant to find him not guilty. Further, even if this court rejects such exculpatory evidence, I must still be satisfied beyond a reasonable doubt by the Crown's evidence that I do accept that the defendant is guilty.

[64] As the Ontario Court of Appeal stated in R. v. J.R.R.D., 218 O.A.C. 37, a conviction may, however, in appropriate cases be properly based upon an outright rejection of the testimony of the accused and a considered and reasoned acceptance of the truth of the testimony of the complainant beyond a reasonable doubt. [1]

[65] It bears emphasizing that in a criminal case, this court cannot find an accused person guilty because it prefers the complainant's evidence to that of the defendant. In other words, criminal trials are not credibility contests, and it would be an error to arrive at a conclusion on culpability based on which witnesses' evidence I preferred. There is no burden on Mr. Wisdom to prove anything in this case and I cannot find him guilty unless I am sure he is guilty of the offence as charged.

[66] I further note the onus is on the Crown to prove beyond a reasonable doubt that the defendant committed the criminal offence before this court. To secure a conviction the Crown must establish each essential element of the charge against an accused to a point of "proof beyond a reasonable doubt," this standard of proof is very exacting. It is a standard far beyond the civil threshold of proof on a balance of probability. It is not a standard of absolute or scientific certainty, but it a standard that certainly approaches that. Anything less entitles an accused to the full benefit of the presumption of innocence and a dismissal of the charges. [2]

Essential Elements

[67] The actus reus of sexual assault requires the Crown to establish three things: touching, the objectively sexual nature of the touching and the absence of consent. [3] In this case, there is no issue with respect to the first two elements. The issue is whether the Crown has proven an absence of consent.

[68] At the mens rea stage, the Crown must establish both that the accused intentionally touched the complainant and that he knew that the complainant was not consenting or was reckless or willfully blind to the absence of consent on her part. [4]

[69] Consent is defined in the Criminal Code for the purpose of sexual assault in section 273.1(1). It means "the voluntary agreement of the complainant to engage in the sexual activity in question." This requires the conscious agreement of the complainant to "every sexual act in a particular encounter." [5]

[70] Section 273.1(2) of the Code lists the circumstances in which consent cannot be lawfully obtained. These include that the complainant is unconscious or incapable of consenting for any other reason. [6]

[71] How the accused perceived the complainant's consent (or lack of consent) is analyzed as part of the mens rea requirement of the offence. [7]

D. Analysis

(i) Credibility Finding – A.L.

[72] I found A.L. to be a credible witness and I believed her evidence. Her account was logical and consistent throughout her testimony. She gave candid and forthright evidence.

[73] She gave detailed evidence about events that occurred that evening, especially as it related to what she described as a sexual assault in the master bedroom. It enhanced the reliability of her evidence. For example, she recalled that she fell asleep on her back and the lights were on. That she purposely closed the door. With a good measure of detail, she testified that when she awoke, she found the big zipper at the front of her tank top had been unzipped, slipped down by her arms. She later described that same tank top as being pushed to the side. She recalled that when she first awoke the defendant’s head was blocking her “viewpoint,” that his head was not facing hers, instead looking downwards. She described feeling pain in her vagina. She remembers a detail of tripping a little as she tried to exit the bedroom. I concluded her recollection of that night, was reliable despite her drug and alcohol use that night.

[74] Related to that last point, she was forthcoming and descriptive about her alcohol and marijuana use. That she drank about a ¼ of a litre of vodka earlier at Luke’s house, further, that she consumed marijuana at the party with her boyfriend and had two shots of sour puss - a sweet liqueur. She believed she had about four to five shots that night, that she was progressively more intoxicated over the course of the night. She admitted that she was a bit stumbly. A.L. recounted her head spinning, but not for the entirety of the night, just the period she was feeling sick in the basement and during the moments she emerged from the bedroom later that night.

[75] She gave careful and measured evidence. For example, when shown a photo of the master bedroom and asked about the contents in the bedroom, she clarified by asking whether that meant on the bed or floor. Although a peripheral point, it was reflective of the complainant's desire to ensure the accuracy of her evidence. In another instance, she declined to guess whether the bedroom ensuite had a toilet in it.

[76] Related to this, she was resistant to guessing or attempting to fill in gaps in her evidence. Of significance, when asked what caused the feeling in her vagina, which she earlier described as pressure, she explained she couldn’t exactly tell, whether it was the defendant’s penis or fingers or something else.

[77] Although I found she provided a comprehensive narrative of the night of the party, A.L. candidly admitted to gaps in her memory, that her recollection of some details had diminished over time. She noted the events had taken place two years earlier. She further admitted that things were still fairly blurry when she emerged from the bedroom and found her friend C.N.

[78] On details related to the sexual assault however, I have concluded that her evidence was credible and reliable and that I can safely rely on A.L.’s recollection of the events in the master bedroom. Specifically, that she awoke to find the full weight of Mr. Wisdom on top of her, that her pants and underwear had been pulled down to her ankles, that their bodies were a parallel and that she felt an insertion in her vagina, which she says felt like sex. She recalls after pushing the defendant off of her that he was standing, wearing a condom. His penis was erect.

[79] In cross-examination, she denied the sexual interaction was consensual and that she asked the defendant to sleep with her during an interaction at the top of the stairs on the second floor of the house. That she led Mr. Wisdom into the bedroom and kissed him. That the defendant performed oral sex on her. She further denied a defence suggestion that once the defendant had a condom on, he asked if he “could put it in?” and this startled her. That she said no to continued sexual activity because she was concerned her boyfriend would find out. A.L. responded that she was asleep in the bedroom and that she wasn’t interested in anyone but her boyfriend at that time.

[80] On events that occurred prior to the incident in the bedroom, there is a broad overlap in the evidence among witnesses.

[81] According to C.N. when she first encountered Mr. Wisdom as part of a larger group, he is flirtatious. Both the defendant and A.L. state the same.

[82] As part of a second encounter, C.N. confirms the nature of the conversation that occurred on the couch in the basement. C.N., the defendant, and A.L. are seated together for about 15-20 minutes. The complainant testified that Mr. Wisdom was flirty on the couch. That he made it clear he was interested in hooking up. The defendant similarly testified he asked the complainant to go someplace more private.

[83] After this point, C.N. substantially corroborates the complainant’s account as to what occurs as the night progresses. That the complainant’s boyfriend arrived at the party. She observed A.L. to be feeling ill in the basement. She confirmed the complainant sought out a bedroom to rest. She watched A.L. walk up the stairs from the basement for that very purpose.

[84] This type of confirmatory evidence of the complainant's testimony is capable, as Hill J. describes in R. v. N.S., [2001] O.J. No. 3944 (SCJ), in restoring the trier's faith and belief in the complainant's account of events, even if it does not directly implicate the accused or confirm the complainant's evidence in every respect. [8]

(ii) A.L.’s emotional state

[85] I have also considered the complainant’s post-event demeanour to be a relevant factor.

[86] A.L. testified that she was crying profusely after she emerged from the bedroom. She felt distress and a lot of panic, that she was “overwhelmingly scared.” Both C.N. and A.H. made similar observations of the complainant’s emotional state. According to C.N. the complainant was crying and sobbing. A.H. testified that he had “a vivid memory of [A.L.] scream-crying.”

[87] Evidence of the post-event demeanour of a sexual assault complainant can be used as circumstantial evidence to corroborate the complainant’s version of events. [9]

[88] In this case, A.L.’s emotional reaction is almost instantaneous to the assault she alleges. By all accounts she was highly upset. It is further circumstantial evidence that she had been assaulted just moments before.

[89] It is important to highlight that the complainant’s emotional distress is just one factor I considered in my assessment of her credibility. I accept demeanour evidence alone is not sufficient to establish or deny proof of an offence in question. [10]

[90] Although A.L.’s distress is one piece of circumstantial evidence that I have attached some weight, I observe that there is no one way for victims of sexual assault to behave, specifically, there is no universally consistent response to a traumatic life event. [11]

[91] I have considered the complainant’s emotional state could also be supportive of the defence theory in this case. Although not explicitly argued, but evident in the tenor of Ms. Smith’s cross-examination, that the complainant’s reaction was related to her concern that her boyfriend may find out about her liaison with the defendant. In the end however, I rejected that as a reasonable or probable explanation based on my credibility findings in this case.

(iii) Assessment of defence evidence

[92] Although there were aspects of the Mr. Wisdom’s evidence that I accepted, I did not believe the defendant’s testimony in relation to the material facts in dispute in this case.

[93] Specifically, there were two crucial aspects of Mr. Wisdom’s evidence that was contradicted by other evidence that I accepted.

Conflicting evidence

[94] A.H. testified that a male approached him asking for a condom and said, “there is a girl in the room who wanted to fuck.” He watched the male, who he did not know enter the bedroom. Two minutes later by his estimation, [12] he sees the complainant run out of the bedroom. She is distressed. Sometime later, although the exact duration is never clarified, Mr. Wisdom walks out of the same bedroom.

[95] Mr. Wisdom’s version of events is different. That he received a condom from someone at the party while in the basement earlier that night. Of significance, he never testifies that he left the bedroom to get a condom. Mr. Wisdom is specifically asked in cross-examination if he asked someone for a condom in the hallway outside of the second-floor bedroom, the Crown clearly referencing A.H.’s evidence. The defendant responds no.

[96] Indeed, Mr. Wisdom’s evidence in relation to how he obtained the condom was detailed, including the time span he received the condom, about ten minutes after he left the complainant and C.N. on the couch. He described that he first asked a male he met at the party – a man named Lex for a condom. He didn’t have one. Mr. Wisdom asked another male at the party for a condom. A male he explained he did not know. This conversation took place on the main floor, but that they relocated to the basement where he received the condom.

[97] Despite some discrepancies in A.H.’s physical description of the defendant, there can be no doubt that it was Mr. Wisdom that asked him for the condom. That the witness observed Mr. Wisdom enter the bedroom alone and the complainant come out a short time later. The defendant is observed leaving the bedroom after A.L. exits crying. There is no evidence to suggest that there was anyone else in that master bedroom other than A.L. and the defendant.

[98] I found Mr. Wisdom’s evidence to be misleading on a point of evidence he was unlikely to misremember, especially given his sufficiently detailed explanation of how he received a condom in the first instance.

[99] Of note, I readily accepted A.H.’s evidence, who I concluded was a credible and careful witness. I discuss A.H’s credibility at a later point in this decision.

[100] Mr. Wisdom’s evidence is directly contradicted on an important fact, that the defendant would not be apt to forget.

[101] The second area where the defendant’s evidence is undermined related to the events just prior to the incident in the master bedroom. Mr. Wisdom explained in his testimony that the complainant sought him out while he was sitting at the top of the stairs on the second floor. That she asked him if he wanted to have sex and then by his evidence, “leads me into the room by hand.” The pair are together as they enter the bedroom.

[102] Again, this evidence is contradicted by A.H., who is standing in the hallway on the second-floor socializing with his friend Rana. His time outside of the master bedroom is not fleeting. Further, he knows the complainant from school, they had a class together.

[103] His only observation is of Mr. Wisdom who asked for a condom, he obliges, and the defendant entered the bedroom alone. He does not see the pair together.

[104] Given the potential significance of this evidence I have allowed for the fact that A.H. due to moments inattention may have missed seeing the pair together at the top of the stairs or near the bedroom. [13] I have concluded this is unlikely. However, my conclusion in this case remains the same even without consideration of this piece of evidence.

[105] In sum, A.H.’s evidence undermined the defendant’s version of events on matters of significance.

Implausible evidence

[106] There are two additional reasons which cause me to find the defendant’s version of events implausible.

[107] I find it difficult to accept that A.L. would consistently reject the defendant’s sexual advances over the course of the evening and in explicit terms and then invite him to have sex.

[108] Initially when they first meet in the master bedroom, she tells Mr. Wisdom that she was not single and has a boyfriend. The defendant admitted that A.L. did not seem interested in him at that time.

[109] On the couch, the defendant by all accounts is explicit about his intentions. He tells the complainant he wanted to take her to someplace more private and have sex. Her response he says was to laugh, that she didn’t say no. A.L. says something very different. She confirmed the defendant propositioned her for sex, but that she told him that she wasn’t interested. She bluntly told him she was in a committed and monogamous relationship with her boyfriend who was coming to the party.

[110] I accepted A.L.’s evidence that she overtly rejected the defendant’s advances. This is corroborated by C.N., who concluded that the complainant was uncomfortable with the nature of the exchange that occurred on the couch, although she conceded she never heard the complainant say she was uncomfortable. Although A.L.’s discomfort must have been apparent, because at one point, C.N. testified that she told Mr. Wisdom to stop talking to the complainant and that she had a boyfriend.

[111] I further note, the time between encounters is short - ten minutes. In other words, on two occasions within a relatively short period of time, A.L. expressly rejected the defendant’s advances. Specifically, she had shown no interest in having sex with him.

[112] I appreciate it is possible that the complainant could have changed her mind over the course of the night, it is just not believable in the context of the evidence I have accepted.

[113] The second reason I find it difficult to accept that it was A.L. who made a sexual advance toward the defendant as he described occurring at the top of stairs of the house is the complainant’s physical condition.

[114] That A.L. was feeling sick at the party was well established in the evidence. Mr. Wisdom agreed the complainant was “clearly intoxicated.” C.N. provided a detailed description. She testified that A.L. approached her in the basement complaining that her liver hurt. That she was freaked out. She was holding her stomach in pain and lay on the floor in the basement for about a minute. C.N. was sufficiently concerned that she sent E.L. to stay with the complainant. She watched them walk up the stairs from the basement together.

[115] A.L. described the same episode in similar terms. That she was feeling sick. That she was dizzy and tired and experiencing stomach cramps. She sought out the host of the party to get permission to lay down in the upstairs bedroom. The complainant’s evidence, which I accepted was that within moments of laying on the bed she was asleep.

[116] I did not accept that A.L. roused herself from bed to seek out Mr. Wisdom for sex or in the alternative she sought him out prior to entering the bedroom given her poor physical condition. Although not specifically argued by the defence, I did not conclude she feigned an illness or exaggerated her symptoms in order to gain access to the bedroom for purposes other than resting.

Additional credibility observations

[117] I note that Mr. Wisdom testified in a calm and measured manner. He was not shaken in cross-examination on his version of events of what occurred in the bedroom. He maintained that he did not sexually assault the complainant, that the sexual activity was consensual.

[118] He frankly acknowledged his alcohol and drug use that afternoon and into the night. He admitted he was “fairly intoxicated” when he entered the master bedroom.

[119] He acknowledged facts that had the potential to portray him in a negative light - for example, that he had bought MDMA for the party. [14] Further, he did not seek or attempt to downplay his motivations that evening. That he pursued and sought to “hook up” with two girls at the party, Saron, a girl he did not know, but had some interaction with over Snapchat, as well as the complainant. He was aware A.L.’s boyfriend was coming to the party but that did not prove to be a bar to his advances. His responses were forthright in this regard.

[120] He honestly conceded that A.L. did not seem interested in him when they first met. He admitted he was unhappy to be tasked by his friend Mackenzie to guard the bedroom at the top of the stairs, because it took him away from the party.

[121] In the end however, despite finding portions of his evidence to be compelling and reliable, I rejected of Mr. Wisdom’s evidence on material facts. As a trier of fact, I may accept all, part, or none of a witness's evidence. [15] The defendant's evidence was contradicted by another witness on key issues and I deemed his version of events, where he described the complainant as initiating sexual contact, to be implausible based on evidence I accepted.

[122] Although I have concluded that the defendant is not a credible witness on the vital issue of consent, I must go on to consider whether the totality of the Crown’s evidence is sufficient to prove the offence as charged beyond a reasonable doubt. In other words, the rejection of Mr. Wisdom’s evidence does not lead inexorably to a finding of guilt.

E. Defence Submissions on Credibility

[123] Ms. Smith points to a number of areas in the Crown’s evidence, that should cause this court concern. That the cumulative impact of multiple inconsistencies and deficiencies in the evidentiary record give rise to a reasonable doubt. I will address the most significant defence arguments.

(i) Conflicts between A.L. and C.N.’s evidence

[124] The first significant inconsistency Ms. Smith points to is the conflict in the evidence between C.N. and the complainant as to whether C.N. was drinking that evening.

[125] A.L. testified that at Luke’s house she shared a bottle of Smirnoff Ice with C.N.. She thinks C.N. had a couple of drinks at the party.

[126] C.N. maintains she did not drink. I preferred her evidence on this point. Despite her relatively young age - she was a teenager at the time of the incident, I was impressed by her maturity. I found C.N. to be an honest and thoughtful witness, who carefully considered each question put to her. She was credible. I attached weight to her narrative of that night, which I deemed reliable, and I accepted her evidence that she was sober.

[127] A.L. addresses that point in her evidence, saying that C.N. was the most sober out of their friend group. In other words, she recognized her friend was the least affected by alcohol that night, which reasonably accords with C.N.’s position about her own sobriety.

[128] Although I concluded the complainant was incorrect when she says C.N. had been drinking that night, I did not think this was a major inconsistency. It was a party, and it would have been difficult for the complainant to track someone else’s specific alcohol consumption, nor was that likely a priority.

[129] A further inconsistency identified by the defence relates to the reaction of the friend group during the first interaction with Mr. Wisdom. At the beginning of the night the complainant, C.N., Luke, Derek and Zach proceed to the main bedroom to drop off their jackets. The defendant was flirtatious with the two girls. According to A.L. the “guys in the group,” became a bit more protective given the attention they were receiving from Mr. Wisdom. C.N.’s version is different. She disagreed the boys were being protective. She stated there was no animosity between the parties.

[130] This discrepancy according to Ms. Smith is noteworthy. However, C.N. expands on her evidence in this regard and states when reflecting on that initial interaction that although the pair were not fearful, they were definitely uncomfortable with the defendant’s advances.

[131] I did not conclude this to be a significant inconsistency between witnesses. They perceived the situation differently, which is not uncommon. What is clear, however, is that there was something in the nature of the interaction that caused both C.N. and the complainant to feel uneasy.

(ii) Witness Orchestration

[132] Ms. Smith argued that this was a case of witness orchestration. That C.N. only gave a statement to police in October 2020, many months after the incident. However, prior to giving a statement, the complainant had already told C.N. that police would be contacting her. The inference being that the memory of either witness or both witnesses, were impacted by these discussions - or something more nefarious was occurring, that the two friends were actively coordinating their testimony. There is no evidence to support either suggestion, nor were those suggestions put to either witness in a meaningful way.

[133] I observe there is nothing wrong with A.L. discussing the incident. It was a clearly a difficult life event for the complainant. In R. v. E.M.M. 2021 ONCA 436, the court stated that triers of fact must be cautious about concluding that a witness's evidence is no longer independent and has been tainted simply because of a conversation. [16]

[134] I further note that C.N. would have been aware police were investigating this incident, because she was at the hospital the night of the party with the complainant when police arrived to investigate.

(iii) Discrepancy on what the defendant was wearing in the bedroom

[135] A.L. testified that the defendant was wearing a shirt, but no pants when she awoke in the bedroom. Mr. Wisdom says he was bare chested but wearing his pants. He agrees he was wearing a condom, but that he had put a condom on penis by pulling his penis out through his zipper.

[136] This is not a factual dispute that needs to be resolved, nor did I conclude it effectively undermined the reliability of A.L.’s evidence that her recollection of the defendant’s state of undress was different than his. Although Mr. Wisdom’s description of how he applied the condom was somewhat unusual, I did not conclude it wasn’t possible or unlikely. The parties are consistent in that they both agree the defendant was wearing a condom.

(iv) Condom wrapper evidence

[137] I accepted the defence argument that the photographic evidence in this case does little to support the Crown’s case. A.H. was shown a photo of a condom wrapper police seized in the ensuite to the bedroom. He allowed it was possible that wrapper belonged to the condom he gave to the defendant, because it was the same name brand, but he wasn’t sure. Given that the Trojan brand is widely available, A.H.’s evidence on this point is not a particularly compelling piece of evidence.

(v) A.L.’s demeanour

[138] Ms. Smith submits there is something to be garnered from A.H.’s lack of observation that the complainant was panicky when she encountered him. A.L. described experiencing panic and distress as she left the bedroom. Not much turns on this. A.H. described the complainant as “scream crying,” clearly she was in distress. I have already concluded A.H.’s observations post-incident, corroborate A.L.’s emotional state.

(vi) Snapchat exchange

[139] The defence pointed out to an inconsistency in the complainant’s evidence related to how Snapchat information was shared. A.L. testified that the defendant asked for her Snapchat username. However, during further cross-examination, the complainant was unsure or seemed to agree that she may have sent Mr. Wisdom a friend request. Two concerns arise from this - first, the complainant may have downplayed her interest in the defendant during her examination in chief, second, it suggests A.L.’s ability to recollect details from that night are suspect.

[140] The complainant provided a reasonable explanation for the Snapchat username exchange. It wasn't to express interest in the defendant, but she explained the way the app works is that it is an easy way to get guys to leave her alone. Specifically, she explained that although you can give out a username, you need to accept the other party’s request in order to communicate.

[141] That explanation makes sense in the context of Mr. Wisdom’s unwanted advances. The username exchange was a result of A.L.’s desire to have the defendant leave her alone and not a positive sign of the complainant’s desire to have a romantic or sexual relationship with Mr. Wisdom.

[142] I did accept the defence submission that it was the complainant who made the initial Snapchat request. Mr. Wisdom did not have data or WIFI on his phone. That being the case, I am not convinced that A.L.’s faulty recollection of this detail significantly undermines the reliability of her evidence.

(vii) Removal of clothes

[143] The defence argues that it strains credibility that the complainant did not awake when her clothes were being removed. The difficulty is that this suggestion was never put to A.L. and I don’t have the benefit of her response. The evidence that is before me, is that the complainant was not well, sought a bed to lay down and was asleep almost immediately. She had consumed alcohol and marijuana and was intoxicated. Whether those factors played a role or not in her lack of responsiveness is unclear and never properly canvassed. I accepted the complainant’s evidence that when she awoke, she found Mr. Wisdom on top of her, that she could feel his full weight.

(viii) Credibility of A.H.

[144] Ms. Smith argued that A.H. was a flawed and biased witness. That he was contacted only very recently before trial by his cousin in order to assist the complainant. That he wasn’t credible. That his responses to defence questioning was curt and evasive. Further, Ms. Smith submits that it is odd that although the incident took place over two years ago, A.H. never discussed the case with anyone, that he never came forward to tell police about his observations at the party.

[145] Despite Ms. Smith’s misgivings about A.H.’s evidence, I found him to be a particularly credible witness. I did not find him to be an evasive witness. He readily conceded that his observations would have been “slightly impaired” by consuming alcohol, further, he agreed that his judgement would be impaired “to some extent” when he was drinking.

[146] A.H. drank three to four beers that night, which from his perspective was not a lot. I concluded his recollection of events from that night, especially as it related to his observations on the second floor to be reliable. He testified that could still see and understand what was going on, that he wasn't “hammered.”

[147] He was forthcoming about things he could not remember. When Ms. Smith asked him a question he didn’t understand, he asked her to re-phrase it “in simpleton terms.” I didn’t conclude that exchange to be a curt or a rude response as suggested by counsel, but a genuine effort on his part to understand the question.

[148] I was struck by one particular exchange – when Ms. Smith, suggested to A.H. that his cousin contacted him to give a police statement in order assist the complainant, he responded, “I viewed my statement more as evidence for the case, not really to assist one side or the other.”

[149] I did not conclude the witness purposely tailored his evidence to benefit A.L. or her version of events. Indeed, the connection between A.H. and the complainant wasn’t particularly meaningful. A.H. testified they weren’t really friends in high school but had a class together and didn’t really talk, that they were not that close.

[150] Although the complainant and A.H. knew each other, I considered his evidence to be dispassionate, that he made a sincere effort to convey his observations to this court and did so carefully. I appreciate Ms. Smith’s concern about his tone, but I did not conclude he was being purposely curt. His tone was blunt, whether responding to Crown or defence questioning. It is likely a personality trait. I did not detect bias.

[151] Although I didn’t think anything of significance turns on this issue, I accepted A.H.’s explanation as to why he never contacted police in the months after the party. He testified that he was unaware of what was happening with the case and didn’t think it was his position to contact police. He explained that had police asked for a statement earlier he would have provided one. A.H. is young, he was a high school student at the time of the incident, with likely limited prior exposure to a police investigation. His explanation did not seem unreasonable in the circumstances. Neither did I find it unusual that the matter was not talked about at school, given the sensitive nature of the allegations.

F. Honest but mistaken belief in consent

[152] Ms. Smith in her closing submissions makes brief mention that if this court finds the sexual activity to be non-consensual that Mr. Wisdom had an honest but mistaken belief. She did not elaborate further. In the circumstances of this case, there is no air of reality for the application. I note both parties have diametrically opposed versions of what occurred in the bedroom. The issue was purely one of credibility - consent or no consent. [17]

G. Conclusion

[153] The ultimate question in this type of analysis is not simply whether the complainant was credible, but whether the allegations are proved beyond a reasonable doubt. [18]

[154] I have assessed Mr. Wisdom’s testimony in light of all of the evidence presented at trial. I have considered the issues of credibility and reliability raised by the defence and I have concluded that the complainant was a credible witness, and I believed her account of what occurred the night of the house party. Specifically, I find that A.L. was sexually assaulted by the defendant, that she was asleep and awoke to Mr. Wisdom on top of her, that she was penetrated vaginally by the defendant.

[155] I reject the defendant’s testimony that the sexual activity was consensual, that he was led into a bedroom by the complainant. Key portions of his evidence was contradicted by evidence I do accept. I find his testimony does not leave a doubt either alone or in combination with any other evidence.

[156] A conviction is to be entered on the count of sexual assault.

H.S. Amarshi J.

[1] See also R. v. R.E.M., 2008 SCC 51; R. v. D.T., [2014] ONCA 44; R. v. Getachew, [2013] O.J. No. 1674 (SCJ). Similarly, in R. v. Jaura, 2006 ONCJ 385, at paragraph 32, Duncan J. stated after a thorough review of the relevant authorities: “It is clear from the governing authorities that a trial judge may reject the evidence of an accused and convict solely on the basis of their acceptance of the complainant’s evidence, provided that the defendant’s evidence is given a fair assessment which does not preclude the possibility of being left in a state of reasonable doubt.”

[2] As Justice Horkins succinctly wrote in R. v. Ghomeshi, 2016 ONCJ 155, in explanation of the standard of proof in a criminal trial.

[3] R. v. G.F., 2021 SCC 20 at para. 25.

[4] Ibid at para. 25.

[5] See R. v. J.A., 2011 SCC 28 at para. 31.

[6] It follows a sleeping person is incapable of consenting to sexual activity. See R. v. Myles, 2021 ONSC 3808, at para. 16.

[7] See R. v. Barton, 2019 SCC 33 at para. 90; R. v. H.W., 2022 ONCA 15 at para. 46.

[8] More recently in R. v. Primmer, 2021 ONCA 564, at para. 39, citing R. v. Demedeiros, 2018 ABCA 241, evidence can be confirmatory "even if it does not 'directly confirm the key allegations of sexual assault' or 'directly implicate the accused." The degree to which confirmatory evidence advances the Crown's case is a matter of weight for the trial judge to resolve.

[9] See R. v. J.A. A., 2011 SCC 17, at paras. 40-41. See also R. v. A.J.K. 2022 ONCA 487.

[10] See R. v. Sanmugarajah, 2018 ONCJ 661.

[11] See R. v. Dadson, 2018 ONSC 4823.

[12] A.H. conceded he was guessing when he said two minutes, but the duration was short.

[13] A lack of attention is never put to the witness.

[14] He bought drugs for the party, but it was his friend Mackenzie that brought to them to the party.

[15] R. v. Zimunya, 2013 ONCA 265, at para. 4.

[16] The court goes on to state in R. v. E.M.M. at para. 19, “It is human nature to discuss what happened immediately after an offence takes place.” It is likely the friends spoke about the incident prior to C.N.’s police statement, but I cannot draw more than a speculative inference that these discussions may have tainted the reliability of either witnesses’ recollection. See discussion of “inadvertent tainting” in R v. C.G., 2021 ONCA 809.

[17] See R. v. Park, [1995] 2 SCR 836, at para. 26; R. v. P.S., 2007 ONCA 299 at para. 44.

[18] R. v. Martin, 2017 ONCA 322 at para. 18.