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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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 02 21 Court File No.: Niagara Region 998 YW21-3666

Between:

HIS MAJESTY THE KING

— AND —

N.C., a young person

Before: Justice J. De Filippis

Heard on: January 23, 24, 25, & 26, 2023 Reasons for Judgment released on: February 21, 2023

Counsel: Ms. S. Johnson................................................................................... counsel for the Crown Ms. L. Morgan............................................................................... counsel for the defendant

De Filippis, J.:

Introduction

[1] The defendant is charged with sexually assaulting and choking a young woman on July 14, 2021, at the City of Port Colborne, contrary to s. 272(1)(c.1) of the Criminal Code. At the time, both were 17 years old and on summer break from school. They had recently met and spent much time together in the preceding weeks.

[2] In accordance with its ongoing disclosure obligations, the Crown provided the defence with certain information shortly before the commencement of trial. This resulted in a late application by the Defence, pursuant to s. 276 of the Code. After an in camera hearing, I dismissed the motion because I found that the proposed evidence is not capable of being admissible.

[3] The complainant asserts that on the evening in question, the defendant sexually assaulted and choked her in a public park near her home. The defendant claims that nothing happened this evening, but that the parties had consensual sex at that park on a previous evening. Both testified, along with a mutual friend [E]. I also received evidence of social media messages; one between the complainant and defendant and another between the defendant and [E]. The authenticity of these messages is not in dispute; indeed, both parties referenced them in evidence and submissions. Moreover, the parties agree to the following facts: On July 16, 2021, the complainant went to a hospital for a sex assault kit examination. She met with a registered nurse and team lead for the hospital’s sexual assault/domestic violence team at 1:04 PM. The nurse examined the left and right profile of the complainant’s body, as well as her breasts, vagina, and the front and back of her head and neck. The nurse observed no injuries.

[4] I find the defendant guilty. These are my reasons.

Evidence

The Complainant

[5] The complainant met the defendant through Snapchat in late Spring after a mutual friend provided her with his username. They communicated through this medium and other social media. The complainant testified that this became a daily conversation. They met in person and spent a lot of time together.

[6] On July 14, 2021, at 6 PM, after the complainant had completed work, she agreed to meet the defendant and [E] for a swim at the Welland Canal. She went home and changed clothing, including putting on a bathing suit. Her mother drove her to the swim site. The three friends stayed for a couple of hours. The complainant did not swim as she became wary of doing so in the canal. [E] left with another person. The complainant and defendant walked to meet another person [C] at his place of employment. The three walked around, including a visit to a store.

[7] The complainant’s parents required her to be home by 11 PM each night. At around 10 PM, [C] left the group, and the defendant walked her home, near Sunset Park. This took about 45 minutes. They entered the park to observe the stars on this clear night.

[8] The complainant testified that the defendant wanted to hook up, but she declined and told hm she did not want to have sex in a public park. They sat on a picnic table. The defendant put his arm around her and again asked to hook up. Again, the complainant said no. The defendant removed her clothing; her sweatpants, followed by her shorts and bikini bottom. The complainant said nothing. The defendant pulled his pants and underwear down to his ankles. He put his hands on her throat, with his thumbs crossed at the front and his remaining fingers at the back as he penetrated her vagina with his penis. The complainant had trouble breathing. She testified that, “he grabbed me and turned me over and I hit my head on the picnic table and he continued”. She explained that before being “flipped over”, the defendant had removed his hands from her neck and that her head was on the picnic table with her feet spread apart on the ground with her “bottom facing up”. The defendant penetrated her vagina a second time while she cried. The complainant added that “he ejaculated on my right side on the picnic bench…he pulled his pants up and I did the same and we walked to my house…I told him ‘you knew I didn’t want to do that, and you did it anyway’”. He apologized.

[9] The complainant told [E] and her mother what had happened, and she was taken to a local hospital “to get the rape kit done”. She explained that she delayed reporting the matter to the police because, “I didn’t want to start anything in the town as I was going to the same school as [the defendant] and I am not popular there”. However, her parents convinced her to go to the police.

[10] The complainant testified that she confronted the defendant after the incident and that he apologized and said it would not happen again. This communication was by means of Snapchat. The complainant testified that Snapchat deletes messages as soon as the conversation is closed. However, a person can save the message by taking a screen shot of it on the mobile device she had used. The complainant did not do this as this would have alerted the defendant to what she had done. She did not want him to know because she realized she might go to the police. Instead, she took a photograph of the Snapchat communication with another device. This record was given to the police on September 2.

[11] The Snapchat exchange, which I will refer to hereafter as “the apology conversation”, is as follows, with explanation for certain letters by the witness:

Snapchat opened [by the defendant] Snapchat opened [by the complainant] [First name of defendant]: I’m sorry. Totally understandable. Never happen again. Me: [complainant]: Like I didn’t want to but it’s fine. [Defendant]: I said I’m sorry. Me: We’re all good. Anyways I’m going to bed fr [for real]. [Defendant]: Ok sorry. Me: It’s fine. I’m just tired fr. [Defendant]: IK [I know]. I’m sorry. Have a good sleep. Me: You too.

[12] The complainant described this conversation as accurate but incomplete. Snapchat is a medium that is often used to send images. The conversation opened with an image of the defendant’s face and that of hers. Embedded in her image are the words, “you know I didn’t want that”. The complainant was referred to a narrative report from the officer in charge in which he stated that during a telephone call on September 6, 2021, she told him that she did not save the missing portion. The complainant testified she does not recall this telephone call but agreed it is accurate.

[13] When asked about details of how she preserved the apology conversation, the complainant testified she could not recall. An email she sent to the officer in charge, on September 2, was put to her: “Hi James, I was going through my pictures with my mom thinking I deleted them all and I have 3 pictures of [E] and Is (sic) conversation right after it happened and a picture off my mom's phone of [the defendant] saying sorry and apologizing”. The complainant did not dispute this. She also agreed that in testimony in chief she said the conversation had been preserved on her ipad. She explained that she must have transferred the image to her mother’s phone.

[14] The complainant was directed to a several passages from the transcript of her police interview on September 2 that the Defence asserts are inconsistent with trial testimony. The complainant had reported to police that before the incident in question, she and [C] and the defendant walked to a convenience store and grocery store after which she and the defendant walked home. She conceded that her trial testimony about how she met up with [C] is different than her prior statement. The complainant testified she “has tried to block out everything”.

[15] Later in the interview, the complainant corrected the date in which she had walked with [C] and the defendant – but not the date of the incident in question. She also named two other people who had been with them at the canal for swimming, including [M]. [C] and [M] are both male friends of the defendant. She reported that they had gone to HH Knoll Park and that she walked toward Sunset Park with the defendant and [M]. About halfway there, [M] left and she walked alone with the defendant to the park. The complainant testified that she does not recall these details but does not deny telling the police about them.

[16] When pressed about being with [M] at HH Knoll Park, the complainant testified that she does not recall that person or the park. She forcefully denied that [M] had walked with her and the defendant to her home on the day of the incident. In her prior statement, she had also reported that at some point before the incident in question, she and the defendant and another person had gone to a fast-food store, Subways. She testified she could not recall this. She explained that she was with the defendant daily before the incident and could have been at Subways or HH Knoll Park on another day. She admitted she could have “mixed up the dates” and added, “my statement was given in September, and it happened in July, and I was having trouble processing what happened”. Later in cross-examination, when it was suggested the complainant was confused about the events that preceded the incident in question, she firmly replied, “I may be confused about what happened before, but I know what happened to me that night”.

[17] The complainant agreed it was possible that on July 14, 2021, she was upset that [M] was present. When it was suggested the missing portion of the apology conversation referenced her displeasure at [M]’s presence, she angrily replied that it was about what he had done to her in Sunset Park. She agreed she should have photographed and saved the accusation to which the defendant had apologized.

[18] The complainant was directed to several portions of the prior statement in which she discussed how the alleged sexual assault occurred. Counsel suggested that her description of how her clothing was removed and how she was turned around by the defendant was inconsistent with trial testimony. For example, in trial testimony the complainant said the defendant grabbed her hips and flipped her around. In the prior statement, she reported that he grabbed her by the shoulders and directed her to turn around. At another part of the prior statement, she said the defendant’s hands were on her throat as he turned her around.

[19] Counsel suggested her evidence was not only inconsistent, but implausible. For example, it was asserted that it is not possible, on the complainant’s version of events, to be positioned with her back to the defendant, head on the picnic table and feet spread on the ground. The complainant explained that her report to police and trial testimony on this point was consistent and correct; her knees were edged on the seat of the picnic table and her feet spread on the ground. When pressed further on this point, the complainant conceded she did not previously state that her feet were on the ground [while being penetrated].

[20] When it was pointed out that the complainant said nothing during the alleged sexual assault, she replied, “because I was being choked”. The complainant agreed that her testimony in chief is the first time she told anyone that after the alleged sexual assault, as the defendant walked her home, she told him, “You knew I didn’t want that” and that he had acknowledged this.

[21] The complainant denied that she and the defendant had engaged in consensual sex in Sunset Park on July 11 or 12, 2021. She also denied that the following day, the defendant sent a message to her by Snapchat ending their relationship as he had resumed contact with a former girlfriend. She rejected the claim that this is the reason she fabricated the allegation of being sexually assaulted on July 14.

[22] The complainant testified in chief that she had never been inside the defendant’s home. In cross-examination an email was brought to her attention. In December 2022, several months after being formally interviewed by the police, the complainant sent this message to the officer in charge of the case: “Hey, so I looked and snuck out to his house and slept over from July 10-11 th ” [2021]. After being shown this email, the following exchange occurred between Defence counsel and the complainant:

Q: So, you have been inside [the defendant’s] home A: Yes Q: So, the evidence this morning was not true A: I guess so Q: Were you trying to distance yourself from a close relationship with [the defendant] A: No, I have tried to forget

[23] The complainant said she may have seen the defendant in person a few days after July 14. Thereafter the parties communicated by Snapchat. Sometime prior to September 2, when the complainant went to the police, the defendant blocked her from his social media accounts.

The Mutual Friend

[24] [E] is a 17-year-old woman. She has known the complainant for most of her life. She testified that in July [2021], the complainant told her about an incident involving the defendant. [E] replied that the complainant should tell her mother about it. Sometime later in the summer, the complainant told [E] the police might contact her. On September 3, [E]was interviewed by the police.

[25] [E] testified that about one week before her police interview, she was contacted by the defendant, by means of Snapchat. When pressed by Defence counsel about who initiated the conversation, [E] said she could not be 100% certain it was the defendant.

[26] The exchange is as follows, with explanation from the witness for certain letters:

Me [E] what happened [First name of defendant]: Wdym [what do you mean] Me: I haven’t see [first name of complainant] since like june what’s happening [Defendant]: Bro she has a whole bf [not explained] now I think idk [I don’t know] Me: no you said she’s claiming you raped her what happened [Defendant]: Bro we went to sunset bc [because] I was walking her home and we started making out and next think yk [you know] she took off her pants and was asking for it on the bench. So idk [I don’t know] what u want from be bc [because] I didn’t do anything wrong here Me: ok well then there should be nothing to like look into [Defendant]: [E.A.’s first name] I’m sorry but I’ve heard she’s done this before and it’s not ok Me: I didn’t know she claimed rape against anyone else and I’ve know abt [about] every hook up she’s had so I’m gonna say that’s not true [Defendant]: sure Me: idk [I don’t know] what you want me to do, I’m not as close of friends with her as you think [Defendant]: Ik [I know] I don’t want u to do anything. It’s okay I’m sorry for bugging you Me: if she’s lying she’s not gonna take legal action so nah,. it’s ok I’m invested now [Defendant]: No this isn’t okay. Like at all. Bc [Because] this puts a terrible reputation in me and it’s not cool Me: well obviously that part. you’re not gonna go to jail if she has no evidence dumbass, and incase you haven’t noticed not many ppl believe her in most cases. So calm down [Defendant]: Still bro like ugh. Jus upsets me sm [so much] Me: I wouldn’t worry tbh [to be honest]. It’ll probably be fine & settle itself out

[27] [E] testified that she saved this conversation because, by this time, she assumed the complainant was going to take “legal action”. This assumption was based on things the complainant had told her. This explains why the witness told the defendant, in the conversation, that “I’m invested”.

The Defendant

[28] The Defendant has now completed school and has found a job in construction. He confirmed that he met the complainant by Snapchat and that they were soon seeing each other daily. The defendant said they were “working on being together”. He agreed with her that, at the time, Snapchat messages were automatically deleted when the conversation was closed. He did not save any of the messages between them.

[29] The defendant confirmed the accuracy of the Snapchat conversation with [E]. He contacted her because his stepmother had told him about rumours that he had “raped” the complainant. He wanted to know if [E] could shed light on the rumours. As he told [E] in this conversation, the defendant testified that he and the complainant had sex in Sunset Park, that it was initiated by her, it was consensual, and he did not choke her.

[30] According to the defendant, a “couple of days” before July 14, he and the complainant had previously met [C] at his place of employment. The defendant and complainant then walked to Sunset Park to look at the stars. During the 25-minute walk to the park they did not discuss hooking up. It was dark when they arrived. They laid on the grass, to the right of the baseball diamond. At some point the complainant got up and took him by the hand to a nearby picnic table. She knelt on the picnic table seat bench with her elbows on the table. With her bottom arched, she looked back at him. Nothing was said. He pulled down his pants and underwear. He pulled down her pants to her knees, put his hands on her hips, angled her body in his direction and penetrated her vagina with his penis. The defendant added that, “I thought she wanted to have consensual sex, we started to have consensual sex…I pulled out and ejaculated on the grass area… we both got up and pulled our pants up and walked to the front of her house and I walked away.

[31] The defendant testified that the following day he sent the complainant a message by Snapchat to inform her that he did not want to be in a relationship with her as he was still communicating with his ex-girlfriend. He acknowledges that doing so right after the sexual activity reflects badly on him, but he wanted to be honest with her. On July 14, he met the complainant at the Welland Canal. She was dropped off there by her father. He walked with her and [M] to HH Knolls Park. Sometime later, the three walked to the complainant’s home. The defendant and [M] left her and went to the defendant’s home. Later that evening, he received a message from the complainant expressing her anger that he had “brought [M] to hang out with them”.

[32] The defendant confirmed the accuracy of the apology conversation. He said the “first half” is missing. It concerned the complainant being upset that the defendant had invited [M] to be with them on the night in question. The defendant testified that this is what he apologized for, not for having sexually assaulted her. When he said “it won’t happen again” he meant he would not bring [M] along again. He added that although he had broken off the relationship with the complainant and apologized for the presence of [M], the two continued to communicate by Snapchat.

Submissions

[33] Defence counsel argues that the defendant should be acquitted for these reasons:

• His testimony was straightforward, without exaggeration.
• He was candid in admitting facts the Crown might not be able to prove; namely, that he ended the relationship after their consensual sexual activity and that the apology conversation occurred after he met the complainant and others at the Welland Canal on July 14.
• The defendant’s testimony is confirmed by exculpatory evidence in the Crown’s case; namely, that the sexual assault nurse found no injuries or bruising on the complainant’s body, including her neck and vagina.

[34] Counsel added that, at least, these factors raise a reasonable doubt.

[35] It is also the Defence position that even if the defendant’s testimony is rejected, the complainant cannot be safely relied upon to prove guilt. Counsel acknowledges that the Defence need not show motive but claims that the complainant felt animosity toward the defendant because he had ended their relationship and fabricated the allegation of sexual assault. Counsel adds that, in any event, there are reliability concerns with respect to her evidence.

[36] There are inconsistencies within the complainant’s prior statement to the police and between that statement and trial testimony. For example, the complainant told the police different accounts of how she and the defendant met at the canal and the route taken to her home. In addition, the complaint testified that she took a photo of the apology conversation with her ipad and transferred this image to her phone. However, she told the police that she used her mother’s phone to capture the image.

[37] Defence counsel argues that the complainant’s account of how she was sexually assaulted is not only inconsistent, but implausible. It is said that in her statement to the police she gave a different account of the order in which her clothing was removed, the way she was turned over, and the length of time she was choked. With respect to the latter, counsel repeated her earlier point that the sexual assault nurse did not observe any marks on the complainant’s neck.

[38] Counsel pointed out that the complainant added a new detail for the first time at trial; that after the sexual assault, while the defendant walked her home, she said, “you knew I didn’t want that”. Counsel notes that the complainant admitted to lying in testimony in initially stating she had never been inside the defendant’s home.

[39] The Crown accepts that the Defence need not prove motive but points out that the Defence identified one in this case and that it has no basis in evidence. Counsel also acknowledges that the sexual assault nurse did not observe injuries but points out that the complainant went to the hospital to be examined. The Crown argues that the inconsistencies in the complainant’s evidence about what preceded the incident in question relate to matters that she would not necessarily recall, because they are not remarkable. When confronted by these inconsistencies she admitted or explained them.

[40] With respect to the incident itself, the complainant acknowledged some of the details provided by her to the police are different than trial testimony. The Crown argues that this does not mean she was untruthful or unreliable. Counsel adds that the complainant’s testimony that the defendant forced himself upon her after she declined the defendant’s request to hook up was clear and constant.

[41] The Crown argues that I should accept the evidence of the complainant and reject that of the defendant. In this regard, counsel suggests that, in denying he sexually assaulted the complainant in Sunset Park on July 14, the defendant emphasized that he was never alone with her; [M] was always in their company. According to the Crown, this is “technically an alibi” [defence] and urges me to draw an adverse inference from the failure to comply with the requirement that notice of such a defence be provided in advance.

[42] The Crown did not directly address the apology conversation in submissions. The Defence made some reference to it. However, the position of the parties on this point is clear. Each side urged me to accept the evidence of their witnesses. As such, the Crown wants me to find that the accused apologized for sexually assaulting the complainant and the Defence wants me to conclude that he was sorry that she was upset at the presence of [M]. In addition, the Defence raised an evidentiary issue about the matter. It is submitted that since the apology conversation is incomplete, it must be disregarded because it is ambiguous, and its meaning cannot be determined: R v Merritt 2023 ONCA 3.

Analysis

[43] The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed but raises a reasonable doubt. An acquittal will follow even if the Defence evidence is rejected, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R. v. W.(D)., [1991] 1 S.C.R. 742.

[44] I am entitled to believe some, none, or all evidence given by a witness, including the defendant. If I am unable to decide whom to believe, the defendant must be acquitted. Moreover, I cannot treat conflicting testimonial accounts as a credibility contest in the sense of deciding whether to accept one or the other and a finding that the defendant is not credible does not equate to proof beyond a reasons doubt. R v JHS 2008 SCC 30.

[45] This is not a case that engages difficult issues with respect to the law of sexual assault such as the capacity of the complainant to consent or the defendant’s honest but mistaken belief in communicated consent. This is a case about the assessment of credibility and reliability in determining if the Crown has proven beyond a reasonable doubt that the complainant did not consent. It is no less difficult for that reason.

[46] The complainant and defendant agree that sexual intercourse occurred at Sunset Park. The complainant testified that it occurred on July 14 and that it was an assault upon her. The defendant testified that it happened a couple of days earlier and that it was initiated by, and consented to, by the complainant. On the evening of July 14, the defendant apologized for something. On July 16, the complainant went to the hospital to be examined by the sexual assault nurse. The parties communicated by social media until shortly before September 2, when the complainant provided a recorded statement to the police.

[47] The defendant testified that the day after he had consensual sexual intercourse with the complainant, he broke off their relationship as he had resumed contact with an ex-girlfriend. On July 14, he met the complainant, and others, at the Welland Canal. From there, he walked the complainant to her home. In rejecting the allegation that he sexually assaulted the complainant on this evening, the defendant noted that [M] was with him and the complainant at all material times. He explained that what he apologized for was the presence of [M].

[48] I agree with the Defence that this is not an alibi case and that an adverse inference cannot be drawn because notice of this testimony was not given to the Crown. However, the defendant’s testimony is not persuasive. Why meet the complainant on July 14 at the canal after he had just told her of his decision to end their relationship? Why do so when, by his admission, the timing of this decision made him look bad, as it followed what he says was consensual sexual intercourse? In any event, in these circumstances, why walk her home? Why bring [M] along, especially since, on the defendant’s version of events, the complainant was upset by his presence? On the record before me, there are no satisfactory answers to these questions; as such, I doubt the defendant’s veracity.

[49] This brings me to the apology conversation. First, however, I must deal with the evidentiary issue raised by Defence counsel. In Merritt, supra the Court of Appeal for Ontario held that where a partial or incomplete statement is offered into evidence as a party admission but lacks sufficient context to give meaning to the words, that partial or incomplete statement is irrelevant and lacks probative value. It is inadmissible. The Court noted that the leading authority on point is R v Schneider, 2022 SCC 34 and continued as follows:

[73] There can be no question then that Schneider permits the admission of an incomplete statement where there is sufficient context to enable the jury to give the overheard words meaning. The context that Rowe J. relied upon to support admission in Schneider was that Schneider had accepted responsibility for the killing in his conversation with his brother the day before; immediately prior to the telephone conversation with his wife he told his brother where the body was; and the brother testified to overhearing the identified words as well as the “gist” of the conversation. Jurors could therefore accept the brother’s evidence as to the gist of the conversation and confirm the brother’s conclusion about Schneider’s meaning during the telephone conversation based on what they knew about the context.

[74] This rule makes perfect sense. Obviously, it would be preposterous if partially inaudible statements were automatically excluded. Few witnesses can recall relevant conversations verbatim. It has long been established that where a witness can provide testimony about what a statement communicated, or there is context for assessing the meaning of words spoken, the evidence is admissible, with the weight of the statement being a matter for the trier of fact to determine: R. v. Bennight, 2012 BCCA 190, 320 B.C.A.C. 195; R. v. Buttazoni, 2019 ONCA 645, R. v. Hummel, 2002 YKCA 6, 166 C.C.C. (3d) 30. The ratio of Schneider is clear and can be expressed using Rowe J.’s words in para. 63: Where “there [is] sufficient context for the jury to give meaning to the words that [are] overheard, such that the evidence overcomes the low threshold for (logical) relevance,” a partially inaudible statement will be admissible, subject to exclusionary discretion.

[50] This case is not one, like Schneider, in which a witness testified about one side of a telephone conversation that he overheard. In the present case, an authentic record of a discussion between two people is in evidence. There is little mystery about this record. It is an apology from one person to another. The statement is incomplete because the part of the discussion that reveals the reason for the apology is missing. However, there is no ambiguity here because the parties to the conversation both testified. Each provided a reason for the apology. When this testimony is considered with all other evidence, the context is clear. The apology means one of two things; that the defendant is sorry for the presence of [M] on the evening in question or he is sorry for sexually assaulting the complainant that night. In saying this, I repeat and make clear, that I understand that the criminal law standard of proof is not a credibility contest. I make these observations to explain why I find the incomplete statement to be admissible.

[51] I will set out again the apology conversation (with emphasis added):

Snapchat opened [by the defendant] Snapchat opened [by the complainant] [First name of defendant]: I’m sorry. Totally understandable. Never happen again. Me: [complainant]: Like I didn’t want to but it’s fine. [Defendant]: I said I’m sorry. Me: We’re all good. Anyways I’m going to bed fr [for real]. [Defendant]: Ok sorry. Me: It’s fine. I’m just tired fr. [Defendant]: IK [I know]. I’m sorry. Have a good sleep. Me: You too.

[52] Although Defence counsel argued that the complainant fabricated this allegation out of spite, counsel did not press the point that the complainant deliberately omitted to preserve the initial part of the apology conversation. In any event, there is no air of reality to such a claim. Her evidence about how the incomplete conversation was saved is confusing. I am confident she was careless in not saving the entire message or that part of it was omitted if, in fact, it was transferred from one device to another.

[53] The complainant agreed to the assertion by Defence counsel that the apology conversation does not reference “non-consensual sex”. I take this to mean that there is no specific reference to “rape” as the complainant previously described the incident. That is true. Similarly, there is no specific reference to [M]. In any event, I have no doubt that the apology conversation is about sexual assault. This conclusion is informed by the questions raised by the defendant’s testimony and the conversation itself, as reflected in the words I have emphasized: The defendant responded to the missing part in these words; “I’m sorry” and “Never happen again”. When the complainant replied, “I didn’t want to”, the defendant said he was “sorry” - three times. This is not a discussion about the complainant being upset that [M] accompanied her and the defendant on a walk to her home. What the complainant “didn’t want” was sex. What the defendant is sorry for is forcing sexual activity upon her on July 14. The defendant’s evidence is inconsistent with the ordinary meaning of the words uttered in the context in which they were spoken. I reject his testimony that nothing untoward happened that night.

[54] As I have summarized, Defence counsel exposed inconsistencies in the complainant’s evidence. One was about whether she had ever been inside the defendant’s home. I will deal with that separately.

[55] One or more inconsistencies can be the sign of a liar. I do not come to that conclusion in this case. The complainant admitted most of these challenges to her evidence and her explanations were credible. Inconsistencies can also signal an unreliable witness. The Defence has shown that I should not be confident in the accuracy of her account of the events before arriving home on July 14. I accept the Crown suggestion that many of these details are unremarkable and, thus, not memorable. However, the complainant’s testimony that the defendant sexually assaulted her was clear; after saying she did not want to hook up, the defendant disrobed her, put his hands on her neck and had intercourse with her twice. In this regard, I am not troubled those details such as the order in which her clothing was removed and how the defendant turned her around does not fully accord with her statement to the police. Moreover, I am not concerned that the sexual assault nurse did not observe injuries on the complainant when she was examined two days later. Defence counsel emphasized the absence marks on her neck. The complainant testified that she was choked and could not speak. It takes little pressure to interrupt breathing and speaking. There was no evidence of greater pressure and that marks would have been left.

[56] As part of her report to the police, the complainant disclosed that she had stayed overnight at the defendant’s home on a particular date. She testified that she had never been inside his home. When confronted by her prior inconsistent statement she adopted it. When it was suggested, she had lied, the complainant replied, "I guess so” and added, “I have tried to forget”. A fair reading of this exchange does not reveal a liar; it shows a careless witness.

[57] In other circumstances, notwithstanding the rejection of Defence evidence, the inconsistencies in the complainant’s evidence and her carelessness in testimony might lead to the conclusion that she cannot be trusted. This would require that the charge be dismissed. However, the apology conversation overcomes any deficiency in the complainant’s evidence.

[58] As I have explained, the apology conversation is about the complainant’s assertion that she had not consented to sexual activity and the defendant’s acknowledgment of this fact. This finding not only undermines his evidence, but it confirms that the complainant’s account of the incident is true and accurate.

[59] I accept that the complainant was sexually assaulted and choked in Sunset Park on July 14, 2021. I accept that she told the defendant right after the incident, “You knew I didn’t want that, and you did it anyway”. I accept that the apology conversation begins with a missing portion,” You know I didn’t want that”. These statements, like the one in the persevered part of the conversation, “Like I didn’t want to but its fine”, are complaints that what the defendant did was wrong.

Result

[60] The defendant is guilty as charged.

Released: February 21, 2023 Signed: Justice J. De Filippis