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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2023 02 08 COURT FILE No.: Metro North 20-45004127

BETWEEN:

HIS MAJESTY THE KING

— AND —

KHEYYATFEIZI, Khalid

Before Justice Cidalia C.G. Faria

Heard on May 30, 31, and October 14, 2022

Reasons for Judgment released on February 8, 2023

Counsel: Imran Shaikh, counsel for the Crown Soban Ponampaiam, counsel for the defendant KHEYYATFEIZI, Khalid

Faria J.:

I. Overview

[1] Khalid Kheyyatfeizi is charged with sexually assaulting CO on December 3, 2020, in Toronto contrary to s. 271 of the Criminal Code.

[2] In December 2020, CO lived with 2 roommates, one of whom, G., has a little girl. Mr. Kheyyatfeizi is the little girl’s father. He came to visit on December 2, 2020. He met CO that evening, and they saw each other the next morning.

[3] They both agree they had a conversation in the living room that morning. They agree CO went to the kitchen to make breakfast. They agree they were both in the kitchen. They agree Mr. Kheyyatfeizi told her some very personal information about his sexual relationship with CO’s roommate, his health and how he felt.

[4] CO testified Mr. Kheyyatfeizi asked for a hug, proceeded to hug her, put his arms around her, touch her, kiss and lick the back of her neck. She did not consent to his touching. She said “No” to him several times and in several different ways.

[5] Mr. Kheyyatfeizi testified he asked to hug and CO verbally consented three times. He asked to kiss her, and she said “Yes”.

[6] The minute particulars about exactly what was said, when and where, and how each person was positioned in the very small kitchen during the approximately 15 minutes was elicited in evidence, particularly the cross-examination of the complainant.

[7] The central issue to be decided is one of credibility and reliability, as to whether the prosecution has proven Mr. Kheyyatfeizi touched CO in a sexual manner without her consent beyond a reasonable doubt.

II. Admissions

[8] The prosecution filed 3 documents with the consent of the Defence:

i. The qualifications of Jennifer McLean, a Forensic Scientist, at the Centre of Forensic Science. [1]

ii. Jennifer McLean’s March 5, 2021 Report with the results of her analysis of a swab of DNA from CO’s neck. [2]

iii. Jennifer McLean’s January 30, 2022 Report comparing Mr. Kheyyatfeizi’s DNA with the mixture found on CO’s neck [3].

[9] Her conclusion is that Mr. Kheyyatfeizi’s DNA cannot be excluded from the DNA mixture on CO’s neck. [4] The DNA evidence corroborates both versions of events but does not assist on the issue of consent.

III. Position of the Parties

[10] The Crown submits the complainant testified in a forthright manner, was internally consistent, unshaken, and much of her allegations are corroborated by exhibits and Mr. Kheyyatfeizi himself. He submits he has proven the charge beyond a reasonable doubt.

[11] The Defence submits CO consented to hugging and kissing Mr. Kheyyatfeizi. He submits that her testimony was internally inconsistent, and inconsistent with her police statement. Moreover, he submits she is fabricating she did not consent because she feels guilty about having hugged and kissed Mr. Kheyyatfeizi, the father of her roommate’s child. In the alternative, she is fabricating the allegations to leverage financial gain from G., her roommate from whom she was subletting her room. He submits his client’s testimony should be accepted, and he should be acquitted of the charge.

IV. Legal Principles

Onus / Presumption / Burden

[12] As in every criminal case, the onus rests upon the Crown to prove guilt beyond a reasonable doubt which is inextricably linked to the presumption of innocence. The onus rests with the prosecution throughout the trial and never shifts. Reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. [5]

Elements

[13] The elements the prosecution must prove beyond a reasonable doubt are:

(i) Mr. Kheyyatfeizi touched CO directly or indirectly.

(ii) His touching was intentional.

(iii) The touching took place in the circumstances of a sexual nature.

(iv) CO did not consent to the sexual activity.

(v) Mr. Kheyyatfeizi knew that CO did not consent to the sexual activity.

[14] Consent is defined as “the voluntary agreement of the complainant to engage in the sexual activity in question” s. 273.1(1).

Misconceptions or Myths

[15] I instruct myself not to approach the evidence with unwarranted assumptions as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say. There is no typical victim or typical assailant or typical situation or typical reaction. I caution myself thus so as not to reach any conclusions based on misconceptions or myths. [6]

[16] I also instruct myself that though Defence counsel played portions of CO’s statement to the police that were prior consistent statements, I must disabuse my mind of those prior consistent statements. Saying the same thing repeatedly does not make it true. These prior consistent statements were not filed for a permitted use. [7]

Credibility and Reliability

[17] Assessing credibility and reliability is key in this case. Credibility relates to whether a witness is speaking the truth as she/he/they believes it to be. Reliability relates to the actual accuracy of the testimony. To determine this, I must consider the witness’ ability to accurately observe recall and recount the events at issue. A credible witness may give unreliable evidence. [8] Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt. [9] The credibility and reliability of a witness must be “tested in the light of all the other evidence presented”. [10]

[18] I must consider internal consistency, consistency with previous accounts, significance of any inconsistencies, a witness’s interest in the outcome of the case if any, and whether an account is inherently logical.

[19] I must also consider the circumstances of the observer, their recollection of events over time, the intentional or unintentional tainting by other sources of information, a witness’ mental capabilities and limitations if any, their level of sophistication, and to a lesser degree a witness’s testimonial demeanor.

[20] Inconsistencies must be addressed. They vary in their nature and importance. Some are minor, others are not. Some concern material issues, others are peripheral. 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. [9]

[21] The leading applicable case on credibility and guiding my analysis provides the following test: [11]

• First, if I accept Mr. Kheyyatfeizi’s evidence, I must acquit him.
• Second, even if I do not accept Mr. Kheyyatfeizi’s testimony, if it leaves me with a reasonable doubt, I must acquit him.
• Third, even if Mr. Kheyyatfeizi‘s evidence does not raise a reasonable doubt, I have to consider all of the evidence to satisfy myself that the Crown has met its high burden and proven beyond a reasonable doubt all of the essential elements of the offence.

[22] In assessing competing evidence, I cannot compare each account and decide which account I believe. [12] I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Moreover, I can accept some, all, or none of a witness’ evidence. Frailties and/or inconsistencies in a witness’ evidence do not necessarily mean their evidence should be rejected. [13]

[23] As the Defence also raised the issue of motive, I instruct myself that the accused is not required to demonstrate the complainant had a motive to fabricate evidence. Nor does the absence of a motive to fabricate conclusively establish that a complainant is telling the truth. “The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility”. [14]

V. Evidence

[24] Both parties agree Mr. Kheyyatfeizi physically touched CO. Both parties also agree his touching was intentional. Therefore, the first two elements are not in dispute. I find Mr. Kheyyatfeizi intentionally touched CO’s body.

[25] The third element of whether this intentional touching was of a sexual nature is in some dispute. CO testified all the touching was in a sexual context. Mr. Kheyyatfeizi testified his hugs were ‘friendly’, he did not touch CO’s breasts or buttocks, and only the kissing was more than “friendly”.

[26] As indicated earlier, the fourth and firth element of sexual assault are at issue. CO testified she did not consent to contact. Mr. Kheyyatfeizi testified not only did she agree to the contact, but she also reciprocated and initiated contact.

(i) CO Testimony

[27] CO testified she was introduced to Mr. Kheyyatfeizi as “Kevin” the father of her roommate’s little girl the evening of December 2, 2020, when he came to visit his daughter. They shook hands and she went back to her room. The next morning, she went to make her breakfast in the kitchen and saw him in the living room texting on his phone. They chatted about the weather and COVID [15] numbers. As her food cooked on the stove, she came to the kitchen entrance and continued chatting with Mr. Kheyyatfeizi who was in the living room [16].

[28] During this second conversation, she testified Mr. Kheyyatfeizi asked her personal questions such as her age, her marital status and why she did not have children. She was uncomfortable and returned to the kitchen. She described this situation to the police as “tension building”. In court, she described Mr. Kheyyatfeizi as “insistent“ and “predatory”.

[29] While her back was to the kitchen entrance, she testified Mr. Kheyyatfeizi came “literally like behind” her back and surprised her. He stood “centimeters” from her and said, “give me a hug”. This “sent shivers” down her spine and she “felt scared”.

[30] She said “no”, she pivoted away from him. She was face-to-face with him in the small kitchen. He grabbed her torso and pulled her to him. He tried to kiss her cheeks. She dodged him and said, “I don’t want to do that”. He “insisted”, she said “please stop”. She pushed him off and he wrapped his hands around her from behind, holding her arms to her side. He licked and kissed the nape of her neck. She said “no” repeatedly. She said, “I’m not that type of person”, “I don’t know you”, “I don’t feel comfortable.” He touched her body, including her buttocks and her chest over her clothes. She felt his erection through her clothes. He “kept asking if I liked the sensation of his touching and kissing and I said no.” At some point, she turned off the stove. She pushed him away telling him to leave her alone. He eventually did stop and said, “if you change your mind”, nodded his head toward G.’s room and left.

[31] CO went to her room. She called her mother. She called the police and went down to the lobby to wait for them. She gave a statement, a sample of her DNA and permitted her neck to be swabbed.

[32] When asked what else Mr. Kheyyatfeizi said to her, she testified he said:

• He had low blood sugar or low blood pressure and felt cold.
• He could use a “woman’s warm embrace or warm hug.”
• He was not that close with G., the mother of his child.
• He’d not had sexual intercourse with G. for 2 years.
• He was lonely.
• She should keep this a secret and put he put his fingers to her lips.

[33] In cross-examination, Counsel suggested:

• That the kitchen was very small. She agreed. [17]
• That she did not provide all the details to the 911 operator and the police that she provided to the court. She agreed and said she was trying to be concise with them.
• That Mr. Kheyyatfeizi asked her about her food and she had not testified to that. She agreed. She explained she did not think it pertinent to the narrative of the assault.
• That there is a difference between the words “pushed him off” and pushed myself off”. She agreed.
• That she said “no” because she did not want to hurt G.. She agreed.
• That she thought Mr. Kheyyatfeizi was being “friendly” at the time. She agreed the description applied to their conversation but not to what he did.
• That she told the police she had felt his erection only once, but testified she felt it twice. She explained his erection was “sustained”. She felt it from behind and when he was in front of her he was “more aroused.”.
• That she had not told police Mr. Kheyyatfeizi touched her breasts and buttocks. She agreed but said she told the police he had touched her body and her buttocks.
• That she had not told the police she was afraid. She agreed.
• That Mr. Kheyyatfeizi told her not to tell G. about what he had told her about their relationship. She agreed.

[34] Cross-examination was extensive and at times confusing. CO was asked what medication she was on and about the weather that day. She was asked whether there is a city view from the balcony. Whether she had “met” Mr. Kheyyatfeizi in passing during video calls to his daughter. Whether she introduced herself or was introduced. Whether she smiled at Mr. Kheyyatfeizi when they conversed. Whether she could see Mr. Kheyyatfeizi come into the kitchen with her peripheral vision. She was challenged for not testifying that she too spoke about her relationship to G. during her interaction. She was challenged on how many times Mr. Kheyyatfeizi told her not to tell G., and what he was specifically referring to. She had to describe the minute details of her every move, his every move, their exact sequence, the distance between them each time, and the length of time of each move each one of them made. She was asked about the temperature of the stove, where her body touched its handle and the length of time it takes to cook potatoes (one of the vegetables in her breakfast).

ii. Kheyyatfeizi Testimony

[35] Mr. Kheyyatfeizi testified on December 2, 2020, he drove to Toronto from Ottawa where he runs a restaurant to surprise his daughter. He was in the living room when CO introduced herself. She reached out to shake his hand, “but because of COVID” he did not shake her hand and she was “a bit backward” about that. She then returned to her room.

[36] The next morning, he was sitting on the living room couch on his phone with his car dealer when CO came out to make her breakfast. He testified they had a conversation about the weather, COVID-19, and how cold it was in the unit. He testified he was wearing two t-shirts and pants with his jacket by his side in case he had to go out. When he said he was cold, CO touched his arm to feel if he was cold, “she was a bit of smiling” at the time. She then “look at me and she smile” and went to the kitchen to make her breakfast.

[37] He was feeling hungry, so he went to the kitchen to get dipping sauce from the fridge for chips. He “always makes a noise”, “sings” or “says something” before he enters the kitchen so as not to surprise anyone in the kitchen as it is very small. He asked CO what she was cooking and went to the fridge. The fridge handle was loose, so he grabbed a knife and fixed the fridge door handle.

[38] While he fixed the handle, he testifies CO asked him why he lives in Ottawa and he replied:

• He bought a business in Ottawa.
• He and G. do not have a good relationship because of an issue prior to their daughter’s birth and became friends because of the child.
• That when you have a girlfriend and you are not having sexual activity, it brings the relationship down, it makes it “really cold”.
• That then “they” think “maybe you are cheating”.
• He explained to G. he could not do “that much sexual activity” because of his health issues.
• He takes pills for high blood pressure, diabetes, and cholesterol, and now for his kidneys.
• He told CO not to tell G. about what he had said, “the sex and stuff like that” because he did not want to hurt G. as it would embarrass and hurt G. as they have a good relationship because of their child.

[39] Mr. Kheyyatfeizi went on to explain that he does not get an erection except with the use of Viagra.

[40] He testified CO asked him if he is still cold and that is when he told her he was and asked her “do you want a hug and keep me warm?” “But I told her three times, I repeated, only a friendly kiss, nothing else. Three times I repeat that”.

[41] She said yes, and after the first hug, ‘like normal people” that lasted 5 seconds, CO asks him if he liked it, he said yes, and asked for another hug. At that point, he testified she put both hands on his shoulders, he put his hands on her waist and they hugged for 20-25 seconds. After this 2nd hug, he asked CO if she wanted to know what his favourite hug is, she said yes, so he twirled her around, and with her back to his front, he clasped his hands on hers on her abdomen. He said she leaned back into his shoulder and kissed his shoulder through his clothes. He asked to kiss her, she said “Yes”, and he kissed the back of her neck.

[42] At this point, Mr. Kheyyatfeizi testified CO said they had to stop as G. had been good to her. He put his hands up, said “okay”, and left the kitchen.

[43] When asked by his lawyer about the allegations, Mr. Kheyyatfeizi responded:

• He has been in Canada 18 years.
• He was an elementary and high school teacher for 10 years with contact with parents and students.
• He has been in direct contact with women and with customers when he worked in Pizza Pizza, as a pizza maker, a cashier, security, a security supervisor and in his own business.
• His business is close to Ottawa University and is open till 2:00 a.m. on the weekends, when he works alone, “a lot of the students, the young teenagers they come into the store, they were drunk, they were asking for food to give something in return, but never, ever, never, ever, I didn’t been in trouble with a woman or with anybody.”
• This is why he backed up, said sorry and left the room when CO said “no”.

[44] In cross-examination, Mr. Kheyyatfeizi testified:

• He sanitized his hands before he came into the apartment because knew that he would not get a chance to once his little girl saw him.
• He makes noise or sings before going into the kitchen because if “you are cooking on the stove” or if you “have a knife in their hand” or “they are turning around” “you don’t know if they are going to hurt you”, they might “get scared” or “spill hot water” or “cooking on their selves”.
• CO was chopping onions and potatoes and never turned on the stove.
• Hugs release stress and make you feel good.
• He described the first and second hug to be “friendly” “because I didn’t want her think anything wrong” as “you know, me and her, we are alone at the home and I didn’t want she scared, like, to say, maybe something is going to happen or something she think bad.”
• The first two hugs “were the same feeling, nothing like more than a hug” just as the third twirling favourite hug was “friendly”.

[45] Mr. Kheyyatfeizi disagreed that he was interested in CO sexually when he asked to hug CO, or showed her his “favourite” hug from behind. It was not until CO rubbed her head on his shoulder and kissed his shoulder through his shirt that he “wanted more” as he “wanted to kiss”.

[46] He denied touching her chest, having an erection, noticing she was ever scared, hesitant, or reluctant. He said he never put his finger to her mouth, though he did tell her not to tell G. about “this”, but he meant everything he had told CO about his relationship with G..

[47] In Mr. Kheyyatfeizi’s mind, this physical interaction would not go further than hugging and kissing as he would have to use “Viagra, or the other kind of pill” which he’d have to take an hour before sexual activity.

[48] He agreed CO said “No” after he kissed her neck.

VI. Analysis

Assessment of CO’s Evidence

[49] Throughout her testimony, CO was patient, polite, clear, and careful with her detailed answers.

[50] Cross-examination attempts to discredit CO were of little effect. CO quietly, calmly, and effectively responded. She was shocked at the time she gave her statement. She was trying to be concise. She had not been asked certain questions during her statement to police but was by the Crown.

[51] Counsel submitted numerous times that CO’s actions “did not make sense” such as when she turned to the stove “after being attacked” or how she could have or should have moved in the small confines of the kitchen, if she really was sexually assaulted. Each of these submissions required the court to make assumptions about what a sexual assault complainant could or should do contrary to well established jurisprudence forbidding such stereotypical and unfounded assumptions. “There is no inviolable rule on how people who are victims of trauma like a sexual assault will behave.” [18]

[52] There were minor irregularities if not direct inconsistencies, for instance whether she raised her relationship with G. during this interaction first or Mr. Kheyyatfeizi did. She did not use the words “insistent” and “predatory” in her police statement and said only that “Tension was building.”

[53] There were times CO was pedantic. For instance, she differentiated between the words “several” and “few”. She was unreliable in her descriptions of distance. For instance, she said Mr. Kheyyatfeizi was “3-4 cm” away but showed a distance of 2- 6 inches with her hands to the court. She insisted she did not know whether she spoke to G. about the events “that day” or a few days after “no more than two” even after her recording of the conversation was put to her which inferred the date of the conversation.

[54] However, these inconsistencies or omissions do not go to the substance of the allegations. They were peripheral to the allegation of sexual assault and did not affect the internal consistency and logic of her evidence, nor was she inconsistent with her previous accounts in any meaningful way.

[55] I must address the submission that CO had a motive fabricate.

Motive to Fabricate #1: Guilt

[56] Counsel suggested to CO she consented to hugging and kissing Mr. Kheyyatfeizi but felt guilty about doing so because of her good relationship with G., and therefore fabricated that she did not consent and called the police out of guilt. CO disagreed.

[57] A recording of CO telling G. what happened earlier that day does not provide a basis for this suggestion as Counsel submitted. [19] CO tells G. she feels bad this situation has led to a separation between Mr. Kheyyatfeizi and his daughter. She said she will move out of the apartment as soon as she is able, so Mr. Kheyyatfeizi can keep seeing his daughter. She said she was thinking about G. and how good G. had been to her while Mr. Kheyyatfeizi was assaulting her and told him so.

[58] I accept CO’s evidence that one of the reasons she said “no” to Mr. Kheyyatfeizi was that she had a good relationship with G., and hugging and kissing Mr. Kheyyatfeizi would hurt G.. I accept she told him that as one method, among the others she used, to dissuade him from touching her.

[59] I find Counsel’s submission that the complainant is fabricating a sexual assault, after consenting to sexual activity, because she felt guilty about consenting, to be a troubling one. There is no evidence before me upon which to base that submission, other than stereotypical myths about sexual assault complainants.

Motive to Fabricate #2: Financial Leverage

[60] Counsel cross-examined CO about her rent situation after she reported the events of December 3, 2020, to police. [20] CO was subletting the room from G., who was her “landlord” so to speak. She testified G. offered her first and last months rent ($1400), which she thought was a gift, but then realized there were “strings” attached. G. wanted to “settle” the case and have CO withdraw the allegation. CO agreed she would speak to a lawyer about her options.

[61] CO realized the $1400 was not “an honest offer”, and so she rejected it, accepted $360, the balance of her rent for the month, and informed the police of her conversations with G..

[62] The recording confirms G. was going to give CO $1400. It confirms G. was asking CO to do something to end the case. G. wanted to “settle it ourselves.” G. even suggests what CO can say to police to try to end the case. Though it is not evidence of bribery, it certainly supports CO’s concerns and explains why she recorded the conversations and why she provided them to the police.

[63] Neither CO’s testimony nor the recording support the Defence submission that CO fabricated a sexual assault to obtain financial leverage over her roommate. The theory is far fetched and has no air of reality on the evidence.

[64] The absence of motive to fabricate though does not conclusively establish CO is telling the truth. It is only one factor I consider when assessing CO’s credibility.

[65] Overall, I accept CO’s explanations as to why she did not elaborate or provide details to police that she did in her testimony. I accept her evidence that Mr. Kheyyatfeizi’s actions were sexual in nature and context, given the circumstances, the body parts he touched and the language he used.

[66] I accept CO did not consent to any of Mr. Kheyyatfeizi’s sexual touching of her body. I accept she told him so several times both verbally and via the physical action of pushing him away.

Assessment of Mr. Kheyyatfeizi’s evidence.

[67] Mr. Kheyyatfeizi significantly undermined his own credibility when he testified he sanitized his hands and would not shake CO’s hand on the evening of December 2, 2020, because of COVID-19, but the next morning, on December 3, 2020, he asked her for three hugs, hugged her, and kissed her.

[68] He also undermined his credibility when he denied being interested in CO even though he asked for physical intimacy repeatedly. He showed her “his favourite hug” which he demonstrated to the court was intertwining his fingers with hers on her abdomen as he stood behind her. Intertwining his fingers with the hand he would not shake the night before because of COVID-19 [21]. He testified it was not until CO “put her lips to his shirt” and “kissed” him through his shirt that he admitted he “wanted more” which was “kissing” because it felt good. However, he had already initiated intimate physical contact three times.

[69] Mr. Kheyyatfeizi provided a significant amount of personal, relationship, sexual, and health information to CO in response to her simple question as to why he lived in Ottawa. Though odd, I make no findings as to what such sharing of intimate details means to him, but I do find it does corroborate CO’s testimony that he told her about his health conditions, he wanted a hug because he was cold, and hugging would make him feel better.

[70] Though Mr. Kheyyatfeizi put his character at issue when he went on a monologue about how his previous occupations and current work have provided him with numerous opportunities to interact with women, and he has “never been in trouble with a woman or with anybody.” I disabuse my mind of that evidence as it has no relevance to the issues I must decide.

[71] I do not find Mr. Kheyyatfeizi credible based on the inconsistency in his own version of events. I do not accept his version of events that he did not want to shake hands with CO one evening but wanted to hug and kiss her the next morning. I do not accept he told CO about his personal history with G., his health problems and being cold, in response to a question, but rather as his explanation for wanting to touch her. I do not accept he was not interested in CO physically even though he wanted to hug her until he wanted to kiss her. Finally, I do not accept Mr. Kheyyatfeizi’s evidence that he asked to hug CO and she said yes. I reject Mr. Kheyyatfeizi’s evidence.

[72] Though I do not accept his evidence, I must consider if his evidence raises a reasonable doubt. It does not. Mr. Kheyyatfeizi’s explanations of what occurred in the kitchen between himself and CO, for the most part, support CO’s evidence that Mr. Kheyyatfeizi entered the kitchen while her back was turned, asked her for a hug, told her all about his medical conditions which made him cold, and how a hug would warm him up and make him feel better. The size of the kitchen supports her version that it was a confined space where she “pivoted” and “dodged” away from his attempts to kiss and touch her. Her back was up against the handle of the stove, she “pushed him off” and “pushed herself off” him.

[73] I now turn to the third branch of W.D.. Even though Mr. Kheyyatfeizi‘s evidence does not raise a reasonable doubt, I have to consider all of the evidence as a whole that I do accept, including favourable inferences to the Defence from the testimony of the complainant.

[74] As indicated earlier, I accept the evidence of CO as credible, but for her unreliability in the regard to distance. However, Exhibit 3, a video of the kitchen filed by the Defence supports the descriptions of the kitchen as a very small, confined space where both parties had their physical interaction.

[75] I accept CO did not consent to be touched. I accept she said “No” to Mr. Kheyyatfeizi. I reject Mr. Kheyyatfeizi’s testimony she said “Yes”. I find he knew CO did not consent to his hugging, kissing, and licking her. On the whole of the evidence, including the evidence adduced by the Crown, I am satisfied that it does not raise a reasonable doubt.

[76] I am satisfied, on the whole of the evidence, that the Crown has met its high burden and proven beyond a reasonable doubt all of the elements of the offence.

VII. Conclusion

[77] I find Khalid Kheyyatfeizi guilty of sexual assault.

Released: February 8, 2023 Signed: Justice Cidalia C. G. Faria

[1] Exhibit 1A: Statement of Qualifications of Jennifer McLean, Forensic Scientist, Biology, at the Centre of Forensic Sciences, an expert in the field of body fluid identification (including blood, semen, and saliva) and DNA analysis and interpretation. [2] Exhibit 1B: Biology Report #1, dated March 5, 2021, Jennifer McLean, Forensic Scientist, Biology. She concluded that a skin swab taken from the complainant CO’s neck contained a mixture of DNA from CO, and two people, including at least one male. [3] Exhibit 1C: Biology Report #2: dated January 30, 2022, Jennifer Mclean, Forensic Scientist. She compared the DNA mixture from the neck swab taken from CO, and a sample of Khalid Kheyyatfeizi’s DNA. She concluded Kalid Kheyyatfeizi cannot be excluded as a contributor to the mixture from the swab of OC’s neck. [4] Exhibit 1C: “The STR DNA results are estimated to be greater than one trillion times more likely if they originate from CO, Khalid Kheyyatfeizi and one unknown person, than if they originate from CO and two unknown people unrelated to him.” at page 1. [5] R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39. [6] R. v. Seaboyer; R. v. Gayme, [1991] 2 SCR 577 at paras. 679-680, R. v. Darrach, 2000 SCC 46 at paras. 32-37, R. v. Find, 2001 SCC 32 at para. 103, R. v. JL, 2018 ONCA 756 at paras. 46-47, R. v. JC, 2021 ONCA 131 at paras. 93-98, and R. v. JJ, 2022 SCC 28 at para. 1. [7] R. v. D.C., 2019 ONCA 442 at paras. 19-23. [8] 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 [9] 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. [10] R v. Stewart, [1994] O.J. No. 811 (C.A.) at para. 27 [11] R. v. W.D. (1991), 63 CCC (3d) 397 (S.C.C.) 1 [12] R. v. Esquivel-Benitez, 2020 ONCA 160 [13] R. v. J.J.R.D. at paras.46-48, leave to appeal to SCC. Refused, [2007] S.C.C.A. no. 69 [14] R. v. Batte (2000) 5751 (OCA) at para. 121. [15] COVID-19 is an acute disease caused by the coronavirus characterized by fever and cough, which is capable of progressing to severe symptoms and in some cases death, especially in older people and those with underlying health conditions. The World Health Organization declared COVID-19 a pandemic in March 11, 2020. Public health restrictions were put in place in Toronto including masking, distance restrictions, and the closure of schools, restaurants and some public services. [16] CO drew the layout of the kitchen and the apartment which became Exhibits 2A and 2B. [17] Exhibit 3: Video of kitchen layout and living room. [18] R .v. DD, 2000 SCC 43 at para. 65. [19] Exhibit 4A: Recording of CO and G., 22 minutes, December 3, 2020. [20] Exhibit 4B: Recording of CO and G., 10 minutes. [21] Public Health recommended the wearing of masks to minimize an infected person spreading the disease through their breathing, talking, singing, shouting, coughing, and sneezing. Public Health also recommended the washing of hands so as minimize the spread of the disease by touching something that has the virus on it and then touching your mouth, nose or eyes with unwashed hands.