WARNING

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

ONTARIO COURT OF JUSTICE

DATE: 2024·05·01

BETWEEN:

His Majesty the King

— and —

Junaid Ahmed

Judgment

NOTE: This judgment has been edited to comply with the publication order. Distribution of this decision will not violate the terms of the publication order.

L. Jacek ................................................................................................. Counsel for the Crown

D. Goodman .................................................................................... Counsel for the Defendant

Felix J.:

Table of Contents: R. v. Ahmed

I. Introduction 5

A. Introduction 5

B. Organization of this Judgment 6

II. Analysis 7

A. The Burden of Proof – Sexual Assault Causing Bodily Harm 7

1. The Actus Reus 7

2. The Mens Rea 8

B. Consent and Capacity 8

1. Consent 8

2. Capacity to Consent 10

C. Credibility, Reliability, and the Evaluation of Witness Testimony 12

D. Credibility and Reliability of the Prosecution Witnesses 14

1. Defence Submissions on Issues of Credibility 14

2. The Complainant’s Level of Intoxication and Capacity to Consent 15

a) Introduction 15

b) The complainant’s sister’s evidence 15

c) The complainant’s evidence 17

d) The defendant’s evidence 17

e) Analysis 17

3. The Complainant’s Recount of the Sequence of Events 19

E. Credibility and Reliability of the Defendant 19

1. Introduction 19

2. Character Evidence 20

3. The Rule in Browne v. Dunn 20

4. After-the-Fact Conduct 21

F. Conclusion – Credibility Findings 21

G. Disposition of the Offences 23

1. Sexual Assault Causing Bodily Harm 23

2. Assault 23

3. Forcible Confinement 23

III. Finding 24

I. Introduction

A. Introduction

[1] The defendant is charged with sexual assault causing bodily harm, assault, and forcible confinement arising out of a police investigation at a local night club in downtown Toronto. The main witnesses at trial were the complainant, her older sister, and the defendant. Given the testimony of the complainant and the defendant, the DNA evidence, and the sexual assault kit evidence, there is no question that sexual contact occurred. The issue is consent.

[2] The complainant testified at trial that the defendant engaged in oral, vaginal, and anal penetration in circumstances where she was intoxicated by alcohol and did not consent. The defendant testified that oral and anal penetration occurred, but that these acts were committed mutually and consensually. The complainant was not intoxicated. She verbally and physically consented to the sexual contact.

[3] It is clear that a conviction for sexual assault cause bodily harm requires the Crown to prove the lack of consent beyond a reasonable doubt. In the record in this case, the Crown did not argue that consent was vitiated by the infliction of bodily harm: R. v. Welch, [1995] O.J. No 2859 (C.A.); R. v. Zhao, 2013 ONCA 293; R. v. Quashie, [2005] O.J. No 2694 (C.A.). The Crown position was that the complainant did not consent in fact.

[4] During submissions both parties focused the court on a multitude of issues relevant to the credibility and reliability of the main witnesses.

[5] I generally found the complainant to be a truthful credible witness. But the weight I could assign to her testimony was impacted by one credibility issue and one reliability issue. As it concerns the credibility issue, I did not believe the evidence of the complainant (or her sister) suggesting that the complainant was significantly intoxicated proximate to the sexual assault incident. As for reliability, the complainant’s recount of the actual sexual assault circumstances was impaired by mild reliability issues. These two issues diminished the weight I placed on the complainant’s testimony.

[6] The defendant testified during cross-examination that he did not know what the phrase perfect gentleman meant. I am satisfied that the defendant presented as a boorish religious moralist as it concerns the complainant and her sister. His conduct leaves much to be desired. Overall, I did not totally believe the defendant’s evidence. But as a judge in a criminal trial, I must evaluate the evidence objectively and not permit the poor character of the defendant to overwhelm the analysis. I must also recognize that whatever the defendant’s character, he testified clearly and comprehensively as it concerned the details of the sexual interaction. His evidence did not appear to suffer from reliability concerns. He was able to articulate specifically why he apprehended consent from the complainant.

[7] As is the case with many sexual assault criminal trials, the primary focus is on the credibility and reliability of the two central witnesses – the complainant and the defendant. The Crown must prove each element of each offence beyond a reasonable doubt. The Crown must also prove beyond a reasonable doubt that the complainant did not consent to the sexual contact.

[8] I find that I am not able to resolve the issue of consent as between the version of the incident provided by the complainant and the version of the incident provided by the defendant. While I generally prefer the evidence of the complainant overall, I am unable to completely reject the defendant’s evidence as to his apprehension of communicated consent. Were this a civil trial, I would easily rule in favour of the complainant because I prefer her evidence. But this is a criminal trial. Any reasonable doubt must be resolved in favour of the accused.

[9] As the Crown has not proven the absence of consent beyond a reasonable doubt, I am obligated to enter an acquittal on the sexual assault cause bodily harm count. These written reasons will explain my reasoning in this regard. These written reasons will also explain why I have found the defendant not guilty of assault and forcible confinement.

B. Organization of this Judgment

[10] The central issue at trial was the burden of proof placed on the prosecution to establish the lack of consent beyond a reasonable doubt. As such, the credibility and reliability of the complainant and the defendant were the focus at trial. The credibility and reliability of the complainant’s sister was also an important issue, notwithstanding she had no evidence to provide as to the sexual assault proper.

[11] During submissions, Defence counsel and the Crown Attorney focused on credibility, reliability, and objective sources for corroboration. Defence counsel articulated perhaps twenty to thirty credibility issues as it concerned the complainant and the complainant’s sister. I will not address the mass of Defence submissions. I rejected the majority of these submissions. It is not necessary to explain why this body of Defence submissions did not materially impact the credibility of the complainant or her sister. It is more important to thoroughly explain the two issues that had an impact on the weight I assigned to the complainant’s evidence.

[12] The parties did not focus on the law of sexual assault, the law pertaining to consent, or the law applicable to the other counts on the Information. Nevertheless, we live in a time when there is great public concern about the prosecution of sexual assault allegations. It is important for a criminal court trial judge to briefly set out these matters transparently so that the parties and any reviewing court are re-assured that the law has been applied properly.

[13] As such, I have organized this judgment with the aim of clearly explaining my pathway of reasoning. First, I will briefly set out the law applicable to the sexual assault cause bodily harm count. Second, I will explain the burden of proof on the issue of consent, the proper framework for analysis of the criminal burden of proof at trial, and the law applicable to the resolution of credibility issues in a criminal trial. Third, I will address the record at trial on the issue of the complainant’s level of intoxication and why this had an impact on the complainant’s credibility. Fourth, I will address the reliability concern associated with the complainant’s testimony in support of the actus reus for sexual assault cause bodily harm. Finally, I will address two issues relevant to the defendant’s credibility: (1) the rule in Browne v. Dunn (1893), 6 R.67 (H.L.) [Browne v. Dunn]; and (2) after-the-fact conduct.

II. Analysis

A. The Burden of Proof – Sexual Assault Causing Bodily Harm

1. The Actus Reus

[14] The actus reus for sexual assault causing bodily harm (s.272(1)(c) of the Criminal Code) requires the prosecution to prove the following beyond a reasonable doubt:

1. The defendant intentionally applied force pursuant to s.265(1)(a) of the Criminal Code;

2. The force that the defendant intentionally applied, took place in circumstances of a sexual nature;

3. The complainant did not consent to the force that the defendant intentionally applied; and,

4. That “bodily harm” as defined in s.2 of the Criminal Code was caused by the force the defendant intentionally applied.

(See R. v. Barton, 2019 SCC 33, at paras. 87-89 [Barton].; R. v. J.A., 2011 SCC 28 at para. 23; R. v. Ewanchuk, at paras. 23-30 [Ewanchuk]; ss. 2 and 272(1)(c) of the Criminal Code)

[15] The sexual nature of the offence is determined using an objective test: R. v. Chase, [1987] 2 S.C.R. 293, at p. 302. The Crown must prove that the touching or force applied by the defendant was voluntary – not accidental: R. v. Daviault, [1994] 3 S.C.R. 63, at paras. 6-9.

2. The Mens Rea

[16] Sexual assault is a crime of general intent: Ewanchuk, at para. 41. In order to prove the mental element the Crown must prove beyond a reasonable doubt that:

1. The defendant voluntarily touched the complainant;

2. The defendant intended to touch the complainant; and,

3. The defendant knew the complainant had not communicated consented, the defendant was wilfully blind to the lack of communicated consent, or the defendant was reckless as to the lack of communicated consent per Ewanchuk, at para. 42;

B. Consent and Capacity

1. Consent

[17] In R. v. G.F., 2021 SCC 20 [G.F.], the Supreme Court of Canada provided important guidance as it concerns the issues of consent, capacity to consent, and the defence of honest but mistaken belief in communicated consent (the latter was not raised by Defence counsel in this case).

(1) The Role of Consent in the Offence of Sexual Assault

25 The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent: Ewanchuk, at para. 25; R. v. Chase. The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant's internal state of mind towards the touching: Ewanchuk, at paras. 25-26. At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent: Ewanchuk, at para. 42. The accused's perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent: R. v. Barton, 2019 SCC 33, at para. 90.

26 This appeal concerns the third element of the actus reus, requiring the absence of consent.

27 Parliament has provided a broad definition of consent for the purposes of sexual assault, sexual assault with a weapon or causing bodily harm, and aggravated sexual assault in s. 273.1(1) of the Criminal Code:

Meaning of consent

273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

28 This definition is subject to two other provisions in the Criminal Code, ss. 273.1(2) and 265(3):

No consent obtained

273.1 (2) For the purpose of subsection (1), no consent is obtained if

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(a.1) the complainant is unconscious;

(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Consent

265 (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

29 Turning first to s. 273.1(1), consent is defined as "the voluntary agreement of the complainant to engage in the sexual activity in question". This Court's jurisprudence establishes that whether or not the complainant consented is a purely subjective analysis, determined by reference to the complainant's internal state of mind at the time of the touching: Ewanchuk, at paras. 26-27; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 34 and 43-44. At the actus reus stage, consent means that the complainant, in their mind, agreed to the sexual touching taking place: Ewanchuk, at para. 48; J.A., at para. 23; R. v. Park, [1995] 2 S.C.R. 836, at para. 16, per L'Heureux-Dubé J.; Barton, at para. 89; R. v. Goldfinch, 2019 SCC 38, at para. 44. Consent requires "the conscious agreement of the complainant to engage in every sexual act in a particular encounter": J.A., at para. 31; see also para. 34. Furthermore, consent is not considered in the abstract but rather must be linked to the sexual activity in question. In Hutchinson, the Court explained that "the sexual activity in question" involves only the physical act, its sexual nature, and the specific identity of the complainant's partner or partners: paras. 54-57. To provide consent, therefore, the complainant must subjectively agree to the act, its sexual nature, and the specific identity of their partner or partners: Barton, at para. 88.

30 This Court's jurisprudence is replete with a variety of terms to refer to different aspects of consent. While the Criminal Code simply speaks of "consent" (ss. 265 and 273.1(1)), this Court has variously talked about "meaningful consent" (J.A., at para. 36), "true consent" (R. v. Cuerrier, [1998] 2 S.C.R. 371, at para. 127), "apparent consent" (Ewanchuk, at para. 36; Hutchinson, at para. 4), and "subjective consent" (Hutchinson, at para. 37).

31 As I will explain, there are two aspects to the overarching concept of consent, the absence of which is an essential element of the offence of sexual assault. The first is what this Court has called "apparent consent" or "subjective consent": see Hutchinson, at paras. 4 and 37. That aspect relates to the factual findings of the trier of fact about whether the complainant subjectively and voluntarily agreed to the sexual activity in question. If the trier of fact finds that there was no such agreement, the actus reus of sexual assault will be established.

32 While this Court has previously used "subjective consent" and "apparent consent" seemingly interchangeably, the term "apparent consent" is not consonant with the fact that consent is a subjective assessment of the complainant's personal state of mind. Considerations of what may be "apparent" are not relevant, coming dangerously close to reinjecting into our sexual assault law the long rejected concept of implied consent. I prefer the term "subjective consent" which more accurately conveys what is required by the Criminal Code and our jurisprudence for a complainant, in their own mind, to provide "voluntary agreement ... [to] the sexual activity in question".

2. Capacity to Consent

[18] In G.F. the Court also provided guidance on how to analyze circumstances where capacity or vitiation of consent is an issue:

33 If the complainant did not subjectively consent (for whatever reason) then the actus reus is established. However, the presence of subjective consent, or a reasonable doubt as to subjective consent, does not necessarily end the matter and result in an acquittal. There is a second aspect to "consent" for the purposes of the actus reus of sexual assault -- subjective consent must also be effective "as a matter of law": Ewanchuk, at paras. 36-40; see also R. v. Lutoslawski, 2010 ONCA 207, 260 O.A.C. 161, at para. 15. Another way of framing that question is to ask whether the subjective consent has been vitiated.

34 Whether subjective consent will not be legally effective is ultimately a matter of policy. The law steps in to say that despite the complainant's subjective agreement, it will not be given legal effect. Sometimes, the policy that vitiates consent comes from the common law. 1 Other times, the policy is codified. In the context of sexual assault, the Criminal Code sets out a series of factors that will vitiate subjective consent in ss. 265(3) and 273.1(2).

42 The respondents, with the support of the intervener, argue that incapacity vitiates rather than prevents subjective consent. I reject this proposition for three reasons.

43 First, capacity must be understood as a precondition to subjective consent as a matter of logic. Subjective consent requires the complainant to formulate a conscious agreement in their own mind to engage in the sexual activity in question: J.A., at paras. 31, 36 and 45; Barton, at para. 88. It naturally follows that the complainant must be capable of forming such an agreement.

44 Second, incapacity as a vitiating factor would be inconsistent with the structure of the Criminal Code. The definition of consent for the purposes of sexual assault in s. 273.1(1) is "[s]ubject to" ss. 265(3) and 273.1(2), which set out circumstances where "no consent is obtained". Section 265(3) is a purely vitiating provision, whereas s. 273.1(2) is multi-faceted, primarily serving to clarify the broad definition of "consent" in s. 273.1(1): J.A., at para. 29. Only s. 273.1(2)(c) vitiates consent, where the complainant's induced agreement by reason of an abuse of power, trust, or authority is deemed ineffective in law: Hutchinson, at para. 4; R. v. Snelgrove, 2019 SCC 16, [2019] 2 S.C.R. 98, at paras. 3-4. The other factors in s. 273.1(2) appear to clarify what subjective consent requires. It cannot be said that a complainant who expresses a lack of agreement has subjectively consented: s. 273.1(2)(d) and (e). Similarly, there can be no subjective consent to vitiate if the agreement comes from a third-party rather than the complainant: s. 273.1(2)(a). In J.A., this Court, in determining that the agreement must be contemporaneous to the touching, rejected the suggestion that unconsciousness, under what is now s. 273.1(2)(a.1), vitiates consent: para. 33. In my view, incapacity under s. 273.1(2)(b) is another clarifying provision. Like unconsciousness, incapacity deprives the complainant of the ability to formulate a subjective agreement: J.A., at para. 33. An incapacitated complainant cannot provide voluntary agreement to the sexual activity in question and therefore cannot provide subjective consent.

45 The third and final reason comes from the need for certainty in the criminal law. Capacity as a precondition to subjective consent provides certainty because it is inextricably linked to what subjective consent requires: contemporaneous voluntary agreement to the sexual activity in question. Capacity to consent requires that the complainant be capable of understanding what is required for subjective consent -- no more, no less.

46 Conversely, incapacity as a vitiating factor would bring with it a host of uncertainties. Untethered from the conditions for consent, an incapacity assessment would need to say that even though the complainant voluntarily agreed to the sexual activity in question, at some undefined point their decision-making process was so impaired that subjective consent was no longer effective. This would inject significant uncertainty into the task of establishing the actus reus of sexual assault; the blunt tool of the criminal law is poorly suited to such a delicate task as determining at what point a complainant has made an impaired but free and voluntary choice. Further difficulties and uncertainty would arise at the mens rea stage where the accused's awareness of the complainant's impaired decision-making process would need to be assessed.

47 For these reasons, it must be that the capacity to consent is a precondition to subjective consent. It is not a matter of vitiation. If the Crown proves beyond a reasonable doubt that the complainant did not have an operating mind capable of consenting, or did not agree to the sexual activity in question, then the Crown has proven a lack of subjective consent and the actus reus is established.

(2) The Four Requirements for Capacity

55 As capacity is a precondition to subjective consent, the requirements for capacity are tied to the requirements for subjective consent itself. Since subjective consent must be linked to the sexual activity in question, the capacity to consent requires that the complainant have an operating mind capable of understanding each element of the sexual activity in question: the physical act, its sexual nature, and the specific identity of their partner: Barton, at para. 88; Hutchinson, at paras. 54-57.

56 There is one further requirement. Because subjective consent requires a "voluntary agreement", the complainant must be capable of understanding that they have a choice of whether or not to engage in the sexual activity in question: Criminal Code, s. 273.1(1). At the very least, a voluntary agreement would require that the complainant exercise a choice to engage in the sexual activity in question. In this narrow sense, in order to voluntarily agree to the sexual activity in question, the complainant must understand that saying "No" is an option. In J.A., this Court held that consent requires that the complainant have "an operating mind" at the time of the touching, capable of evaluating each sexual act and choosing whether or not to consent to it: paras. 36 and 43-44. Thus, an unconscious complainant could not provide contemporaneous consent. It follows that where the complainant is incapable of understanding that they have this choice to engage or refuse to engage, they are incapable of consenting. Accordingly, a complainant who is unable to say no, or who believes they have no choice in the matter, is not capable of formulating subjective consent: see R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237, at para. 60, citing R. v. Daigle (1997), 127 C.C.C. (3d) 130 (Que. C.A.), aff'd , [1998] 1 S.C.R. 1220.

57 In sum, for a complainant to be capable of providing subjective consent to sexual activity, they must be capable of understanding four things:

1.the physical act;

2.that the act is sexual in nature;

3.the specific identity of the complainant's partner or partners; and

4.that they have the choice to refuse to participate in the sexual activity.

58 The complainant will only be capable of providing subjective consent if they are capable of understanding all four factors. If the Crown proves the absence of any single factor beyond a reasonable doubt, then the complainant is incapable of subjective consent and the absence of consent is established at the actus reus stage. There would be no need to consider whether any consent was effective in law because there would be no subjective consent to vitiate.

C. Credibility, Reliability, and the Evaluation of Witness Testimony

[19] Both the complainant and the defendant agree that sexual contact occurred. They do not agree on the issue of consent. As such, a criminal court must follow binding legal precedent governing how credibility issues are resolved in a criminal trial.

[20] Most sexual assault cases involve credibility and reliability assessments of the complainant and the defendant as the central witnesses. The concepts of credibility and reliability have a particular connotation in criminal law best explained by Watt J.A. in R. v. C.(H.), 2009 ONCA 56, at paragraph 41 and the Supreme Court of Canada in in G.F. at paragraph 82.

[21] In assessing the testimony provided by the witnesses at trial (including the complainant), I am entitled to believe all of the testimony, none of the testimony, or portions of the testimony: R. v. C.P., 2021 SCC 19, at para. 35; R. v. Le, 2019 SCC 34, at para. 266; R. v. W.H., 2013 SCC 22, at para. 32 [W.H.]; R. v. Francois, [1994] 2 S.C.R. 827, at paras. 13-14. As the trial judge, I am also free to decide what weight to assign to specific areas of the evidence: W.H., at para. 32; R. v. B.H., 2015 ONCA 642, at para. 22; R. v. Howe, [2005] O.J. No. 39 (C.A.), at para. 44.

[22] A trial judge must fairly and evenly evaluate the defendant’s evidence and the complainant’s evidence: R. v. Bartholomew, 2019 ONCA 377, at paras. 30-33; R. v. Radcliffe, 2017 ONCA 176; R. v. Gravesande, 2015 ONCA 774.

[23] There is no such thing as a “credibility contest” in criminal law. A trial judge is not permitted to determine guilt or innocence by simply picking a preferred version of events amongst competing versions. Were this the law, I would “pick” the version of events provided by the complainant. But this approach offends the criminal burden proof: R. v. Vuradin, 2013 SCC 38; R. v. W.(D.), [1991] 1 SCR 742 at p. 409 [(W.(D.))]. A trial judge can not permit the analysis of credibility to degenerate into a mere choice between competing prosecution and defence witnesses.

[24] Where there are material credibility findings to address concerning conflicting evidence, the concept of reasonable doubt must be addressed in light of the entire record at trial: R. v. Debassige, 2021 ONCA 484, at paras. 128-130; R. v. Marki, 2021 ONCA 83, at paras. 23,25; Smith, at para. 7; R. v. Charlton, 2019 ONCA 400, at para. 45; R. v. Kirlew, 2017 ONCA 171, at para. 17; R. v. Dayes, 2013 ONCA 614, at para. 52; R. v. B.D., 2011 ONCA 51, at para. 114.

[25] It is critical to note that acceptance of evidence presented by prosecution witnesses does not mandate automatic conviction. A trial judge could conceivably accept prosecution witness testimony, but still harbour a reasonable doubt. It is also an error to move directly from mere disbelief of the accused's evidence to a positive finding of guilt: R. v. Dore (2004), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); R. v. H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6.

[26] I am guided by these authorities as it concerns a proper assessment of witness evidence in a criminal trial. The proper assessment of witness evidence is an integral component of the test in W.(D.). The guidance provided by the Supreme Court of Canada in W.(D.) is clear:

1. First, if you believe the evidence of the accused, obviously you must acquit;

2. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit; and,

3. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[27] I favour an additional “fourth stage” consideration in the analysis sourced in appellate jurisprudence. If a trial judge is unable to decide as between the testimony of a complainant and the defendant, this state of mind would mandate an acquittal: R. v. S. (J.H.), 2008 SCC 30, at para. 12 [S.(J.H.)]; R. v. Austin, [2006] O.J. No. 4660 (C.A.), at para. 20.

[28] Trial judges have a responsibility to clearly explain the reasoning behind credibility and reliability assessments or risk reversible error: R. v. Vuradin, 2013 SCC 38, at para. 11; R. v. Dinardo, 2008 SCC 24, at para. 26 [Dinardo]; R. v. Braich, 2002 SCC 27, at para. 23. For this reason, I must explain my resolution of the credibility issues in detail.

D. Credibility and Reliability of the Prosecution Witnesses

1. Defence Submissions on Issues of Credibility

[29] As alluded to above, during submissions Defence counsel cited between twenty and thirty credibility issues with the evidence of the complainant and her sister. The subject matter of these submissions included citing testimony touching on the following areas (by example): (1) the first time the complainant met the defendant; (2) the conflict between the sisters outside the movie theatre; (3) who entered the club washroom first; and (4), the misogynistic, insulting, and derogatory behaviour of the defendant.

[30] The first three examples involved Defence submissions that I did not accept as credibility issues. The fourth example involved evidence from the complainant and her sister that I did accept. While the defendant denied each and every example of his boorish behaviour, I do not believe his denial. But in the final analysis, these and the other multitudes of specific credibility issues cited by Defence counsel did not impact the credibility or reliability of either Crown witness. As such, I will not address those arguments further, despite the evident care and effort put forward by Defence counsel in this regard.

[31] I must spend time addressing two remaining areas cited by Defence counsel: the evidence led in support of the complainant’s intoxication; and the complainant’s recount of the sequence of events during the sexual assault.

2. The Complainant’s Level of Intoxication and Capacity to Consent

a) Introduction

[32] The first area of evidence or issue that impacted the weight I assigned to the complainant’s evidence concerned her testimony about her level of intoxication. At the outset, I note that the Crown did not specifically argue that the complainant’s level of intoxication was such that it vitiated her ability to communicate consent, or vitiate consent that was factually communicated: (See G.F.; s.273.1(2)(a.i) or (b) of the Criminal Code) The Crown position was that the complainant factually did not communicate consent, and that her level of sobriety was simply a relevant factor. This Crown position was consistent with the evidence provided by the complainant.

[33] The Defence position was that the complainant communicated consent by word and gesture. Further, the Defence position was that the complainant was not intoxicated by the consumption of alcohol or drugs to any significant degree. Finally, the Defence argued that the complainant was able to communicate consent as described by the defendant. Ancillary to this central argument, Defence counsel also cautioned the Court as it concerned the complainant and her sister colluding to exaggerate the complainant’s level of intoxication.

[34] Thus, notwithstanding the Crown position, given the Defence submissions, and the record produced at trial, my reasons must address the record produced at trial as it concerns the complainant’s level of intoxication. The record produced at trial also provokes consideration of the wider issue of the complainant’s capacity to communicate consent and circumstances where communicated consent is vitiated.

b) The complainant’s sister’s evidence

[35] Defence counsel submits that within examination in chief, the complainant’s sister varyingly testified that her sister, the complainant, was not drunk, then a “little tipsy”, then she was “a little tipsy when walking with the defendant”, then “totally drunk”.

[36] During cross-examination the following testimony was elicited: [1]

Q. Do you agree with me that your sister was not drunk?

A. No.

Q. No, you couldn't agree or would agree?

A. She -- she was fine.

Q. Okay. You agree with me that your sister was not walking in any way that would suggest that she was impaired, correct?

A. No. But when I saw him, like, walk with my sister, like, I don't know, something about that was off to me.

Q. Okay.

THE COURT: So, the question was, was your sister walking in any way that would suggest that she was impaired by the consumption of alcohol is what --

THE WITNESS: She was tipsy.

THE COURT: -- the lawyer is asking.

THE WITNESS: She was tipsy, yeah.

MR. GOODMAN: Q. Okay, sorry. So, I asked you if your sister was drunk and you said no. And then I said to you --

A. She was tipsy.

Q. And then I asked you if your sister was impaired in any way that may have affected her walk. You are saying she was tipsy. Okay. Was your sister, was the tipsiness affecting the way she walked?

A. A little bit, yeah.

Q. How so, describe it?

A. It is not like she could walk entirely in a straight line. She is a very small person.

THE COURT: Sorry, can you repeat that?

THE WITNESS: My sister is a very small person so, you know, a couple shots and she might not be able to walk properly.

THE COURT: No-no. He is asking you what you observed, not what might happen if she has a --

THE WITNESS: Oh, when he --

THE COURT: -- couple of shots.

Q. Okay. You would agree with me that she was, her walk and her demeanour was not affected by alcohol, you would agree with that?

A. I would say it was somewhat affected, not entirely, but somewhat.

Q. Specifically, what?

A. Like you said, she would like -- she wasn't like, standing straight or walking straight, but you know. Like I said, she is a very, like, tiny person. If you were to see her, she is like, size zero-zero. So, a couple shots and she is not going to stand straight.

Q. Okay. Is that what you are observing or is that what you believe what happened because of a person of her

stature?

[37] The complainant’s sister was not clear, definitive, or consistent as it concerned her testimony about the complainant’s level of intoxication. Furthermore, she testified based on inferences or conclusions sourced in the complainant’s stature rather than a specific and accurate recall of what she observed of her sister on the night in question.

c) The complainant’s evidence

[38] During direct examination the complainant testified that she had three or four vodka shots with a twenty-to-thirty-minute break in between. She testified that she was “really drunk”. She attributed her state of sobriety to the number of drinks, her failure to consume water, and the fact that she had not consumed any food.

[39] During cross-examination the complainant described being “close to blackout drunk”. She explained that she needed assistance while walking. She was unable to walk on her own without such assistance.

d) The defendant’s evidence

[40] The defendant acknowledged that the complainant and her sister had consumed alcoholic drinks. However, his position was that the complainant did not exhibit any signs of intoxication by alcohol. Further, he did not subjectively believe that she was impaired from the consumption of alcohol.

e) Analysis

[41] I do not have confidence in either the complainant’s or her sister’s evidence insofar as it concerns the complainant’s level of intoxication proximate in time to the sexual assault incident. I do not accept the evidence from either witness asserting that the complainant was significantly intoxicated. There are six reasons for this conclusion.

[42] First, I find that the complainant did not show any signs of intoxication approximately thirty minutes after the sexual assault incident. The Crown adduced a portion of body-worn camera evidence from PC Jung for the purpose of showing the complainant’s demeanour. [2] As the trial judge I have become familiar with the manner in which the complainant speaks in a courtroom. I am also privy to her presentation and demeanour at trial. I am able to consider that record and compare it to what I viewed on the body-worn camera footage.

[43] As it concerns the demeanour of the complainant, the video demonstrates significant emotional upset on the part of the complainant. But insofar as it concerns the issue of intoxication, in my respectful view, I did not discern any indicia demonstrative of extreme intoxication such as balance issues or slurring of words.

[44] Second, even in the absence of expert opinion toxicology evidence, I may generally rely upon my experience as a trial judge and assume that if the complainant was highly intoxicated or near “blackout drunk” just prior to the sexual assault, some remaining indicia of intoxication would be present at the time of the body-worn camera evidence approximately 30 minutes later. If, as the complainant and her sister testified, the complainant was so intoxicated that it materially impacted her mobility and balance inside the club, it makes sense that she would still exhibit some signs of intoxication – let alone extreme intoxication -- outside the club. I did not see that on the video capture of the complainant provided by the body-worn camera footage.

[45] Third, I am aware from the evidence at trial that the complainant attended the hospital and received medical attention. Absent from the record at trial is any toxicology evidence evidencing any level of intoxication. At times, the absence of evidence contributes to reasonable doubt.

[46] Fourth, the complainant’s position was not corroborated by an independent third-party who stopped to assist her and contacted 911. Over the objection of the defendant, I ruled that the 911 call was admissible. An excerpt of the call was played in court at trial. There was no evidence at trial that this independent person, potentially sympathetic to the complainant’s circumstances, believed she was highly intoxicated.

[47] Fifth, as outlined above, the complainant’s sister’s evidence was not clear and consistent on the issue of her sister’s intoxication.

[48] Sixth, the defendant testified that the complainant did not exhibit any signs of intoxication.

[49] On this record, I arrive at the following conclusions.

[50] First, I do not accept the complainant’s evidence that she was near “blackout drunk” prior to, during, or after the sexual assault incident in the bathroom. I do not accept the complainant’s sister’s evidence on this issue either. In this regard I am mindful of the Defence submissions about collusion, and I have self-instructed on the law applicable to the issue of collusion. But in the end, I need not resolve whether their apparent alignment on this issue is due to inadvertent collusion, deliberate collusion, or the understandable recasting of their subjective perspectives in light of the events that transpired. Whatever the reason, this is a credibility issue.

[51] Second, given these findings, I need not address two other issues provoked by the evidentiary record at trial: (1) the issue that the complainant lacked the capacity to communicate consent; or (2) the notion that having communicated consent, such consent was vitiated by the circumstances (intoxication).

[52] This credibility issue impacted the weight I assigned to both prosecution witnesses. This finding is also relevant to the analysis of the defendant’s mens rea and his apprehension of communicated consent.

3. The Complainant’s Recount of the Sequence of Events

[53] The complainant’s recount of the actus reus for sexual assault cause bodily harm suffered from a reliability concern. During examination in chief the complainant said the defendant tried to vaginally penetrate her and then penetrated her orally. She also said he might have tried to anally penetrate her, but she was unsure if this was simply a misdirected attempt at vaginal intercourse. Later, the complainant requested an opportunity to refresh her memory from her statement. After having that opportunity, she testified that the sexual assault commenced with the defendant “touching her everywhere” on her chest and back followed by oral penetration. Thus, a different sequence of events was presented.

[54] While I recognize that a criminal trial is not a “memory test” administered to a complainant, and I understand the rationale for the police acquisition of video statements, it is still an unavoidable conclusion that the complainant was not confident as to the sequence of events. In addition to changing the order of events inside the bathroom, she also expressed some indecision as to the number of times oral penetration occurred. This was a reliability concern.

[55] Byway of contrast, the defendant clearly and precisely testified to the sequence of sexual contact. His recount was detailed and specific. This testimony provided a sufficient foundation for his apprehension of communicated consent. In addition, his recount put forward a different sequence of sexual acts than that provided by the complainant.

[56] In a criminal trial, where a court must apply W.(D.) and the criminal burden of proof, it was inescapable that the complainant’s version of events suffered from this reliability issue.

E. Credibility and Reliability of the Defendant

1. Introduction

[57] There are three issues relevant to the evaluation of the credibility and reliability of the defendant: character evidence, the rule in Browne v. Dunn, and after-the-fact conduct.

2. Character Evidence

[58] It is apparent that the defendant presented poorly during his interactions with the complainant’s sister and the complainant during a timeframe preceding the sexual assault incident. The prosecution led evidence about the defendant’s conversation with the complainant about her virginity, his conversation about relative breast sizes, his lack of regard for a female person who drove him to Toronto from Kitchener, and his interaction with a third-party female person concerning a place to stay in Toronto. As indicated above, I accept complainant and her sister’s versions of the events they witnessed. I do not believe the defendant’s absolute denial of every single piece of evidence that could reflect poorly on his character.

[59] Clearly the defendant was not a “perfect gentleman”. During cross-examination he claimed not to even understand the meaning of the phrase. But as a criminal court trial judge, sitting alone without a jury, I must ensure that the assessment of the defendant’s credibility and reliability is not unduly prejudiced by the evidence reflecting poorly on his character.

3. The Rule in Browne v. Dunn

[60] After the defendant testified, the Crown Attorney flagged the issue of Browne v. Dunn. Neither the Crown Attorney nor Defence counsel requested the re-attendance of the complainant so that these issues could be addressed through continued examination. Both counsel indicated that they were content to simply make submissions on the issue.

[61] It is important to emphasize that Defence counsel conducted a through, methodical, and lengthy Browne v. Dunn cross-examination. All of the suggested violations of the rule were minor and potentially contemplated in the scope of Defence counsel’s cross-examination with the notable exception of one issue.

[62] During direct examination the defendant testified that the first intimate contact between the complainant and he occurred in an area off the dance floor. He and the complainant had been dancing on the dance floor. He went to the bathroom. When he came back from the bathroom, he rested his back and buttocks on the top edge of a couch near the dancefloor. At this time, the complainant began to “whine and grind” her back against her body. While neither counsel had the defendant define his terms, it was clear that he was describing the complainant backing up on his waist area with her buttocks and “grinding” her buttocks on his groin area.

[63] As the defendant testified to this event, it was clear that he viewed these actions by the complainant as provocative. Further, these actions were important in at least three other ways: (1) the actions represented the first time that the complainant had initiated physical contact of a sexual nature with him; (2) the conduct initiated by the complainant was commenced without encouragement by the defendant; and (3) these actions were obviously relevant as foundational support for the defendant’s subjective perception of consensual sexual contact minutes later.

[64] Having regard to the peculiarly specific detail and testimonial emphasize on the part of the defendant, and given this was the very beginning of sexualized contact according to the defendant, the notion that Defence counsel’s Browne v. Dunn cross-examination missed this sequence of events is most unlikely.

4. After-the-Fact Conduct

[65] The Crown adduced relevant evidence about the defendant’s conduct after the sexual assault incident. While the Crown did not directly or specifically articulate a subset of inferences to draw, it was clear that the prosecution position was that the defendant’s conduct after the incident was probative of his mental intent (i.e., guilt).

[66] The record adduced suggests that the defendant left the nightclub soon after the sexual assault incident, that he evaded contact from the complainant’s sister, took steps to evade apprehension from the police, changed his travel arrangements, and made a voluntary statement against interest during a phone call with a third-party. Having engaged the guidance of the Supreme Court of Canada in R. v. Calnen, 2019 SCC 6, I arrive at a conclusion that this record does not convince me that the defendant’s after-the-fact conduct was tied to his guilty knowledge or awareness of the crime he committed. The defendant had various explanations for his egress from the club. His statement to the third-party did not conclusively or unequivocally demonstrate his guilty mind.

F. Conclusion – Credibility Findings

[67] A central tenet in our criminal justice system is the constitutional entrenchment of the presumption of innocence. A criminal defendant begins a trial with the presumption of innocence. The defendant is not required to testify. The defendant is not required to present any evidence. The presumption does not shift during the trial. The presumption of innocence is only dislodged if the prosecution presents evidence establishing the defendant’s guilt beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27; R. v. Starr, 2000 SCC 40, at para. 242.

[68] Applying the guidance of W.(D.) I have arrived at several conclusions.

[69] At stage one of the test in W.(D.), I do not accept the evidence of the defendant. I generally prefer the complainant’s version of events.

[70] At stage two of the test in W.(D.), I find that I am unable to totally reject the defendant’s testimony on the issue of consent. The defendant testified in a clear and precise manner. He detailed the foundation for his apprehension of communicated consent. On his version the incident began with mutual kissing and touching. He testified that the complainant voluntarily initiated oral contact with his penis. He testified that he specifically asked the complainant if she wanted to have sex and she responded that she was a virgin. He asked if she wanted to try something else. She verbally consented “Yes” and physically nodded her head indicating “Yes” to anal penetration. She also manoeuvred her body in an effort to facilitate the sexual contact. There were no reliability issues with his recount of the events.

[71] While the prosecution properly marshalled the evidence demonstrating the short timespan between intimate contact on the dancefloor and sexual acts minutes later, and provided relevant and permissible submissions in this regard, I also recognize that I must not subscribe to any presumptive views about how a complainant would act in such circumstances. Nor should I harbour any presumptive views about how quickly someone might agree to engage in sexual contact in a night club. Having regard to the guidance from the Supreme Court of Canada over the past several years it is important to recognize that this Court is obliged to remove stereotypical reasoning and presumptive views about how a complainant would have responded or “should have” responded.

[72] In the final analysis, as explained above, the weight I assigned to the complainant’s testimony was weakened by the credibility and reliability concern. As such, at stage two of W.(D.), I harbour a reasonable doubt.

[73] In addition to the analysis required for W.(D.), I recognize that I am simply unable to resolve the issue of communicated consent as between the version advanced by the complainant, and the version advanced by the defendant. This state of mind also mandates an acquittal as it means the prosecution has not proven the lack of consent beyond a reasonable doubt: S.(J.H.)

[74] In arriving at these findings, I have self-instructed on the legal meaning of the phrase reasonable doubt. Reasonable doubt is based on “reason and common sense”, is not “imaginary or frivolous”, does not “involve proof to an absolute certainty”, and must be “logically connected to the evidence or absence of evidence.”: R. v. Villaroman, 2016 SCC 33, at paras. 28,36. As it concerns the defendant, his testimony on the issue of consent was minimally sufficient to sustain a reasonable doubt despite my overall concern about his credibility. Simply put, I could not categorically reject the defendant’s evidence as to apprehended consent.

[75] As a result, I am obligated to enter an acquittal on the sexual assault cause bodily harm.

G. Disposition of the Offences

1. Sexual Assault Causing Bodily Harm

[76] The prosecution has not proven the absence of consent beyond a reasonable doubt. An acquittal is entered on the sexual assault causing bodily harm count.

2. Assault

[77] The prosecution theory is that the assault offence covers the defendant forcibly compelling the complainant’s attendance in the washroom. It is alleged that he grasped her wrist or arm and forced her to enter the washroom using non-consensual force.

[78] The complainant testified during cross-examination that the defendant was holding her arm “tightly”. She also agreed with the suggestion that the defendant did not “pull her in any way, shape or form”. The complainant also testified that enroute from the dance floor to the washroom she felt safer with the defendant holding her because she could not walk on her own and weird people were groping her as she made her way.

[79] The defendant testified that he did not forcibly pull the complainant into the washroom. On this record I have a reasonable doubt. An acquittal is entered on the assault count.

3. Forcible Confinement

[80] In order to ground a conviction for forcible confinement, the prosecution must prove beyond a reasonable doubt that the defendant intentionally confined the complainant without lawful authority. I must be satisfied that the defendant intentionally deprived the complainant of her liberty to move. The prosecution submits that the coercive circumstances leading up to the sexual assault, the complainant’s state of sobriety, and the fact that the defendant locked the bathroom door, are all relevant to the analysis.

[81] As indicated above, the prosecution has not proven the assault allegation beyond a reasonable doubt. Put another way, I am not satisfied beyond a reasonable doubt that the defendant unlawfully applied force upon the complainant in the timeframe leading up to the sexual assault incident in the bathroom.

[82] The mere locking of the bathroom door upon entry does not suffice to establish forcible confinement. It is a natural and ordinary thing to lock a public unisex bathroom from the inside.

[83] The complainant did not specifically testify as to her subjective perception of the defendant locking the door. The complainant did not testify, for example, that the defendant’s action caused her to subjectively perceive that she was not able to leave the bathroom.

[84] The defendant testified that the public bathroom door would have opened had he not locked the door.

[85] On this record I have a reasonable doubt. An acquittal is entered on the forcible confinement count.

III. Finding

[86] I am obligated to find the defendant not guilty on all counts.

Released: May 1st, 2024 Signed: “Justice M.S.V. Felix”

[1] Transcript of Proceedings, December 5th, 2023, pages 126-128. [2] I must abide by the agreement of counsel that the Court not consider the prior consistent statements made by the complainant in the 911 call and the body-worn camera footage.