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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 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.

DATE: November 15, 2024 COURT FILE No.: 22-11403878

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ABEL HAILU

Before Justice T. Lipson

Heard on: March 19-21, 25-28, May 3, 22, June 3-7, August 13-14, October 9, 2024

Reasons for Judgment released on November 15, 2024

Ms. E. Davies .................................................................................................... for the Crown Ms. K. Stein ............................................................................... for the accused Abel Hailu

REASONS FOR JUDGMENT

LIPSON J.:

[1] Mr. Hailu entered pleas of not guilty to Criminal Code charges arising out of an incident on October 14, 2022, in the Ottawa neighbourhood of Sandy Hill. He is alleged to have committed the following offences in relation to the complainant L.O.: two counts of sexual assault with a weapon, contrary to s. 272(2); uttering threats, contrary to s. 264.1(2); forcible confinement, contrary to s. 279(2); two counts of criminal harassment, contrary to s. 264(3); intimidation, contrary to s. 423(1)(a); possession of a weapon for a dangerous purpose, contrary to s. 88(2); and kidnapping, contrary to s. 279(1.1).

[2] There is no dispute that a sexual encounter took place between Mr. Hailu and Ms. L.O. during the evening hours of October 14, 2022.

[3] The main issue is whether this encounter was consensual. Ms. L.O. told the court that while walking to a friend’s house, she was accosted by a complete stranger who threatened her with a knife. He led her around the Sandy Hill neighbourhood of Ottawa for approximately two hours and also compelled her to perform oral sex on him on two separate occasions before letting her go.

[4] Mr. Hailu denied these allegations and testified that his encounter, including the sexual activity with the complainant, was, from start to finish, consensual.

Overview of the Evidence

1. Evidence of L.O.

[5] In October 2022, Ms. L.O. was a 19-year-old student living in Ottawa on a student/work permit. She had come to Canada from her native Morrocco and had been living in Ottawa for approximately one year. On the evening of October 14, 2022, Ms. L.O. planned to meet her friend, F.B., at Ms. F.B.’s boyfriend’s house on Nelson Street in the Sandy Hill area of the city. She testified that she left her residence in Vanier and made her way by bus to the downtown area.

[6] L.O. attended an LCBO store and purchased a bottle of Jaeger alcohol to bring to the get-together with F.B. and friends. Video surveillance evidence (Exhibit 15 c) shows her entering the LCBO at 275 Rideau Street at 9:32 p.m. and leaving the store at 9:36 p.m.

[7] Ms. L.O. then walked from the LCBO store along King Edward Street. She turned left onto a street which the Crown says, based on the complainant’s cell phone GPS data, was Wilbrod Street. L.O. was speaking on her cell phone with F.B. when a male stranger, agreed to be Mr. Hailu, approached her from behind. He told her to hang up her phone. Ms. L.O. resisted his suggestion. The male was wearing a hoodie drawn tight to his face, black gloves and a dark medical mask. He became menacing and threatening. He told her to hang up more than once. At first, Ms. L.O. thought the man was robbing her and she told him that she did not have any cash.

[8] The male told her she would get in trouble if she did not hang up her phone. He brandished what she described as “a blue metallic knife…with a folding blade”. The blade was open. L.O. ended her call with F.B. She testified “It’s either hang up, or my life is on the line” and that “it made me feel frightened for my life”. Cell phone records (Exhibit 7) show her conversation with Ms. F.B. ended at 9:46 p.m. F.B. then repeatedly tried to call her friend back but was unsuccessful.

[9] The male then demanded to know why she was “talking shit on Instagram”. He accused her of being one of the persons threatening him and his family on Instagram. The complainant tried to convince him that she was not the person he was looking for and that he had mistaken her for someone else. She testified “I was just trying to reason with him and back away, like distance ourselves, but when I would do that, that’s when he would grab my arm and, like, bring me closer to kind of, like make me understand that he wasn’t done.”

[10] Ms. L.O. even showed him her Moroccan National Identification Card to prove that she was not the person he was looking for. The identity card contained her date of birth, Moroccan address and the names of her parents and grandparents. The male would later take a photograph of this card on his phone.

[11] The male instructed Ms. L.O. to follow him. He told her not to run or else she would “regret it”. She did not try to run away believing, “Logistically speaking, I knew my chances, if I tried to run, would end up being hurt most likely.” Sometimes he would grab her arm and sometimes he would “have his hand on [her] bum”. The male instructed her to turn on her phone when he wanted information. He took her phone to view her cell number and check her address. She believed that he was writing down this information in his phone. Ms. L.O. “felt trapped”, fearing that she or her roommates would be at physical risk.

[12] Ms. L.O. testified that the male stranger led her around the Sandy Hill area of Ottawa. She did not want to go wherever he was taking her. Ms. L.O. explained that whenever she attempted to put any distance between the two of them, he would grab her arm and tell her not to try to run away or attempt anything. She said this happened more than once.

[13] The first location the male took her to was an alley behind a building, near a trash disposal. There, Ms. L.O. showed him her Moroccan ID card. They walked some more and then stopped again. At this second stop, the male took a photo of her ID card. A video photo file on Mr. Hailu’s phone was created at 10:06 p.m., referenced in exhibit 9, which depicts her Moroccan ID card. The complainant testified that having been shown a knife earlier and then the male learning the names of her family “made me feel scared for my life and I was really kind of in a state of survival where I was just trying my best to make it alive of (sic) the situation because I really thought that if I did anything that he wasn’t happy with I…I would have died there.”

[14] Ms. L.O. persuaded the male she needed to turn on her phone to receive a call from Ms. F.B. to reassure her that she was safe. She told him this would prevent him from “having problems with the police”. Because Ms. L.O. was behind in her phone payments, she could not make outgoing calls or send texts. She could only receive phone calls. At 10:09 p.m. the male let Ms. L.O. take an incoming call from Ms. F.B. They spoke mostly in Italian so that the complainant was able to communicate that she was unsafe “without letting him know that she (Ms. F.B.) knows I’m unsafe”.

[15] The male then led her to a second location near what seemed like a hotel or apartment building with a pool. There he told her that he had raped and beaten up a Lebanese girl on October 2. Ms. L.O. testified that his penis was erect while he told her this. He also showed her a condom. She backed away upon seeing the condom, and he told her, “Oh yeah, I have no interest in raping you.” Ms. L.O. testified, “I was really worried about my safety because, to me, it meant that it was somebody who had done this before and knew how to get away with it…I didn’t think I was going to make it out alive.”

[16] The third stop was at a church with a parking lot and grassy area. He instructed her to sit with him on the grass. Ms. L.O. was confused and scared. She didn’t know if the male was “gonna rape me and get rid of me or …so I was just thinking that he was trying to find a good spot to do whatever he wanted to do”. Moments later, he instructed her to get up and follow him.

[17] The two continued to walk in the Sandy Hill area. He provided some personal information to her but never told her his name. She asked him several times to let her leave and go back to her mother. The male told her that he would let her go at some point. Ms. L.O. said that while walking around Sandy Hill, she would try to put distance between herself and the male, but the male would either keep her in front or get back right beside her, or would grab her arm and bring her closer. Ms. L.O. explained that “sometimes he would grab my arm, sometimes he would have his hand on my bum.” She made attempts to turn on her phone and call 911. He noticed every time and made her turn off her phone in front of him. She testified that at one point she saw lots of students and possibly a police car. She didn’t feel “confident enough” to scream so she tried in vain to “mouth or make signals to people”.

[18] While walking around Sandy Hill, Ms. L.O. said that Mr. Hailu instructed her to drink from the bottle of Jager to calm her nerves. She said at first it seemed he was advising her to drink, and then it became an order. He told her, “You have to drink, or I’ll make you regret it.” She estimated that she drank the equivalent of three or four shots of alcohol. She was also taking pretend sips to stay in control of herself as much as possible. This way, in case she saw a way to get out, she would be able to escape and not be too intoxicated.

[19] The final stop on the walk was at an area beside a shed. The shed was behind a small apartment complex, and in between the shed and the building was a parking lot. Surveillance video from 361 Wilbrod Street and 240 Stewart Street (exhibit 15) captures Ms. L.O. and Mr. Hailu at this location between 11:04 p.m. and 11:24 p.m.

[20] Ms. L.O. said that before going behind the shed, the male told her that she was to give him a “blowjob” there. He instructed her not to spit his ejaculate on the ground. She was to either swallow it or have it go in his underwear so that none of it could be found on the ground. He told her specifically not to bite his penis. He threatened to slit her throat if she did. She said, “I remember that he kept his knife close to him, in order to reinforce that statement.” At this point, she was very frightened and said, “that’s when the survival mode kind of kicked back in because…I have to make sure I’m making it out alive.”

[21] Ms. L.O. said they were positioned behind a shed so that they were hidden from cars and people going by. She was made to kneel and that Mr. Hailu had his hand on her shoulder. He then moved his pants down and put his erect penis in her mouth. She did not consent to any of this. She said that while the male’s penis was in her mouth, she was trying to grab a bit of his skin from his legs with scratches because she was thinking that if she made it out alive, she wanted to have as much evidence as she could. Ms. L.O. said that the male was saying intimate things like calling her “baby” and saying, “It feels so good” and “that’s the best I ever felt.” She said that at one point, he tried unsuccessfully to use a condom. They stopped when a person with a dog approached them at the shed.

[22] Following this interruption, the male told Ms. L.O. that her mouth was dry, and they would go to the Circle K convenience store for water to make sure the experience was more pleasurable for him. He told her he would need cash because he did not want to pay with debit or credit. He took out his wallet to check. They then “started walking up to the Circle K, but we never ended up buying the water.” Near the store he changed his mind and they then went back to the shed.

[23] Ms. L.O. said that after returning to the shed, she continued to be compliant and resumed performing oral sex on the male. She believed that he did not ejaculate but that she had some of his “precum” in her mouth. The sequence of events with respect to the two acts of fellatio are captured on video (Exhibit 15) from 11:04 p.m. to 11:24 p.m.

[24] The second time the two were at the shed, there was another interruption. A car pulled up nearby and people got out of the car.

[25] Ms. L.O. said that shortly after this, the male told her he would let her go under certain conditions. She would have to give him a hug at the nearest location where he knew there was a camera. She was to answer to a Wi-Fi phone number that he had set up and she was to respond in a text message by referring to their impromptu encounter and thanking him for the night they spent together. Finally, she was not to disclose to anyone what happened. Ms. L.O. felt that if she did not reply to the text messages she would get hurt, since he had her personal information.

[26] Ms. L.O. told the male that she could not hug him after what happened but he said, “Well, I need a hug for the camera”. He made her believe that she did not have a choice in the matter.

[27] After the hug at the intersection, the male told Ms. L.O. that she was “good to go.” She then walked as fast as she could in the opposite direction he was taking. She turned on her phone right away and received a call from Ms. F.B., which is supported by the cell records in exhibit 7. Ms. F.B. told her that the police were looking for her. The police found the complainant moments later. Ms. L.O. testified that she got into the police car and made sure to sit low in her seat because she was afraid that they might drive by her assailant. Ms. L.O. had scratches on her knees and a red marks on her wrists from being grabbed.

[28] While at the hospital, she received messages from the person she believed to be the male who kidnapped and sexually assaulted her. As per the instructions of the police, she did not respond to the messages. She felt threatened by the messages. The messages received were:

Oct 15/ 22 1:22:52 AM Message from TextNow number 613-902-6274 to L.O.’s phone: “hey” L.O.’s Call Log – EX #7; Abel Hailu’s Cell Phone Data – EX #9

Oct 15/ 22 1:23:22 AM Message from TextNow number 613-902-6274 to L.O.’s phone: “you got home ok” L.O.’s Call Log – EX #7; Abel Hailu’s Cell Phone Data – EX #9

Oct 15/22 1:27:36 AM Message from TextNow number 613-902-6274 to L.O.’s phone: “??” L.O.’s Call Log – EX #7; Abel Hailu’s Cell Phone Data – EX #9

Oct 15/22 8:13:55 AM Message from TextNow number 613-902-6274 to L.O.’s phone: “did you forget what we talked about last night” L.O.’s Call Log – EX #7; Abel Hailu’s Cell Phone Data – EX #9

Oct 15/ 22 8:33:19 AM Message from TextNow number 613-902-6274 to L.O.’s phone: “Because if I don’t think you arrived home safe, I might need to send some people to verify that you’re ok” L.O.’s Call Log – EX #7; Abel Hailu’s Cell Phone Data – EX #9

Oct 15/ 22 8:42:37 AM Message from Instagram jayhen96 to L.O.’s Instagram: “check your text messages” L.O.’s Call Log – EX #7;

Oct 15/ 22 8:43:23 AM Message from Instagram jayhen96 to L.O.’s Instagram: “You don’t remember the agreement? Also, do not block this account and accept the request I sent you” L.O.’s Call Log – EX #7;

Oct 15/ 22 10:29:35 AM Message from Instagram jayhen96 to L.O.’s Instagram: L.O.’s Call Log – EX #7;

Oct 15/22 10:30:15 AM Message from Instagram jayhen96 to L.O.’s Instagram: L.O.’s Call Log – EX #7;

Oct 15/22 10:30:AM Unanswered Instagram call from jayhen96 to L.O.’s Instagram: L.O.’s Call Log – EX #7;

[29] Ms. L.O. attended the police station after being discharged from the hospital, where she provided a statement to the police over the course of approximately three hours.

2. Evidence of F.B. and Officers who Located Ms. L.O.

[30] In her testimony, Ms. F.B. recalled plans for the evening to meet up with Ms. L.O. and communicating with her by phone, including making a call to her at 9:38 p.m. She also confirmed they had been speaking on the phone with the complainant about their plans to meet up for the evening, when she heard a male’s voice interrupt their call. She recalled the call ending abruptly. The phone records of Ms. F.B. in exhibit 7 show repeated attempts by her to reach Ms. L.O. Ms. F.B. testified as to the one phone call she had after that with Ms. L.O., which took place at 10:09 p.m. and in which the two spoke Italian. Her version of the call was consistent with the one Ms. L.O. provided the Court. Following that call, Ms. F.B. made 26 calls to Ms. L.O. between 10:22 pm and 10:37 pm. Ms. F.B. messaged Ms. L.O. in Italian from 10:28 p.m. to 10:38 pm and received no response. Ms. F.B. testified that she called 911 over her concerns about her friend.

[31] Ms. F.B. contacted Ottawa Police Service when she was unable to reach Ms. L.O. and believed that she was in danger. Constable Guenette spoke with her and also tried unsuccessfully to reach the complainant. He received another call from Ms. F.B. around 11:30 p.m., telling him she had gotten a call from Ms. L.O. indicating she was walking over to see Ms. F.B. on Nelson Street. Constable Guenette and other officers located Ms. L.O. on a street in Sandy Hill. Constable Guenette described her as emotionally distraught and traumatized. She was shaking and crying. As she related the events of the incident, she was choked up and very emotional. Constable Micholuk observed her in the ambulance to be upset and appearing fearful. She remained very concerned that her assailant had her contact and personal information.

3. Video and Data Evidence

[32] Following the arrest of Mr. Hailu, a search warrant was executed on his residence on October 17, 2022. Police seized the accused’s laptop computer. An analysis of the laptop revealed that in the days leading up to the date of the alleged offences, Mr. Hailu had conducted online Google searches for terms including:

“was it rape” – Google searched on October 6, 2022 “man arrested sexually assaulting” – Google searched on October 7, 2022 “how to police catch rapists” – Google searched on October 7, 2022 “Toronto rape” – Google searched on October 11, 2022 “sexual assault chat” – Google searched on October 11, 2022 “is it rape forum” – Google searched on October 12, 2022 “man rapes woman apartment” – Google searched on October 13, 2022 “crimestoppers ottawa” – Google searched on October 14, 2022 “how do rapists get caught” – Google searched on October 14, 2022

[33] A data search conducted by the police revealed Google searches had been done on October 14, 2022 for “Canadian Tire knife” and “maximum sport utility knife”. The topic of “rape” was searched in the laptop data and resulted in 88 artifacts from September 12-October 13, 2022. All related to Google searches, including “Canadian woman raped on vacation, “de soto rape September 2003”, “was it rape”, “rape kit”, “Toronto rape”, “rape at gunpoint, “is it rape forum”, brazil rape” and “man rapes woman apartment”.

[34] A review of searched items on Mr. Hailu’s cell phone shows that “Canadian Tire sport knife” was searched on October 14, 2022, between 19:10 and 19:11 p.m. There are three searches without a time stamp that include “knifepoint rape on camera Iraq”, “knifepoint rape on camera” and “Knifepoint rape video”.

[35] Video evidence was introduced showing Mr. Hailu purchasing a blue metallic folding knife from a Canadian Tire just after 8 p.m. on October 14, 2022. There is no issue that this same knife was located by the police in a locked safe during a search of Mr. Hailu’s bedroom.

[36] A review of the data from Mr. Hailu’s phone in exhibit 9 reveals that a screenshot was created at 10:25 p.m. for S.O., the complainant’s father. At 10:27 p.m., a screenshot was created of a Google search of Ms. L.O.’s address in Vanier. The Crown took the position that these shots were taken by Mr. Hailu in order to obtain as much personal information as he could. The Crown also argued that he went through Ms. L.O.’s phone to ascertain her address, and that this was part of his efforts to instill fear in her.

[37] A data search from the accused’s phone shows that there was a call at 8:12 a.m. on October 15 from his phone via an unspecified App to Ms. L.O.’s number. At 8:13 a.m. a contact of the complainant’s number was created on his phone. Two screenshost of the Vanier area where she lived were created on the accused’s phone and there were Google searches for “[…] Street”. Further Google searches on the subjects L.O. and S.O. (father) were conducted.

[38] Ms. L.O. provided her consent for the Ottawa Police to assumer her online Instagram identity. At 5:30 p.m. on October 15, after reviewing Ms. L.O.’s police interview and being briefed on the investigation, Detective Carr, pretending to be Ms. L.O., began communicating with Mr. Hailu. The entire conversation was admitted into evidence. In submissions, the Crown highlighted the following excerpts:

1:42 PM: “I can play with people’s minds… I wanted you to feel a wide range of emotions from fear… then to making you feel at ease when I laughed and listened to what you had to say… then confusion when I had you walking around aimlessly thinking I was taking you to Nelson street, then fear again” 1:43 PM: “I was never going to hurt you… I realized within minutes that you weren’t who I was looking for but I still decided to toy with you” [emoji] 1:44 PM “I’m terrible… aren’t I?” [From Det Carr as Ms. L.O.: “Well u did scare me alright [emoji] damnn… had my mouth all dry! But thinking about last night, kinda hot”] I knew you were into it. I saw how you were handling me in that dark area… you had some crazy tongue action going on [emoji] But I didn’t cum…soooo what are we going to do about that Ms. L.O.?” [From Det Carr as Ms. L.O.: “U gonna make it like Friday, think having me scared turned u on, I always get a bit freakedd in dark streets”] You want it to be just like Friday? You’re 100% sure [From Det Carr as Ms. L.O.: “Well you did scare me … but your not gonna hurt me right] You’re so adorable…[emoji] 4:18 PM “So it’s safe to say that I’m not in the business of hurting women. However… if by “hurt” you mean putting my hands around your throat to sexually tease you, and pulling your hair a bit… then yeah I’ll be inflicting some of that on you [emoji]” [emojis] 4:27 PM “When you said “will you let me live?” I thought you were insane I’m not about that life cutie [From Det Carr as Ms. L.O.: Insane, more like scared [emoji]”] Well… I like to play with people sometimes, as I said earlier. So maybe I didn’t realize I might have taken things further than I thought I would.”

[39] During the course of communicating with Detective Carr (as Ms. L.O.), Mr. Hailu agreed to meet. He suggested meeting at the Circle K convenience store near Henderson. This was the same convenience store which Ms. L.O. indicated they had walked to get a bottle of water when the oral sex was interrupted. Mr. Hailu attended the Sandy Hill area on October 16, 2022, believing he was meeting with the complainant. He was arrested by the police and searched incident to arrest.

4. Evidence of Abel Hailu

[40] Mr. Hailu testified in his own defence. The following is a summary of his evidence.

[41] Abel Hailu has no criminal record. He testified that he is, and was at the time, a student at Carleton University, studying business and Criminology. His school course records, filed as Exhibit 21, confirm his enrollment and his courses. He further testified that he was born and raised in Ottawa and has a comfortable living, residing with his parents.

[42] Mr. Hailu testified that on October 14, 2022, he had done a few errands during the day, which included purchasing what he called in testimony a “multi-use Swiss army tool”. He said that he bought this tool. which he later acknowledged in cross-examination was a folding knife, with the intention of using it to remove dirt and rocks from his running shoes during trail running. He testified he is an avid runner and goes either alone or with friends. On the night of October 14, 2022, Mr. Hailu planned to meet up with a friend in Sandy Hill. He had also gone to the LCBO to purchase alcohol, a bottle of Hennessy Cognac, as he was planning on seeing some other friends the following night. He had the bottle with him in his backpack, along with the knife and some books, when he went to visit his friend, as he had made his purchases on his way downtown to meet his friend.

[43] Mr. Hailu took public transit to Sandy Hill and met up with his friend for a short visit. In cross-examination, he identified the friend as Nicholas Lorge. After his visit, he was walking back in the direction of the Rideau Centre to return home on public transit when he saw a young woman whom he believed to be a former classmate named Liz. He approached her. Mr. Hailu testified that he pulled down the facemask that he was wearing and pulled back his hoodie so that she could see it was him. He spoke to her, saying her name and saying who he was. His evidence was that he was wore the face mask because of the ongoing COVID situation. He wore gloves and a hoodie pulled tight because it was cold that evening and he has an auto-immune disorder that makes him very sensitive to the cold.

[44] Mr. Hailu testified that the woman was on the phone, and she turned out not to be Liz. He testified that she finished her call and they struck up a conversation. She asked him for help locating Nelson Street. From there, they began walking together in the direction of where he believed she wanted to go.

[45] Mr. Hailu testified that as they walked, the two exchanged personal information. He told her about himself, that he was interested in crypto currency trading and that he had a brother who attended the Telfer School at the University of Ottawa. He said that at one point she asked him why his backpack seemed so heavy and loud when he placed it on the ground. He told her that one of the items in his backpack was a blue Swiss Army multi-tool that he bought for trail running.

[46] He testified that as they were walking and getting to know each other, she began to show an interest in him and in “hooking up” that night. He was concerned about her age and therefore asked to see, and photograph, her identification to confirm that she was of legal age. Mr. Hailu testified that he did this as a result of what he learned in his courses in law and criminology. He needed to make sure she was of legal age for any sexual activity which might occur. He took a photograph of the front of her ID with his phone as proof that he had ensured she was of age.

[47] As they continued walking, Ms. L.O. told him about her father and where he worked. Mr. Hailu testified that she used his phone to look up her father to show Mr. Hailu that her father was a professor in Morocco. He testified she also used his phone to look up her own address so he would know where she lived.

[48] Mr. Hailu also testified that during their walk, Ms. L.O. expressed an interest in “kink” and that this then spawned a description from him of a fictitious incident during which he had had a sexual encounter with another girl two weeks earlier. He testified that he was trying to impress her and make the incident sound “kinky”.

[49] Mr. Hailu testified that it was Ms. L.O. who instigated a sexual encounter which took place. He further testified that he did not touch her bum as Ms. L.O. had said in her testimony, but that she was reaching for his genitals as they walked around. He also testified that she had kissed him. On his evidence, they ended up in the alleyway at Stewart and Chapel consensually.

[50] Mr. Hailu testified that the sexual encounter in the alleyway was interrupted by a couple walking their dog. He testified that Ms. L.O. was a willing participant and had also touched his penis, giving him “a hand job” in addition to oral sex. He denied that there was any need for, or that there was any attendance at, a conveniences store to get water. He acknowledged that he did open his wallet to get a condom out, but he had some difficulty with it and they ended up deciding to not use any protection. He was also concerned about a small key that he had in his wallet that was bothering him during their sexual activity.

[51] Mr. Hailu testified that he and Ms. L.O. planned to continue communicating after this encounter. He testified that he wanted to make sure she made it home safely and would send her a message to that effect, and he was expecting that she would let him know that she arrived home safe. This was their agreement. He also testified that he had let her know that if he had concerns, he might ask the police to attend her residence to conduct a “wellness check” to make sure that she was fine.

[52] Mr. Hailu was concerned about her safety because she had mentioned that she might be going out and drinking after she left and might be “wasted” the next day.

[53] He further testified that prior to their parting ways, she told him that she was interested in kinky sexting. His intention was to engage in that with her but from a Wi-Fi number not associated to him. He feared that any sexually charged messages could somehow be traced to his personal phone number, which was also his professional number used for work. He let her know that he would not be using his own number.

[54] As promised, Mr. Hailu did contact her from the Wi-Fi number, and when she did not respond, he reached out through her Instagram address. These messages went unanswered until later in the day on Saturday October 15, 2022, when he began exchanging messages with a person he thought was Ms. L.O. He explained that the tone and content of the messages he sent were inspired by what he understood Ms. L.O. wanted to hear from him, role playing and putting an exciting spin on what had occurred between the two of them on Friday night.

[55] Mr. Hailu did not dispute that he had retained certain information about Ms. L.O. in his phone. He had taken a photo of her ID, and he took her phone number down in his phone as he was intending to contact her. He maintained that it was Ms. L.O. who created the screenshots of her father’s information as well as her address. He was prepared to send authorities to her residence if he did not think she had made it home safely and told her this at the end of their encounter that night.

[56] Mr. Hailu's evidence with respect to the messages with the undercover officer, Detective Carr, was that he believed he was communicating with Ms. L.O.; that he was playing a role as part of the “kink” sexting that she told him she was interested in, and that he created a scenario that he thought she would think was exciting. He arranged to meet with her, and brought with him what he thought he would need for a consensual sexual encounter with a willing participant.

[57] As for the rape-related searches on his laptop, Mr. Hailu said these were related to his school studies, as well as a personal interest in the topic, stemming from his schoolwork.

Positions of the Parties

Position of the Crown

[58] Ms. Davies, for the Crown, submitted that the Crown has proved beyond a reasonable doubt that Ms. L.O. was kidnapped and then sexually assaulted by Mr. Hailu. Ms. Davies submitted that Ms. L.O. provided a credible, compelling and harrowing account of being accosted by a complete stranger, threatened with a knife and led around Sandy Hill before being compelled to perform oral sex on Mr. Hailu. The Crown submitted that the complainant testified in a forthright manner. Ms. L.O. did not embellish or exaggerate the facts. In the face of vigorous cross-examination, she was firm that the alleged offences had indeed taken place. The Crown submitted that Ms. L.O.’s evidence was corroborated by her cellphone data and the evidence of F.B. When police found Ms. L.O. moments later, she was in a state of fear. She continued to be fearful at the hospital and when the police returned her home.

[59] The Crown argued that Ms. L.O.’s testimony was corroborated in several ways including the following:

• Ms. L.O. described the accused showing her a metallic blue knife with a folding blade that was open. Mr. Hailu denied ever showing the complainant a knife. There is no controversy that the knife found in the safe in the accused’s bedroom was the knife he had purchased and had in his possession on October 14.
• Ms. L.O.’s evidence that she was forced to abruptly end her phone call with Ms. F.B. when she was first accosted was consistent with Ms. F.B.’s account.
• Ms. L.O.’s account that her assailant took a photograph of her Moroccan ID card was supported by the video photo file on Mr. Hailu’s phone created at 10:06:29 p.m., found in Exhibit 9.
• Ms. L.O.’s account of the one phone call she was permitted with Ms. F.B. in which they spoke Italian is consistent with the evidence of Ms. F.B.
• Ms. L.O.’s evidence that her phone was off for periods of time on orders from the accused is corroborated by her phone data found in exhibit 7.
• Ms. L.O.’s description of the sexual acts was corroborated by the video evidence seen in exhibit 15.
• Mr. Hailu’s text and Instagram messages to the complainant and the undercover officer posing as Ms. L.O. corroborated Ms. L.O.’s account that she was the victim of a kidnapping and sexual assault.

[60] Crown counsel argued that Mr. Hailu’s evidence was not believable. She submitted that in his testimony, he “crafted elaborate and over the top explanations in an effort to deceive the court into believing that he did not commit a sexual assault.” Ms. Davies contended that Mr. Hailu’s narrative made no sense. Crown counsel pointed out that according to Mr. Hailu’s evidence, he had a chance encounter with a stranger who within about twenty minutes agreed to perform oral sex on him. Mr. Hailu described a completely consensual encounter with Ms. L.O. initiating or suggesting much of the physical and sexual contact. His evidence, it was submitted, is at odds with Ms. L.O. getting into a police care in a state of fear and fabricating a consensual sexual encounter.

Position of the Defence

[61] Counsel for Mr. Hailu submitted that the Crown has not proven its case on any of the counts beyond a reasonable doubt.

[62] Mr. Hailu’s version of events is that he met Ms. L.O. by chance while he was walking back from a visit with a friend in Sandy Hill. He initially mistook Ms. L.O. for someone else. He offered to help her find her friend’s street and the two struck up a conversation, which led to them walking around and agreeing to engage in a sexual encounter. The sexual encounter took place in an alleyway in Sandy Hill. The intention was to follow up this encounter with text exchanges, specifically “kinky” sexting. In his mind, this would hopefully lead to another in-person meeting. Mr. Hailu reached out to her the next day and his communications were intercepted by police who had taken on Ms. L.O.’s identity. Mr. Hailu arranged to meet the person he was communicating with, whom he believed to be Ms. L.O.

[63] The defence submitted that Mr. Hailu’s account should be believed, or at least raise a reasonable doubt as to his guilt. Ms. Stein pointed to the evidence of Mr. Hailu’s comments to the arresting officers that he was there to “meet L.O.” and that their interaction was consensual. He was prepared to show them the messages on his phone as proof of the same. Mr. Hailu has no criminal record and at the time was a university student. It was submitted that he gave a reasonable explanation for the rape-related searches on his laptop as being related to his criminology studies as well as a personal interest in the topic stemming from his studies. His messaging to the complainant was consistent with his explanation that Ms. L.O. wanted him to send her kinky messaging.

[64] Ms. Stein pointed to pieces of surveillance video where Ms. L.O. was shown walking behind Mr. Hailu at some distance. He was not pulling her arm and was not grabbing her. It was argued that she was sufficiently behind him that she could have easily gotten away. She was seen walking freely and would not have been restricted from fleeing. The videos do not show a knife in Mr. Hailu’s hands. At times he appeared to be playing with and, possibly, removing his gloves. It was submitted that there was no evidence of his hands pushing down on Ms. L.O., forcing her into any position.

[65] Defence counsel also argued that the unreliability of certain portions of the complainant’s testimony should be of real concern to the court. Ms. L.O. said she did not discuss the details of the events with Ms. F.B., yet she had made handwritten notes indicating her friend had heard a masculine voice on the phone during the initial encounter but could not tell what he was saying. In cross examination, she said this was her assumption and could not recall. Also in her testimony, Ms. L.O. mentioned an additional stop on the walk around Sandy Hill that she did not mention in her previous statements. This was the stop at the building with the pool. Ms. L.O. said that she had remembered this only recently. Counsel claimed that some of her explanations for not fleeing regarding her footwear, clothing, and holding a bottle of Jaeger were not convincing. It was submitted that there were times when people were around, as well as a police car, and she had several opportunities to cry for help and/or run away.

[66] Counsel submitted that Ms. L.O. had to be reminded that in a previous statement, she reported telling Ms. F.B. during the last phone call that she was with a friend. Ms. L.O. testified that she had been instructed by the accused to say that she was with a friend. Ms. L.O. agreed that she did put that in her original statement but maintained that Mr. Hailu required her to be reassuring on the call with her friend and that he was listening very intently while their conversation was taking place.

[67] Counsel also argued that Ms. L.O.’s evidence that the two had gone to a convenience store between the first and second sexual acts was unreliable. She had originally given the police the location of a Quickie store at Russell and Somerset, which was an 11 minute walk from the shed area at Stewart and Chapel. In her testimony, she said that it was a short walk. The video surveillance shows that there was an approximately three-minute interval between the first and second visit to the alley at Stewart and Chapel. Counsel did concede that there was Circle K at Henderson and Laurier approximately three blocks away. Finally, counsel pointed to Ms. L.O.’s testimony that she had not suggested anything in terms of the agreement about what was going to be said in the texts. When shown her statement where she said that she had been almost giving advice, she agreed that she was pointing out what he was telling her to do did not make any sense.

[68] Another inconsistency between Ms. L.O.’s testimony and her police statement concerned the knife. She had originally told the police that she believed the knife was initially in the waistband of the male’s pants. In testimony she said the male was showing her the knife which was in his hand close to his chest. When the Court attempted to clarify if her evidence that it was close to his chest, Ms. L.O. stated that was her evidence but that she did not remember exactly, and it sounded “really accurate’.

[69] Ms. Stein submitted that even if the court did not believe the accused nor was left in doubt by his account, the inconsistencies in the complainant’s testimony should be sufficiently concerning for the court to conclude that the Crown’s case has not been proven beyond a reasonable doubt.

Applicable Legal Principles

[70] The Crown bears the burden of proving guilt beyond a reasonable doubt. The Crown’s onus is to prove each element of the offences in question. The overarching principle of the presumption of innocence, enshrined in s. 11(d) of the Charter, and the correlative principle of the Crown’s burden of proof, must always govern the fact-finding process.

[71] As the trier of the fact, I must consider the evidence as a whole when deciding whether the Crown has proven its case beyond a reasonable doubt: R. v. Morin, [1988] 2 S.C.R. 345 at paras 36-44.

[72] I must keep in mind that Mr. Hailu, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely, it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities. This is a very high standard. As Cory J said in R. v. Lifchus, [1997] 3 S.C.R. 21

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.

[73] Mr. Hailu testified and, as a result, the principles set out in in R. v. W.(D.), [1991] 1 S.C.R. 742 apply: If I believe Mr. Hailu’s evidence, I must acquit. If I do not believe the accused, but am left in reasonable doubt by his evidence, I must acquit. Even if I am not left in reasonable doubt by the accused’s evidence, I must determine, on the basis of the evidence I accept, if I am satisfied beyond a reasonable doubt by that evidence of the guilt of the accused.

[74] This case involves two starkly different versions of events that stand in dramatic opposition. The reliability and credibility of the complainant’s and accused’s accounts are fundamental to the resolution of the issues at trial.

[75] I keep in mind that the verdicts in this case must not be based on a choice between the evidence of the accused and Ms. L.O. A criminal trial is not a credibility contest, and it is wrong to believe that a criminal allegation can be resolved by choosing between conflicting accounts. To do so would shift the burden of proof to the accused or lower the standard of proof resting on the Crown: R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.) at 566.

[76] The issue is whether the Crown has proven each count in the information beyond a reasonable doubt. It is wrong to decide a criminal case where there is conflicting evidence simply by deciding which version of events is preferred. The crucial question is whether, after a careful consideration of the totality of the evidence, the Crown has proven the guilt of the accused beyond a reasonable doubt on the specific charges alleged. I instruct myself that a simple rejection of Mr. Hailu’s evidence does not equate to proof of his guilt beyond a reasonable doubt.

[77] When I use the term “credibility”, it does not relate solely to whether the witness was attempting to be honest or truthful. It also includes reliability concerns and the ability of the witness to provide accurate information.

Analysis

1. Credibility Assessment of Mr. Hailu’s Evidence

[78] Mr. Hailu told the court that on October 14, 2022, he had a chance encounter on the street with a stranger, Ms. L.O. He mistakenly believed she was a fellow student. He maintained that Ms. L.O. chose to walk with him to find Nelson Street where she was going to meet some friends. Mr. Hailu said that Ms. L.O. became flirtatious with him. Moments after meeting him, she kissed him. Then, minutes later, she offered to engage in sexual activity with him. It was Mr. Hailu’s evidence that the entire encounter with Ms. L.O., including the sexual activity, was consensual. He never brandished a knife or threatened her. He testified that it was at Ms. L.O.’s behest that she performed oral sex on him in an alleyway on two separate occasions. Also, he said that Ms. L.O. told him she wished to communicate with him in the future in the form of sexually charged “kink” texting.

[79] Upon a consideration of all the evidence, I do not find Mr. Hailu’s version of events to be credible.

[80] First, there is compelling evidence that, in advance of his encounter with Ms. L.O., Mr. Hailu planned to commit a sexual assault on the evening of October 14, 2022.

[81] Following his arrest, a search warrant was executed at his residence and his laptop computer was seized. A search of the laptop revealed that between October 6-14, 2022, Mr. Hailu conducted online Google searches for subjects including “was it rape”, “how do police catch rapists”, “how do rapists get caught” and other similar terms. The term “rape” was searched in the laptop data, and resulted in 88 artifacts between September 12 and October 13, 2022. All related to Google searches including “Canadian woman raped on vacation”, “rape at gunpoint” and “man rapes woman apartment”. On the day of the incident, October 14, 2022, one of Mr. Hailu’s last laptop searches before setting out to purchase a knife was “how do rapists get caught”.

[82] As well, Mr. Hailu’s cell phone was seized incident to arrest on October 16, 2022. A data search of that device revealed three searches for “knifepoint rape on camera Iraq”, knifepoint rape on camera” and “knifepoint rape video”.

[83] Mr. Hailu provided an explanation for these searches. In October 2022, he was a student at Carleton University pursuing a commerce degree. He was also taking a course in forensic psychology and “working on a criminology course without actually being registered in it.” He also said that he was that he was following the syllabus and purchased textbooks for the course. He said that he was particularly interested in a video of a knife-point rape in Iraq that garnered significant public attention in the Middle East. Mr. Hailu admitted that he “habitually reads about sexually assault in the news”. As a criminology student, he would be assigned readings about “sexual assault case law”. Even outside of his courses, he said he would “read habitually about sexual assault cases.” He explained that his internet searches were “purely for academic reasons”. He also admitted having a particular interest in the Crimestopper programs of police forces and unsolved crimes.

[84] In cross-examination, Mr. Hailu admitted that his research taught him that crimes could be committed, and their perpetrators avoid detection. He also learned about the importance of DNA evidence in catching criminals. Mr. Hailu denied any connection between his internet searches for knife-point rapes and his purchase of the knife approximately two hours before his encounter with Ms. L.O. He called this “entirely coincidental.”

[85] In cross-examination, the Crown asked Mr. Hailu whether he could produce a syllabus showing that his rape-related searches were required for any course he was taking. Mr. Hailu replied, “No. Why would I?”. He also added that he was not actually enrolled in any criminology course in October 2022, but was “reinvigorating my interest in subjects that I covered extensively when I was taking criminology courses in the summer of 2022.”

[86] I reject Mr. Hailu’s explanations for these internet searches. Mr. Hailu’s web history of rape and knife-point rape searches had nothing to do with academic research but, instead, everything to do with planning to commit sexual assault while armed with a knife. The timing of his internet searches on knife- point rape and the purchase of the knife is most telling. This was not “coincidental” as Mr. Hailu insisted, but, rather, was integral to his plan to commit a sexual assault.

[87] Around 8 p.m. on October 14, 2022, Mr. Hailu purchased a blue metallic knife from a Canadian Tire store. Mr. Hailu explained that he bought the knife for an upcoming camping trip. He also said that he planned to use the knife to take off mud that would accumulate on his trail running shoes.

[88] Mr. Hailu testified that he had researched online ways to deal with mud on his trail- running shoes. When cross-examined on the fact that that there was nothing in his phone or laptop to support this assertion, Mr. Hailu said he must have done those searches at school. Further, there was nothing in Mr. Hailu’s data to suggest that there was any upcoming camping trip. The accused’s explanation about the use of a sharp knife to remove mud from his trail shoes as opposed to using a stick or rock didn’t make sense. Why would a trail runner use a knife to remove dirt and risk damaging the tread and sole of the shoe? I do not believe Mr. Hailu’s explanation for buying the knife.

[89] I agree with the Crown’s submission that during his testimony, Mr. Hailu went to great efforts to legitimize the purchase of the knife. He repeatedly referred to it as a “tool” or a “multi-use tool” or a “Swiss Army tool”. Only when the actual knife was placed in front of him during cross-examination did Mr. Hailu concede that there were no tools on the knife, just a blade.

[90] I reject Mr. Hailu’s explanation of an innocent reason for the purchase of the knife.

[91] Ms. L.O. was clear that the male brandished a blue metallic knife with the blade out. Mr. Hailu admitted that he did have a blue metallic knife in his possession. This was the knife the police later seized from a locked safe in his basement. The complainant was clear that what he showed her was a blue knife and I accept her evidence. I reject the accused’s position that she only knew about the knife because he told her he had a blue Swiss Army “tool” in his knapsack. I agree with the Crown’s submission that it defies common sense that within minutes of meeting a stranger, he would explain that he had a “Swiss Army Tool” in his bag and would describe its colour. I find that Mr. Hailu offered this evidence to explain why the complainant was able to describe the knife he had on his person.

[92] Mr. Hailu testified that after buying the knife, he travelled by public transit to the Sandy Hill area to visit a “close friend”. He met with this person on a street near his friend’s residence for approximately twenty minutes.

[93] In cross-examination, the Crown had to press Mr. Hailu for the name of his close friend. Mr. Hailu offered the name “Nicholas Lorge”. Mr. Hailu then said that he wouldn’t describe Mr. Lorge as being a close friend but someone he spoke to periodically. Mr. Hailu said that he “had not been really in touch with him…because of the allegations.”

[94] In cross-examination, Mr. Hailu admitted there was no contact information for a Nicholas Lorge in his cell phone. Nor was there any communication between the accused and a Nicholas Lorge by phone, text or social media regarding the visit. Mr. Hailu explained that he would have spoken to Mr. Lorge in person regarding arrangements for the visit.

[95] Mr. Hailu’s evidence about Mr. Lorge was not credible. I do not believe that he would travel downtown to meet a friend for a very brief meeting on the street and then return home. Given Mr. Hailu’s history of extensive use of his phone for web-searching, texting and phoning, it is hard to believe that he would not be in contact with his friend by cell phone to confirm an arrival time and/or a location for the meet up. If Mr. Hailu was really meeting with Mr. Lorge, it is highly improbable that there would be no messaging between them prior to the visit. As well, I found Mr. Hailu to be very evasive in cross-examination about providing basic information about Mr. Lorge.

[96] Considering the above, there is compelling reason to believe that Nicholas Lorge does not exist. Even if he does, I strongly doubt that Mr. Lorge had any contact with Mr. Hailu during the evening of October 14, 2022. In fact, it is likely that Mr. Hailu fabricated the visit with Mr. Lorge to give himself a legitimate reason him for being in the downtown area during the evening of October 14, 2022.

[97] According to Ms. L.O., Mr. Hailu never told her his name or, for that matter, any name during their encounter. Mr. Hailu testified that he identified himself as “Abel” to the complainant. I do not believe him. None of his texts to the complainant or the undercover officer posing as Ms. L.O. mentioned his name. What Mr. Hailu did was create an Instagram account in the pseudonym of Jason. I have no doubt that had Mr. Hailu given a name to Ms. L.O. she would have told the police and have testified to this. There is no reason why she would withhold such important identifying information. I agree with the Crown’s submission that Mr. Hailu’s failure to provide his name to Ms. L.O. was a deliberate step on his part to conceal his identity.

[98] There is evidence that throughout his encounter with Ms. L.O., Mr. Hailu was wearing a medical mask and that his hoodie was drawn tight. He was also wearing gloves. While it is true that the wearing of medical masks was still common in October 2022, it is revealing that Mr. Hailu continued to wear his mask while with Ms. L.O., even during the sexual activity by the shed. Mr. Hailu explained that he had a condition that made him particularly sensitive to cold weather and that was why he covered his face and hands. It is far more likely the case that this was to conceal his identity and to prevent leaving fingerprints.

[99] Mr. Hailu testified that when he and Ms. L.O. met, she told him that she was looking for an address on Nelson Street. According to Mr. Hailu, he told her he would help her find Nelson Street, even though he testified that he did not know where Nelson Street was.

[100] Exhibit 22, a map of the area, shows Nelson Street to be the closest side street to their location at that time. Mr. Hailu testified that he planned to walk with her around the area to find Nelson Street. Mr. Hailu had a working cell phone of which the evidence clearly shows he made extensive use to conduct internet searches. If Mr. Hailu really wanted to assist Ms. L.O., he could and doubtless would have easily used his phone to google the location of Nelson Street.

[101] Instead, Mr. Hailu led Ms. L.O. around Sandy Hill away from Nelson Street. I conclude that he had no intention of helping Ms. L.O. get to her friend’s place on Nelson Street but, rather, intended to prevent her from reaching her destination. This is borne out several hours later by his Instagram messaging with the undercover officer, posing as Ms. L.O. Mr. Hailu wrote, “ I can play with people’s minds…I wanted you to feel a wide range of emotions from fear…then to make you feel at ease when I laughed and listened to what you had to say… then confusion when I had you walking around aimlessly thinking I was taking you to Nelson Street, then fear again .” (emphasis added). Mr. Hailu tried to explain that he did not look up Nelson Street because he had limited data. This assertion is belied by the evidence of the numerous Google searches he conducted throughout the evening while he was with Ms. L.O.

[102] Mr. Hailu maintained that he did not compel the complainant to hang up her phone when she was speaking with Ms. F.B. Instead, he said that it was Ms. L.O.’s idea to end the phone call so she could continue her conversation with him.

[103] I do not believe Mr. Hailu. Ms. L.O. abruptly ended her conversation at 9:46 p.m. with Ms. F.B. when Mr. Hailu brandished the knife. The phone records in exhibit 7 show that as soon as this conversation ended, Ms. F.B. made several unsuccessful attempts to call Ms. L.O. back. It was not until 10:09 p.m. that Ms. L.O. was able to connect with Ms. F.B. One would reasonably expect that if Ms. L.O. was not being held against her will, she would have taken a call from her friend much sooner to explain that she had met someone and that everything was fine. Mr. Hailu’s testimony is further contradicted by the credible evidence of Ms. F.B. that while on the phone with the complainant about their plans for the evening, she heard a male voice interrupt the call, and that the call ended abruptly.

[104] Mr. Hailu testified that from the outset, Ms. L.O. flirted with him He claimed that Ms. L.O. complimented him on his appearance, asked him if she thought he was attractive, put her hand on his thigh, and then kissed him. Mr. Hailu said he had a vivid memory that he lowered his mask briefly to kiss her. He testified that after the kiss he noticed cigarette residue in his mouth and lip gloss or lipstick on his lips. He said that he then used his mask to wipe it off and that he was also wiping his tongue and then left his mask fully on his face. I do not believe his evidence about the kiss. If there was an expectation of further sexual contact, why would Mr. Hailu leave the mask on? If the mask had been used to wipe clean his lips and tongue, why would he put the mask back on his face. I do not believe Mr. Hailu’s evidence that Ms. L.O. engaged in any flirtatious behaviour with him.

[105] Mr. Hailu testified that it was Ms. L.O. who wanted to have a sexual encounter with him. Because of his knowledge of Canadian law and the “MeToo Movement”, Mr. Hailu said that he wanted to protect himself and to ensure that she was an adult if he was going to have sex with her. That is why he asked her for her identification to confirm this and permission to take a photo of her I.D. Exhibit 9 is a video file created on Mr. Hailu’s phone and shows a photo of the complainant’s I.D. card. I reject Mr. Hailu’s explanation for taking this photograph and find that this was an effort to control Ms. L.O. and instil fear in her through obtaining her personal information. The photo was taken at 10:06 pm, some 21 minutes after he first encountered her on Wilbrod Street.

[106] Mr. Hailu would have me accept, that while on the way to a friend’s house, and on the phone with that friend, a chance encounter on the street with a stranger whose face she could not see, would cause this young woman to hang up the phone abruptly mid-conversation, follow him, provide personal details about herself and her family, ignore repeated calls and texts from Ms. F.B., kiss him, make physical advances, discuss “hooking up” with him and allow him to photograph her ID to prove she was an adult before ultimately going with him twice into an alley to perform fellatio. This defies belief. I agree with the Crown’s submission that Mr. Hailu’s testimony is not credible.

[107] As seen in the data from Mr. Hailu’s phone, exhibit 9, a screen shot was created at 10:25 p.m. of a Google search for Ms. L.O.’s father S.O. Three minutes later a screen shot was created on his phone of a Google search of the complainant’s address. Mr. Hailu testified that Ms. L.O. was interested in his background in crypto currency and asked him if he could come to her house to teach her. He said he gave her his phone to put in her address but, instead, she mistakenly did a Google search of her father and showed him the results. This was a bizarre explanation for why this information was found on his phone. I do not believe that explanation. Mr. Hailu conducted the searches to gain information about her as part of his effort to gain control over her and to intimidate her.

[108] Mr. Hailu agreed with the testimony of Ms. L.O. that he told her he had raped a “Lebanese slut” on October 2. He referred to this in his Instagram conversation with the undercover officer and said it was a lie. He wrote, “And that story about that girl. It was a lie. I never hurt her. I was drinking a lot of Henny that night and I wasn’t thinking straight.” He testified that he told the story about raping the girl to Ms. L.O. to impress her. It is not believable that bragging about raping a woman would favourably impress the complainant. The only reasonable inference is that he told this story to Ms. L.O. to instill fear in her so that she would comply with his demands.

[109] According to Mr. Hailu, it was the complainant who offered to perform oral sex on him and that they walked around Sandy Hill looking for a suitable location. He testified that it was Ms. L.O. who first noticed the shed area, contrary to her version. He conceded that he engaged in the sexual act behind the shed but said that it was completely consensual. He added that it was enjoyable for him. It is not believable that after instilling fear in the complainant by showing her a knife and controlling her movements up until this point, that Ms. L.O. would willingly engage in any kind of sexual activity with the accused. Mr. Hailu acknowledged in his texting with Detective Carr, posing as the complainant, that he knew Ms. L.O. was in fear. He wrote, “I was never going to hurt you…I realized within minutes that you weren’t who I was looking for but I still decided to toy with you”. (emphasis added).

[110] The first act of oral sex was interrupted by a dog walker passing nearby. Ms. L.O. testified that Mr. Hailu told her that her mouth was dry and that they should get a bottle of water so that the experience would be more pleasurable for him. Mr. Hailu denied that such a discussion took place. In the video evidence found in exhibit 15, Mr. Hailu is seen opening his wallet and looking inside. Ms. L.O. said he was looking for change to purchase water. The accused said he was simply readjusting the position of a house key he kept in the wallet because it was bothering him during fellatio.

[111] I do not believe Mr. Hailu’s testimony. In a text from the undercover officer to Mr. Hailu, she wrote,” Well u did scare me alright…damn…had my mouth all dry! But thinking about last night, kinda hot”. Mr. Hailu never corrected the suggestion that he scared her nor the reference to her dry mouth. Detective Carr texted Mr. Hailu, “U gonna make it like Friday,…think having me scared turned u on, I always get a bit freaked in dark streets. The accused replied, “you want it be just like Friday. You’re 100% sure.” Detective Carr states “Well you did scare me…but you’re not going to hurt me right.” The accused responded, “You’re so adorable”. It is telling that the accused neither denied nor questioned the statement that he scared her.

[112] Later in his texts, Mr. Hailu told Detective Carr, “So it’s safe to say that I’m not in the business of hurting women. However…if by “hurt” you mean putting my hands around your throat to sexually tease you and pulling your hair a bit…then yah I’ll be inflicting some of that on you [emoji].” Minutes later, he wrote, “When you said “will let you let me live? I thought you were insane. I’m not about that life cutie.” Detective Carr responds, “Insane…more like scared[emoji].” The accused replies, “Well I like to play with people sometimes, as I said earlier. So maybe I didn’t realize I might have taken things further than I thought I would.” In this text, Mr. Hailu acknowledges that he scared Ms. L.O. to the point that she was pleading for her life. This contradicts his own testimony and corroborates hers.

[113] Mr. Hailu testified that everything he wrote to Detective Carr was about “kink” role-playing that Ms. L.O. wanted him to do before parting ways that evening. I do not believe Mr. Hailu. In these texts, Mr. Hailu was attempting to convince Ms. L.O. that he would not hurt her like he said he would on October 14. I am of the view that in the last text referenced above, Mr. Hailu was acknowledging his wrongdoing by noting that he had “taken things further” that he thought he would.

[114] Mr. Hailu’s version of events was of a chance consensual romantic encounter with stranger on the sidewalk of a public street. According to his evidence, Ms. L.O. kissed him within moments of meeting and offered to perform a sexual act on him approximately 20 minutes after they first met. She was the one who provided instructions that they were to engage in kink style texting following the encounter. I do not believe Mr. Hailu’s narrative. He was not truthful. I reject his version of events. Nor did his evidence leave me in reasonable doubt.

2. Credibility Assessment of Ms. L.O.’s Evidence

[115] I agree with the Crown’s submission that Ms. L.O. provided the court with a compelling and harrowing account of being accosted by a complete stranger, threatened with a knife and led around Sandy Hill before being compelled to perform oral sex on Mr. Hailu.

[116] Ms. L.O. was planning to meet up with her friend F.B. on the evening of October 14, 2022. They were in frequent cell phone communication with each other. The data from both Ms. L.O.’s and Ms. F.B.’s cell phone was entered as Exhibit 7. Ms. L.O. said that after her assailant came up to her, he demanded that she hang up her phone or else she would get in trouble. He then showed her a knife. She abruptly hung up her phone at 9:46:35 p.m. and complied with the man’s demand that she turn off her phone. The cell phone records show that Ms. F.B. began repeatedly attempting to call her back starting at 9:47:57. She interpreted the instruction from the male “hang up or else” as “it’s either I hang up or my life is on the line” and that “it made me feel frightened for my life.” Ms. L.O. was entirely credible in saying that the words and actions of the accused caused her to fear for her life.

[117] Ms. F.B. was, in my view, a credible witness who corroborated the complainant’s testimony in important respects. She testified that she had been speaking on the phone with Ms. L.O. about their plans to meet up for the evening. She was on the phone with Ms. L.O. when she heard a male’s voice interrupt their call. Ms. F.B. described the call ending abruptly, causing her to be concerned for her friend. She called and texted her repeatedly after this. This is confirmed by her call logs in Exhibit 7.

[118] If this was a spontaneous romantic encounter as claimed by Mr. Hailu, I am confident that Ms. L.O. would not have hung up abruptly and would have been in contact with F.B. to say that her plans to meet up had been unexpectedly but pleasantly delayed. To do otherwise would not only be rude but certain to cause her friend unnecessary concern. I believe Ms. L.O. that she was forced to shut off her phone and wasn’t permitted to take a call from Ms. F.B. until approximately 20 minutes later.

[119] Ms. L.O. testified that during their initial encounter, her assailant showed her a blue metallic knife with the blade open. Mr. Hailu denied this. However, Ms. L.O.’s description of the knife that Mr. Hailu purchased at Canadian Tire that day and which was later found by the police locked in a safe in his bedroom, was accurate and externally corroborated.

[120] Ms. L.O. testified that she was trying to prove to the male that she was not the person he was looking for and that he had mistaken her for someone else. She showed him her Moroccan National ID to prove this. She testified that he took her to a building near a trash disposal where he examined the card. Ms. L.O. said he later photographed the card during her forced walk-through in Sandy Hill. Her testimony is corroborated by a video photo file on Mr. Hailu’s phone created at 10:06:29 p.m. and referenced in exhibit 9 that depicts Ms. L.O.’s Moroccan ID card. It should also be noted that the card also had her parents’ first and last name on it, as well a her grandparents’ names. I found Ms. L.O. entirely credible when she described feeling trapped and fearful that the male had this information. She said she didn’t know what kind of contacts the man had and “wasn’t sure if strangers would be sent by him, or if he would come himself…after knowing that I did tell on him. So, for the first while, I couldn’t even stay in Ottawa and went back to Morrocco for a few months.” While she had apparently already planned a trip to Morrocco, her evidence demonstrates the continuing fear she felt, even after the arrest of Mr. Hailu, because she had been forced to give up personal details about herself and family members, particularly her address.

[121] I accept Ms. L.O.’s testimony that she showed Mr. Hailu her ID card to show him that she was not the person he claimed he was looking for. “I was just trying to kind of reason with him and back away, like distance ourselves, but when I would do that, that’s when he would grab my arm and, like, he would grab my arm and, like, bring me closer to kind of, like make me understand that he wasn’t done." She explained that “every time I was trying to get away from him, he was telling me not to run, or that I would regret it, and so think he said, follow me. I’m not sure of the exact words.”

[122] Defence counsel suggested to Ms. L.O. in cross-examination that she had opportunities to flee from her assailant if she chose to. In response to counsel’s questions, Ms. L.O. said that the type of running shoes and dress she was wearing, as well as the fact she was carrying a bottle of alcohol, would have hindered her. She also said she was a smoker and her lungs were not prepared for running.

[123] However, it was very clear that the main reason she did not run was because she was overwhelmed with fear. Moments earlier, the male had brandished a knife, threatened her, grabbed her arm and had obtained personal information about her and her family. When asked how the fact that she had been shown a knife earlier, and that the male had obtained her family information, caused her to feel, Ms. L.O. responded, “Well… it made me feel scared for my life, and I was really in a kind of state of survival, where I was just trying my best to make it out alive of (sic) the situation because I really thought that if I did anything that he wasn’t happy with, I …would have died there.” I believe Ms. L.O. was accurately and honestly describing her state of mind during the entire incident.

[124] Mr. Hailu understood he had put Ms. L.O. into a state of fear as he led her though Sandy Hill. I return to the text Mr. Hailu wrote to the undercover officer posing as Ms. L.O. “I can play with people’s mind…I wanted you to feel a wide range of emotions from fear…then to making you feel at ease when I laughed and listened to what you had to say…then confusion when I had you walking aimlessly thinking I was taking you to Nelson Street, then fear again.” In a later text, he acknowledged that the complainant at one point asked him, “Will you let me live?”

[125] The accused’s own words corroborate the complainant’s testimony that she was with the accused against her will and that she was clearly in a state of fear.

[126] Ms. L.O. testified that she told the male that she needed to turn her cellphone on to reassure her friend F.B. She told him, “If you don’t want to have problems with the police, you should let me talk to her to at least tell her, “Hey, I’m safe. I’m just doing whatever…so that convinced, and I was able to receive one call that night.”

[127] Ms. L.O. testified that the male let her take an incoming call from Ms. F.B. The phone logs show that this call took place at 10:09 pm. The complainant said that she communicated with her friend in Italian. She chose Italian because she did not want to communicate in a language he might understand. Ms. L.O. told Ms. F.B. that she couldn’t tell where she was. Ms. F.B. asked her if she was with a person she wanted to be with and Ms. L.O. said “No”. The male started to get impatient and told her that the call was taking too long. Ms. L.O. then switched to French and said, “Yeah. Okay. I need to go and, like everything’s okay.” and then hung up. Ms. L.O. was not certain whether Ms. F.B. asked her if she was in danger. What Ms. L.O. did remember was telling her friend that she did not want to be with the person she was with.

[128] Ms. F.B. described the call in the same way, and this prompted her to call 911. I found both Ms. L.O. and Ms. F.B.’s evidence to be credible, that during the call Ms. L.O. conveyed as best she could in her circumstances that she was not safe being with the person she was with.

[129] Mr. Hailu described a scenario where he met the complainant when he mistook her identity. He said that she then chose to walk with him and initiated flirtatious behaviour towards him. I agree with the Crown that it is contrary to common sense that if this were the case, Ms. L.O. would need to speak in Italian to Ms. F.B. during this call. It also defies common sense that if this was a romantic encounter as alleged by Mr. Hailu, she would convey to Ms. F.B. that she didn’t want to be with the person she was with.

[130] After the photo of her I.D. was taken and before going to the church stop, Ms. L.O. said the two were near a building that had a pool and seemed like an apartment or hotel. There the male told her about having raped a Lebanese girl on October 2. He also showed her a condom. The complainant testified “I was really…uh…really worried about my safety because to me, it meant that if somebody had done this before and knew how to get away with it…uh…especially because he told me that she hadn’t told on him and that she ends up getting beaten as well, as a result of what happened to her. So…I didn’t think that I was gonna make it out alive, I thought that he was being truthful in regards of what happened on October 2nd.”

[131] Ms. L.O.’s evidence regarding this sequence of events is credible. I once more refer to his text with the undercover officer posing as the complainant Mr. Hailu referred to the rape conversation. He wrote, “And that story I told you about that girl. It was a lie. I never hurt her. I was drinking a lot of Henny that night and wasn’t thinking straight… Maybe I shouldn’t have said all of that.”

[132] I agree with the Crown’s submission that Mr. Hailu’s comments to Ms. L.O. about raping the Lebanese girl was part of his ongoing effort to terrorize the complainant so that would comply with his demands.

[133] Ms. L.O. testified that while forced to walk around Sandy Hill with the male, she pleaded with him to let her go. She said “…and I was trying to tell him this to have, kind of, sympathize with me, and, like, “Please let me go and let me get back to my mom.”. She said, “ He was telling me that he would let me go at some point. At first, he would tell…he would give me, like, timeframes. So, he would be, like, one hour I’m gonna let you go.” And, at some point, he …I guess he just got tired”. Ms. L.O. also said that she thought that “he would catch up to me if I tried to leave and he would kill me on the spot.”

[134] Ms. L.O. was credible. Mr. Hailu confirmed the complainant’s account in his texting with the undercover officer. I again refer to the following text: “I can play with peoples’ minds…I wanted you to feel a wide range of emotions from fear…then to making you feel at ease when I laughed and listened to what you had to say…then confusion when I had you walking around aimlessly thinking I was taking you to Nelson Street …then fear again.” He then tells her he had decided to toy with her.

[135] Ms. L.O. described the sexual assault as taking place behind a “whitish beige” shed. The shed was behind a residential building, a tiny apartment complex, and that in between the building and the shed was a parking lot. Her description of the scene is reliable as shown in the video surveillance evidence in exhibit 15. The video captures her and Mr. Hailu between 11:04 p.m. and 11:24 p.m. The video appears to be motion activated and there are some gaps in the video during that timeframe.

[136] Ms. L.O. said she was instructed by the male to give him a “blowjob”. She testified that he told her not to bite his penis and that if she did, “I would have my throat slit”. She said those were his exact words. She remembered that “he kept his knife close to him, in order to reinforce that statement”. She testified that she was very frightened and “that’s when the survival mode kind of kicked back in, because I was like, okay, well I have to make sure I’m making it out alive.”

[137] Ms. L.O. also said that she was specifically instructed not to spit his ejaculate on the ground. She was ordered to either swallow it or have it go in his underwear so that none would be found on the ground. During the act of fellatio, Ms. L.O. said that the male called her “baby” and said “it feels so good” and “that’s the best I have felt”. The male tried to use a condom but was not successful.

[138] I believe that the complainant was being truthful in her description of the sexual assault and what the male said to her during it. Her testimony about being on her knees performing oral sex is corroborated by the video surveillance. As well, the accused’s instruction to her not to spit his ejaculate on the ground was consistent with Mr. Hailu’s interest in avoiding detection as evidenced by his Google searches on topics such as “how to ( sic ) police catch rapists” and “how do rapists get caught”.

[139] Ms. L.O.’s testimony was that while behind the shed, people with a dog walked by. She described another person with a dog approaching them at the shed. This was corroborated by the video surveillance evidence.

[140] Ms. L.O. testified that the male then “brought up the fact” that her mouth was really dry and that they should go the Circle K store for water “to make the experience more pleasurable for him.” He took out his wallet to see if he had cash because he did not want to pay with debit or credit. Video surveillance evidence shows Mr. Hailu looking into his wallet. In the Instagram texting, the undercover officer posing as Ms. L.O. referred to having had a dry mouth during their encounter and Mr. Hailu’s comment about bringing water to their meet up. Mr. Hailu did, in fact, bring a bottle of water to what he thought would be a meet up on the night of his arrest on October 16. His accepting of that statement in the text exchange supports her evidence that she had a dry mouth.

[141] Ms. L.O. said they left the area and “started walking up to the Circle K but we ended up never buying the water”. They then returned to the shed area. They did not go into the store because he couldn’t go in with her and he couldn’t go in and leave her alone. The male indicated it was okay if her mouth was dry. A map of nearby convenience stores was entered as Exhibit 23. There is a Circle K store a few blocks from the Stewart-Chapel Street area shed where the sexual activity occurred. However, it is also the case that during cross-examination, Ms. L.O. wasn’t sure if the store was an Esso or a Quickie or a Circle K, except that the store had a red sign.

[142] Despite Ms. L.O.’s uncertainty about the name and precise location of the convenience store, I am satisfied that the conversation about getting water and the walk to the convenience store occurred. Ms. L.O.’s inability to pinpoint the name or exact location of the convenience store, given the dire situation in which she found herself , is understandable. It does not diminish Ms. L.O.’s overall reliability and credibility as to the events she described.

[143] It is highly probable that the two walked to the Circle K at the intersection of Henderson Street and Laurier Avenue, about two and a half blocks from the shed where the sexual activity occurred. There was a short interval between the time of leaving the shed area and returning to the shed for the resumption of oral sex which is consistent with this distance. This is reinforced by the message with Detective Carr where Mr. Hailu rejects her suggestion to meet up at or near a Quickie convenience store. Mr. Hailu says, “No. Circle K near Henderson.” I am satisfied he said that because that was the store they headed to on October 14 for water and it was a location familiar to both him and Ms. L.O.

[144] Ms. L.O. testified that the male let her go on certain conditions. She would have to give him a hug at the nearest intersection where he knew there was a camera. She was to answer to a Wi-Fi phone number he would set up and that she was to respond in a text message that they had an impromptu encounter and to thank him for the night they spent together. She also had to agree to keep quiet about what happened. Ms. L.O. interpreted this to mean that if she did not reply to his text messages she would get hurt since he had her phone number and her address.

[145] Upon leaving, Ms. L.O. turned on her phone and received a call from F.B. This was corroborated by Ms. F.B. in her testimony and the cell phone records in exhibit 7. Ms. F.B. told her that the police were looking for her. Moments later, an officer in a police car called out Ms. L.O.’s name.

[146] Once in the police car, Ms. L.O. sat low in the seats because she was afraid they might drive by the male. “I wasn’t sure that the knife was the only arm in his possession, so I didn’t want to risk anything.” Even though she was with the police, Ms. L.O. was worried about her safety.” She worried what would happen “if he would find out that I did speak to the police, what kind of consequences I would be facing, especially with my mom…at my place and me not being there.” The evidence of the officers who located Ms. L.O. and then spoke to her after she was put in an ambulance described her as upset and fearful and emotional, particularly when speaking about the intimate details of the sexual assault. She said she had a few scratches on her knees and a few red marks on her wrists from being grabbed.

[147] Another officer, Constable McGoff, spoke to L.O. who appeared overwhelmed with emotion. Her hands were shaking, and her eyes were filled with tears. Her distraught condition is further evidence that her encounter with Mr. Hailu was non-consensual.

[148] While at the hospital Ms. L.O. received messages from Mr. Hailu which frightened her and made her feel threatened. She followed police instructions not to respond. Ms. L.O. was right to feel threatened, given their tenor and content.

[149] The messages Mr. Hailu sent the complainant were menacing. “Did you forget what we talked about last night”, “Because if I don’t think you arrived home safe, I might need to send some people to verify that you’re ok.”, You don’t remember the agreement? Also, do not block this account and accept the request that I sent you.” While he was trying to communicate with her, Mr. Hailu was also doing searches about the area of Ottawa, her specific address, her name and her father’s name. I agree with the Crown’s submission that these messages were sent not out of concern for Ms. L.O.’s safety but, rather, to instil fear in her and ensure her continued compliance about not going to the police. Mr. Hailu was attempting to continue his control over Ms. L.O. It also noteworthy that Mr. Hailu never called her or used his real identity in his messages.

[150] There is no controversy that Mr. Hailu made various efforts to communicate with Ms. L.O. which are seen in exhibits 7 and 9. The complainant agreed to have a police officer assume her online identity on Instagram. These messages are set out earlier in these reasons. I agree with the Crown that they are incriminatory in nature and reference facts that corroborate Ms. L.O.’s version of events. In these messages, Mr. Hailu states

• “I wanted you to feel a wide range of emotions from fear...then to make you feel at ease when I laughed and listened to what you had to say…then confusion when I had you walking around aimlessly thinking I was taking you to Nelson Street, then fear again”
• “I was never going to hurt you…I realized within minutes that you weren’t who I was looking for but I still decided to toy with you.”
• “When you said “will you let me live?” I thought you were insane,”
• “I like to play with people sometimes as I said earlier. So maybe I didn’t realize I might taken things further that I thought I would.”

[151] These messages provide further confirmatory evidence that Ms. L.O.’s version of events is both truthful and reliable.

Findings and Conclusions

[152] Throughout his encounter with Ms. L.O., Mr. Hailu was wearing a black medical mask covering the lower part of his face. He was also wearing a tightly drawn hoodie. While it is true that the wearing of medical masks was still common in October 2022, it is revealing that Mr. Hailu continued to wear his mask outside during his time with the complainant, including during the sexual acts. He also wore gloves throughout. A reasonable inference is that he wanted to conceal his identity and prevent leaving fingerprint evidence. All of this is inconsistent with Mr. Hailu’s version of events that he and Ms. L.O. were spontaneously engaged in a romantic “hook-up” on the streets of downtown Ottawa.

[153] I have applied the W.(D). framework to the evidence of Mr. Hailu.

[154] According to Mr. Hailu, he had a chance encounter with a stranger on a public street who became immediately attracted to him and decided to suddenly change her plans for the evening without explanation to the friend she was speaking to when he approached. Within minutes, the stranger was touching him, kissing him and performing oral sex on him in an alleyway. Mr. Hailu told the court his entire interaction with Ms. L.O. was consensual. He never showed her a knife. He never forced her to walk for two hours in Sandy Hill. He portrayed Ms. L.O. as the one initiating or suggesting most of the sexual contact. He tried to explain incriminating Instagram texts to the undercover officer posing as Ms. L.O. as made-up “kink conversation” that the complainant instructed him to use. For the reasons set out earlier in my assessment of Mr. Hailu’s credibility, I did not believe Mr. Hailu, nor did his evidence leave me in reasonable doubt with respect to his guilt regarding the specific charges against him.

[155] I am satisfied that Mr. Hailu conducted multiple Google internet searches on the topics of “rape”, “knife point rape” and how “do rapists get caught” for the purpose of committing a sexual assault.

[156] I find that Mr. Hailu purchased the blue metallic knife on October 14, 2022, for the purpose of committing a sexual assault.

[157] I reject his version of events that Ms. L.O. willingly accompanied him for a walk in Sandy Hill and that she was a willing participant in sexual activity.

[158] As I indicated earlier in these reasons, I cannot treat my disbelief of Mr. Hailu’s testimony as proof of his guilt. The third principle in the W.(D.) framework states that even if the court is not left in reasonable doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[159] Earlier in these reasons, I provided my assessment of Ms. L.O.’s testimony which was corroborated by other evidence adduced in this trial. I believe Ms. L.O. as to what occurred on October 14, 2022. In my view, her testimony was entirely credible on every material fact in issue. She provided a compelling account of being accosted by a stranger, threatened with a knife, led around an Ottawa neighbourhood and being forced to perform oral sex. She presented throughout her testimony as a credible and reliable witness. She testified in a forthright manner. Despite a skilful and vigorous cross-examination, she did not exaggerate or embellish her testimony. Nor did she ever resile from the narrative she told in her evidence in chief.

[160] I accept Ms. L.O.’s testimony that she was accosted by Mr. Hailu while she was talking on her phone with Ms. F.B. Her description of the accused was consistent with Mr. Hailu’s appearance on the video of him purchasing the knife two hours earlier. He was wearing a dark medical mask and his hoodie was drawn tight. I am also satisfied that when he encountered Ms. L.O., the accused was attempting to hide his identity.

[161] I believe Ms. L.O. that Mr. Hailu ordered her to hang up her phone. Her evidence is corroborated by the testimony of her friend Ms. F.B. who heard a male’s voice interrupt her call and that their call ended abruptly. Ms. F.B. made many calls and sent many messages to the complainant without any response. This supports the testimony of the complainant that the accused would not permit her to answer any calls or receive messages.

[162] I accept the testimony of Ms. L.O. that the accused brandished a blue metallic knife with the blade out. Mr. Hailu denied ever showing her a knife. However, Ms. L.O. was able to accurately describe the knife Mr. Hailu brought that night and then later concealed in a locked safe in his bedroom.

[163] I accept the testimony of Ms. L.O. that the accused took a photograph of her Moroccan identity card which also contained the names of her parents and grandparents. A video file on Mr. Hailu’s phone is proof. I accept that she reasonably believed that the photograph of her ID was being used by Mr. Hailu as leverage over so that she would not tell the police or testify against him.

[164] I accept Ms. L.O.’s evidence that Mr. Hailu permitted her to take one call from Ms. F.B. I accept the testimony of the complainant and Ms. F.B. that they spoke in Italian. Ms. F.B. asked her if she wanted to be with the person and Ms. L.O. responded “no” to convey that she was not safe. This is clear evidence of the non-consensual nature of Ms. L.O.’s encounter with Mr. Hailu.

[165] I find that Mr. Hailu led Ms. L.O. against her consent around the Sandy Hill neighbourhood just as she described. I accept her testimony that he told her that he had beaten and raped a Lebanese girl on October 2. Ms. L.O. was terrified and complied with instructions. Her evidence on this point was corroborated by the text of the accused to the undercover officer when he wrote, “I can play with people’s minds… I wanted you to feel a wide range of emotions from fear …then to make you feel at ease when I laughed and listened to what you had to say…then confusion when I had you walking aimlessly thinking I was taking you to Nelson Street, then fear again.”

[166] I accept Ms. L.O.’s evidence that Mr. Hailu made her perform fellatio twice on him against her will and without her consent. Surveillance video captures the sexual activity she described. In this regard, there is also the following Instagram messaging between the accused and Detective Carr, the undercover officer posing as Ms. L.O.

Detective Carr as L.O. : U gonna make it like Friday, think having me scared turned u on, I always get freakedd (sic) in dark streets Accused : You want it to be just like Friday? You’re 100 per cent sure? Detective Carr as L.O. : Well you did scare me…but youre not going to hurt me right Accused : Youre so adorable…(emoji)

[167] I infer on this evidence that Mr. Hailu neither denied or questioned her statement that he scared her because he knew he had. He acknowledges in his texting with the undercover officer that Ms. L.O. asked him “will you let me live?”.

[168] I reject the evidence of Mr. Hailu that at Ms. L.O.’s instruction, they would communicate with each other and pretend something bad happened between them, and that he was instructed to “exaggerate their circumstances”. He testified that she gave him a lot of detail about how he was supposed to “role-play” and exchange “kink” messages. I accept the testimony of Ms. L.O. that there was no agreement to engage in “sexting” or kinky conversations. I reject Mr. Hailu’s testimony that he could not have those type of messages being sent from his school or work number. I conclude that he ultimately used a Wi-Fi number to contact the complainant, not because of the sexual nature of the communications, but in order to conceal his identity.

[169] On all the evidence, I accept the testimony of Ms. L.O. that Mr. Hailu set conditions for her release. First, she would have to give him a hug at the nearest intersection where he knew there was a camera. Second, she was to answer a Wi-Fi number that he had set up and that she would answer the text thanking him for the night they spent together. Third, she had to agree to keep quiet about what happened. He made her hug him and let her go. She immediately took a call from F.B. who told her the police were looking for her. Police found her very soon after and described her as being distraught.

[170] I now turn to each count in the information.

Counts 1 and 2: Sexual Assault with a Weapon, contrary to s. 272(2)

[171] There is no dispute that there was sexual contact between Mr. Hailu and Ms. L.O. on two occasions on October 14, 2022. I am satisfied beyond a reasonable doubt that Mr. Hailu forced Ms. L.O. to perform oral sex on two separate occasions behind a shed near the intersection of Stewart and Chapel Streets in Ottawa. Ms. L.O. was entirely credible that she did not consent to any sexual activity with Mr. Hailu. I believe that she engaged in sexual activity because she was in fear for her life. I accept her testimony that Mr. Hailu produced and showed her the knife he brought that evening. She was aware of him having the knife throughout the incident. I believe her testimony that he threatened to slit her throat if she bit his penis. I am satisfied beyond a reasonable doubt that the Crown has established the essential elements of the offence of sexual assault using a weapon, contrary to s. 272.

Count 3: Utter Threat to Cause Death, contrary to s. 264.1(2)

[172] I accept the evidence of Ms. L.O. that Mr. Hailu told her not to bite his penis or he would slit her throat. Also, he repeatedly gave the complainant instructions to do or not do things by telling her she would “regret it” if she did not comply. I am satisfied beyond a reasonable doubt that he is guilty of uttering a death threat to Ms. L.O.

Count 4: Unlawful Confinement, contrary to s. 279(2)

[173] The Crown has established beyond a reasonable doubt that the accused did, without lawful authority, confine Ms. L.O. He led her around the Sandy Hill neighbourhood of Ottawa against her will. She pleaded with him to let her go. I accept her testimony that he would either grab her arm or maintain close physical proximity to her to prevent her from leaving. He showed her a knife and carried it on his person throughout the incident. Not only did he use a weapon but also used threats to compel the complainant to accompany him and remain in his presence.

Count 5: Criminal Harassment by engaging in communications to cause L.O. to reasonably fear for her personal safety contrary to s.264(3)

[174] I am satisfied beyond a reasonable doubt that after L.O. was permitted to leave the accused, Mr. Hailu sent several unwanted messages through different platforms that were threatening in nature. I have identified those messages earlier in these reasons. In these messages, Mr. Hailu did not reveal his identity. The messages were threatening in nature. One was particularly threatening. He wrote, “Because if I don’t think you arrived home safe, I might need to send some people to verify that you’re okay.” I agree with the submission of the Crown that this was clearly a threat to Ms. L.O. that unless she responded to Mr. Hailu, she and her family were not safe in their residence. He had accessed her personal information, including her address and her parents’ names. The Crown has proven the essential elements of criminal harassment beyond a reasonable doubt.

Count 6: Criminal Harassment by engaging in threatening conduct directed at L.O. contrary to s. 264(3)

[175] I accept the testimony of Ms. L.O. that the accused repeatedly demonstrated threatening conduct towards her in several ways. He brandished a knife. His comment about raping a Lebanese girl on October 2, 2022, was designed to threaten Ms. L.O. He then forced her to turn off her phone. I accept Ms. L.O.’s testimony that he was touching her buttocks while they were walking amounted in the circumstances to be threatening conduct. I accept the testimony that he forced her to drink alcohol against her will which was threatening conduct. His demand that any DNA/ semen not be left behind was also implicitly threatening. These behaviours terrified the complainant who pleaded for her life and made her comply with the demands to follow him around Sandy Hill and perform oral sex on him.

Count 7: Intimidation contrary to s. 423(1)(a)

[176] The offence of intimidation is made out when a person intending to compel someone to abstain from doing something she has the right to do, or to do something she has the right to abstain from doing, wrongfully and without authority, uses violence or threats of violence against the person. I am satisfied that the essential elements of this offence were established beyond a reasonable doubt. I accept the testimony of Ms. L.O. that Mr. Hailu coerced her into performing non-consensual fellatio on him with threats of violence, as well as having shown her a knife earlier in the evening. He is guilty of intimidation.

Count 8: Possession of a weapon for a purpose dangerous to the public peace, contrary to s. 88(2)

[177] The Crown has established beyond a reasonable doubt that Mr. Hailu had in his possession a blue metallic folding knife when he encountered and engaged with the complainant. He possessed this knife to assist him in committing a sexual assault and to threaten Ms. L.O. Mr. Hailu is guilty on this count.

Count 9: Kidnapping, contrary to s. 279(1.1)

[178] The evidence establishes beyond a reasonable doubt that Mr. Hailu is guilty of kidnapping. He accosted Ms. L.O. on a public street and threatened her with a knife. He forced her to follow him through the Sandy Hill area of Ottawa. I accept the testimony of the complainant that she was not free to leave nor use her phone to obtain help. Over the course of two hours, Mr. Hailu took her to various locations against her will, including behind a shed in order to sexually assault her. She was directed from place to place. Occasionally he would grab her arm if she got to far ahead of him. Ms. L.O. described red marks on her wrists where he grabbed her for this purpose.

[179] In conclusion, I am satisfied that the Crown has proven Mr. Hailu’s guilt beyond a reasonable doubt on each count in the information. He will be convicted on all counts.

Released: November 15, 2024 Justice T. Lipson