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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2024 11 14 COURT FILE No.: Central West Region - Brampton – 20-269

BETWEEN:

HIS MAJESTY THE KING

— AND —

K.N.

Before Justice Andrew F. Falls Heard on October 8-9, 2024 Reasons for Judgment released on November 14, 2024

Counsel: M. Hassan............................................................................................. counsel for the Crown V. Houvardas........................................................................ counsel for the defendant, KN

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast, or transmitted in any manner. If the WARNING page at the start of this document is missing, please contact the court office.

Falls, J.:

Introduction

[1] KN has been charged with sexually assaulting MM at the City of Brampton on October 3, 2018.

[2] Crown counsel elected to proceed by Indictment. KN pled not guilty and a trial was completed before me.

[3] This was a two-witness case. The Crown called MM. She testified remotely from outside the courtroom. In addition to the testimony of MM, the Crown tendered text messages between KN and MM that were exchanged shortly after the alleged incident.

[4] KN testified in his own defence.

[5] MM testified that KN engaged in non-consensual intercourse with her. More particularly, she said that he had vaginal intercourse with her and that she did not consent to this activity.

[6] KN testified that he engaged in sexual activity with MM. However, he denied it was nonconsensual.

[7] KN and MM had been in a romantic relationship. Their relationship began prior to the alleged incident and continued after. On October 3, 2018, MM visited KN’s residence. She had consumed some alcohol prior to her attendance.

[8] MM testified that there was consensual kissing in KN’s bathroom. She had no recollection of the events that followed until she found herself in KN’s bedroom. MM’s next memory was KN engaging in intercourse with her. It was while in his bedroom that MM alleges that non-consensual intercourse took place.

[9] KN testified to a different series of events. He agreed that the two commenced by kissing. The two were in his bedroom. However, KN testified that MM was a willing participant in any activity between them. She willingly and aggressively took a dominant role in the sexual activity with KN, verbally and physically expressing her consent.

[10] There was no dispute that on MM’s account of the events, the essential elements of the offence of sexual assault are legally made out. On her evidence, KN touched her in a sexual manner without her consent. Further, he intentionally touched her knowing that MM did not consent.

[11] MM’s capacity due to the consumption of alcohol was not raised as an issue in this trial.

[12] As is the case with many sexual assault criminal trials, the primary focus is on the credibility and reliability of the two central witnesses – the complainant and the defendant. The Crown must prove each element of the offence beyond a reasonable doubt.

[13] The case against KN depends on my assessment of both the credibility and reliability of both witnesses who testified.

Applicable Legal Principles

[14] The principles in R. v. W (D) [1] are applicable.

[15] If I believe KN’s evidence, I must find him not guilty.

[16] Even if his evidence leaves me with a reasonable doubt regarding any essential element of the alleged offence, I must find him not guilty.

[17] Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.

[18] I must keep in mind that KN, 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". [2]

[19] Reasonable doubt is based on "reason and common sense," is not "imaginary or frivolous," does not "involve proof to an absolute certainty," and must be "logically connected to the evidence or absence of evidence." [3] .

[20] The reasonable doubt standard applies to the final determination of guilt or innocence – it is not applied piecemeal to individual pieces of evidence or categories of evidence [4] .

[21] I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether they are speaking the truth as they believe it to be. Reliability relates to the accuracy of their testimony. In determining this, I must consider their ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence [5] . Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt. [6]

[22] I have instructed myself to avoid an “either/or” approach in choosing between competing versions and have adhered to the approach mandated by W(D) to consider all of the evidence and to ensure that the presumption of innocence is not displaced in the absence of proof beyond a reasonable doubt.

[23] Our law recognizes that there is no model of expected behaviour by a victim of sexual assault against which to measure the behaviour of a complainant of sexual assault [7] .

[24] Consent can be revoked at any time during sexual activity [8] . Section 273.1(2)(e) of the Criminal Code states that no consent is obtained if "the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity".

[25] Finally, in assessing a witness’s evidence, I am entitled to believe all, none, or some of their testimony. [9]

MM’s Evidence

[26] I now turn to my assessment of MM’s evidence.

[27] I find MM’s evidence to be completely credible. She was a forthright witness who gave her evidence in a manner that demonstrated to me that she was recalling the events that occurred on October 3, 2018. She was testifying from her own experience. She did not embellish her evidence and conceded possibilities that might have weakened her evidence.

[28] For example, MM agreed that it was possible that she put KN’s penis inside her vagina. She further agreed that it was possible the two could have changed positions while engaged in intercourse.

[29] I do not find that any acceptance of possible hypotheticals affects the overall truthfulness of MM’s evidence. MM did not adopt these suggestions as her evidence. They do not form part of her recollection of the events. She was simply accepting that something outside her memory was a possibility.

[30] MM firmly denied any suggestion that she was the dominant aggressor, pushing KN on the bed and demanding more aggressive intercourse. At no time in her evidence did she waiver from her position that she did not consent.

[31] I have considered the impact that the consumption of alcohol might have on the reliability of MM’s evidence. She testified that she had consumed alcohol before visiting KN’s residence. She had approximately three drinks, mostly wine and some rum. She testified that she felt intoxicated, not extremely drunk, but not sober.

[32] Defence Counsel further argued that the gap in MM’s memory creates a reliability issue for her evidence.

[33] It is accurate to point out that MM did not have a good recollection of what occurred from the bathroom to the bedroom. However, her recollection of the events in the bedroom is clear and detailed. She recalled being face down on the bed with her stomach on the bed. KN pinned her down by the back of her wrists while he was having intercourse with her from behind. She was sobbing and repeatedly told him no and stop. The assault did not end until KN ejaculated. In my view, despite six years having passed since the allegations, MM’s memory of the assault was good. In this regard, I have no reliability concerns about her evidence.

[34] In assessing her credibility, it is immaterial what occurred prior to the events on the bed. Consent must exist at the time the sexual activity in question occurs [10] .

[35] I do not find that any failed recollection prior to the bedroom affects the overall truthfulness of MM’s evidence.

[36] Defence Counsel argued that MM had a motive to fabricate her evidence. Her parents found out about her relationship with the Defendant. She did not want her parents to know so she made up the allegations.

[37] The defence further argued that MM’s credibility is undermined by a delay in reporting the incident to the police. MM waited over a year to report the incident. While acknowledging that delayed reporting alone cannot give rise to an adverse inference against her credibility, Counsel argues that it is the combination of the delayed reporting and the motive to fabricate that challenge her credibility.

[38] In a case where the accused's theory is that the complainant fabricated her allegations due to a precipitating event, the trier of fact is entitled to consider the delay in disclosure in assessing the complainant's credibility but must do so "with caution and avoid falling into the trap of stereotypical thinking" [11] .

[39] Respectfully, I do not find these arguments persuasive. In the circumstances of this case, I see these arguments as separate. Any motive to fabricate would exist independent of the timing of the reporting. Drawing a connection to this case, whether MM’s parents found out in present time or a year later, if she was concerned about her parent’s reaction, her motive to fabricate would still exist.

[40] I am not convinced that any motive, if present, caused MM to fabricate. MM did not adopt that a motive existed. The relationship with KN ended a year prior to the allegations coming forward. Further, she testified that her parents were already aware of the relationship. They had seen KN walking her home. KN when testifying about offering to walk her home, likewise, testified that he always drops her at her house.

[41] The motive to fabricate is further undermined by KN’s evidence that MM confronted him about the sexual assault the next day. This would suggest that MM raised a false allegation and laid in wait for over a year until her parents approached her about the relationship. MM’s prior confrontation argues against a finding that she fabricated the assault because her parents found out.

[42] I find that MM did not report the allegations because her parents found out about her relationship with the defendant. I accept her evidence that her parents were already aware of the relationship. It was her parents that encouraged her to report the allegations.

[43] In my view, this submission does encourage me to engage in impermissible stereotypical reasoning about delayed reporting. It would be an error in law for me to draw any adverse credibility findings based on how I would expect a sexual assault victim would or should act.

[44] In sexual offence cases a judge must avoid stereotypical reasoning in making determinations of credibility. Victims behave idiosyncratically to abuse, and often counterintuitively, and the law does not require a victim of sexual assault to immediately report or avoid their assailant in order for a court to find them credible [12] . Put more plainly, our courts have repeatedly instructed us that we do not know how a sexual assault victim will behave. What may be normal for one, may not be for another.

[45] Furthermore, MM provided a reasonable explanation for the delay in reporting. She testified that it took her time to process what happened to her.

[46] I accept MM’s evidence that she did not provide consent for any sexual intercourse with KN in his bedroom. What commenced as consensual kissing and making out turned into unconsented vaginal intercourse. With clear words and conduct, she communicated a lack of consent. If there was any doubt about her consent at the commencement of intercourse, that consent was unequivocally revoked when MM repeatedly said no, stop.

[47] I accept MM’s evidence that KN held her down by her wrists while she was on her stomach on his bed. As he did so, he penetrated her vagina with his penis from behind. The penetration continued until KN ejaculated. I accept that MM was visibly crying and upset as she was being assaulted. She repeatedly told him no and to stop. KN did not stop.

[48] After the intercourse concluded, KN was upset and threw her clothes at her. MM left KN’s place crying.

[49] I have no doubt about MM’s evidence. I find her evidence to be entirely believable.

The Text Messages

[50] The Crown tendered text message communications between MM and KN. These messages were exchanged during the day or days following the allegations. As I will explain later in my reasons, they deliver a powerful blow to KN’s credibility.

[51] The following messages were exchanged:

KN
Sooo much in my head
Idk before I was on vacation I didn’t really give a fuk but once I’m back from there there’s a lot of changes
Like I want to go to WORK main thing

MM
ok it’s ok u can get a job
do u have a resume
send me it

KN
Okay
I think I need to make new one

MM
ok I’ll help you

KN
Ok thank you babe and I’m sorry for other day even tho u said no I was doing it
I was jus in tht mood that day

MM
why do u treat me like shit

KN
What you mean

MM
u think u treat me well?

KN
What happened?

MM
i told you to stop so many times yesterday

KN
My bad babe where u at?
You ok?
I don’t like it here I wanna go back to my country

MM
ok then go
i’m home I couldn’t wake up in the morning

KN
Sorry babeee

MM
u fucking raped me basically and I still stay

KN
Kmt [^1] u going to say it like that now

MM
the reason I fucking went there to drink and buck is because of you
Wtf u mean
how the fuck are u gonna do that to ur girl who’s crying and drunk

KN
I didn’t know u were drunk till later
But yea it’s my fault

MM
I typed so much shit last night too and u just ignored it
ally blocked ur number after that she seen me crying mf fucking

[52] MM and KN acknowledged the accuracy of the messages. Though, KN provided an innocent explanation for the messages he sent. I will address his explanation later in my judgment.

[53] MM’s evidence and a plain reading of the messages reveal a conversation about the sexual assault. In my view, viewed as a whole, they amount to an admission that KN sexually assaulted MM.

[54] KN acknowledged that MM did not provide her consent and apologized. “Ok thank you babe and I’m sorry for other day even tho u said no I was doing it.” “I was jus in tht mood that day”.

[55] I pause in my analysis to note the following. Upon review of the trial evidence, the Crown did not articulate for what specific purpose they were seeking to tender the messages. For example, they could be admissible as a prior consistent statement to show that messages were exchanged and the circumstances of the exchange, to be used by me in assessing the credibility and reliability of witness evidence (narrative as circumstantial use exception [14] ). The Crown’s closing submissions suggest that I am being invited to use the messages as corroborative evidence, and circumstantial evidence to be used to assess MM’s credibility.

[56] The defence did not object to the admission of the messages [15] . KN referred to the messages at some length in his evidence. In his closing submissions, Defence Counsel argued that I should accept KN’s alternative explanation for the messages. This suggests to me that Counsel viewed the messages are to be used in an assessment of his client’s credibility and a potential admission against his client’s interest.

[57] Without an application from the Crown, it would be unfair to KN for me to use the messages as a form of admissible prior consistent statement. Indeed, it could be a legal error if I did so. Accordingly, I have specifically not done so in my assessment of the evidence in this trial. I have instructed myself not to consider the messages as a form of oath helping to bolster MM’s credibility.

[58] I have considered the messages in assessing KN’s credibility. They are properly admissible for that purpose. Further, in my view, the messages are admissible as a statement against his interest. The messages contain an admission by KN of engaging in sexual intercourse despite MM expressing a lack of consent. MM’s messages provide context to the messages and answers given by KN. These purposes are consistent with Defence Counsel’s closing submissions addressing the text messages.

KN’s Evidence

[59] The case against KN depends in part on my assessment of him as a witness pursuant to W (D) and having regard to the criminal burden of proof overall. I find KN’s credibility to be lacking.

[60] KN’s evidence amounts to a denial of any criminal culpability. He agreed there was a sexual encounter with MM. The two had vaginal sexual intercourse in his bedroom. However, KN testified that it was entirely consensual. He testified that it was MM that was the dominant aggressor. It was MM who commenced kissing. She took off his t-shirt and pushed him onto the bed. She lowered his pants and exposed his penis. She performed fellatio. MM inserted his penis inside her. KN testified that during the interaction MM expressed her consent by saying words such as “go hard”, “go in, go in”, “I want more”, and told him he was “the only guy who could make her come so far”. At no time was MM upset or did she express any lack of consent. She did not say “no”.

[61] KN agreed that the text messages were accurate. He accepted that his messages equate to an admission of wrongful conduct. However, KN explained that he was not being truthful when he sent the messages. He communicated the words in the messages because MM was upset about the situation and with her parents. KN sent the messages in an attempt to appease her.

[62] In assessing the credibility of a witness, it is appropriate to examine any inconsistencies in what a witness said at different times. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies. [16]

[63] The following are examples of inconsistencies in the evidence of KN. These are presented in no particular order of importance. I have considered them collectively. I also point out that I am relying on these in determining both the credibility and the reliability of his evidence.

[64] I was not particularly impressed with KN’s evidence. That noted, his testimony was consistent in the sense that he maintained his innocence and was not fazed in that regard.

[65] His account of MM’s actions and words during the sexual activity struck me as self-serving and inconsistent with other evidence that I accept in this trial - MM’s evidence and the text messages. KN’s evidence was a deliberate attempt to portray himself as an innocent party who was subjected to the sexual impulses of a more dominant partner. I do not believe KN was completely honest about his account of MM’s actions in his bedroom. To be clear, I am not saying that a woman can never take a dominant role in sexual intercourse, or that it would be inconsistent with what I would expect of human behaviour. I am saying that, in the circumstances of this case, I reject KN’s assertion that MM behaved this way.

[66] In my assessment of his evidence, I considered the text messages. They are significantly inconsistent with the narrative of events as described by KN. In my view, this significantly undermines his credibility on a core issue in this trial – consent.

[67] In court, KN testified that all activity was consensual. At no time did MM utter the word “no”. This is directly contradicted in KN’s first message on the subject. KN specifically acknowledged that she said no during the incident. “Ok thank you babe and I’m sorry for other day even tho u said no I was doing it.” “I was jus in tht mood that day.”

[68] Any doubt about the meaning of this exchange was eliminated when I considered the additional messages. MM specifically messaged that she told him “to stop so many times yesterday”. In response, KN stated, “My bad babe where u at?”. Later in the messages, KN stated, “I didn’t know u were drunk till later. But yea it’s my fault”.

[69] Moreover, KN accepted the plain reading meaning of the messages.

[70] I have considered KN’s evidence that he did not mean what he stated in the messages to be truthful statements. He testified that he was attempting to pacify MM. He found out after intercourse that she was not consenting. His counsel argued that he apologized in reaction to this realization.

[71] The defence drew an analogy between the facts in this case to R. v. Brierley [17] . In that case, Justice Fiorucci entered an acquittal based on the absence of intention. The facts of that case are similar to this one in that the activity was between domestic partners. The parties were engaged in consensual anal intercourse. Upon realizing the complainant was crying, the defendant immediately stopped and apologized. The couple’s relationship continued after the incident. His Honour found that the Crown had not proven intention.

[72] With respect, I disagree that Justice Fiorucci’s reasoning applies in the circumstances of this case. While there are some factual similarities, KN did not stop the sexual activity. On his evidence, the entire event was consensual from beginning to end, MM did not show any signs of upset, and MM was an active participant, the principal participant.

[73] I do not accept KN’s explanation regarding the messages. It is inconsistent with the messages themselves. Contrasted to the Brierley case, the messages are not an immediate reaction to a complainant’s behaviour. The defendant in Brierly was not apologizing for committing a sexual assault. He was apologizing because he did not realize that his actions had hurt the complainant. The apology was a genuine reaction to the events unfolding before him. Those are not the facts in this case.

[74] Furthermore, KN did not testify that he apologized in realization of potential wrongdoing. He testified that he sent the messages because he wanted to make her feel better, to make her feel peace and have good energy. In fact, KN testified that MM confronted him about the sexual assault in person the day before they exchanged messages. His reaction was to tell her that he only heard her say that she wanted more. His immediate reaction was not an apology.

[75] Concerning the second part of the message, “Ok thank you babe and I’m sorry for other day even tho u said no I was doing it.” “ I was jus in tht mood that day. ”, KN testified that this message was in reference to what MM was saying to him during the sexual activity. “Keep going in. I want more.” These words were getting him in the mood.

[76] This explanation does not make logical sense. Setting aside, KN’s assertion that the messages were untrue, the words of the message amount to an acknowledgment that MM said “no” and he had sex with her. It does not make sense that he would, in the same breath, communicate that she turned him on with suggestive sexual language or pillow talk.

[77] As a matter of logic and common sense, I find it hard to accept that someone would issue a false apology for committing a sexual assault to appease an intimate partner, especially if that partner is accusing you of committing the sexual assault. As I noted, the circumstances of this case provide support for this conclusion.

[78] Considering the whole of the evidence, I reject KN’s explanation for sending the messages. It does not align with the remaining evidence that I do accept. As I noted previously, KN raised the issue in the messages. He acknowledged MM said no, and he had sexual intercourse with her. An interpretation of the messages in this way aligns with MM’s evidence that KN told her to “hold on” after she said stop.

[79] I find that KN communicated the words as they read, their plain meaning. He acknowledged that MM communicated a lack of consent, but he kept going because he was “in the mood”.

[80] In light of this conclusion, the messages strike a strong blow to KN’s credibility.

[81] In chief examination, KN testified that after the sexual intercourse was completed, he gave MM her clothes and “told her to get dressed”. She got dressed and left. She was not crying. He asked her if she was going home and if she wanted him to walk her. In cross-examination, KN provided contradictory evidence. He initially testified consistent with his examination in chief, that she left after she dressed. KN then changed his evidence and testified that, after they finished, the two sat down on the bed and had a conversation for five minutes. This inconsistency is meaningful because the additional testimony was provided at a point in the cross-examination where the Crown suggested that MM left the room upset. The Crown put to KN that she left after he ejaculated. The implication was that leaving immediately was more consistent with MM’s version of events. By adding a five-minute conversation between the completion of intercourse and MM’s departure, KN attempted to create a version of events that was more consistent with a consensual encounter.

[82] KN testified in chief examination that he was not aware that MM had consumed alcohol. She did not tell him that she had been drinking. In cross-examination, he stated that he did not smell alcohol. When pressed on the issue, KN amended his evidence to include that MM always chews gum or has a fresh mint. That day he smelled fresh mint or gum, suggesting that he could not have noticed the alcohol. I acknowledge that standing alone this inconsistency may not have been a significant one. MM’s alcohol consumption did not play a central role in the issue of consent. It was, however, a significant point of contention between the parties in their conversation the day after the incident and in the text messages. It was something that KN was careful to be clear about in his evidence. It is a further inconsistency to be used by me in assessing the totality of inconsistencies.

[83] I have considered all of KN’s evidence. I have considered it in light of the remaining evidence in this trial. His testimony does not leave me with a doubt.

[84] Nor does the evidence otherwise leave me with a doubt that the Crown has proven all the essential elements of the offence.

Conclusion

[85] I am not left with any doubt that KN sexually assaulted MM.

[86] I find that MM did not consent to sexual intercourse with the defendant. Further, KN knew that she was not consenting. I find that a sexual assault took place as described by MM.

[87] I have arrived at this conclusion based on an analysis of KN’s evidence, MM’s evidence and KN’s admission in the text messages. KN’s evidence does not raise a reasonable doubt. Nor does the evidence otherwise leave me with a doubt about KN’s guilt.

[88] Accordingly, I find KN guilty of sexual assault.

Released: November 14, 2024 Signed: Justice Andrew F. Falls

[^1]: “kmt” means “kiss my teeth”, according to MM’s testimony.