WARNING The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(i) to (iii).
(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 complainant of the right to make an application for the order; and
( b ) on application made by the complainant, 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.
DATE: December 19, 2024
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ALI ALAVI
Before Justice T. Lipson
Heard on June 24-28, September 9-13, and October 18, 2024
Reasons for Judgment released on December 19, 2024
Ms. M. Birsan .......................................................................................................... for the Crown Mr. S. Sarbazevatan ................................................................................ for the accused Ali Alavi
Lipson J.:
REASONS FOR JUDGMENT
Overview of the case
[1] Ali Alavi entered a plea of not guilty to a charge of sexual assault. The Crown alleges that he sexually assaulted S.A. on June 4, 2023, at his residence in Toronto.
[2] The trial, including final submissions, took ten days to complete. The Crown called two witnesses – the complainant S.A. and her younger sister B.A. To avoid confusion, I will refer in these reasons to each sister by her first name. The defence called one witness, Detective Lesley-Anne Harris, who was the officer in charge of the investigation.
[3] The complainant, S.A., was 37 years of age at the time of the incident. She immigrated to Canada from Iran in 2017 with her parents and younger sister B.A. She holds university degrees from Iran in business related studies. S.A. is currently a licenced mortgage agent. She and Mr. Alavi dated a few times between April 30 and May 10, 2023. S.A. thought he was a good person who was respectful and polite. They broke up on May 10, 2023. S.A. was interested in a committed relationship with the defendant. Mr. Alavi told her he was not ready for that but was interested in a “friends with benefits” type of relationship. S.A. was not interested in that. She testified that she was disappointed but not devastated because of the break-up.
[4] On June 3, 2023, Mr. Alavi was hosting a small party for a few friends at his residence. Pizza was served. Mr. Alavi offered alcoholic drinks and marijuana to his guests. He invited S.A. and B.A. to the party. B.A. attended but S.A. was not interested in going because of her dating history with Mr. Alavi. Around midnight, B.A. called her sister from the party and urged her to come to the party. B.A. testified that Mr. Alavi grabbed the phone from her and asked S.A. to come to the party. He told her that he wanted to talk to her.
[5] S.A. decided to attend the party. She took an Uber taxi to Mr. Alavi’s building and her plan was to get a ride home from B. S.A. had no intention of spending time with Mr. Alavi after the party.
[6] S.A. had an accident earlier in the day on June 3, 2023. She had hit her head on a street sign and her doctor sent her to the hospital for tests. She left the hospital around 9 p.m., with a referral to an eye specialist for the following Monday. S.A. had some blurry vision, a bump on her head and a headache which she still had when she arrived at the party around 12:30 a.m. on June 4, 2023.
[7] At the party Mr. Alavi was drinking alcohol and using a marijuana vape. S.A. did not consume any alcohol. She drank a glass of water provided by the defendant to have with her pizza. Mr. Alavi also offered her a vape containing marijuana. He told her it would help her pain. S.A. took one puff from the vape and did not feel any effects. S.A. believed Mr. Alavi then changed the vape cartridge. She took another two or three puffs. Within seconds, S.A. felt dizzy and could hardly move. She could see and hear but could not speak. Mr. Alavi brought her a second glass of water. S.A. testified that after drinking the second glass of water, she “felt lost” and was unable to walk, talk or react. She lost her balance when she tried to get up from the couch. Mr. Alavi then helped S.A. back to the couch and told B.A. he would look after her sister.
[8] The other guests then played poker at the dining room table. S.A. remained on the couch, feeling too “high” to talk or move. According to S.A. and B.A., the other guests left the party quite suddenly around 3:30–4 a.m. on June 4. S.A. got up from the couch and, with much difficulty, tried to find her purse to leave. She did not make it to the doorway. A few feet from the door, S.A. had to stop and hold on to a wall to support herself. She was unable to speak. Mr. Alavi told the departing guests that he would take care of S.A. and, in the opinion of B.A., abruptly closed his door on his guests who were the hallway.
[9] The Crown alleges that Mr. Alavi drugged S.A. during the party and that he sexually assaulted her in both his master bedroom and a second bedroom on the upper floor of the apartment.
[10] In the master bedroom, Mr. Alavi is alleged to have forced S.A. to perform oral sex as well as vaginal and anal intercourse. The Crown also contends that the defendant choked and spanked the complainant during the sexual acts. The Crown contends that S.A. did not consent to the sexual acts in the master bedroom. Further, it was submitted that S.A. was unable to consent to any sexual activity because of her severe state of intoxication due to drugs.
[11] The Crown alleges that Mr. Alavi also forced non-consensual vaginal intercourse on the complainant later in the morning in a second bedroom. S.A. testified that Mr. Alavi also wanted but did not pursue anal intercourse after S.A. told him no. She tried to push the defendant off her while she was being sexually assaulted but was not strong enough to do so. She alleged that the accused was not wearing a condom and that he ejaculated on her.
[12] Counsel for Mr. Alavi took the position that no sexual activity took place in the master bedroom. He contended that S.A.’s version of events was unreliable because she either fabricated the allegations or else relied on false memories recovered through therapy sessions in the weeks and months following the incident. Mr. Sarbazevetan further submitted that the two sisters colluded to falsely accuse Mr. Alavi of sexual assault. They were angry with Mr. Alavi because he was only interested in sex with S.A. and not the committed relationship she desired. Counsel argued that S.A. was heartbroken and ashamed that she had engaged in consensual “rough sex” with the defendant in the second bedroom. The defence argued was that she was also very angry with Mr. Alavi because of the significant pain she was experiencing from the sexual activity and because she contracted an infection because of sex with the defendant. Counsel submitted that B.A. pushed her sister to see her family doctor for the purpose of gathering evidence against the defendant and pressured S.A. to report an allegation of sexual assault to the police.
[13] 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.
[14] 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 SCR 345 at paras 36-44.
[15] I must keep in mind that Mr. Alavi, 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, including a motive for the complainant to fabricate. 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] S.C.J. No. 77 (S.C.C.)
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.
[16] The main issues for the court to resolve are:
Did the Crown prove beyond a reasonable doubt that any sexual activity took place in the master bedroom?
If so, did the Crown prove beyond a reasonable doubt that S.A. lacked the capacity due to drug intoxication to consent and did not consent to sexual activity in the master bedroom?
If so, did Mr. Alavi know or was reckless to the fact that the complainant could not and did not consent?
What sexual activity in the master bedroom did the Crown prove beyond a reasonable doubt occurred?
Did the Crown prove beyond a reasonable doubt that S.A. did not consent to sexual activity in the second bedroom?
What sexual activity did the Crown prove took place in the second bedroom?
ANALYSIS
Has the Crown proven beyond a reasonable doubt that sexual activity occurred in the master bedroom?
[17] Counsel for Mr. Alavi submitted that the Crown had not proven beyond a reasonable doubt that any sexual activity, whether consensual or not, occurred in the master bedroom. He submitted that the complainant had a poor and patchy memory of what took place there. At one point in her testimony, B.A. testified that S.A. did not remember anything about the encounter. S.A. told her sister that she didn’t remember “half of it”.
[18] In her statement to the police, S.A. described being sexually assaulted in the master bedroom. Defence counsel argued that her statement was far too vague to be considered reliable. He referred to S.A.’s testimony that her year-long counselling sessions helped her to recover memories of more details of what transpired in the master bedroom. Counsel pointed to the following testimony of the complainant: “Most of the details were remembered while I was getting counselling at Yellow Brick. It took me several months for things to be clear. Before that, everything was vague.” While S.A. maintained that she remembered most of the details within two weeks of her police interview, she also agreed with defence counsel’s suggestion that she did not mention much of what occurred in the master bedroom to the police compared to her detailed testimony.
[19] I find that S.A. provided honest and reliable evidence that sexual activity took place in the master bedroom. First, she was able to describe in considerable detail the layout of the room. She was familiar with the room and its ensuite bathroom. She had been there prior to the date of the incident when she and Mr. Alavi were dating. She said she always used the “right sink” in that bathroom. The complainant knew that she had been in the master bedroom with Mr. Alavi after the party, although she could not remember how she came to be there. After waking up in the second bedroom later in the morning, she found her clothing in the master bedroom. I infer that is because that was the room where her clothing came off. Mr. Alavi’s DNA was found in the crotch area of her underwear. Photos on pages 15 and 16 of exhibit 5 show a large visible stain on the mattress cover in the master bedroom. This is consistent with S.A.’s evidence that she had released a large amount of bodily fluid while on the bed in the master bedroom during sexual activity. She testified that the defendant informed her later she had “ejaculated” six times during sex. In the ensuite bathroom, she noticed two sex toys, a “butt-plug” and a vibrator. Because of the pain she was feeling in her anus, S.A. suspected that Mr. Alavi had used the butt -plug on her when they were in the master bedroom. She knew that no anal sex had occurred in the second bedroom later where she was fully aware of what was happening. S.A. took a photograph of the sex toys. She also took photographs of the master bedroom because she knew that sexual activity had occurred in the master bedroom. On June 7, 2023, she gave a statement to the police that the defendant sexually assaulted in several ways in the master bedroom. As time went on after giving the statement, S.A. was able to remember more details. S.A. was consistent in her statement to the police and in her testimony that sexual activity took place in the master bedroom and never resiled from that position during cross-examination. I accept her testimony that sexual activity took place in the master bedroom. Her evidence was not deliberately fabricated or based on false memories.
[20] Upon a consideration of all the evidence, I am satisfied beyond a reasonable doubt that sexual activity involving Mr. Alavi and the complainant took place in the master bedroom.
Has the Crown proven beyond a reasonable doubt that the complainant lacked the requisite capacity to consent to sexual activity with Mr. Alavi?
[21] The Crown submitted that S.A. lacked the requisite capacity to consent to sexual activity due to her intoxication.
[22] Consent is the conscious agreement to engage in every sexual act in a particular encounter. There is no consent where the complainant expressed by words or conduct a lack of agreement to engage in the activity. Consent requires a conscious, operating mind, capable of granting, revoking or withholding consent to each sexual act. Consent requires actual active consent throughout every phase of the sexual activity: R. v. J.A, 2011 SCC 28 at paras 31, 39, 44, 66.
[23] Capacity to consent is a precondition to subjective consent. Section 273.1(2) of the Criminal Code provides in part that “no consent is obtained if… ( a.1 ) the complainant is unconscious; [or] (b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph ( a.1 ) [.]
[24] In R v G.F., 2021 SCC 20 at paras 57 and 58, the Supreme Court held that for a complainant to be capable of providing subjective consent to sexual activity, they must be capable of understanding four things: (1) the physical act; (2) that the act is sexual in nature; (3) the specific identity of the complainant’s partner or partners; and (4) that they have the choice to refuse to participate in the sexual activity. The complainant will only be capable of providing subjective consent if they are capable of understanding all four factors. If the Crown proves the absence of any single factor beyond a reasonable doubt, then the complainant is incapable of subjective consent and the absence of consent is established at the actus reus stage. There would be no need to consider whether any consent was effective in law because there no subjective consent to vitiate.
[25] S.A. testified that earlier on the day of June 3, 2023, she had hit her head on a “Do Not Enter” sign while going to her car, which caused a bump to her head. She went to the emergency room of a hospital and was given Tylenol. She testified that when she arrived at the party, she was feeling “just a pain, a little like headache”.
[26] At the party, Mr. Alavi told her that it would help her headache if she took a puff from his marijuana vape. She took one puff and did not feel anything. She testified that Mr. Alavi turned his back to her and appeared to “change something”. She said, “I don’t know, he changed the vape or changed the oil of the vape, but he did something and turned back and gave it to me and I had like two, three puff (sic).” In a matter of seconds, S.A. felt “her head grow big…my head was like a balloon, I feel that my head is so big and it’s breathing, breathing like in and out.” Others at the party went to the dining room table to play poker. She tried to stand up to join them but was too dizzy to do so. She said, “I didn’t have the balance, so he just grabbed me, helped me go to sit on the couch.” Mr. Alavi then gave her a glass of water. This was the second glass of water Mr. Alavi had served her at the party. Mr. Alavi also told S.A.’s sister that he would “take care of her” when B.A. asked S.A. if she was “ok”.
[27] After drinking the second glass of water, S.A. felt “totally lost”. She could see and hear “but could not talk, move or react.” The next thing S.A. remembered was the other guests in the living room talking and then suddenly leaving. She tried to stand up to go find her purse to leave with her sister. She had little balance and could hardly walk. B.A. and other guests were in the hallway in front of the door. S.A. tried in vain to communicate with her sister through “eye contact” to come and take her with her. S.A. testified, “I was looking at her, I couldn’t say, “Where are you going? Don’t leave me here” … And that was the last thing I remember, and he was in front of them at the doorframe, and he closed the door and came to me and said, ‘Where are you going’.” S.A. was unable to talk. The next thing she remembered was being in the master bedroom but not how she got there. She did not remember how her clothes came off.
[28] S.A. did not have a clear recollection of the sequence of events in the master bedroom. She testified that Mr. Alavi put his hands on her neck and forced her to perform oral sex on him. She had a distinct recollection of the taste of the pizza she had eaten earlier in her mouth when his penis was in her mouth. It made her feel like vomiting. She then ended up on the bed. He spanked her buttocks hard and said, “I want my handprint to stay on your butt.” She described him “doing double penetration”, meaning that he was penetrating her vaginally and then anally. She tried to pull her head up and he said “Don’t worry, your body will flush it. She was crying and feeling tremendous pain. He also pushed his fingers in her throat saying, “We need this water, not the lubricant”. She remembered while she was laying on her back on the bed, the defendant was choking and penetrating her.
[29] S.A. said that throughout her ordeal, she was “completely numb” and that “none of my muscles could move. I was trying to lift my hands and remove his hands, but I couldn’t.” She said she was unable “to analyze what happening to me. I was in complete shock.” S.A. could feel tremendous pain and that her tongue and mouth “weren’t working”. “It was numb. I couldn’t move them. I couldn’t speak and move my mouth…I couldn’t move my muscles. I couldn’t move at all. It was like I cannot push him away and I could not scream either.”
[30] S.A. admitted that her memory of the events was patchy. “I remember something and then a black out, I don’t remember something then remember something there are other things I don’t remember.” She asked Mr. Alavi in the morning what had happened in the night. He responded. “That was nothing, we just had sex.”
[31] S.A.’s account of being intoxicated to the point of incapacitation was supported in material respects by the evidence of her sister B.A.
[32] B.A. saw S.A. take a puff from Mr. Alavi’s cannabis vape. It is unclear whether she saw her sister later take more puffs from the vape or whether S.A. told her she did.
[33] When the guests had finished their pizza and went to play poker, B.A. saw S.A. try to get up from the couch “but she was kind of dizzy”. Mr. Alavi helped her to return to sitting on the couch. When B.A. went to check on her sister later, the defendant said that S.A. was his “sick patient” and that he was going to look after her. B.A. said she was worried about her sister. B.A. tried to chat with S.A. who was very slow and delayed in her responses. She asked S.A. if she was ok. S.A. just nodded her head, saying “just a little bit”. B.A. testified that S.A.’s words were elongated, and she was talking with a “heavy mouth”. B.A. saw Mr. Alavi with a glass of water at the kitchen counter but could not see what he was doing with the glass. She could not see whether the glass was empty or full. She heard water running after. She later saw a bag of pills in the kitchen. When asked to describe her sister’s tone of voice, B.A. responded, “It was resembling people after a stroke, when their tongue is heavy and they take longer to say things, she was sounding like that. Also, her eyes were half open.” S.A. was sitting on the couch with her “head back to the back of the couch”.
[34] After people stopped playing poker in the dining room, they came back to the living room to socialize. After only 15-20 minutes, people looked at each other and then everyone agreed to leave together which B.A. found strange. B.A. thought her sister was also going to leave the party with her. When B.A. was in the hallway by the door, she observed that her sister had got up from her seat and was holding on to a small wall a few feet from the doorway. S.A. appeared to be dizzy, “just like somebody who was getting up and they get a head rush.” B.A. said the defendant put his hand on the door frame and said that S.A. was staying there and then slammed the door. B.A. felt that she and the other guests had been “kicked out” of the apartment by Mr. Alavi. B.A. also observed that her sister was not behaving in this strange way when she arrived at the party.
[35] B.A. testified that before leaving, she asked her sister if she was coming. S.A. did not respond. “She was just looking at me”. B.A. was asked why she left S.A. in the apartment in that condition. She responded that she thought her sister and the defendant “were probably going to have a conversation, so it was better for them to be comfortable to be alone.” B.A. said she knew her sister had a low tolerance when it came to intoxicants, but she had no idea that her sister had been drugged. She thought it was better for S.A. to stay because Mr. Alavi was going to take care of her. B.A. told the court that she never thought that he was “going to do this horrible thing to her.” B.A. said that Mr. Alavi had wanted her sister to come over and he had been “circling around” her during the evening. She also wanted to give her sister and Mr. Alavi some privacy. B.A. said that she misunderstood S.A.’s silence when she left the defendant’s apartment.
[36] In determining the issue of incapacity by drug-induced intoxication, the Crown does not need to prove what type of drug or the dosage that was administered. Drugging can be proved on the evidence of the complainant alone and it does not require expert evidence: R. v. Wilson, 2017 ONSC 5698 at paras 50-51 which references R. v. Bell, 2007 ONCA 320 at para 35; R v. Vant, 2015 ONCA 481 at para 174.
[37] Upon a consideration of all the evidence, I find that S.A. was drugged at the party by Mr. Alavi. I accept the evidence of S.A. that she became severely intoxicated after taking puffs of the cannabis vape and drinking the two glasses of water provided to her by Mr. Alavi. I believe the evidence of B.A. concerning her observations of S.A.’s condition at the party. I accept the evidence of both S.A. and her sister that S.A. was so intoxicated that she was unable able to communicate, react or barely move at the party. It was Mr. Alavi who gave S.A. the marijuana vape as well as the two glasses of water and I find that he drugged the complainant. S.A. had extreme difficulty speaking and moving. During the party she was unable to get up from the couch. She had considerable difficulty speaking. She was unable to carry on a conversation with her sister or anyone else. When the others were leaving, S.A. struggled to leave the party. She got as far as few feet from the door but had to stop and hold on to a wall to remain upright. She was unable to verbally communicate with her sister at the doorway.
[38] I am also satisfied that S.A. was incapable of consenting to sexual activity with the defendant when they were in the master bedroom. Her inability to remember some of the details as to what happened to her in the master bedroom when she spoke to her sister, doctor and the police is cogent circumstantial evidence from which I infer that she was not capable of consenting to sexual activity with the defendant. S.A. was an honest and sincere witness about her efforts to remember what happened in the master bedroom. Her candour about her memory difficulties made her evidence, as a whole, more credible because it made it less likely that she was lying about the non-consensual nature of the sexual activity that took place there. She had to ask the defendant what had happened. In her bewilderment as to what Mr. Alavi did to her, S.A. took photographs of the master bedroom and the ensuite bathroom as she tried to piece together what took place there.
[39] I accept the evidence of S.A. and her sister on this issue as true and reliable. Their evidence permits only one reasonable inference - the complainant was unable to consent to sexual activity in the master bedroom because she was incapacitated due to intoxication by drugs administered to her by the defendant. It is unlikely that her severe degree of intoxication resulted from just a few puffs from a cannabis vape. The only reasonable inference on the evidence is that Mr. Alavi put a stupefying substance in one or both glasses of water that he gave to the complainant.
What was the extent of the sexual assault in the master bedroom?
[40] S.A. had difficulty remembering the exact sequence of events in the master bedroom. She did not remember how she got upstairs or how she became undressed. She said Mr. Alavi removed her nipple gels. This contradicted her statement to Detective Henry on June 7, 2023, that she took off the gels. S.A. described Mr. Alavi having his penis in her mouth when she was kneeling on the floor. He did not ejaculate. She recalled being picked up off the floor at one point. She testified that the defendant put his fingers in her mouth and then his penis in her mouth on the bed. She described Mr. Alavi pushing her shoulders and her falling on the bed. He whispered in her ear, saying, “Isn’t it better that you came and didn’t stay home? The others were wishing for tonight could have been in your place instead of you, but now, you are here.” He put his penis in her mouth a second time when she was on the bed. S.A. said he was choking her, and her breathing stopped. She thought she was going to die. S.A. also described the defendant doing “double penetration” meaning that he alternately penetrated her vagina and anus. S.A. believed that he penetrated her anus with the “butt plug” toy because she had felt a cold sensation there during intercourse and associated this with her observation of a butt plug toy in his bathroom after she woke up. In the master bedroom, Mr. Alavi told her that her body would “clean itself out” and that she should cry even more. Finally, the complainant described the defendant penetrating her “doggie style” while he pulled her hair and smacked her buttocks. She said that during sex, she released fluid from her body. She remembered crying and sobbing throughout and that she never consented to any of the sexual activity.
[41] Counsel for Mr. Alavi submitted that S.A.’s account of non-consensual sex in the master bedroom was either fabricated or built on false memories during therapy or a combination of both. The defence contended that the two sisters colluded to falsely accuse Mr. Alavi of sexual assault because he was only interested in sex with S.A. who was heartbroken that the defendant did want a committed relationship. As well, the sisters were angered that that S.A. was in physical pain and had contracted an infection from the sexual activity with Mr. Alavi. She was also angry with the defendant because she was experiencing pain from sex with the defendant and believed he had given her a sexually transmitted disease. The defence also submitted that it was B.A. who pressured her sister to make a false complaint against Mr. Alavi.
[42] In his lengthy and thorough cross-examination of the complainant, defence counsel sought to demonstrate that S.A.’s account of events was based on false memories imagined on her own or else induced through therapy. Counsel pointed to the following pieces of evidence, among others, to support his argument that S.A.’s testimony was unreliable:
- In cross-examination, S.A. agreed that she was able to remember the events while getting counselling through Yellow Brick and that it took several months “for things to be clear. Before that, everything was vague.”
- S.A. testified that after June 7, 2023, when she gave her police statement, she was able to supply Detective Henry new details about the incident. Detective Henry, who was the sole witness called by the defence, testified that she did speak to S.A. several times after June 7. They spoke about next steps in the process and, when they did speak about the incident, the complainant did not offer new details. Detective Henry said that the general nature of the sexual acts described by S.A. in court were not new to her, just some of the details.
- S.A. testified that the sex in the master bedroom started by the defendant removing her nipple gels, which she did not consent to. In her police statement, she said she had removed the gels. She explained that she was distraught during the interview. Farsi is her native tongue, and she did not have an interpreter. She said she was upset during the interview and mistakenly used the wrong pronoun.
- In chief, S.A. said that after her first puff of the cannabis vape, she saw Mr. Alavi change the vape cartridge. She later testified that she did not actually see him do this but saw his hand movements because he had his back to her.
- S.A. testified that after the incident, she told her sister that she did not want to have sex with the defendant. In cross-examination, she testified that before calling the police, she had not found it necessary to discuss the issue of consent. She told her sister they had “vigorous sex”. She said that B.A. knew she would not consent to “such wild acts or treatment.” She also testified that she was embarrassed and ashamed to disclose the details of what had happened to her younger sister.
- S.A. testified that when the guests were saying goodbye, she was in the kitchen away from the front door. In her police statement she said she was by the door. She explained that if she said in her statement, she was closer to the door, it was due to a language issue.
- During cross-examination S.A. said that she did not talk to her family doctor about a sexual assault and later said she did not. In her police statement, S.A. said that she “explained to her what happened”.
[43] Counsel also pointed to several alleged difficulties with respect to the reliability of B.A.’s evidence.
- In chief, B.A. testified that she saw her sister take one puff of the vape and saw the defendant then change the cartridge. B.A. recalled saying the same thing to the police. However, in her police statement, the witness said it was S.A. who saw him change the cartridge.
- while S.A. said she spoke to her sister about the incident on Sunday June 4, B.A. said it happened the next day, Monday June 5 when she asked S.A. whether she and the defendant had sex. S.A. responded, “Yes but I didn’t want to.”
- In one of their conversations, S.A. told her sister that the defendant was “playing with her” and that he was only interested in sex and not a commitment.
- B.A. resisted the suggestion that she forced her sister to go to the police, saying that she only encouraged her. B.A. resisted the suggestion that she and her sister colluded about what evidence to give in court. She said they only discussed procedures and proper protocol in court.
- B.A. resisted the suggestion that she pressured her sister to go to the police because she equated rough sex to rape. She said that hard sex without consent is rape. She also said that even if there were injuries, it does not mean there was rape. She stated that bruises and pain do not necessarily mean rape but that her sister did not consent.
- B.A. resisted the suggestion that she was “demonizing” the defendant. While she did not like Mr. Alavi, she did not share this with S.A. who was an adult who could make her own decisions. B.A. also said she was offended when the defendant closed the door in her face on the night of the party. B.A. said that she believed that S.A. is “of a higher class” than Mr. Alavi.
- While she said in her statement that S.A. was in love with Mr. Alavi, B.A. explained that she did not mean romantic love but non-romantic love.
[44] I accept the defence argument that B.A. may not have seen Mr. Alavi change the vape cartridge but learned this from her sister. However, there is no evidence that the two sisters colluded or conspired to falsely accuse Mr. Alavi of sexual assault. There is no doubt that B.A. strongly encouraged her sister to report the matter to the police. Based on S.A.’s account of the incident, her distraught emotional condition and the visible bruising she saw on S.A.’s body, B.A. genuinely believed that her sister had been the victim of non-consensual rough sex. That is why she strongly urged her sister to report the incident to the police.
[45] As the Court of Appeal observed in R. v. Rose, 2021 ONCA 408 at paras 38 and 39, there is no rule on how people who are victims of traumatic events like sexual assault will behave. Nor is there any inviolable rule on how a sexual assault complainant will process a traumatic event. In Rose, the complainant did not fully process the sexual assault until sometime later.
[46] I found S.A. to be credible concerning why she initially had difficulties remembering the details of what occurred in the master bedroom. She did not want to believe that she had been sexually assaulted, and it took her time to process what had happened. Most importantly, it was her high degree of intoxication that impaired her ability to recall. Her initial memory difficulties were also influenced by strong feelings of shame and guilt that she was sexually assaulted.
[47] Following her reporting of the incident to police, S.A. attended counselling primarily to help her cope with the trauma she experienced resulting from the incident on June 4, 2023. She first attended counselling through the Victim Witness Assistance Program to help her deal with her anxiety. She then attended several counselling sessions with an agency called Yellow Brick to help her cope with the daily activities of life. However, it was also the case that while in therapy, S.A. was trying to piece together all of what had happened to her with Mr. Alavi on June 4, 2023.
[48] I am satisfied on the evidence that the complainant knew at the time of the incident that she was being sexually assaulted by Mr. Alavi in the master bedroom. As I indicated earlier, it is also the case that it took time for S.A. to process the details of what had happened there. I accept her testimony that her memory was impacted by her high degree of intoxication. Also, she did not want to believe that Mr. Alavi had sexually assaulted her. Her disclosure of events was incremental. She was ashamed to tell her younger sister the details of what happened, except to say she did not want to have sex with Mr. Alavi. She was embarrassed to explain everything she could remember to her family doctor on June 5. She could only say that her encounter involved vigorous sex. Her memory was patchy when she gave a statement to Detective Henry on June 7, 2023. S.A. was able to describe some of the events such as being forced to perform oral sex and being choked. She remembered him spanking her hard. She could not say she was vaginally penetrated in the master bedroom, but she recalled feeling pain in her anus. In a follow-up email to Detective Henry on June 13, 2023, S.A. added some more details such as that her hands were held back, and she felt pain in her wrists. She also informed the detective she could remember that Mr. Alavi had given her a second glass of water but that she had already informed Officer Brenda Dolenc of this.
[49] S.A. testified that she remembered most of the details within two weeks of the incident. Although S.A. thought she provided new details about the incident during several subsequent discussions with Detective Henry. Detective Henry testified that while the two did discuss the incident, no new details were provided. I do not find this inconsistency to be important.
[50] S.A.’s prior consistent statements to Detective Henry regarding the sexual assaults in the master bedroom do not corroborate her testimony. I am not permitted to use them to find S.A. more credible because she had made the same allegation before. I do not treat her prior consistent statements as independent confirmatory evidence. However, they are admissible to rebut an allegation of recent fabrication, or the product of false memories created in later counselling sessions.
[51] S.A. testified that she remembered “most of the details” when she was attending counselling at Yellow Brick. She testified, “it took me several moths for things to be clear. Before that, everything was vague…after sex assault, I was not in good condition to remember everything. My memory was affected because of the medications that were given to me but mostly it was because of the shock I had gone through, and I was going through mental therapy to find myself back.” When asked about how she was able to recall the various sexual positions in the master bedroom, S.A. said that throughout the year, every week, one to two hours, she had gone through counselling therapies and “we were working on my memories”. S.A. testified, “The therapies really helped while I was trying hard on my own to remember. I wanted to know exactly what had happened. Most of it, I still do not remember.” She agreed with defence counsel’s suggestion that her therapy sessions helped her to “reconstruct” her memory. She also said that certain events, such as hitting her foot on the table, being in front of a mirror, being brought water and sleeping in different positions served to trigger some of her memories regarding the incident.
[52] I agree with the Crown that the primary focus of counselling was to help the complainant cope with the trauma she was experiencing from the incident. S.A. explained that her therapists and counsellors simply listened to what she remembered. There is no evidence that any suggestive or other improper techniques were employed by her therapists. It is true that a therapist at Yellow Brick told S.A. that one of the acts she remembered is referred to as “double penetration. S.A. had not heard that term before. I am satisfied that the therapist’s comment was harmless. This was not a situation where a therapist suggests that something occurred when the patient has no memory of it occurring. S.A. had already disclosed the acts in question to the therapist who simply provided a term to describe those acts.
[53] The courts have recognized the reality that sexual assaults can be difficult to process and difficult to disclose. I find that S.A. was in shock and disbelief for weeks and months following the incident. Because of her own efforts and therapy, she was able to reliably recall over time many more details of the sexual assault in the master bedroom than she was able to describe to Detective Henry in her statement on June 7, 2023.
[54] I accept S.A.’s evidence that while in the master bedroom, Mr. Alavi forced her to perform oral sex on him. I note that before her any therapy sessions, she told the police that she was kneeling on the floor when the defendant put his penis in her mouth this was happening, S.A. recalled the taste of pizza in her mouth. She told the police that the defendant put his fingers in her mouth to produce saliva for lubrication. She told the police that the defendant choked her but could not remember simultaneous vaginal penetration. While S.A. did not tell the police about “double penetration” in her statement, she did say in her statement that Mr. Alavi told her body would clean itself out. She told the police that she had seen the butt plug in the defendant’s bedroom. She told the police that Mr. Alavi pulled her hair and smacked her buttocks. About ten days after the incident and before counselling, she remembered being vaginally penetrated while being choked. These were not, as alleged by the defence, false or recently fabricated memories. I am satisfied that these were true and reliable memories.
[55] I accept S.A.’s evidence that anal penetration took place in the master bedroom to be true and reliable. She recalled feeling extreme pain in her anus. S.A. was clear that anal sex did not occur in the second bedroom even though Mr. Alavi wanted it. She told him not to try and he did not. The agreed statement of fact states that S.A. reported to a sexual assault nurse at Women’s College Hospital on June 7, 2023, that she was anally penetrated by the assailant’s penis and a foreign object such as butt plug and vibrator. The nurse noted “tenderness with swabs” but no bleeding or visible injury in the anal area. S.A. described her experience of going to the bathroom after she woke up on June 4. She testified, “When I pooped out, when I checked, I noticed a lot of semen, white colour, has come out of me, as well. It was a lot…. I was confused. I was completely confused. Why am I in so much pain? Why is it when I wipe myself up, my anus muscles could not close up again? And I was wondering, why doesn’t it close? Why is it like that? The wipe was keep getting dirty. All the toilet papers would keep getting dirty.” She noticed the vibrator and butt plug and believed Mr. Alavi used one of these toys on her when she was in the master bedroom. At one point she felt a cold sensation in her anus which she attributed to him using one of the toys.
[56] On all of the evidence, I am satisfied that Mr. Alavi penetrated the complainant anally with his penis in the master bedroom. While there is some likelihood that he also used the butt plug toy, I am unable to find beyond a reasonable doubt that he did.
[57] I also accept S.A.’s testimony as true and reliable that Mr. Alavi had vaginal sex with her in the master bedroom in a “doggy style” position and spanked her buttocks while doing so.
Did the Crown prove beyond a reasonable doubt that Mr. Alavi knew or was reckless or wilfully blind as to the absence of consent to sexual activity in the master bedroom?
[58] I have no doubt that Mr. Alavi knew that S.A. was incapacitated to consent to sexual activity when she was in the master bedroom with him. He observed her mental and physical condition deteriorate during the party. The defendant saw that she was intoxicated. She could not stand, and he helped her to sit back on the couch. He knew she was unwell and referred to her as his “patient” to the other guests. He had drugged her during the party. He was the one who had provided her with the vape and the two glasses of water. The defendant later took advantage of her incapacity to consent to sex. I accept the evidence of B.A. that he told her at the end of the party by the door that he would look after S.A. In the morning S.A. had to ask him what had happened. He responded, “You had good sex. Before you had sex like girls 16-17 years old. Now you had sex like a 37-year-old woman”. He also told her that she had ejaculated six times.” Mr. Alavi expressed no surprise that S.A. was asking him what had happened. This was because Mr. Alavi knew that he had drugged her and that she would have difficulty remembering what happened to her in the master bedroom.
[59] I am satisfied beyond a reasonable doubt that Mr. Alavi knew the complainant was not consenting to any sexual activity in the master bedroom. He did not obtain her consent to any of the sexual acts nor even try to. He was only concerned with fulfilling his own needs.
Has the Crown proven beyond a reasonable doubt that Mr. Alavi sexually assaulted the complainant in the second bedroom?
[60] The defence concedes that sexual activity took place in the second bedroom but that it was entirely consensual.
[61] When complainant woke up in the second bedroom on the upper floor of Mr. Alavi’s apartment, she was wearing a bath robe. S.A. did not remember putting on a bathrobe and was unable to recall how she ended up in the second bedroom.
[62] S.A. testified that she was in “severe pain in my privates, front and back” when she awoke. She was able to now speak and told Mr. Alavi that she was in pain and did not want sex. She described the defendant as becoming “angry”, “wild”, “forceful” and twisting her body into different positions. He was wearing a penis ring at the time. She recalled being on the bed on her chest with Mr. Alavi lying over her. He could see him in the mirror which was on the closet door. He vaginally penetrated her. She was crying. Mr. Alavi told her, “Cry. Show me in the mirror that you are crying. Imagine that you’re a 16-year-old girl and somebody is forcefully having sex with you. Cry.” S.A. said to him “don’t talk pussy” in Farsi, meaning “don’t talk nonsense”. In response, Mr. Alavi said he would punish her even more. He wanted to have anal sex, but she said no. He then put her on her back and started to have vaginal intercourse. She tried to push him away but was not strong enough. The vaginal sex continued until the defendant ejaculated on her. He then lay beside S.A. and told her she took all his energy. S.A. said she was in extreme pain because of being sexually assaulted. S.A. told the court that she never consented to any of the acts. They never discussed anything about the sexual activities in advance. She did not believe he used a condom during sex.
[63] In the morning S.A. went to the bathroom and observed semen and feces coming from her anus. While the defendant was downstairs, she went to the master bedroom and took a photo of the sex toys sitting on a soap dish in his bathroom. Downstairs, the defendant was not wearing anything on his lower body, and she told him to put his clothes on. She took a call from B.A. and told her they would talk later. S.A. told her she should not have come. In the kitchen, S.A. was still in shock. She did not want to believe the sexual acts had occurred. She asked Mr. Alavi what happened last night. He replied, “You had good sex. Before you had sex like girls 16-17 years old. Now you had sex like a 37-year-old woman.” He asked S.A., “Do you know how many times you ejaculated last night?” When she did not answer, he said “six times”. S.A. testified that she was speechless. The defendant had not “treated me like a human being and was then talking about it with pride.”
[64] S.A. then had a text conversation with a friend named Ar. who came to pick her up. She did not tell the defendant that her friend was coming to get her because she was afraid the defendant would keep her in the house. She deleted Mr. Alavi’s number from her phone but received a WhatApp voicemail asking her where she disappeared and if she was “back to normal”.
[65] In cross examination, the complainant did not resile from her position that she was sexually assaulted in the second bedroom. She denied that her sister forced her to make a complaint to the police.
[66] In my assessment of S.A.’s credibility, I have taken into account her post-event demeanour as corroborating evidence that she did not consent to sexual activity with Mr. Alavi in his residence on June 4, 2023.
[67] Post-event demeanour of a sexual assault complainant can be used as corroborative evidence: R. v. Rose, at paras 22 and 33. When assessing credibility, the court can consider evidence about how the complainant was impacted by the alleged events: R. v. A.J.K., 2022 ONCA 487 at apars 43-44.
[68] These alleged sexual assaults severely impacted S.A. She gave credible testimony describing the significant pain in her genital areas she suffered. S.A. described her body being pushed and twisted by Mr. Alavi against her will. She felt pain in her shoulders and her jaw. She subsequently broke a tooth from the ensuing stress caused by what occurred on June 4. In the aftermath of the incident, she could not control her urination and defecation. She said she became a “mental wreck”. She cried often, wouldn’t leave the house, couldn’t eat, couldn’t do chores, and couldn’t take care of her dogs. She was unable to complete her studies as an interpreter because the exam involved a hypothetical sexual assault scenario. S.A. received treatment from VWAP counsellors, her psychiatrist and various therapists. She has attended several sessions of counselling with an agency named Yellow Brick since the incident.
[69] B.A. took photos of her sister’s injuries. She confirmed S.A.’s account of mental and emotional deterioration after the incident. B.A. testified that her sister was crying so much that she could not breathe. S.A. appeared to be in a constant state of crisis. She was distracted, sobbing and scared. S.A. stayed in her room for months and would not see anyone. B.A. said that S.A. got worse as she remembered more.
[70] On June 7, 2023, S.A. attended Women’s College Hospital to complete a sexual assault evidence examination. The report of that examination form part of the agreed statement of fact in this case. It was noted that S.A. had redness to her vaginal area and tenderness to her anal area. She had bruising on both knees and four linear abrasions on her upper back. The marks on her back appeared to me to be in the shape of finger marks There were no visible injuries to her wrists, but both were tender to the touch. There were two circular bruises above her left breast. I am satisfied that these injuries took place during non-consensual sexual activity on June 4, 2023.
[71] I accept the uncontradicted evidence of the complainant that she was conscious and aware of everything that was happening to her in the second bedroom. S.A. had no memory difficulties with respect to the activity in the second bedroom. She told Mr. Alavi that that she was not consenting to any sexual activity. I believe S.A.’s evidence that she was distraught, crying and objecting to sex with the defendant. I believe her testimony that Mr. Alavi did not care that she was protesting and told her, “Cry. Show me in the mirror that you are crying. Imagine that you’re a 16-year-old girl and somebody is forcefully having sex with you. Cry.” This was not just rough sex. I find that the defendant engaged in rough sex without the consent of S.A. There was never any discussion between Mr. Alavi and the complainant about any of the sexual activities in advance. I believe that the accused wanted to have anal sex with S.A. but backed off when she told him not to. I accept S.A.’s testimony that Mr. Alavi put her on her back and started having vaginal sex without her consent. She tried to push him away btu was not strong enough. I believe S.A.’s evidence that the defendant was wearing a penis ring and ejaculated. There is no doubt in my mind that Mr. Alavi knew or was wilfully blind to the fact that S.A. was not consenting or was reckless and chose to take the risk.
[72] I accept the testimony of S.A. that she had previously made it clear to Mr. Alavi that she was only interested in a committed relationship and rejected his idea of a “friends with benefits” arrangement. She went to the party because Mr. Alavi told her he wanted to “talk to her”. I am satisfied beyond a reasonable doubt that the defendant drugged her. He demonstrated no interest in discussing their relationship. More importantly, there is no evidence that Mr. Alavi obtained S.A.’s consent for any of the sexual acts which took place. As I indicated, she was incapable due to intoxication of providing her consent in the master bedroom. In the second bedroom, she was fully conscious and aware and did not consent to sex with Mr. Alavi.
[73] S.A. gave her evidence in a forthright manner. When she was able, she provided a high degree of detail about the layout of the bedrooms. She was honest about what she could remember and what she couldn’t. Despite an intense and very lengthy cross-examination, S.A. was consistent that she was sexually assaulted. Her allegations of being sexually assaulted in the second bedroom were not invented. They were not the product of collusion with her sister, nor an expression of any false memories planted in her mind during therapy. She provided reasonable explanations for inconsistencies between her police statement and her testimony. I view the inconsistencies brought out in cross-examination and referred to earlier in these reasons as relatively minor and do not diminish her credibility. S.A.’s core evidence that she was sexually assaulted in several ways was unshaken. She was an honest witness who gave reliable evidence concerning the numerous sexual assaults she was forced to endure on June 4, 2023.
[74] Upon a consideration of all the evidence, I am satisfied beyond a reasonable doubt that Mr. Alavi sexually assaulted S.A. in the second bedroom as she described in her testimony.
[75] The defendant is convicted of sexual assault.
Released: December 19, 2024 Justice T. Lipson