WARNING

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

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

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

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

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

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

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

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

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

ONTARIO COURT OF JUSTICE

CITATION: R. v. Maslaki, 2024 ONCJ 699

DATE: 2024·09·12

BETWEEN:

His Majesty the King

— and —

Abdessamad Maslaki

Judgment at Trial

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

K. Visic, B. Willitts .............................................................................. Counsel for the Crown

J. Rabinovitch ................................................................................. Counsel for the Defendant

Felix J.:

Table of Contents: R. v. Maslaki

I. Introduction 6

A. Introduction 6

B. Organization of this Judgment 8

II. The Burden of Proof and General Criminal Law Framework 9

A. The Presumption of Innocence 9

B. Reasonable Doubt 9

C. Credibility and Reliability Assessment 10

D. The Guidance of W.(D.) 10

E. W.(D.) Applies to All of the Evidence 10

F. Other Relevant Legal Guidance on Credibility 10

III. The Witnesses at Trial 11

A. Introduction 11

B. The Complainant’s Testimony 12

C. The Defendant’s Testimony (Direct – Examination) 13

D. Other Witnesses 16

IV. Credibility and Reliability of the Complainant 17

A. Introduction 17

B. Identity of the Person in the Doorway 17

C. Reliability 17

D. Light Switch 18

E. Motive to Fabricate 18

F. Demeanour While Testifying 19

G. Conclusion 19

V. Credibility and Reliability of the Defendant 20

A. Introduction 20

B. “Dissociative State” 21

C. Religious and Cultural Evidence 22

D. The Asserted Dissociative State 23

1. Anguish, Bereavement and Failure to Attend the Funeral 23

2. Lack of Sleep 23

3. Lack of Food 23

4. The Brain 24

5. Intoxication 26

a) Introduction 26

b) Consumption of Alcohol 27

c) Time at the Bar 28

d) Voices 28

e) Unsteadiness / Swaying 29

f) State of Clothing 30

g) The Complainant’s Evidence 30

h) Police Witness Evidence 31

i) Video Evidence 32

j) Laypersons Opinion – Indicia of Intoxication 33

k) The Defendant’s Reliance on Religious and Cultural Beliefs 33

l) A Solemn Religious Day 34

m) Memory 34

n) The Bar 34

o) Conclusion: Intoxication 34

E. James 35

1. Apparent Lack of Knowledge 35

2. Food 35

3. Plying with Alcohol 36

4. James ’s Apparent lack of Concern 36

5. James ’s Friend 37

6. Conclusion – James 37

F. The Streetscape - Casablanca and College Street 38

G. The Complainant’s Front Door 39

H. Stairwells 39

I. The Sexual Contact 41

J. The Light Switch 43

K. Silence 44

L. Fleeing the Scene 44

M. “Squeezing Memory” 45

N. Coincidence 46

O. Conclusion: Credibility and Reliability of the Defendant 47

1. Accused Demeanour 47

2. Reliability 47

3. Conclusion 48

VI. Mistake of Fact 49

A. Introduction: The Defence Position – Mistake 49

B. Air of Reality – Sexual Assault Count 50

1. Section 273.2 of the Criminal Code 51

2. The Common Law 52

3. Walsh 53

4. Conclusion 53

C. Error – Sexual Assault Count 53

D. Reasonable Doubt- Sexual Assault 54

VII. Disposition of the Counts 54

A. Sexual Assault 54

1. Break and Enter and Commit Indictable Offence of Sexual Assault S.348(1) of the Criminal Code 55

2. Unlawfully in a Dwelling House 56

I. Introduction

A. Introduction

[1] The defendant is charged with sexual assault, break and enter a dwelling- house to commit the indictable offence of sexual assault, and unlawfully in a dwelling house, arising out of a police investigation on September 25, 2021, in the City of Toronto. After significant procedural delay associated with pre-trial motions and a change in Defence counsel, the matter proceeded to trial in August 2024.

[2] The prosecution’s case involves the defendant breaking into the complainant’s apartment at 4:00 AM, and sexually assaulting her. The complainant and the defendant were total strangers.

[3] There is no factual dispute that the defendant is the person who entered the complainant’s apartment without legal authority. If accepted, the complainant’s testimony at trial clearly establishes the elements of the offence of sexual assault.

[4] The defendant testified at trial. He explained that during a time of bereavement, compounded by lack of food and sleep, he voluntarily consumed alcohol for the first time in his life. Given the combination of these stressors, he was intoxicated and began to hear voices. Although he was walking on College Street in Toronto, he honestly believed that he had been transported back to a street in his native Casablanca, Morrocco. Although he entered the complainant’s apartment without consent, he was under the misapprehension that it was his childhood home in Casablanca. While he did enter the complainant’s bedroom in Toronto, he was under the misapprehension that he was having consensual physical contact with his fiancée, in the bedroom of his childhood home, in Casablanca.

[5] Defence counsel did not rely upon a defence of not criminally responsible on account of mental disorder [NCR]. Defence counsel did not rely upon the defence of automatism. There was no expert opinion evidence adduced at trial. Given this record, I have used the term “dissociative state” to capture the suite of stressors relied upon by the defendant.

[6] Defence counsel relied upon a mistake of fact “defence.”[^1] The Defence position is that the defendant’s viva voce evidence should raise a reasonable doubt on the issue of mens rea for all three offences. That given he was in a dissociative state, he lacked the mental intent to commit any of the offences.

[7] The parties agree that the guidance of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 [W.(D.)] must be addressed as the central issue at trial. Trial judges are required to explain the reasoning behind decisions. The object is not to ridicule or demean the participants in the trial, but to clearly explain the pathway or route to a decision.

[8] I have had the opportunity to listen to the defendant over two days of testimony at trial. I found the defendant to be pleasant, polite, and highly intelligent. Notwithstanding these positive aspects of the defendant’s presentation, I have a duty to be clear and specific about his testimony because the asserted mistake of fact defence rests entirely upon his viva voce testimony.

[9] Having considered the entire record at trial, I found the defendant’s credibility and reliability to be significantly impacted. I do not believe the defendant’s testimony about being in a dissociative state. I do not believe for a moment that he honestly or subjectively perceived this state of mind. The defendant’s testimony was incredible, fantastic, implausible, and at certain points, insincere.

[10] To be specific, I will explain in this written judgment why I find that the defendant was not in a dissociative state at the time of the offences. Given there is no issue of NCR or automatism, he is presumed to have intended the natural consequences of his acts.

[11] In this written judgment I will explain my assessment of the defendant’s credibility and reliability. I will provide a detailed explanation for why, as it concerns step one of W.(D.), I emphatically reject the defendant’s evidence. Frankly, the defendant’s testimonial approach caused me to approach his evidence with a high degree of caution with respect to anything he said. I looked for objective support, including from the prosecution case, for things he said.

[12] Reasonable doubt does not require a foundation in the evidence. It may exist in the record at trial, or outside of the record at trial. A criminal court judge is obliged to consider any basis for reasonable doubt having regard to the presumption of innocence. As it concerns step two of W.(D.), I will provide a detailed analysis of the material credibility issues and explain why I am not in a state of reasonable doubt about the defendant’s guilt.

[13] Rejection of the defendant’s testimony does not mandate conviction in criminal law. I will address step three of W.(D.), and explain why I found the complainant to be a clear, accurate, and truthful witness. I found the complainant to be both credible and reliable. I will explain why I very much prefer her evidence where it conflicts with the defendant’s evidence.

[14] I am satisfied beyond a reasonable doubt that the defendant committed the actus reus in relation to each offence before the court. The central purpose of this written decision is to thoroughly address the mens rea defence. I will explain why I am satisfied beyond a reasonable doubt that the defendant held the requisite mental intent for each offence before the Court.

B. Organization of this Judgment

[15] The defendant asserts a defence of mistake of fact. The foundation for the mistake of fact relies upon the viva voce evidence of the defendant and the record at trial. Trial judges have a duty to explain the reasoning process used to arrive at findings. This process begins with employing the proper criminal law framework or mindset a criminal court judge must employ when evaluating the record at trial. As such, this judgment begins by setting out several important criminal law principles including the burden of proof, reasonable doubt, and the assessment of witness credibility.

[16] Next, I address the credibility and reliability of the central witnesses – the complainant and the defendant. While addressing the defendant’s credibility I will set out several relevant factors that negatively impacted his credibility.

[17] Finally, I will address the asserted mistake of fact defence.

II. The Burden of Proof and General Criminal Law Framework

[18] Criminal trials are informed by a number of well-known legal principles. I will briefly set out the framework for the proper approach to the analysis of the evidence.

A. The Presumption of Innocence

[19] The central tenet in our criminal justice system is the constitutional entrenchment of the presumption of innocence. A criminal defendant begins a trial with the presumption of innocence. The defendant is not required to testify. The defendant is not required to present any evidence. The presumption does not shift during the trial. The presumption of innocence is only dislodged if the prosecution presents evidence establishing the defendant’s guilt beyond a reasonable doubt: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 27; R. v. Starr, 2000 SCC 40, at para. 242.

B. Reasonable Doubt

[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: R. v. Menard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345.

[21] 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”.: Villaroman, at paras. 28,36.

[22] It is important to note that the Defence bears no burden to prove foundational facts in support of an inference of innocence: R. v. Villaroman, 2016 SCC 33 at para. 35 [Villaroman]; R. v. Khela, 2009 SCC 4. Nor is the defendant required to adduce evidence providing foundational support for a “finding” of reasonable doubt: Villaroman, at para. 28. A defendant is free to point to anything in support of reasonable doubt including the presence or absence of evidence.

[23] The defendant has no burden in this criminal trial. Nevertheless, he chose to testify and provide testimonial support to the mistake of fact defence.

[24] Even in rejecting the defendant’s evidence. I am obliged to consider whether anything a trial supports a reasonable doubt. I am not in a state of reasonable doubt as it concerns the three offences before the court.

C. Credibility and Reliability Assessment

[25] In many criminal trials the credibility and reliability of the central witnesses at trial must be resolved. I rely on the description of “credibility” and “reliability” explained by Watt J.A. in R. v. C.(H.), 2009 ONCA 56, at paragraph 41, and the guidance of the Supreme Court of Canada in R. v. G.F., 2021 SCC 20, at paragraph 82 [G.F.] and R. v. Kruk, 2024 SCC 7, at paragraphs 146-149[Kruk].

D. The Guidance of W.(D.)

[26] In assessing the criminal standard of proof beyond a reasonable doubt, trial judges have a responsibility to consider the entire record at trial and to resolve material issues relevant to the credibility analysis. The W.(D.) decision sets out the three-step process for analyzing credibility in the face of conflicting evidence. The guidance is as follows:

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

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

3. Even if you are not left in doubt by the evidence of the accused, you must ask whether, on the basis of the accepted evidence, has the prosecution established guilt beyond a reasonable doubt.

[27] I am in favour of an additional instruction. I acknowledge that a criminal trial is not simply a competition between the version of events provided by the complainant, and the version of events provided by the defendant. But, if after considering the totality of the evidence, I am unable to decide whom to believe, this state of mind translates into a reasonable doubt and an acquittal must be the result: R. v. S. (J.H.), 2008 SCC 30, at para. 12[S.(J.H.)]; R. v. Austin, 2006 CanLII 39077 (ON CA), [2006] O.J. No 4660 (C.A.), at para. 20.

E. W.(D.) Applies to All of the Evidence

[28] The W.(D). test applies to more than the defendant’s evidence. The test requires consideration of any defence evidence and any admissible exculpatory evidence no matter the source: R v. Savage, 2023 ONCA 240, at para. 37; R v. N.P., 2022 ONCA 597, at para. 29; R. v. Smith, 2020 ONCA 782, at para. 12; R. v. M.P., 2018 ONCA 608, at para. 60.)

F. Other Relevant Legal Guidance on Credibility

[29] There is no such thing as a “credibility contest” in criminal law. A trial judge is not permitted to determine guilt or innocence by simply picking a preferred version of events amongst competing versions. This approach offends the criminal burden proof: R. v. Vuradin, 2013 SCC 38, at para. 26; S.(J.H.), at para. 9; W.(D.), at p. 409; A trial judge cannot permit the analysis of credibility to degenerate into a mere choice between competing prosecution and defence witnesses (or competing evidence for that matter). R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No 3177 (C.A.) at para. 5.

[30] In a criminal trial, witnesses testify as to their observations and experiences. A trier of fact is entitled to accept some, all, or none of a witness’ testimony: Kruk, at paras. 82,145-146; R. v. C.P., 2021 SCC 19, at paras. 35, 274; R. v. Le, 2019 SCC 34, at para. 266; S.(J.H.), at para. 10; R. v. W.H., 2013 SCC 22, at para. 32 [W.H.]; R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at para. 14.

[31] The trier of fact is entitled to determine the weight assigned to different parts of the evidence of a witness that the trier of fact accepts: W.H., at para. 32; R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.), at para. 44.

[32] The trier of fact is entitled to decide how much weight to assign to a testimonial inconsistency and any explanation provided by the witness for the inconsistency: W.H., at para. 32;

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

[34] Finally, it is critical to note that acceptance of evidence presented by prosecution witnesses does not mandate automatic conviction. A trial judge could conceivably accept prosecution witness testimony, but still harbour a reasonable doubt.

[35] It is also an error to move directly from disbelief of the accused's evidence to a positive finding of guilt: R. v. Dore (2004), 2004 CanLII 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); R. v. H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6.

III. The Witnesses at Trial

A. Introduction

[36] The trial commenced with a detailed admission of fact addressing the complainant’s apartment, that the defendant entered her bedroom, video evidence, DNA analysis and several other issues and items of evidence that I rely upon as part of the record at trial. I will address those items as this judgment progresses.

B. The Complainant’s Testimony

[37] On the night of the incident the complainant finished work at a local restaurant and arrived home sometime between 12:00 midnight and 1:00 AM. The complainant lived in a walk-up apartment on College St. in Toronto with commercial spaces on the ground floor. Her apartment was above a store. To access her apartment, you would open an exterior door with a doorknob lock and a deadbolt lock, walk-up one flight of stairs from the ground level to her apartment. The kitchen was on the left as was her bedroom. On the right side was a living room and a spare room where a friend “J” was temporarily staying. There was an additional stairwell up to a second floor with second apartment on that floor above her apartment. The complainant went to sleep.

[38] At 4:10 AM the complainant woke up to her bedroom door opening and a bright light from the second bedroom illuminated a person standing in the doorway. She assumed this was the friend who was staying with her or another friend, so she told the person: “What are you doing? I’m sleeping! Close the door”.

[39] The person stepped inside her room and closed the door behind them. The complainant repeated “Get out! Close the door!”. The person said nothing.

[40] The complainant was lying on the side of her queen bed closest to the door as depicted in the photographic exhibit at trial. She was lying on her back. Then the person moved forward and lay on top of her. In so doing, the person did not stumble and did not speak. At this point the complainant knew the person was a man. He placed his hands on the front part of her shoulders.

[41] The complainant testified that at this point, she couldn’t fathom the idea that it was a strange man in her room, so she thought it was one of her friends who was very drunk and wasn’t very aware of what they were doing. As the man proceeded to lie down on top of her, she said: “Stop! Get off of me! What are you doing?!” There was no response. The man then started trying to kiss her with his face rubbing all against her face he used his lips and tongue on her mouth. The complainant repeated: “What are you doing? Stop it!”.

[42] The complainant was not able to physically push the man off her body. She began to feel at his face in an attempt to ascertain his identity. The man put his hands on her shoulders and held down her upper body. Initially his legs were parallel to hers, but at this point he used his knees to come between her legs and angled his lower body holding her legs in place. The man then pulled loose t-shirt down from the neck and used his mouth to go down her chest licking kissing and biting in an aggressive manner. The complainant continued verbally protesting and physically resisting.

[43] Then the man used his body weight and one hand to hold her down and used his other hand to undo his belt. The complainant actually heard his belt being undone. Then the man pulled her shirt up again, this time from the bottom, and continued kissing and licking her chest.

[44] The man then used one hand to tug at her boxer shorts attempting to pull them down. The complainant held on to her boxer shorts with her left hand and continued trying to push him off with her right hand. There were two or three efforts in this regard. During this time the complainant felt the defendant moving side and side and pulled his pants down. Then she could feel him rubbing up and grinding against her. She could feel his penis. As this occurred the complainant was finally able to push the defendant off using both of her hands. She got up and turned on a light.

[45] The defendant was standing before her. His pants and underwear were around his ankles. His penis was still exposed. She said: “Who are you? Get the fuck out of my house!”

[46] The defendant looked a bit shocked. He said: “Sorry. Sorry. Sorry, Mademoiselle” in accented English. He then began pulling up his pants and underwear.

[47] The complainant went into the kitchen, grabbed her phone, and called a friend “H” first, and then “J”, a friend who was temporarily staying with her.

[48] The defendant walked past her out of the door of her bedroom into the kitchen, went down the stairs, and out her front door. The complainant followed him with her phone as he went down the stairs “quite quickly” with no difficulty navigating the stairs. As the defendant headed down the stairs the complainant noticed that he had pulled his jacket over his head.

[49] When she arrived at the apartment entrance the complainant saw that her front door was in a locked state but ajar. She observed the defendant head north-west on College Street still with his coat held over his head. The complainant also saw her friend “J” on the street at this time.

C. The Defendant’s Testimony (Direct – Examination)

[50] The defendant testified that he was 42 years old and born in Marrakesh Morocco. He arrived in Canada April 2014. He currently worked in a restaurant. his only family was his father, who passed away the same week of this occurrence – on the Tuesday before he was charged with sexual assault.

[51] The defendant described the emotional turmoil associated with his inability to find a flight home in time to comply with his religious and cultural customs around burial. His father was buried on Wednesday. The earliest he could have arrived would have been the weekend.

[52] The defendant testified that he was devastated by the loss of his father. On Tuesday, Wednesday, and Thursday he did nothing. Life stopped. He was in a state of nervous shock. He did not leave the house.

[53] He had just completed his school studies on August 25th and had been discussing going back to Morocco to continue his engagement to his fiancée – Sara. His father’s death caused all of this to collapse. He spoke to Sara each day by video, and she comforted and consoled him.

[54] On Friday he went to the mosque at midday to perform the special ceremonies required on the first Friday after his father’s passing. After the mosque he spoke with Sara by video. He also spoke to his friend James about his father’s passing. He also told a friend in Montreal.

[55] On Friday after coming back from the special ceremonies in recognition of his father at the mosque, he video-chatted with Sara and stayed around the house. At some point he had communications with his friend James who indicated he was going to attend the defendant’s residence to console him in the aftermath of the loss of his father. When James arrived, they went for a walk. During the walk, his friend James suggested that they go meet a friend of James ’s at a bar on College Street.

[56] The defendant could not remember the name of the bar. Other than a high school flirtation with alcohol once he had never consumed alcohol in his life. Alcohol is forbidden in Morocco. He explained that if you are caught drinking alcohol you go to jail.

[57] The defendant testified that while at the bar, he consumed unknown quantities and types of alcohol. Then James and the second friend went to meet some women, and left him on College Street in front of the bar.

[58] The defendant testified that after the consumption of alcohol, his mind was blurry. He remembered going to a park or garden, and then everything got “mixed up”. He started to hear the voice of his father and the voice of Sara. He was hearing Sara repeat what she had said during the least conversation they had – that when he returned home, they would be together, and she would make up for the loss of his father. The defendant adduced into evidence a photograph of his home in Casablanca and explained the layout of the residence. He explained how as he went down College Street, he began feeling like he was in Morocco. All he wanted to do was return to his father’s home and go to bed. For reasons I will address further on in this judgment, I have used the phrase “dissociative state” capture of the state of mind described by the defendant.

[59] He approached a door that was open or “semi-open”. He was crying as he went up the stairs and his mind was very mixed up. He did not turn on the lights because he did not want to wake up his father. As a result, it was dark.

[60] He entered his bedroom and sat down on his bed. He used exhibit #5 to describe how he did not perceive anyone in the bed. He lay down on the side of the bed that was closest to him.

[61] At first, he did not feel anything. Then he noticed that there was a person standing up on the other side. It was: "like an imaginary thing." It was: “Like a man or woman." He testified that the “Imaginary body, before it moved, said, ‘I think - Did you come? Did you come?’”. He explained that the person mentioned a name, but he could not remember the name as he began to fall into a deep sleep from exhaustion.

[62] The defendant then described what happened next in the following questions and answers:

Q. When you heard this voice say, "Did you come? Did you come" Did you have any—were you thinking about who this was?

A. When that thing spoke, that thing had the voice of a female. And before leaving the house, Sara told me over the phone: when you come home, I will hug you, I will kiss you. I was still, I was still lying down, and I, and I smiled, because I felt like Sara is the one talking.

Q. Does Sara normally live in your father's home?

A. No.

Q. Okay. Why would you think—if you had thought you were in your father's home, why would you think Sara would be there?

A. Because that imaginary woman used the same phrase. And at that moment, everything got mixed up, the names, the streets, everything. Everything was mixed up—even when I was walking on the street, I was seeing flashbacks of my childhood. Everything was like, coming next to each other.

Q. What happened after you heard this voice, this female voice saying, "Did you come? Did you come?"

A. That imaginary thing moved, and came back to the bed next to me.

Q. Please continue.

A. And she hugged me. And she started playing with her fingers on my head. And she, she said something, but I do not remember. And she said thing that I do not remember. And I did not respond.

Q. All right. Did you say anything, at any point?

A. No. I think that I am, probably I lost my ability to speak.

Q. What happened after that?

A. She held my hand firmly, and she pushed my head towards this part....

INTERPRETER: Her breasts—and the witness made the gesture.

J. RABINOVICH: And just, just for the record, Your Honour, while Mr. Maslaki's was describing that, he was holding his hand, almost as if it was up in front, cradling something and pushing it towards his left breast.

THE COURT: Yes.

J. RABINOVICH: Q. What did you do in response, if anything?

A. Honestly, I responded. I, she was very nice to me.

Q. And what was your response?

A. When she kissed me, and she pressed my head with her, I went when she pressed my head towards the left side of her breast, I started kissing her just the, the scene, like she was kissing me.

Q. How did this interaction continue, and come to an end?

A. It was not that long, maybe 30 seconds, one minute, a bit over a minute. I think, at that moment, she realized that I am a stranger to her. Maybe because I was not responding verbally to her words, I don't know. [Indiscernible] thing is that she—in the beginning, she thought I am a different person. And then she, she realized that I am not; that I am a stranger.

Q. So. What, if anything, happened?

A. She stood up, and then she turned on the light.

Q. Do you remember which light she turned on?

A. At her side.

Q. When the lights came on, what if any, reaction did you have? [^2]

[63] The defendant testified that he immediately noticed the ceiling was different. The woman was not Sara. He described it being a shock for him like being hit with electricity or as if someone threw a bucket of cold water on top of his head. He testified that “ It is then that his brain just woke up”. And he realized with a shock that he was not in Casablanca.

[64] The defendant testified that he said: Sorry! Sorry! He realized he had violated his religious ethics and culture around touching a woman who is not your wife. The defendant then explained how in his culture when one feels shame you lower your head or cover your head with something. He chose to pull his black puffy jacket over his head in shame. He left. He encountered the police a short distance away after going down the stairs.

[65] The defendant testified that it was the complainant who initiated physical contact with him. He testified that he never lay on top of the complainant, he did not unbuckle his belt, he did not take off his pants, he did not produce his penis.

D. Other Witnesses

[66] The Crown called “J”, the complainant’s friend who was visiting her apartment, as a witness at trial. There were no significant credibility or reliability issues with this witness. I will address the relevance of his evidence throughout the judgment.

[67] The Crown also called a police witness regarding the presentation of the defendant and the admission of the video evidence showing the defendant’s demeanour. There were no credibility or reliability issues with this witness. I have addressed the police officer’ evidence below in this judgment.

IV. Credibility and Reliability of the Complainant

A. Introduction

[68] The complainant and the defendant were strangers. The defendant had never met her before. The defendant did not have permission to enter her apartment or her bedroom. I did not find any significant credibility issue with the complainant’s evidence.

B. Identity of the Person in the Doorway

[69] Defence counsel made an issue of the complainant’s reaction to the man who entered her room. During cross-examination it was suggested to the complainant that she was “not disappointed” to observe a shape entering her bedroom at four o clock in the morning because the shape resembled a friend of hers – “H”. This line of cross-examination was halted by the court. While I accept Defence counsel’s position that this was a sincere attempt to lay a foundation for anticipated testimony of the defendant, in the final analysis, this area of cross-examination was irrelevant and reliant on stereotypes about female sexual assault complainants.

[70] The defendant and the complainant were (and are) complete strangers. Even if the complainant believed that the person in the doorway was her friend “H”, this was not relevant to the issue of consent as between the complainant and the defendant.

[71] The defendant, having broken into a stranger’s bedroom, is not entitled to suggest to the obviously non-consenting stranger that she might have encouraged or supported the defendant’s supposed dissociative state in some way. No person, including “H”, was entitled to enter the complainant’s home without permission. No person was entitled to enter the complainant’s bedroom. And no person was entitled to perform sexual acts without first ascertaining the complainant’s consent, whomever they might be.

C. Reliability

[72] The complainant described consuming two small glasses of wine between 10:30 PM and 11:00 PM the evening before. She did not consume any drugs. The sexual assault occurred at approximately 4:00 AM. The complainant testified that she did not feel any effects from the consumption of that alcohol.

D. Light Switch

[73] The defendant testified that his dissociative state ceased when the complainant turned on the light in the room.

[74] The complainant was unable to recall which light she turned on in her bedroom. While this connotes a mild reliability issue, it is not important which light switch she turned on. What is important is that she was able to shove the defendant off of her body and turn on a light. What is important is the defendant’s contention that this ended his dissociative state.

E. Motive to Fabricate

[75] The Crown Attorney submits that there is no evidence of a motive to fabricate. Defence counsel does not raise the issue of a motive to fabricate. The defendant has no onus to establish a motive to fabricate: R. v. L.L., 2009 ONCA 413, at para. 53.

[76] The complainant and the defendant were total strangers. There is no prior history between them. There is no foundation in the event to suggest they ever met. There is nothing in the record suggesting the complainant held animus toward the defendant or had a motive to fabricate.

[77] This is a notoriously problematic area of law for trial judges as evidenced by the many appellate decisions dealing with this issue. It is also important that Defence counsel did not raise this as an issue at trial.

[78] As a matter of common sense and life experience, a motive to fabricate is an important credibility factor: R. v. Batte, 2000 CanLII 5751 (ON CA), [2000] O.J. No 2184, (C.A.) at para. 120. Where a motive to fabricate exists, or is proven not to exist, this credibility factor may be considered: R. v. S.S.S., 2021 ONCA 552, at paras. 25-31.

[79] As explained in R. v. Ignacio, 2021 ONCA 69, at para. 29:

29 "The distinction between absence of evidence of a motive to fabricate and absence of a motive to fabricate is not easily digestible": R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 97, per Watt J.A. As Watt J.A. explained in John, at para. 93:

The former is not the equivalent of the latter, nor is the latter the same as the former: R. v. L. (L.), 2009 ONCA 413, 244 C.C.C. (3d) 149, at para. 44. Said in another way, it does not logically follow that, because a witness has no apparent reason to lie, the witness must be telling the truth: R. v B. (R.W.) (1993), 24 B.C.A.C. 1, at para. 28. The fact that a witness has no apparent motive to fabricate does not mean that the witness has no motive to fabricate: R. v. L. (L.), at para. 44. [Emphasis in original.]

[80] I subscribe to a conservative and high test as it concerns the prosecution burden to proving the absence of a motive to fabricate: Ignacio, at para 31; Bartholomew, at para. 22. I simply find there to be an absence of evidence of any motive to fabricate on the part of the complainant.

F. Demeanour While Testifying

[81] The Crown Attorney submits that the complainant’s demeanour while testifying about the sexual assault is supportive of her credibility. To be clear, this submission was not directed at the post-event demeanour or emotional state of the complainant. It was focused on the complainant’s demeanour while testifying and describing the details of the sexual assault. I recognize that demeanour evidence is relevant to the assessment of credibility: R. v. N.S., 2012 SCC 72; R. v. O.M., 2014 ONCA 503. But it should be approached cautiously and be over-emphasized as a credibility issue.

G. Conclusion

[82] Defence counsel performed a thorough cross-examination with the aim of providing a foundation for the anticipated evidence of the defendant and his dissociative state. Defence counsel did not submit that the complainant’s testimony suffered from any serious credibility issues. Defence counsel also properly conceded that there was no question that the complainant did not consent to the defendant accessing her residence, her bedroom, or her sexual integrity.

[83] I found the complainant to be a credible witness. I did not find any internal or external inconsistences in her evidence. She was a cooperative witness with both the Crown Attorney and Defence counsel. Her answers were direct and focused. She was reasonable and accepted suggestions from both counsel. I also found the complainant was careful with her testimony (e.g., the light switch issue). Cross-examination did not elucidate any material shift in the complainant’s testimony about the sexual assault.

[84] I found that the complainant’s reliability was mildly impacted by the circumstances. This impact was understandable. The complainant was roused awake from sleep at 4:00 AM after having been asleep for several hours. While she claimed she was a light sleeper she did not hear the defendant enter her residence nor did she hear “J” arrive home. A bright light entering her room as the door was opened. It is perfectly reasonable that her evidence would be impacted by tiredness, the sudden awakening, and the traumatic realization that a stranger was sexual assaulting her.

[85] Notwithstanding this reliability observation, I also find that her ability to provide detail was not impaired by intoxication. And she was nevertheless able to provide clear specific detail as it concerns the sequence of events during the sexual assault.

[86] Finally, while there is no requirement in law that a sexual assault complainant be corroborated by other evidence, her recount is supported by external evidence. Her description of the sexual acts performed by the defendant are supported by the injuries captured by the professionals at the hospital and the DNA evidence. Her description of the defendant fleeing is supported by the video evidence (a video she had never seen) and the viva voce evidence of “J”.

[87] Overall, I found the complainant to be credible and reliable. I accept her evidence as supporting the actus reus of the sexual assault offence and the two other counts before the court. Her evidence also providing a foundation for the consideration of the issue of the requisite mens rea for all the offences before the court.

V. Credibility and Reliability of the Defendant

A. Introduction

[88] It is critical to expressly emphasize that the defendant bears no onus in a criminal trial. The defendant does not have a duty to adduce specific evidence or establish anything in a criminal trial. But the defendant testified in support of an articulated mistake of fact defence. Apart from one photograph of the defendant’s residence in Casablanca, the support for this defence emanates from the viva voce testimony of the defendant and the record adduced at trial. A trial judge has an obligation to render credibility findings based on the record at trial. A trial judge is obliged to evaluate the evidence of the defendant, in light of all of the evidence at trial.

[89] As I address the asserted defence, I will endeavour to use my common sense and life experience: Kruk, at paras. 152-159. I will also highlight the presence or absence of evidence. By addressing the defendant’s asserted mistake of fact defence in this manner, I have not placed the burden of proof on him. Nor have I ignored the concept of reasonable doubt set out earlier in this judgment. As I assessed the defendant’s credibility in this judgment, I refrained from constantly mentioning that the defendant bears no onus as a mantra.

[90] With this framework in mind, I may simply state that I found the defendant to have serious credibility and reliability issues. Frankly, there are very few things that I accepted or believed sourced in his testimony. Where I have accepted something the defendant said, it will be starkly apparent.

[91] I do not believe for a moment that the defendant’s actions or mind was impacted by the consumption of alcohol to any significant degree. I do not believe that he entered into a dissociative state prior to entering the complainant’s apartment and sexually assaulting her. I reject the defendant’s recount of what happened in the complainant’s bedroom entirely for two reasons: his lack of credibility, and lack of reliability premised on his own evidence that he had a break with reality.

[92] After reserving judgment, I spent significant time listening to the digital record at trial. I have cited many areas of that record in this judgment to illustrative examples of my findings. Having listened to the complainant’s testimony and the defendant testimony more than once, I am struck by how fantastic and incredible the defendant’s testimony became.

[93] I have been in a criminal court for approximately 28 years. As most criminal justice participants appreciate, one is exposed to a large variety of issues and positions in criminal court. But I am confident in my rejection of the defendant’s testimony as perhaps the most incredible story I have heard.

[94] The defendant is a polite, articulate, thoughtful, and educated person. That he provided such an incredible testimonial was startling. No reasonable person could accept the content of his testimony about entering into a dissociative state. The defendant’s clear presentation when examined by Defence counsel, degraded during cross-examination. When confronted on the details of his version of events, the defendant resorted to disingenuous obfuscation.

[95] When a criminal court jurist receives such a performance, it is important to remain dispassionate and stoic. It is critical that a court, focused on the criminal burden of proof, remember that rejection of the defendant’s evidence does not automatically mean conviction.

[96] Given the defendant’s testimonial performance I looked for objective support for anything he said. For example, in that search for objective corroboration, I found support for the proposition that the defendant was at least exposed to alcohol.

[97] Once again, it is my obligation to clearly set out my credibility findings. The object is not to demean or ridicule witnesses even when they testify to implausible things.

B. “Dissociative State”

[98] I will begin with the state of mind or being the defendant claims at the time of the offences before the court.

[99] The defendant does not suffer from a major mental illness.

[100] The defendant does not assert that he was not criminal responsible on account of a mental disorder (NCR).

[101] The defendant does not assert that he was suffering from automatism: R. v. Stone, 1999 CanLII 688 (SCC), [1999] S.C.J. No 27, at para. 155.

[102] Defence counsel characterizes the defence as “mistake”, or mistake of fact which negated the defendant’s mens rea.

[103] There is no expert opinion evidence analyzing the record adduced in support of the mistake of fact defence. There is no expert opinion evidence directed at an assessment of the defendant for any relevant medical issue. There is no expert opinion toxicology evidence assessing the defendant’s tolerance for alcohol absorption and elimination.

[104] The defence is asserted on the basis that the defendant was suffering from the following:

1. Anguish and bereavement over his deceased father;

2. The enormity of his failure to attend his father’s funeral in Morocco and perform the role that culture and religious observances mandate;

3. Lack of sleep;

4. Lack of food; and,

5. The voluntary consumption of an unknown quantity of alcohol.

[105] For the purposes of this judgment, I use the phrase “dissociative state” to capture the suite of circumstances relied on by the defendant.

C. Religious and Cultural Evidence

[106] The defendant’s observance of religious and cultural practices played a focal part of his testimony at trial including: his father’s passing, the significance of his absence at the funeral, wearing shoes in a residence, and the “acceptable” rules around contact with female persons.

[107] The Supreme Court of Canada in Kruk provided significant guidance on the appropriate bounds of reasoning based on common sense and avoiding ungrounded common sense assumptions and stereotypes about how persons behave. It is particularly important that a trial judge guard against ungrounded stereotypical beliefs sourced from outside the record at trial.

[108] The subject of religion and culture did not form part of the prosecution case against the defendant. It is the defendant who raised the issue and articulated the relevance of religious and cultural observances. In attesting to these solemn beliefs and practices, the defendant also explicitly placed his character in issue. The issue of the defendant’s religious and cultural practices is relevant to several issues at this trial. It is important at the outset to ensure that the parties understand the approach to such a sensitive issue.

D. The Asserted Dissociative State

[109] Earlier in this judgment I used the phrase “dissociative state” to encapsulate the elements described by the defendant as having contributed to this state.

[110] Re-stated for convenience, they are:

1. Anguish and bereavement over his deceased father;

2. The enormity of his failure to attend the funeral in Morocco and perform the role that culture and religious observances mandate;

3. Lack of sleep;

4. Lack of food; and,

5. The voluntary consumption of an unknown quantity of alcohol.

[111] I will now analyze each component.

1. Anguish, Bereavement and Failure to Attend the Funeral

[112] The defendant testified that he was labouring under the stress of his father’s passing and his inability to attend the funeral to perform the religious and cultural observances required by a son.

[113] I recognize that there is no independent objective proof of the defendant’s father’s passing (i.e., obituary) proximate in time to the sexual assault. I do not even know his father’s name. The defendant did not provide this detail.

[114] While there is no objective proof of the fact of the defendant’s father’s death or the date that this happened, I accept these circumstances articulated by the defendant because of his emotional demeanour when testifying. I would like to think that given basic human decency, no one would fabricate such an event.

2. Lack of Sleep

[115] The defendant testified that he did not sleep for three days. Despite my concerns about the defendant’s credibility, having accepted the stressor of his father’s passing, I accept his testimony that he did not sleep for three days.

3. Lack of Food

[116] I accept the defendant’s testimony that he did not consume food for three days.

4. The Brain

[117] During direct examination, by my count, the defendant mentioned his brain on one occasion – when the complainant turned on the light in the bedroom. At this time the defendant testified that his brain “woke up”. There was no other significant testimony about his brain during direct examination.

[118] During cross-examination deficiencies with the defendant’s brain became a predominant theme. For example, when asked about his walk with James to College Street.

Q. Okay. And do you know how far down you walked, before you started to come back down on College? What, how far downtown did you go, when you were on your walk?

A. I don't really remember. Because, because my brain wasn't really working well for the lack of sleep for three days.

Q. And how long was this walk with James?[^3]

A. I don't remember exactly. It could be between 10, to 20, to 25 minutes.

[119] Or the name of James ’s friend at the bar:

Q. What was his name?

A. I don't know.

Q. He wasn't introduced to you?

A. I believe so, but I don't remember the name. Because, as I said, my brain wasn't working properly. So. My brain wasn't working properly, so I was not concentrating on any details. I remember that we shook hands.

[120] Or where the bar was in relation to Ossington:

Q. How far away from Ossington was the bar? How many blocks?

A. I don't remember, maybe I don't remember.

Q. Is it two? Is it 10? Is it 20?

A. Because of the situation I was in, no food, no nutrition, no sleep for three days, my brain wasn't clear to concentrate on how many blocks, and to count them.

[121] Or details about the bar:

A. I don't remember this. My brain was not concentrating on these things.

Q. Sure. How many floors does the bar have?

A. I don't know these things. So. I just went in, and I sat down. I didn't have the energy, I didn't have the brain ability to look about how it looks like, what is there. I just went in and sat down.

Q. This is your first time in a bar in Toronto.

A. All my life.

Q. Okay. And you're sober at this point?

A. I didn't drink anything. I was quite alert.

Q. And you're telling us you can't tell us anything, really, about the bar?

[122] Or why he did not look at menu to order food at the bar given his lack of food for three days:

Q. So. When you got there, you didn't look at a menu and decide what you wanted to order?

A. No. Not at all. Because initially, I, my brain was confused, and I did not have any desire to, to look into such the case.

[123] Or why he has little or no detail about the alcohol presented at the bar:

Q. You're doing an activity for the first time, and you're doing it carefully.

A. My brain was not concentrating on the drink, because my brain was overwhelmed. I was drained.

A. I was not concentrating on the amount, or what is the effect it's going to be, because I am, as I have said previously, that my brain wasn't really working the way it should be. I was more in the state of being grieving for my father, and remembering his death.

[124] Or why he simply did not go home given the confluence of all of the stressors on him that night:

Q. But yet, you didn't go home.

A. No.

Q. You could have gone home.

A. Yes. Was possible.

Q. Nothing was stopping you from going home.

A. No.

Q. You could have said, goodbye to my friend, I'm going to go home, my head's not right.

A. It was possible. But everything was overwhelming my brain. I was really confused.

[125] During the defendant’s testimony he variously referred to his brain in the following manner:

• His mind was blurry • His brain was all mixed up • His brain was not concentrating • His brain was not working properly • His brain was not clear • His brain was overwhelmed • His brain was strained • His brain was drained • His brain made him imagine he was in his family home [ when describing why he was in the complainant’s residence] • His brain was telling him Sara was with him • He was confused

[126] As for the state of the defendant’s “brain” during the sexual assault, I stopped counting the fifteenth time the defendant cited a brain deficiency as contributing to his state of mind, causing him to hear voices, or provoking a lack of memory. This is not even counting the dozen or so additional times the defendant effectively stated the same thing by referring to everything getting “mixed up”, or the past and present getting “mixed up”.

[127] The defendant’s continuous reliance on this crutch during cross-examination was an obvious attempt to deflect the probing and detailed cross-examination challenging his version of events. When pressed on the details he retreated to a position of providing some detail with a heavy caveat sourced in his brain or things being “mixed up”.

5. Intoxication

a) Introduction

[128] Leaving aside the defendant’s reliance on brain misfunction, the most significant component of the defendant’s dissociative state involved his testimony that he was intoxicated by the consumption of alcohol consumed alcohol at a bar prior to attending the complainant’s residence.

[129] For the reasons set out in this judgment, I accept that the defendant had some exposure to alcohol prior to committing the offences before the court. I do not believe that the defendant was intoxicated to any significant degree such that it contributed to an asserted dissociative state. I do not believe his evidence generally about the volume of alcohol. I reject his assertion that the consumption of alcohol contributed to his dissociative state. The defendant exaggerated this evidence.

[130] While my rejection of the defendant’s testimony is based on my credibility assessment sourced in the entire record at trial, there are several specific reasons I will address at this juncture.

b) Consumption of Alcohol

[131] The defendant testified that he had never been to a bar before. He learned about that alcohol consumption occurs from watching movies.

[132] The defendant was unable to describe the quantity, type, or volume of alcohol he drank at the bar. He was not even able to describe the colour of the liquid he consumed.

[133] During direct examination the defendant testified that while at the bar James ordered asked the waiter for a drink for the defendant and for himself. The defendant testified that he did not know what type of alcohol he consumed. The defendant testified that he could not remember the number of alcoholic drinks he consumed. He testified: “ It could be a few, or many”.

[134] During cross-examination the defendant provided significantly more detail. He explained that the group sat at the bar. His friend James ordered drinks. He testified that he did not believe he ordered anything. When the drinks came, he was slouched over the bar with his head resting on top of the bar.

[135] The defendant testified that he did not order any food despite not having eaten for three days. His friend James did not order any food for him either. In fact, it does not appear that anyone ordered any food.

[136] His friend James asked for a glass. The defendant “believed” that James poured some of the drink into the glass. James then brought the glass close to him. When he noticed the defendant was not drinking, he tapped the defendant’s shoulder, whispered in his ear: “Drink a little, because it helps you forget”. The defendant demurred. Then James kept his arm around the defendant’s shoulder and said “ Listen you need this to feel better. This will help you. It won’t harm you”. Later on, in his testimony, the defendant said that James physically picked up the glass and raised it to his lips. The defendant testified that James did not force him to drink. But he encouraged him.

[137] The defendant could not recall how many bottles arrived. But James and his friend each had a bottle. The defendant at first testified that he did not have his own bottle. James just poured some in his glass. He then testified that it is possible that he had his own bottle.

[138] The defendant vigorously contested the cross-examination suggestion that he was served beer in a bottle. He claimed not to be able to tell the difference between beer, wine, or a shot of alcohol.

[139] The defendant claimed that he began to lose his memory after the first drink. He testified that James had poured an amount into the glass, but he could not recall if the glass was half-full or full. He could not even describe the glass itself apparently because his head was lying on the bar.

[140] During more detailed and specific cross-examination, the defendant testified that the “closest scenario” he could remember was a second pouring into the glass and after that drinking from a bottle. He then went on to endorse that he could have consumed two, four, seven, ten, more, or less, bottles of alcohol. He could not remember.

[141] The defendant testified that it was possible he paid for some or all of the alcohol or it was possible he did not. He did not have any receipts.

[142] Again, further on in the cross-examination the defendant suddenly endorsed a memory of drinking a “gigantic glass” with a mix of things in it. James and the second friend had ordered it. They were cheering at the time.

[143] The evolution of this record of consumption was attributed by the defendant to him “trying to squeeze” his memory to get the maximum detail. He also testified that he remembered “flash memories”.

[144] I categorically reject the defendant’s evolving testimony during cross-examination. I don’t believe the level of detail offered, not during direct examination, but in cross-examination. The defendant’s quotations attributed to James , as James plied him with alcohol and encouraged him to drink was self-serving.

c) Time at the Bar

[145] The defendant testified that his friend came to his residence at 9:00 PM and they arrived at the bar around 9:30 PM. He believes he left around midnight. He agreed that he spent somewhere between two and four hours at the bar.

d) Voices

[146] During direct examination, the defendant testified that after leaving the bar he sat in a park or garden for an unknown period of time. He then got up and walked. Then he felt as if a fire was “smouldering along his forehead”. He was unable to see the road or the street. Everything got “mixed up” as if he was in Morocco, in Casablanca. It is then that started to hear voices. At first it was the voice of his father. At other times it was the voice of Sara.

[147] During cross-examination the defendant’s evidence changed. He testified that he first began to hear voices while still in the bar – not after sitting in the park or garden.

Q. The bar was busy.

A. Yeah.

Q. The bar was loud.

A. Yes. There was lots of noise, plus all the voices I was hearing after the drink.

[148] Later on, during the cross-examination the Crown was trying to pin the defendant down on precisely when the dissociative state began.

Q. So. Is it your evidence, at the point in time, that you leave the bar is when you start feeling like you're in Casablanca?

A. Yes. So. The, the Casablanca's roads and streets came to me. And they were mixed with the, the roads and streets around me.

Q. So. At the point, at that point in time that you were leaving the bar, that's when this alternate reality starts for you.

A. No. I started to hear voices from Morocco's family while I was still in the bar, when I was drunk in the bar.

Q. Okay. So. I want to talk to you about these voices. Are these memories?

A. Correct. It was a mix between past and present, old memories from childhood, pictures of the funeral. It was like a dream, when you cannot recall the exact details of the dream, but you can, you can tell the, you can recognize the context of the dream.

Q. But these voices weren't telling him what to do, in that moment?

A. I cannot, I cannot answer this question. Because it's hard to recognize what people, what, what people tell what, what person tells what, and whether it's an order or not. So. It's, it's, it's, everything was mixed.

Q. Did any of these voices command you to do anything?

A. I cannot remember, I cannot remember details.

[149] The voices were apparently a mix of the past and present. According to the defendant it does not appear that the voices were command hallucinations.

[150] The defendant’s testimony as to when he heard “voices” materially shifted between direct examination and cross-examination. When pressed on the details during cross-examination he shook his head repeatedly while testifying and stated he could not remember details.

e) Unsteadiness / Swaying

[151] During direct examination the defendant did not suggest that he was unsteady on his feet or swaying. He did not attribute a physical balance problem to his consumption of alcohol.

[152] During cross-examination, the defendant testified for the first time that he was experiencing problems with his balance when leaving the bar and while walking down College Street.

f) State of Clothing

[153] The body-worn-camera footage captured by the first attending officer depicts an alert engaged defendant. The defendant was wearing jeans and a clean and remarkably fresh-looking white shirt typical of the bar crowd on College Street.

[154] The defendant testified that was wearing the same clothes since he went to the mosque between 1:00 and 1:30 PM that day. He also noted that the heavy cologne he wore was part of his culture or tradition out of respect to the mosque – the house of God. At 4:00 AM, more than thirteen hours after he attended the mosque, the smell of his cologne was still overpowering according to the complainant and the police officers.

[155] During direct examination the defendant did not mention anything about having vomited.

[156] During cross-examination he clearly perceived the intent of the line of questioning around his physical presentation. It was only then, under pressured cross-examination, that the defendant testified that he had vomited. He testified that he could feel the vomit arising in his throat as he stood (unsteady on his feet now) outside the bar saying goodbye to James and the second friend. He then went on to say that he vomited in the toilet at the bar. He also “believed” that he had vomited in the park on College Street where he went to sit down. He did not vomit in the presence of the police officers on his way to the police station.

[157] It is remarkable that the defendant did not testify about vomiting during direct examination. When addressing intoxication, this is often a classic indicia of intoxication. Yet this important detail did not arise until pressed on cross-examination.

[158] In a similar vein, the defendant said nothing about urine during direct examination. During cross-examination, once again, attuned to the issue of intoxication, he testified that while at the bar in the washroom maybe some urine dropped on his clothing.

g) The Complainant’s Evidence

[159] Frankly, the strongest support for the defendant’s contention that he was extremely intoxicated or drunk comes from the testimony of the complainant.

[160] Defence counsel adduced a hearsay statement from “J” attributed to the complainant, that she had told “J” that the defendant was “extremely intoxicated”. This phrase was not put to the complainant during cross-examination so I do not know whether she would adopt that evidence. However, during her testimony the complainant was asked how drunk she believed the defendant was at the time of the offence. The complainant testified that it was hard to tell how drunk the defendant was because she did not know him, and he did not say many words. The complainant explained that she based her assessment that he was drunk on the odour of alcohol and the taste of alcohol on his lips.

[161] The complainant also testified that the defendant did not display any difficulty with his motor skills or balance. He did not stumble. He did not slur the few words he spoke to her in English. She described him fleeing down the stairs quickly with his jacket over his head obscuring his identity. The record reveals that the stairs were dark and unlit. The defendant did not display any coordination, motor skills, or balance problems as he fled.

h) Police Witness Evidence

[162] The police witness had contact with the defendant within ten minutes of him leaving the complainant’s apartment. This witness testified to the following observations about the defendant:

• He was not disheveled • His clothes were orderly • He did not urinate on his pants • There were no balance issues • He did not sway while standing • He was totally cooperative • He was able to stand • His speech was not slurred • He was able to focus on the questions asked • He responded appropriately to questions • The officer slowed his speech down slightly because of minor language issue • At parade the defendant stood in the orange box marked on the ground without difficulty • At the parade he read a sign in English without any issue • At the parade he spoke with the Sergeant and answered all questions without issue • He untied his shoes and removed his laces without assistance • He did not complain about dehydration • He did not cry • He was not overly emotional • He appeared to understand everything that was going on • There was an odour of alcohol when he spoke

[163] This witness testified that the defendant’s demeanour did not change significantly from the first encounter on the sidewalk, to the arrest, at the parade, or when the defendant was lodged in a cell.

[164] This witness also testified that based on his experience as a police officer, the defendant did not present the way persons who are intoxicated or impaired typically present.

i) Video Evidence

[165] Within ten minutes of contact with the complainant in her apartment, the defendant was captured on body-worn cameras worn by police officers who stopped him, arrested him, and administered rights to counsel. The defendant was also paraded before the officer in charge of the police station. This body of video evidence was adduced at trial.

[166] On my review, I find that this body of evidence belies the defendant’s claim that he was extremely intoxicated or “drunk” at the time of incident. I also find that the video evidence corroborates the witness testimony provided by the police witness.

[167] The video evidence shows the defendant oriented to time and space. There are no issues with his balance. There are no issues with his motor skills. His clothing is orderly. There is no evidence of the vomit he claimed to have projected. He is able to speak to the officers in English. He demonstrates an understanding of instructions from the officers in English.[^4] He is able to stand within a red square while in parade. He is able to untie his shoes at the station.

[168] In this regard, as a criminal court participant I have watched video depictions of hundreds of suspected intoxicated persons. My assessment of the video evidence is that it clearly demonstrates that the defendant was not intoxicated to any degree whatsoever. This body of objective evidence conflicts with the defendant’s testimony and claimed consumption between approximately 9:30 PM and 12:00 AM / 2:00 AM[^5]. Whatever his state upon leaving the bar, mere minutes after the sexual assault, he was not intoxicated to any discernible degree in the objective evidence placed before the court.

j) Laypersons Opinion – Indicia of Intoxication

[169] Despite the absence of expert opinion toxicology evidence in this case, I may take note of common human experience as it pertains to alcohol consumption and indica observed by lay persons. The defendant testified that this was his first exposure to alcohol.[^6] If he was truly intoxicated from the consumption, it would be reasonable for the complainant, witness “J”, and the police officers to observe some impact on his physical presentation. Any criminal lawyer or criminal court judge exposed to legions of “drinking and driving” cases and toxicology evidence knows what the lay person knows – if someone claims to be intoxicated, it is usually associated with the presentation of indicia of impairment proximate in time to the consumption.[^7] This is what the police witness commented on based on his experience – the defendant did not display any indicia other than odour of alcohol on his breath.

k) The Defendant’s Reliance on Religious and Cultural Beliefs

[170] As indicated in this judgment the defendant asserted his observance of religious and cultural practices several times throughout his testimony as in integral part of his explanation for his version of events.

[171] The notion that he would drink to the level of intoxication starkly conflicts with his overarching presentation as an observant Muslim. The defendant apparently consumed unknown amounts of alcohol (haram), in a bar (haram), for the first time in his life. Having regard to the weight of the religious and cultural observance asserted by the defendant, one would expect that this would mitigate the prospect of the defendant consuming excessive amounts of alcohol, even as he broke the tenet.

l) A Solemn Religious Day

[172] In highly emotional testimony, the defendant testified that he had special religious responsibilities at his mosque the day of the incident. According to the defendant’s testimony, it was critical that he perform certain religious practices that specific Friday as it was the first Friday after the passing of his father. This obligation was particularly acute given his inability to personally attend Casablanca in time to properly address the burial of his father.

[173] Again, keeping in mind that this is an issue raised by the defendant, it is particularly implausible that the defendant became intoxicated during his first attendance at a bar on the most significant religious day commemorating his father’s death.

m) Memory

[174] Given the magnitude of the defendant’s violation of his religious and cultural practices, and given the novelty of the event, one would expect the defendant’s memory of consuming alcohol to be excellent. Time and time again during his testimony, the defendant professed a detailed memory of certain events despite his dissociative state. But as it concerned his first exposure to a bar and alcohol, the defendant could provide only meagre detail.

n) The Bar

[175] Again, given the magnitude of the defendant’s violation of his religious and cultural beliefs, one would expect some detail about the bar during his testimony. The bar is not identified by name, approximate location on a map, or distance from a major intersection. When asked to describe the bar the defendant literally described – the bar where one sits on a stool to consume alcohol. The location of this spectacular diversion from the defendant’s norm remains a mystery.

o) Conclusion: Intoxication

[176] I do not believe the defendant’s evolving evidence about the consumption of alcohol. During cross-examination his testimony evolved and expanded, in volume and type.

[177] As indicated earlier in this judgment, having regard to my assessment of the defendant’s credibility and reliability, I looked for objective sources to corroborate things he said.

[178] I find support in the record for a finding that the defendant had an odour of alcohol on his breath. But as legions of drinking and driving caselaw hold, the mere odour of alcohol[^8] does not indicate the volume, type, or concentration of the alcohol consumed.

[179] Based on the record at trial, I find that the defendant was not displaying indicia of intoxication proximate in time to the offences before the court. I reject the defendant’s claim to have been extremely intoxicated or heavily intoxicated. I also categorically reject his subjective opinion that the consumption of alcohol somehow contributed to a dissociated state and his offending behaviour.

E. James

1. Apparent Lack of Knowledge

[180] During cross-examination the defendant testified that despite the fact that James had known him for five years, he did not understand his culture or religion very well. According to the defendant thought process, it was possible that James had inferred he was Muslim because of his first name. Apparently, the subject had never arisen in five years of friendship.

[181] The defendant was unsure if James was aware of the defendant’s religious and cultural practices prohibiting the consumption of alcohol or attending bars. The defendant testified that he never told his friend James that he did not consume alcohol. Not enroute to the bar. Not at the bar. Not even as they sat at the actual bar with the bartender in front of him. Not while ordering drinks.

[182] The defendant testified that perhaps James knew he did not consume alcohol -- or the complete opposite -- he did not. After endorsing this vacillation, he then speculated that perhaps James had met other Muslims who consumed alcohol.

[183] If in fact the defendant had a friend named James who was involved in the incident, I am confident this person would have been aware of the defendant’s religious and cultural practices. On the defendant’s own evidence James was aware of the peculiarities of his diet due to his stomach ulcers. It does not make sense that he was ignorant of such significant features of the defendant’s approach to life.

2. Food

[184] The defendant claimed that he told James that he had not consumed food for three days. Apparently, James told him not to worry, and that he had to eat. It is also important that the defendant testified that James was aware that he did not consume food from outside sources because of problems with stomach ulcers.

[185] It is odd that James did not do anything to assist the defendant with eating something. He did not attempt to assist the defendant to prepare a meal within the defendant’s house. He did not suggest they stop to eat while walking to College Street. He did not suggest that they consume food at the bar. Perhaps the latter two suggestions were not available because of the defendant’s dietary practices. Would that not make it even more important that the defendant get something to eat within his residence? Instead, James apparently suggested a walk, and then meeting a stranger (James ’s friend who was unknown to the defendant) at a bar

3. Plying with Alcohol

[186] The defendant’s claim that James did not know he was Muslim and did not know his approach to alcohol stance was a transparent attempt to address the obvious question arising from the defendant’s direct examination – why would a good friend, in an attempt to console the defendant, take him to a bar and ply him with alcohol?

[187] If in fact the defendant had a friend named James who was involved in the incident, it is implausible that having just been briefed about the defendant’s grief and turmoil over the last three days, his response would have been to take the defendant to a bar and ply him with alcohol.

4. James ’s Apparent lack of Concern

[188] The whole rationale for James attending the defendant’s residence on Friday was to console the defendant having regard for his loss. It does not make sense that a friend concerned about consoling the defendant in his time of need, would immediately ply him with alcohol at a bar. While that might make sense to many in this world who are regular consumers of alcohol, it would not make sense having regard to the religious and cultural background of the defendant. A background he raised and emphasized when he testified.

[189] After apparently taking his grieving friend to a bar and plying him with alcohol, it seems that James abandoned the defendant at the bar. According to the defendant, in his intoxicated, James and the second friend left him at the bar entrance and went on their way to chase women. The notion that the defendant’s friend of five years would leave him to his own devices at the end of the night seems implausible.

[190] Again, if James was enough of a friend to be concerned about consoling the defendant in his time of bereavement, why would he not care enough to ensure the defendant’s safe passage home? The defendant was apparently in an intoxicated state. James must have known the defendant’s background and lack of experience with bars and alcohol. Notwithstanding the defendant’s claim at trial, I believe that a friend of five years would know of the defendant’s religious and cultural beliefs. If James knew enough to know that the defendant did not eat food outside of his house, he would know such things.

[191] Instead, on the evidence of the defendant, James did not show concern for the defendant’s intoxicated state. James did not assist him with getting home safely given his apparent condition. At the end of the night, James simply left with the other unnamed friend to pursue other endeavours.

5. James ’s Friend

[192] It is a small point, but there is almost no detail about the friend the defendant and James went to meet at the bar. The defendant spent between two and four hours with this person at the bar. He did not provide a first or last name. He did not provide any significant detail about this person.

6. Conclusion – James

[193] The defendant testified that on the Friday his friend contacted him and indicated he would be coming to the defendant’s residence to console him about the passing of his father. Given the defendant’s credibility at this trial, there is a real concern about his evidence about James. I arrive at the following conclusions.

[194] First, there was really no detail about James. As indicated, the defendant did not provide the last name of his friend of five years. He did not describe him. Neither side subpoenaed James to testify at trial. There is no photo of James. There are no text messages despite the defendant testifying that he sent a text message and audio message to James the week of the incident. There is no phone number associated with the defendant’s phone log on a smartphone. There is no social media evidence. There is no objective evidence for even the existence of this friend let alone his involvement in the events of Friday evening.

[195] Second, when pressed during cross-examination, the defendant appeared greatly conflicted and troubled about the suggestion that James must have been aware that he did not consume alcohol or attend bars. Despite the defendant’s vacillation on his issue, it seems likely that a friend of five years, who was apparently aware of the intimate detail of his dietary issues and stomach ulcers, would also know the defendant was a practising Muslim who did not consume alcohol or go to bars.

[196] Third, it is unlikely that James would console the defendant by taking him to a forbidden place to consume forbidden drinks.

[197] Fourth, it is unlikely that James would have physically assisted the defendant with pouring alcohol into his mouth in the manner described by the defendant.

[198] Fifth, it is likely that James would have focused on getting some food into the defendant’s belly given the defendant told him he had not eaten for three days.

[199] Sixth, that friend would not have left the defendant, apparently significantly intoxicated, to fend for himself, and find his way home.

[200] If there really was a James, and that person was actually involved in the manner suggested by the defendant, I do not believe for a moment that he would have acted in the fashion described by the defendant, based on the very circumstances described by the defendant.

F. The Streetscape - Casablanca and College Street

[201] The defendant adduced a single piece of evidence – a photo of what purports to be the façade of his family home in Casablanca. He claimed that the layout of the complainant’s apartment was the same as the layout of his family home insofar as the entry and access to his bedroom was concerned. He testified that the resemblance between the streetscape of his family home and the complainant’s residence was material to his dissociative state.

[202] Looking at the exhibits, I accept that the front of the complainant’s residence and the front of the defendant’s residence share certain commonalities. Both locations have a street, a tree, a building, a door, and commercial stores. But these are things that the complainant’s streetscape shares with almost any city, in almost any street, almost anywhere in the world.

[203] Apart from the generic, the streetscape depicted in the defendant’s photo of Casablanca and the streetscape on College Street do not look remotely similar. The cross-examination on this point had the defendant illustrate more than a dozen significant dissimilarities. Any reasonable person looking at the photograph of the Casablanca house and considering the record showing the streetscape in front of the complainant’s residence, would immediately arrive at the same conclusion.

[204] More interesting is the defendant’s testimony in support of a remarkable coincidence – that the complainant’s residence and the pathway to her bedroom was the same as the defendant’s residence and the pathway to his bedroom in Casablanca family home. In one of many supposed coincidences in this trial, the defendant testified that this commonality and similar streetscape contributed to the defendant’s dissociative state.

[205] As a trial judge I am not required to suspend common sense or my knowledge of life and history. The notion that the famous seventh century city founded by the Berbers, then populated by Phoenicians and Romans, significantly resembles College Street in Toronto, is simply absurd.

[206] The notion that coincidentally, the layout of the interior of each residence is similar is highly suspect and self-serving. Further on in this judgment I address other improbable coincidences.[^9]

[207] The prosecution had no control over this evidence emanating from the defendant. The defendant elected not to provide photos of the front walkway, the supposedly similar staircase, and the supposedly similar pathway to his bedroom.

G. The Complainant’s Front Door

[208] Despite my overall assessment of the defendant’s credibility, I accept his evidence that the door to the complainant’s apartment was “open or semi-open” primarily because inferences I draw from objective evidence supports his testimony in this regard.

[209] First, there is no evidence that the apartment door was forced open. Second, the complainant’s testimony supported a scenario where the door could be locked but insecure (one or the other locks engaged but not secured within the doorframe). Third, when the complainant followed the defendant down the stairs, she saw her door handle was locked, but the door was ajar, suggesting that the door had been locked but not secured in the door frame. Fourth, witness “J” confirmed he locked the door handle lock but did not have the key for the deadbolt. This means the door could have been insecure.

H. Stairwells

[210] The defendant was inconsistent when he testified that the complainant’s residence and the pathway to her bedroom, was the same as the defendant’s residence and the pathway to his bedroom in Casablanca family home

[211] During direct examination the defendant testified as follows:

J. RABINOVICH: Q. And I noticed this building has multiple stories. Which storey, or which level did your father live on?

A. Second.

Q. Can you describe how, once you open the door that you've marked, you would get from that doorway to your father's home?

A. When I open the door...

INTERPRETER: Okay. And he's point—he's gesturing, Your Honour, with his right hand.

A. ...there is actually a stairwell that leads to the first floor. And after that, it leads to the, towards the second floor. So. After that, it reaches the second floor. And after that, you will enter in, and there is a kitchen on your left-hand side. On the right side, there is the living room, and after that, there is my bedroom. And there, and a little bit further, there is the toilet, the bathroom, and then after that, my father's bedroom.

J. RABINOVICH: Q. Is your bedroom—the bedroom, I take it, you grew up in—on the right-hand side, when you come in, or on the left-hand side?

A. To the left.

[212] During this portion of his testimony the defendant pointed at the exhibit, and as indicated by the interpreter, used his finger to draw his finger from the door up the picture as he described going up two flights of stairs. Later on, during direct examination the defendant stated for a second time that there were three floors to his father’s building.

[213] During cross-examination, the defendant confirmed he was aware he went up one set of stairs when he entered the complainant’s apartment.

Q. So. I just want to get your evidence right about Brooke Foley's apartment, when you enter it. So. You go up the one flight of stairs when you come in through the main door. And then, you go straight to the door that's closed, because it's your evidence that that is where your bedroom would be.

A. Correct.

Q. One flight of stairs, straight to the room.

A. So. As I went, my mind was telling me, this is the family home. Because I know our family home, I didn't have to look where the kitchen is, where the living room is. So. I go straight to my room.

[214] Later on, during cross-examination the defendant again confirmed that there were two flights of stairs to his Casablanca home. He was then confronted with the fact that the complainant’s apartment had only one flight of stairs, the obvious point being it was dissimilar to his Casablanca home.

Q. Yesterday, you explained to Mr. Rabinovich, the way out of your apartment building in Casablanca. You go up the stairs, and on the first floor, that's not where you lived. You had access to that floor. But to get....

INTERPRETER: Sorry.

K. VISIC: Q. You had access to that floor. But to get to your apartment, you had to go a second flight of stairs.

A. Correct.

Q. You never went up a second flight of stairs in Brooke Foley's apartment.

A. I don't know that.

[215] The Crown Attorney confronted the defendant with the fact that on the night in question he did not know that there was an additional floor above the complainant’s apartment. The defendant vacillated, but ultimately, when directed by the court to answer the question, agreed that he did not.

[216] At the end of cross-examination it was obvious that there was a large discrepancy. During direct examination the defendant testified that there were two stairwells or two flights of stairs to get to his residence. During cross-examination he was confronted on this point and again confirmed his evidence in chief that there was a second flight of stairs.

[217] The court permitted re-examination on this issue over the objection of the Crown Attorney. During this re-examination, the defendant’s testimony evolved.

Q. How is there two, were there two sets of stairs going to your father's, or two flights of stairs, if he's on the second floor?

A. The first two steps, are the one out from the street—so, the first two steps are from the street to the building. Then, you go up one flight of stairs, to go to the apartment.

[218] During re-examination the defendant testified for the first time that he had counted the two steps from street level up to his front door as one of the two “flights of stairs”. This testimony was totally disingenuous. Two small steps leading to an entry door is not a “staircase” leading to another floor. This was a transparent attempt to address a material mistake he realized he had made in his testimony. His residence in Casablanca involved alighting two, not one flights of stairs. And in that respect, the pathway to his bedroom in Casablanca did not resemble the pathway in the complainant’s residence in the least.

I. The Sexual Contact

[219] I have outlined above the problems with the defendant’s assertion that he was in a dissociative state and why I reject his evidence in support. Leaving that issue aside, there are still further problems with the defendant’s evidence as it concerns the sequence of events within the complainant’s bedroom.

[220] First of all, I accept the complainant’s recount as to the sequence of events during the sexual assault and reject the defendant’s testimony about his limited contact with “Sara’s” chest or breast(s). In this vein, I reject the defendant’s evidence that he lay down on the right side of the bed and ultimately “Sara” cradled his head and placed it against her chest while he was laying on his side. The complainant did not perform anything remotely resembling this action.

[221] I also reject his assertion that “Sara” uttered his name for obvious reasons. The complainant could not have known his name. I also reject his assertion that “Sara” said (in English) “Did you come, did you come?” She spoke Arabic.

[222] I reject the defendant’s testimony that it was the complainant who initiated physical contact with him. The complainant testified that she did not initiate any contact with the stranger who entered her room. How could the defendant be sure that it was the complainant’s initiative given his dissociative state prior to being jolted like a “bucket of cold water and electric shock.”[^10] For the same reason, how can I rely upon the defendant’s testimony that he never unbuckled his pants and produced his penis?

[223] Second, it should be emphatically noted that the complainant’s testimony described an aggressive and violent physical encounter. She described the defendant kissing her aggressively. She described the defendant biting the nipples on both of her breasts. In this regard she described having broken skin from the biting on the left breast. She described the defendant’s forceful attempts to pull down her boxers after he got his pants down and his penis exposed. This is a far cry from the almost romantic consensual joining with Sara described by the defendant.

[224] Third, the defendant’s testimony that “Sara” kept her shirt on the whole time while they were kissing conflicts with the reasonable inference I draw (that also supports the complainant’s version of events) that his DNA must have been placed on the complainant’s right breast and left breast through direct contact without the complainant’s shirt obstructing the deposit of DNA material.

[225] Fourth, it is a small point given my rejection of his asserted dissociative state, but the defendant was unclear about his positioning on the side of the bed. During direct examination he testified that no one was in the bed, and he was able to lie down on the side of the bed closest to the door. During cross-examination he acknowledged that the complainant was on the side of the bed closest to the door. This would have placed him on top of the complainant.

[226] Fifth, similar to the analysis of James, there is no objective evidence supporting the existence of a Sara in the defendant’s life. The defendant testified that Sara was now married to another person and pursuant to his religious and cultural observances he deleted any photos or any material about her after he was charged with sexual assault, and they agreed to dissolve the engagement. The defendant provided the most generic description of Sara devoid of any particular identifying detail.

[227] Finally, even if Sara exists, the defendant’s recount of Sara’s involvement in his dissociative state conflicts with his own self-expressed religious and cultural observances. According to the defendant’s own testimony about his religion and culture he was not permitted to be alone with his fiancée given the cultural norms in Morocco. He was not permitted to touch a female person who was not his spouse. Throughout his testimony he referred to Sara as his fiancée and emphasized the restrictions around them having physical contact until married.

[228] It was at the mid-point of cross-examination that the defendant started to evolve his testimony and say that in his dissociative state he began to believe that Sara was his wife, rather than his fiancée.

A. I was planning to travel in the following week. And then when I arrived to Morocco, I am going to get married to her. So. When I was with [the complainant] , and I believed, then, that I was with Sara, I believe that my mind and my brain, under the effect of alcohol, my mind and my brain, at that moment, made me believe that we are married, and I am with Sara, and she is my wife. At that moment, then, I am allowed to have sexual relation with her. Because we are married, and we are husband and wife.

[229] Later on in the cross-examination, when denying the cross-examination suggestion that he caused injury to the complainant / Sara the defendant explained the following:

A. I cannot cause injuries to any person, cause for me, is my wife, Sara. I responded to her, because what I understood when she pressed my head strongly against her chest, that she wanted me to, to act strongly. I believe that I would never cause injuries to any person, especially when this is my wife. And as I've mentioned before, I've never been—I've never committed any infraction or offence, here in Canada, or back in, or back in Morocco.

A. I cannot cause injuries to any person, cause for me, is my wife, Sara. I responded to her, because what I understood when she pressed my head strongly against her chest, that she wanted me to, to act strongly. I believe that I would never cause injuries to any person, especially when this is my wife. And as I've mentioned before, I've never been—I've never committed any infraction or offence, here in Canada, or back in, or back in Morocco.

A. I don't think so. As I've mentioned, I do not think I've done anything that could lead to injuries, or anything. Because in my head, she's my wife, and I cannot harm my wife.

[230] And when excusing the sexual contact:

Q. Sir, what really happened that night is that you wanted to act on your sexual urges.

A. Yes. Assuming, believing, or, considering, that this lady is my wife.

[231] The critical observation relevant to the defendant’s credibility is that this evolution from describing Sara as his fiancé to her being his spouse occurred during cross-examination in response to the point that even on his evidence, he was violating his religious and cultural tenets.

J. The Light Switch

[232] The defendant testified that a light switch turned on by the complainant brought him back to reality. I don’t believe this testimony for several reasons.

[233] First, the complainant’s light switch could not perform magic and apparently snap him out of the depths of his dissociative state in an instant. If he was truly in the dissociative state he described, I doubt that it would have been so ephemeral as to be subject to light. This evidence defies my ordinary common sense, logic, and human experience.

[234] Second, I was not educated on the phenomenon of his dissociative state or how it might be mitigated through expert opinion evidence.

[235] Third, the light was on in “J’s” room at the time the defendant entered the complainant’s apartment. This was the bright light that illuminated him in her bedroom doorway. If the light was bright enough to frame the defendant as he stood in the doorway, surely it was bright enough for the defendant to ascertain that he was not in Casablanca Morrocco or in his family home. Why didn’t that light interrupt his dissociative state?

[236] Finally, the complainant protested verbally throughout the sexual assault. She also physically resisted the assault. The response was a continued violent sexual assault. Why would it be that a light switch “snapped” the defendant out of his dissociative state, yet the complainant’s protests and actions did not? This does not make any sense.

K. Silence

[237] The defendant has not testified about or explained why he was apparently so silent during the sexual contact with the complainant. How his dissociative state produced this state of being is unknown. The simpler explanation is that silence was consistent with his effort to sexually assault a stranger.

L. Fleeing the Scene

[238] After being confronted by the complainant, the defendant fled the scene. In so doing, he manoeuvred his puffy jacket with both hands and pulled the jacket over his head obscuring his identity. Video evidence on the street shows the defendant fleeing in this manner. The complainant’s friend “J” who was on the street saw the defendant performing this manoeuvre as well. The complainant testified that the defendant moved quite quickly down the stairs while covering his head. The complainant’s friend “J” described the defendant as “in a hurry” as he headed down the sidewalk still obscuring his head with his coat. Neither witness had seen the video evidence showing the defendant’s movements in advance of trial. Obviously, neither witness account was tainted by the video evidence.

[239] The defendant testified that this manoeuvre had nothing to do whatsoever with concealing his identity. He relied upon cultural tradition in Morocco to explain that hanging one’s head in shame or covering one’s head in fabric is a cultural norm when embarrassed.

[240] I reject this patently disingenuous attempt to explain away this conduct.

[241] If the defendant was in a dissociative state just a minute prior, how could he possibly have the clarity of mind and thought to deliberately perform this deliberate act of shame? This deliberate act of shame could not be relevant to the stranger standing in front of him. The defendant did not testify that he was aware of the complainant on the stairs behind him as he left the building. Why would it be necessary to continue the display of shame?

[242] The defendant did not know that the complainant’s friend “J”, by happenstance, was on the street in front of the apartment. There could be no referential shame there because according to the defendant he had no prior knowledge of the complainant or her living circumstances. He would not have been aware of the connection between “J”, a passerby on the street, and the complainant.

[243] The plain and obvious truth is that the defendant, cognizant of his crimes, fled the scene. In his claimed dissociative state, having been jolted like a “bucket of cold water and electric shock” by a light switch, he did not have the presence of mind to present a considered cultural gesture of shame. There was no need to continue that cultural gesture of shame as he went down the stairwell. There was no need for him to carry on this cultural gesture of shame as he proceeded down College Street away from the complainant’s residence.

[244] In another rare example of narrow truth in the defendant’s testimony, he explained that he was aware of the presence of security cameras and assumed they were everywhere. The “shame explanation” was simply his effort to address the obvious. Having considered and rejected the defendant’s alternative explanation, I am satisfied that the post offence conduct of the defendant is probative circumstantial evidence of the defendant’s guilt: R. v. White, 2011 SCC 13, at paras. 17-24.

M. “Squeezing Memory”

[245] The defendant was professionally and thoroughly examined by experienced Defence counsel. The defendant had every opportunity to provide additional detail. Unlike cross-examination, the defendant was clear, focused, and direct with his evidence. During cross-examination his evidence evolved on material issues.

[246] For example, when confronted about wearing his jacket and shoes in the complainant’s apartment,[^11] he suggested the complainant might have said “why are you wearing your shoes and jacket in my bed”. Or when confronted about his recount of the specific sexual contact with Sara’s chest, and the fact that the DNA evidence shows his contact with the complainant’s bare chest and breasts, the defendant testified for the first time that the complainant might have taken off her shirt.

[247] At one point the defendant ascribed his evolving testimony to the beneficial assistance associated with “squeezing his memory”. Hunching his shoulders, raising his cheekbones, and visibly grimacing for effect when explaining this phenomenon. I do not share this attribution. The defendant demonstrated several examples of moulding his testimony to adapt to a cross-examination suggestion. This malleability impacted his credibility.

N. Coincidence

[248] The Crown Attorney’s theory of the case is clear – the defendant “watched and besetted” the complainant, waited for an opportunity to access her apartment, and sexually assaulted the complainant. This was put to the defendant in cross-examination and denied. Nevertheless, this “elephant in the room” must be addressed.

[249] I must clearly state that the Crown has not proven, on the record adduced at trial, that the defendant “stalked” or lay in wait for an opportunity to commit crimes on the complainant.

[250] Nevertheless, in addition to all of the other factors analyzed in this case, it is relevant to address the preponderance of coincidence in this case that contributes to the erosion of any possibility of reasonable doubt premised upon the defendant’s claimed dissociative state.

[251] First, earlier in this judgment I commented on the defendant’s testimony that the streetscape, stairwell, and pathway to the complainant’s bedroom resembled the streetscape, stairwell, and pathway to his bedroom in Casablanca. While cross-examination laid bare this fiction, it was nevertheless a significant coincidence relied on by the defendant.

[252] Second, the notion that the defendant, in a dissociative state, just happened to pick the complainant’s door, at 4:00AM, out of all the similar doors and streetscapes anywhere in Toronto, is a fantastic coincidence.

[253] Third, the fact that the defendant completed his consumption of alcohol at 2:00 AM,[^12] and yet he was still in the area of College Street two hours later, is another coincidence. The defendant testified he had his credit card. Given the lack of sleep, food, and contribution from alcohol, why not flag a cab and head home?

[254] Apart from that period of time being available to potentially facilitate the elimination of alcohol from his system, it is notable that the only significant memory that the defendant claims is he sat in a park or garden and crossed a street.

[255] Fourth, the notion that the defendant, in his dissociative state, accessed the door to the complainant’s apartment at the precise moment after “J” left the apartment leaving the door insecure is also a startling coincidence. That “J” was perhaps twenty feet away with his back to the apartment door, and it is precisely during this time period that the defendant gained entry?

[256] Any reasonable and objective person would be confounded by the coincidence of so many elements. The proverbial reasonable person could not be faulted for rhetorically asking - what is the statistical probability of coincidence associated with all of these features of the dissociative state activity?

[257] I do not need to definitively resolve this issue at trial. The Crown does not have a positive obligation to prove planning and deliberation as it concerns any of the counts before the court.

[258] While I arrive at the conclusion that the Crown has not proved planning and deliberation, the record is still important as it concerns the common sense proposition that all of these coincidences occurred while the defendant was in a dissociative state. Common sense permits a trier of fact to evaluate the possibility of probability of unusual events randomly occurring particularly given the law of reasonable doubt. I have turned my mind to these issues. These remarkable coincidences are another reason why I reject the defendant’s testimony about his dissociative state.

O. Conclusion: Credibility and Reliability of the Defendant

1. Accused Demeanour

[259] The Court cautioned the defendant about his demeanour while testifying – visibly shaking his head left to right as the complainant testified about the sexual acts he committed. The Court directed the defendant to refrain from such conduct which was visible to the complainant testifying in open court. The defendant complied. This is not an uncommon occurrence in a criminal court. This issue was irrelevant to my assessment of the defendant’s credibility: R. v. Belowitz, 1990 CanLII 11004 (ON CA), [1990] O.J. No 734 (C.A.); R. v. Owens, [1986] O.J. No 1294 (C.A.);

2. Reliability

[260] When one stands back from the record and considers the overall reliability of the defendant’s testimony there is a fundamental problem going right to the core of the reliability of his testimony and his asserted defence. The defendant asserted he was in a dissociative state, yet at times he sought to provide specificity to his evidence. This brings to mind a recent appeal where one of the asserted errors concerned the trial judge’s failure to provide a free-standing jury instruction on intoxication – R. v. Gibb, 2024 ONCA 255 [Gibb]. In Gibb, the appellant argued that the trial judge should have provided a free-standing instruction on the relevance of intoxication where there was an air of reality to the suggestion that consumption of intoxicants impacted the mens rea for murder. After setting out the record in that trial, the Court concluded at paragraphs 28-29:

28 The only real evidence of intoxication was evidence of consumption. As for any objective indicia of the appellant's intoxication, it was absent from the record. The video and viva voce evidence belied the suggestion that the appellant was in anything but good control and acting deliberately throughout the evening, including in the minutes leading up to the shooting. In order to advance his partial defence of provocation, the appellant needed to be an accurate historian of the provoking act that caused him to shoot on the sudden. To this end, the appellant gave detailed evidence, portraying himself as exactly that: an accurate historian of the events. This would have been a difficult position to advance if he was also advancing a state of intoxication that stood at odds with forming the intention for murder.

[261] Reading the Gibb decision made me reflect upon the defendant’s testimony in this case. The defendant’s testimony suffers from a similar problem. On the left-hand is all of his testimonial indicia of being in a dissociative state. On the right hand is his claimed specificity about the limited sexual contact in the complainant’s bedroom – all the while existing in the dissociative state. When I also consider the multitude of times the defendant claimed a lack of memory or some undefined impact on his brain, it is impossible to assign any level of reliability to his testimony about the offences before the court. This is why I looked for objective support.

[262] The memory issues appeared to primary surface during close and effective cross-examination. A telling sign that the fluctuation in the defendant’s apparent ability to recall was self-serving.

[263] A witness who testifies that they heard voices from a dead father and voices from a fiancée may reasonably expect a trier of fact to have reliability concerns at a minimum.

3. Conclusion

[264] Defence counsel assumed this case after previous counsel was permitted to withdraw. It is quite evident that experienced Defence counsel took his instructions and proceeded to carefully provide a platform for the defendant’s articulation of his dissociative state. In so doing, Defence counsel skillfully navigated the evidentiary record in a professional and efficient manner. Nothing in this judgment is intended as a criticism of Defence counsel or the approach to the case. The defendant is entitled to assert almost anything in support of his defence with the aim of raising a reasonable doubt.

[265] I have set out my analysis of the defendant’s testimony above. I have set out a number of credibility problems with his testimony. It should be very clear that I have grave concerns about the credibility of the defendant.

[266] I do not believe his evidence about being in a dissociative state at the time of the commission of the offences. I do not believe that his functioning was impaired by intoxication of any kind. I do not believe that as he walked along a street in Toronto, he subjectively and honestly held a belief that he was walking along a street in Casablanca, Morocco. I do not believe that he honestly believed that he was entering his father’s home in Morocco. I do not believe that he perceived his fiancée Sara to be present in a bedroom. I do not believe that Sara solicited his sexual contact.

[267] Trial judges in criminal court should be comfortable with sleepless nights grappling with the guilt or innocence of those on trial and the awesome lifechanging impact associated with a criminal conviction. When I consider the weight of these obligations placed on criminal court judges, I am secure in my conclusions about the defendant’s testimony. In twenty-eight years of criminal law experience, I am not certain I have ever heard a more implausible and unbelievable story. I emphatically reject the defendant’s evidence, and place no weight on the defendant’s assertion of being in a dissociative state.

[268] In the result, there is no credible foundation for the defendant’s mistake of fact defence. He is in fact guilty of the offences before the court. Nevertheless, to complete the record, and demonstrate that I have considered the issue, I will move forward and address the air of reality to the asserted mistake of fact defence.

VI. Mistake of Fact

A. Introduction: The Defence Position – Mistake

[269] The main legal issue according to the Defence is that mistake of fact negated the requisite mens rea. The defendant held the following honest subjective beliefs foundational to the mistake of fact.

1. Mistake as to what he believed was occurring;
2. Mistake as to who he was interacting with; and,
3. Mistake as to where he was.

[270] The central feature of the defendant’s position is that he was in a dissociative state that provoked a “mistake of fact”. He believed that he had been transported back to Casablanca. He believed that the person in the bedroom was his fiancée. The sexual contact was consensual (his fiancée communicated consent by gesture). Given this state of mind, the defendant operated under a mistake of fact. This mistake negated the requisite mens rea.

[271] Defence counsel cites the case of R. v. Walsh, 2015 NLCA 3 [Walsh] in support of the defence. In this way, Defence counsel submits that these circumstances must be analyzed pursuant to the guidance of W.(D.).

[272] The Crown bears the burden of proof to establish the essential elements of each count before the court. That onus does not shift because the defendant relies upon mistake as a “defence”.

[273] In criminal law, the assertion of a “defence” of mistake of fact does not require that the mistake be viewed as reasonable as a pre-condition: R. v. Pappajohn, [1980] 2 S.C.R. 123 [Pappajohn]. All that is required is that the mistake was subjectively and honestly held by the defendant: Pappajohn; R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.J. No 32, at para. 21. The reasonableness of the asserted honestly held mistake of fact may be evaluated by the trier of fact, but it is not a pre-condition to the availability of the defence: Beaver; R. v. Bulmer, 1987 CanLII 56 (SCC), [1987] S.C.J No. 28.

[274] But the mistake of fact defence requires an air of reality as a pre-condition. The proper assessment of the air of reality issue requires that the court consider whether a jury, properly instructed, and acting reasonably, could acquit the defendant on the basis of the defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 2 [Cinous]. The court must assess whether the record at trial is reasonably capable of supporting the inferences required to acquit the defendant.

[275] In my view there is no air of reality to the asserted defence. A judge would be mandated to withdraw the defence from consideration by a jury. After setting out the air of reality test, I will explain the following three reasons for this finding: (1) the operation of s.273.2 of the Criminal Code; (2) the common law; and (3) my rejection of Walsh as neither binding nor persuasive authority.

B. Air of Reality – Sexual Assault Count

[276] The air of reality test is informed by consideration of the guidance derived from Cinous: Cinous, at paras. 50-57, 86, 90 and 91:

• There is one air of reality test applied to all defences • The burden on the defendant is evidential rather than persuasive • A trial judge has a duty to place before the jury all defences that arise on the facts • The trial judge must evaluate whether there is any evidence upon which a reasonable and properly instructed jury could acquit the defendant on the basis of the defence • The court must assess whether the record is reasonably capable of supporting the inferences required to acquit the defendant • The trial judge engages a limited weighing to determine “the field of factual inferences that could reasonably be drawn from the evidence” • If there is no evidentiary basis upon which the defence could rest, it must not be put before the jury • The trial judge must consider the record at trial and assume the evidence relied upon by the defendant is true • The defendant is not required to testify • The evidentiary record may be sourced from anything in the record • The trial judge refrains from making credibility determinations, weighing the evidence, or make findings of fact • The trial judge does not assess the prospective success of the defence

[277] When considering the air of reality test, I am required to cast aside my credibility assessment of the defendant. I am not to weigh the evidence or make findings of fact. Even leaving aside these considerations, I find that the asserted mistake of fact defence not meet the air of reality test for several reasons.

1. Section 273.2 of the Criminal Code

[278] Defence counsel submits that mistaken belief in communicated consent is not an issue in this case. Defence counsel concedes that the complainant did not consent in law. Defence counsel submits that the dissociative state is nevertheless available. If the Court accepted the defence or harboured a reasonable doubt premised upon the defence, the defendant would be entitled to an acquittal. This is why the Defence argument ignores the issue of consent.

[279] In my view, the asserted defence in this case, modelled on the approach in Walsh, is an attempt to side-step the statutory limitation of an intoxication-based defence in s.273.2 of the Criminal Code including the reasonable steps requirement. By submitting that consent is not the issue, the Defence seeks to rely upon the negation of mens rea sourced in the defendant’s purported dissociative state based (in part) on intoxication, without addressing s.273.2 of the Criminal Code. I do not accept that the law permits the defendant to side-step this issue. I reject this approach.

[280] The Defence argument in this case is that the defendant held an honest and reasonable, but mistaken, belief that he was in Casablanca and the complainant was his fiancée. While the Defence position is that these circumstances negate mens rea, the argument ignores the mechanics of how this is achieved.

[281] During submissions Defence counsel articulated that the defendant was labouring under mistake as to “what he believed was occurring”, “who he was interacting with”, and “where he was”. What was not specifically asserted was mistaken belief in communicated consent. This ignores the record at trial. The defendant testified that Sara communicated consent by gesture -- by taking his head, cradling it, and bringing his head to her chest. Apart from a kiss, and perhaps contact with Sara’s breasts, this is the only sexual act he committed. The defendant’s position is that the sexual contact was consensual.

[282] Consent is interpreted from the subjective perspective of the complainant and the complainant’s state of mind for the purposes of assessing the actus reus: R. v. G.F., 2021 SCC 20, at para. 25; R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, at paras. 25-26. A successful advancement of the asserted defence in his case would require the court to harbour a belief or reasonable doubt sourced in the defendant’s testimony that he honestly believed he was interacting with Sara in Morocco, and that Sara was consenting. While admittedly somewhat artificial given the dissociative state, this is nonetheless what the defendant asserted. Having regard to the record at trial, this would necessarily involve analysis under s.273.2(a)(i) of the Criminal Code given his voluntary consumption of alcohol. It would also engage s.273(b) of the Criminal Code, as it concerns reasonable steps.

[283] The Criminal Code limits the invocation of a defence premised upon self-induced intoxication short of automatism. Having regard to the purpose of s.273.2 of the Criminal Code, it could not have been Parliament’s intention that a defendant could simply assert intoxication short of automatism, and claim mistake of fact in the manner asserted by the defendant as it concerns the sexual assault count.

2. The Common Law

[284] If I have erred, and s.273.2 of the Criminal Code does not apply to the defendant’s testimony in this trial, the asserted defence also falls on the analysis required under the common law.

[285] In R. v. Brown, 2022 SCC 18 [Brown], the Supreme Court of Canada struck down s.33.1 of the Criminal Code. In so doing, the Court explicitly noted that the decision left “intact the common law rule that drunkenness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault”: Brown, at para. 4.

[286] Further, at paragraphs 43 and 45 in Brown:

43 The common law has developed an unsympathetic view towards offenders who argue that their intoxication rendered them incapable of forming the necessary guilty mind. In principle, intoxication does not allow the guilty to evade the stigma of proper conviction or the exacting of fair punishment in Canadian law. Intoxication short of automatism is never a defence to crimes of general intent, including manslaughter, assault, and sexual assault (see Director of Public Prosecutions v. Beard, [1920] A.C. 479 (H.L.); Leary, at pp. 57-60). In Leary, the majority determined that the recklessness involved in becoming drunk was sufficient to find the guilty mind for whatever general intent offence follows. At the time, the Leary rule applied to all degrees of intoxication, including extreme intoxication akin to automatism. Intoxication may only negate fault for crimes of specific intent, such as murder, by reason of the complexity of mens rea required for conviction. It bears repeating: The rule that intoxication is not a defence to general intent crimes remains untouched by this appeal, except in the case of intoxication akin to automatism.

45 It bears recalling, then, that most degrees of intoxication do not provide a defence to crimes of general intent like the offence of aggravated assault from which Mr. Brown was convicted on appeal. Only the highest form of intoxication -- that which results in a person losing voluntary control of their actions -- is at issue here: extreme intoxication akin to automatism as a defence to violent crimes of general intent and, then again only intoxication that is self-induced.

[287] As it concerns the general intent offence of sexual assault, I find that the common law does not permit the assertion of the defence articulated by the defendant in this case. He does not have available a defence in law premised upon the asserted dissociative state including the voluntary consumption of alcohol.[^13]

3. Walsh

[288] Having regard to section 272.2 of the Criminal Code and Brown, I decline to apply the guidance in Walsh. While I applaud Defence counsel’s earnest effort to provide guidance on the peculiar fact situation before the court, the approach in Walsh is rejected as incompatible with the governing statutory guidance, incompatible with the common law, and incompatible with the evolving approach to sexual assault and consent.[^14]

4. Conclusion

[289] In my respectful view the asserted mistake of fact defence lacks an air of reality. As such it would not be available as it concerns the sexual assault count.

C. Error – Sexual Assault Count

[290] Whether or not there is an air of reality to a defence is a question of law. As it concerns the air of reality test, the court does not engage in the assessments of credibility, or weigh the evidence, or prospect of success.

[291] If I have fallen into error, and the asserted mistake of fact defence is available in relation to the sexual assault count, I would rely on my analysis of the evidence at trial including my credibility assessment of the defendant and reject the defence. The defendant did not honestly operate under this state of mind. I do not believe his testimony that he laboured under a mistake as it concerned what was occurring, where he was, and with whom he was interacting. Having regard to his impaired credibility as a witness, I do not believe for a moment that he honestly held the claimed beliefs foundational to the mistake of fact defence. As such, the only prerequisite for the asserted defence – that it be honestly held – is absent. In addition, the content of his articulated mistake of fact defence is patently implausible, unbelievable, and thereby unreasonable.

D. Reasonable Doubt- Sexual Assault

[292] Putting aside all of the machinations and efforts around the articulation of the defence of mistake of fact, the defendant is nonetheless entitled to plainly and simply assert that there exists reasonable doubt, and ask the court to consider the guidance of W.(D.). At the beginning of this judgment, I outlined the concept of reasonable doubt and I have considered that concept throughout the judgment. At stage one of W.(D.) I categorically reject the lion share of the defendant’s testimony. At stage two, for the reasons outlined above where I outlined the credibility issues with the defendant, I am not in a state of reasonable doubt.

[293] Having considered the guidance of stage three of W.(D.), for the reasons set out above, including my assessment of the complainant's evidence, the credibility of the complainant, and the credibility of the defendant, I am satisfied beyond a reasonable doubt of the defendant’s guilt.

VII. Disposition of the Counts

A. Sexual Assault

[294] The general intent crime of sexual assault contrary to s.271 of the Criminal Code requires the Crown to establish the following beyond a reasonable doubt:

1. That the defendant intentionally applied force;
2. The complainant did not consent to the force that the defendant intentionally applied;
3. That the defendant knew that the complainant did not consent to the force that he intentionally applied; and,
4. That the force that the defendant intentionally applied took place in circumstances of a sexual nature.

[295] The Supreme Court of Canada has provided clear guidance on how to evaluate circumstances of a sexual nature and the requisite elements of this general intent offence: R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at para. 11[Chase]; R. v. Jarvis, 2019 SCC 10, at paras. 50,124-125; R. v. Ewanchuck, 1999 CanLII 711 (SCC), [1999] S.C.J. No 10.

[296] I have addressed the asserted mistake of fact defence above in this judgment.

[297] As properly conceded by Defence counsel, there is no question that the complainant’s testimony (if accepted) addresses the essential elements of the offence. For the reasons set out in this judgment I reject the defendant’s evidence. I am satisfied beyond a reasonable doubt that he committed the actus reus while possessing the mens rea for sexual assault.

[298] The defendant is found guilty of sexual assault.

1. Break and Enter and Commit Indictable Offence of Sexual Assault S.348(1) of the Criminal Code

[299] Counsel did not provide submissions on whether this count was a specific or general intent offence. There is some authority for the proposition that having regard for the construction of the count, it is a general intent offence: R v. Schmidtke, [1985] O.J. No. 84 (C.A.) at para. 7; R. v. Quin, (1983), 1983 CanLII 3553 (ON CA), 9 C.C.C. (3d) 94 (C.A.). Nevertheless, I will characterize break and enter as a specific intent offence as it is traditionally viewed. This characterization is most favourable to the defendant given my finding that the asserted mistake of fact defence is not available for a general intent offence.

[300] As outlined above, despite my overall assessment of the defendant’s credibility, I accept his evidence that the door to the complainant’s apartment was “open or semi-open” primarily because inferences I draw from objective evidence supports his testimony in this regard. Having regard to the evidence of the complainant and “J” I am satisfied that the apartment door was closed, but unlocked, at the time the defendant entered.

[301] Factually, the defendant is the person who entered the apartment door and entered the complainant’s bedroom. He must have entered the residence through the main entrance – the only entrance to the apartment. The defendant also entered the complainant’s bedroom within a multi-unit dwelling.

[302] As conceded by Defence counsel, the defendant entered the complainant’s apartment without consent.

[303] Having regard to ss. 321, 348(1)(b), and 350 of the Criminal Code the defendant committed the offence by both entering the complainants’ residence by way of the entry door on the street, and entering her bedroom door in a multi-residential apartment without her consent. It does not matter if the door was slightly ajar or closed and unlocked: s. 321 of the Criminal Code definition of “break”; s.350(b)(ii) of the Criminal Code; R. v Johnson, 1977 CanLII 229 (SCC), [1977] 2 SCR 646.

[304] The mistake of fact defence is available to negate the requisite specific intent required to prove this count. But I rely upon my analysis set out above to reject the mistake of fact defence. I have explained why I found that that the defendant was not in a dissociative state. I have explained why he did not honestly believe that he was in that state. I have explained why his actions were unreasonable.

[305] Having regard to ultimate burden of proof and the test in W.(D.), I am satisfied beyond a reasonable doubt that the defendant committed the actus reus for this offence and did so with the requisite mental intent. As it concerns the evidence of intoxication and the entire record at trial, I am not in a state of reasonable doubt as it concerns the essential elements of this offence.

[306] The defendant is found guilty of this count.

2. Unlawfully in a Dwelling House

[307] As it concerns this count, I once again characterize it as a specific intent offence. I find that the Crown has proven the actus reus beyond a reasonable doubt. Once again, while the mistake of fact defence is available, I reject the defence. I have also considered the defendant’s testimony pursuant to W.(D.) to determine if there exists evidence to the contrary. I reject the defendant’s testimony for the reasons set out in this judgment. I am satisfied that the prosecution has proved beyond a reasonable doubt that the defendant was present within the complainant’s premised without lawful excuse: s.349(1) of the Criminal Code.

[308] The defendant is found guilty of this count.

Released: September 12, 2024

Signed: “Justice M.S.V. Felix”

[^1]: I use the term “defence” even though mistake suggests a negation of mens rea rather than a formal “defence”. [^2]: All quotations in this judgment are sourced from the official Digital Record of the proceedings and an accurate unofficial transcript produced to assist with this judgment. [^3]: During the trial the participants used the English name “James” to represent the defendant’s friend I call “James”. See heading “James” below. [^4]: I accept the viva voce evidence of PC Patel. [^5]: The defendant claims he does not know when he left the bar. Bars are legally supposed to close at 2AM in Ontario. [^6]: I am ignoring a brief exposure he mentioned from grade school or high school. [^7]: While the technical aspects of toxicology are not accessible to me by way of judicial notice, ordinary human experience supports this truth. [^8]: Or taste on the lips. [^9]: See heading “Coincidence”. [^10]: See heading below “The Light switch”. [^11]: The defendant testified in support of particularized customs with respect to wearing shoes within a residence. [^12]: Giving him the benefit of the doubt that it was not earlier at 12:00 midnight. [^13]: I address the other two counts below under heading “Disposition of the Counts”. [^14]: See for example the Court’s reliance on a presumption of consent in the marital context notwithstanding clear guidance from the Supreme Court of Canada that there is no such animal as implied consent: R v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440.