Warning
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
DATE: 2025 03 20
COURT FILE No.: Toronto 998 23 48104572
BETWEEN:
HIS MAJESTY THE KING
— AND —
KISH IDOKO
Before Justice Seth Weinstein
Heard on January 15, 29 and March 6, 2025
Reasons for Judgment released on March 20, 2025
Katalin Kirec ......................................................................................... counsel for the Crown
Cristian Combei .................................................................................. counsel for Kish Idoko
WEINSTEIN J.:
[1] Mr. Idoko is alleged to have sexually assaulted G.B. on May 5, 2023.
[2] G.B. and Mr. Idoko were friends attending the same university. They spent the evening of May 4th and early morning of May 5th, 2023, celebrating G.B.’s birthday with a group of friends. The celebration started at G.B.’s apartment before the group boarded a party bus to go to a bar. The events giving rise to these allegations occurred when G.B. and Mr. Idoko returned to her apartment at the end of the night.
[3] It is not disputed that G.B. and Mr. Idoko engaged in consensual sexual activity while at the apartment. What is in dispute is whether this sexual activity included vaginal intercourse. On this point, there are two competing and markedly different accounts of what took place. G.B. alleges that there was sexual intercourse while Mr. Idoko claims there was not.
[4] G.B. testified that she clearly felt Mr. Idoko put his penis into her vagina. She said it lasted for about 30 seconds and that she had to push him off her to get him to stop.
G.B. testified that afterward, Mr. Idoko admitted that he had put his penis inside her. She then ran out of her room crying, woke up her roommate and kicked Mr. Idoko out of the apartment. The police were called almost immediately after he left.
NOTE: This judgment is under a publication ban described in the WARNING page at the start of this document. If the WARNING page is missing, please contact the court office.
[5] Mr. Idoko testified that there was never any penile penetration. He claims that although he was interested in having sex with G.B., he respected her wishes when she said no. To the extent G.B. felt anything in her vagina, it was his fingers. Mr. Idoko acknowledges telling G.B. that he had put his penis inside of her. He maintains, however, that he was joking.
[6] This was a short trial with the evidence completed in one day. The Crown called G.B. and her roommate, W.M. Mr. Idoko testified in his own defence.
[7] The critical issue in this case is whether the Crown has proved beyond a reasonable doubt that Mr. Idoko engaged in non-consensual sexual intercourse with G.B. Resolving this issue requires an assessment of the credibility and reliability of G.B. and Mr. Idoko.
[8] The Crown submits that G.B. was an entirely credible and reliable witness whose evidence should be accepted. Moreover, Mr. Idoko’s suggestion that he was joking when he told G.B. that he engaged in sexual intercourse should be rejected. Rather, the Crown argues that his statement should be recognized for what it was, an admission to the alleged act. Alternatively, the Crown submits that Mr. Idoko’s testimony established that he failed to take reasonable steps to ascertain G.B.’s consent to the digital penetration and other sexual activity.
[9] The defence submits that Mr. Idoko’s evidence should be accepted or at least raise a reasonable doubt. Counsel argues that there were material inconsistencies in G.B.’s account that casts doubt on her credibility. Moreover, counsel maintains that G.B. misperceived what happened. This confusion manifested itself when G.B. asked Mr. Idoko whether he had put his penis inside her. Further, she expressed uncertainty about what happened when she spoke to the police and paramedics later that evening. It is the position of the defence, that this uncertainty should raise a reasonable doubt as to whether penile penetration took place. Finally, counsel submits that by her words and actions, G.B. provided her communicated consent to the other sexual activity.
The Elements of the Offence
[10] To establish the offence charged, the Crown must prove that Mr. Idoko intentionally touched G.B. in circumstances of a sexual nature without her consent and knowing that she did not consent to the touching.
[11] Consent involves G.B.’s state of mind at the relevant time. It relates to her conscious agreement to take part in every sexual act in the encounter. Her consent must have been freely given at the time each specific sexual act occurred. G.B. can withdraw or limit her consent at any time. Moreover, an agreement to take part in one sexual act is not an agreement to all other specific physical sexual acts. An agreement to touching of one kind, or of one part of the body, is not an agreement to touching of all kinds, or to another part of the body: R. v. J.A., 2011 SCC 28, at para. 34; R. v. Ewanchuk, [1999] 1 S.C.R. 330.
[12] To prove the requisite mens rea, an accused must have known that the complainant was not consenting to the sexual act or was reckless or willfully blind to the absence of consent. In other words, the Crown must prove either that Mr. Idoko knew that G.B. was not consenting to sexual intercourse; that he knew there was a risk that she was not consenting but went ahead anyway; or was wilfully blind to the absence of consent: R. v. J.A., at para. 24.
The principles to be Applied
[13] Mr. Idoko is presumed innocent. There is no obligation on him to do anything to establish his innocence. The presumption of innocence remains in place unless and until the Crown has proven each essential element of the offence beyond reasonable doubt.
[14] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence, or the lack of evidence. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt nor is it proved to an absolute certainty. Based on the totality of the evidence, I must be sure of guilt before I convict. Anything less must result in an acquittal.
[15] A verdict of guilt may, in appropriate cases, be safely founded on the evidence of a single witness. This principle applies with equal force in cases of sexual assault, for which the corroboration rules were abolished by both Parliament and the Supreme Court several decades ago.
[16] As stated, the Crown’s case stands or falls on my findings of credibility and reliability of G.B. and Mr. Idoko. Credibility relates to the honesty of the witness including whether the witness was trying to tell the truth and if the witness was candid, sincere, biased, or prone to exaggeration or minimization. Reliability relates to the accuracy of a witness’s testimony and involves a consideration of the person's ability to accurately observe, recall and describe the events in issue. Any witness whose evidence is not credible cannot give reliable evidence on the same point. However, credibility alone does not establish reliability as a truthful witness may not give reliable evidence.
[17] In assessing a witness’s credibility and/or reliability, judges may consider the presence or absence of inconsistencies in a witnesses’ evidence. What weight a trial judge will place on an inconsistency will depend on the nature of the inconsistency.
[18] In assessing the evidence, I may accept all, some, or none of a witness’s testimony. However, I must ensure that I do not apply different standards of scrutiny to the evidence of the Crown and the defence: R. v. Phan, 2013 ONCA 787, at paras. 29-34. I must also avoid a piecemeal approach to the evidence. The standard of proof beyond a reasonable doubt does not apply to individual items of evidence, but only to the court’s final determination as to guilt based on the essential features of the offences charged.
[19] I must also caution myself concerning the demeanour of witnesses. Although I am permitted to consider a witness’s demeanour in assessing credibility, I must not place undue weight on it or permit it to be a determining factor in my analysis: R. v. E.H., 2020 ONCA 405, at para. 91. I should be particularly cautious about relying on emotional upset as an indicator of truthfulness, given that emotional presentation varies by witness, and I lack a baseline for evaluation: R. v. Reimer, 2024 ONCA 519, at para. 93.
[20] The Supreme Court recently made clear in R. v. Kruk, 2024 SCC 7 that, so long as a trial judge does not engage in prohibited reasoning based on myths and stereotypes, trial judges are expected to rely on common sense and experience in determining issues of credibility and reliability. In doing so, however, I should exercise caution about making ungrounded assumptions that are not based on the evidence.
[21] Although this trial primarily involved the testimony from Mr. Idoko and G.B., it is not a contest to determine who I believe. Our law mandates that a criminal trial is not a credibility contest and can never be resolved by a judge simply selecting whose version of events they prefer. Lack of credibility on the accused’s part does not equate to proof of guilt beyond a reasonable doubt: R. v. J.H.S., 2008 SCC 30, at para. 13. Rather, I must be guided by the principles articulated in R. v. W.(D.): (i) if I accept the evidence upon which the defence relies, I must acquit; (ii) if I do not accept that evidence, but it leaves me in a state of reasonable doubt, I must acquit; (iii) I must nonetheless acquit unless I am satisfied of guilt beyond a reasonable doubt based on the evidence I do accept, considered in the context of the evidence as a whole.
[22] In assessing whether to accept the defendant’s evidence the Court must consider all the evidence, including the evidence of the complainant. A considered and reasoned acceptance of a complainant’s evidence beyond a reasonable doubt is a sufficient basis to reject the testimony of the defendant: R. v. J.J.R.D., para. 53.
[23] While it is open to reject the evidence of the accused if the Court accepts the evidence of the complainant, there may be occasions where the Court believes both the accused and the complainant. In such a case, the Court will be left in a reasonable doubt.
Summary of the Relevant Facts
[24] I will provide a summary of each witness’s testimony and refer to the salient features of their evidence as it relates to the relevant issues.
Evidence of G.B.
[25] G.B. was celebrating her 20th birthday with Mr. Idoko and other friends. The group first gathered at her apartment for a pre-party. They then boarded a party bus to go to Grace O’Malley’s bar. G.B. remained at Grace O’Malley’s until approximately 2:30 a.m. when she, Mr. Idoko and two others, T. and M., went back to G.B.’s apartment.
[26] G.B. consumed a significant amount of alcohol that evening. She had a double vodka with dinner and Jello shots at her apartment. She also recalls sharing a Sprite bottle mixed with vodka while on the party bus and having a shot at Grace O’Malley’s. G.B. described that she was intoxicated when she returned to her apartment. She explained that she was aware of her surroundings but her reaction times were slower.
[27] When they returned to the apartment, Mr. Idoko went into her bedroom to charge his phone while G.B. stayed in the living room with T. and M. At some point her roommate, W.M., texted G.B. to say it was too loud. Not long after, T. and M. left to go home. However, Mr. Idoko said he was unable to leave because his roommate had a girl over.
[28] G.B. was tired and wanted to go to bed. She told Mr. Idoko that he could sleep on the living room couch. However, he did not leave the room and instead kept laying on the bed. G.B. said that she just wanted to go sleep and so she laid down next to Mr. Idoko.
[29] Not long after, Mr. Idoko laid on top of G.B. and started to kiss her. He then proceeded to take off G.B.’s dress before undressing himself. After they were both underdressed Mr. Idoko touched her breasts and put his fingers into her vagina. However, at one point G.B. put her hand over her vagina to signify that she did not want to have sexual intercourse. G.B. claimed that Mr. Idoko proceeded to remove her hand and place his penis inside of her without a condom. G.B. acknowledged that she never saw Mr. Idoko put his penis inside of her. However, she maintained that she knew the difference between the feeling of a finger and penis. She was certain it was Mr. Idoko’s penis that she felt.
[30] In her examination in-chief, G.B. testified that except for the kissing, all sexual activity leading up to the penile penetration was non-consensual. However, when she was taken to her police statement in cross-examination, G.B. corrected herself and said that only the penile penetration was without her consent. When asked about this discrepancy, G.B. said she misspoke in examination-in-chief and apologized for creating confusion. G.B. maintained that she was not trying to misrepresent what had happened.
[31] G.B. testified that she recalled Mr. Idoko thrusting his penis, causing her to flinch or jump back into the mattress. After about 30 seconds, G.B. pushed Mr. Idoko in the chest and he then stopped. G.B. said that she then asked him “what did you do?” and “why did you do that…you knew I was a virgin”. G.B. testified that Mr. Idoko admitted that he had sex with her and then said “well, you are not a virgin anymore.”
[32] G.B. then ran out of the room naked and crying hysterically. She first went to the bathroom and saw that she was bleeding from her vagina. G.B. then woke up W.M. to tell her what happened. W.M. confirmed that G.B. came in naked, panicking and crying.
[33] G.B. and W.M. then devised a plan to get Mr. Idoko out of the apartment. They went back into G.B.’s bedroom and told him that he had to leave because it was getting too loud. He then packed his stuff and left the apartment. G.B. and W.M. both testified that G.B. was still crying at this point.
[34] G.B. called 911 after Mr. Idoko left the apartment. The entirety of the 911 call was played in court. G.B. is crying hysterically throughout the call. She told the operator that she thought that she had been raped but refused to provide Mr. Idoko’s name. Instead, she said that she first wanted “to see what the test says”. She also said that Mr. Idoko told her that he “put it in” but that she did not remember all of it. G.B. denied defence counsel’s suggestion that she was unsure whether in fact Mr. Idoko had penetrated her. Rather, she explained that she was in shock and wanted to make sure that she was safe before she gave details. She also said that she was in disbelief that someone who she considered a friend had done that to her.
[35] When emergency personnel arrived, she told the paramedic “I don’t remember all of it…I don’t want to get him in trouble if maybe…” She never completed her thought to the paramedic. However, G.B. denied that she was intending to say, “if maybe he never penetrated me”. She maintained that she intended to say that she did not want to get Mr. Idoko in trouble because he was one of her friends.
Mr. Idoko’s Evidence
[36] Mr. Idoko testified that about an hour after arriving back at the apartment, G.B. told him that she was going to bed and offered for him to sleep on the couch. He told her that he would leave but was waiting for roommate to message him telling him he could come home. He then remained in the bed while G.B. laid down. Not long after, they began kissing.
[37] Mr. Idoko testified that his motive that night was to have sex with G.B. He said that he twice asked whether she wanted to have sex and both times she said ‘no’. Mr. Idoko removed his shirt and pants as he and G.B. were kissing. He said that she removed her clothes, initially keeping on her bra and underwear but that she later took off her bra. Mr. Idoko then pulled down G.B.’s underwear and took off his pants. When he did, G.B. covered her vagina. He said that he understood that to mean that she did not want to have sex and that she also told him “don’t put it in.” He then kept going and continued kissing G.B.
[38] Mr. Idoko claims that G.B. eventually removed her hand from her vagina and that he then began fingering her. He said that he used as many as three fingers and that he was switching levels of intensity as he was doing so. He claimed that he never saw her jump or flinch. Instead, Mr. Idoko claims that G.B. was moaning and making sounds which he interpreted to mean that she was consenting.
[39] Mr. Idoko testified that despite her earlier refusals, his goal remained to have sex with G.B. He thought that if he “warmed her up a bit, it will change her position”. He said that he asked her again and that she again said ‘no’. He then said that he kept fingering her but that G.B. eventually stopped giving feedback. He then stopped because he realized that he was wasting his time. Mr. Idoko denied that G.B pushed him off. However, he did agree that her demeanour had changed completely at that point.
[40] Mr. Idoko said that there was no point where there could have been penile penetration. He said that based on how he was positioned, it would have been impossible for him to insert his penis into her vagina. Rather than being in the missionary position as described by G.B., Mr. Idoko claims that he was laying on his side with one hand on her side and one hand near the vagina.
[41] Mr. Idoko testified that after the sexual activity stopped, G.B. remained quiet. She eventually asked whether he had put in his penis. He claimed that he did not take the question seriously and that he said ‘yes’ because there was no way it could have happened. Mr. Idoko said that G.B. became quiet again before saying “you knew I was a virgin”. He admitted that he then said “too bad you are not a virgin” anymore. He maintained that he did not think it was a serious question so he gave a joking response. He also said that he was hoping that if she thought intercourse had already happened, she would be more inclined to have sex with him again. She did not. Instead, she kept asking questions. At that point, he said that he gave up on intercourse happening and then told her that they did not have sex.
[42] Mr. Idoko testified that G.B. then left the bedroom. She and her roommate came back a short time later and kicked him out of the apartment. Mr. Idoko said that he did not think anything of the fact that he was being asked to leave. Rather, he believed that G.B. was tired and wanted to go to bed. He then gathered his belongings and left. He claims that he did not notice if G.B. was upset when she returned to the bedroom. Indeed, at no point did he see her crying or appear to be upset.
Analysis
[43] The main question to be resolved in this case is whether the Crown has proved beyond a reasonable doubt that Mr. Idoko engaged in non-consensual sexual intercourse with G.B. The answer to this question must begin with an examination of Mr. Idoko’s evidence. If I accept his testimony or if it leaves me in a reasonable doubt, I must acquit him.
[44] An assessment of Mr. Idoko’s denials must begin with his admission to G.B. that he put his penis inside her.
[45] I reject his evidence that this comment was a joke. It simply makes no sense that Mr. Idoko would have joked about engaging in sexual intercourse. There was absolutely nothing in the leadup to this discussion that suggested G.B. was joking or was not being serious when she asked him if he put his penis inside. G.B. was not smiling or asking the questions in a playful manner.
[46] Mr. Idoko knew G.B. did not want to have sexual intercourse. She was also clearly upset after Mr. Idoko first told her that he had put his penis inside. She asked him why he would do it knowing that she was a virgin. This is not the sign of someone who was treating this like a joke. Once it was obvious that she was upset, it does not make sense that Mr. Idoko would then double down by telling her again that he had sexual intercourse. It certainly did not invite a callous response of words along the lines of “I guess you are no longer a virgin.” This was not a joke. It was a rude insensitive response by someone who was clearly upset that G.B. did not want to have sex with him.
[47] The credibility of Mr. Idoko’s evidence is further undermined when examined through the lens of the other explanation he provided for saying what he said. Rather than it being a joke, Mr. Idoko said that he had an insidious motive behind his comments. He said that he believed that if he told G.B. that they had sexual intercourse, she would be more inclined to do it again. This explanation is troubling on several fronts. Firstly, the fact that Mr. Idoko would lie and resort to trickery to convince her to have sex suggests that he is someone who really does not care about a woman’s choice on whether to have sex or not. More significantly, it is totally illogical to suggest that G.B. would be more likely to engage in sexual intercourse after being told that her earlier refusals were ignored. In my view, Mr. Idoko’s evidence on this issue was a futile attempt to cover up the fact that he had admitted engaging in the alleged acts.
[48] There were other aspects of Mr. Idoko’s evidence that did not make sense or was highly improbable. For example, his assertion that sexual intercourse would have been impossible because of the way he was positioned is simply not sustainable. Firstly, Mr. Idoko’s evidence on his positioning evolved between examination in-chief and cross-examination. Initially, Mr. Idoko testified that he was on top of G.B. but leaning towards his side as he fingered her. Perhaps realizing that it would not take much of an adjustment to penetrate her with his penis, Mr. Idoko changed his evidence in cross-examination. He then claimed that he was laying on his side. In my view, Mr. Idoko’s inconsistency on this point and his ultimate evidence that he was at her side rather than in the missionary position was a feigned attempt to double down on his claim that G.B. could only have felt his fingers inside of her.
[49] Further, Mr. Idoko’s evidence about G.B.’s demeanour after the fact is not credible. Having regard to the unchallenged evidence that G.B. was panicking and crying hysterically until the police arrived as well as her demeanour on the 911 call, I find it unlikely, if not impossible, that Mr. Idoko would not have noticed that she was crying or upset when she kicked him out of the apartment.
[50] In short, I find that much of Mr. Idoko’s account was contrived. I reject his account that there was no penile penetration and his evidence does not raise a reasonable doubt.
[51] Before examining G.B.’s evidence, I wish to address an issue I raised with counsel in submissions. I was concerned that although defence counsel put Mr. Idoko’s position to G.B. in broad strokes, there were many aspects of Mr. Idoko’s evidence that was never put to G.B. in cross-examination. I was concerned that the defence had failed to comply with the rule of Browne v. Dunn, 6 R. 67 (H.L.).
[52] While the rule in Browne v. Dunn is not an absolute rule, it is a rule about fairness. In my view, G.B. had no opportunity to respond to much of the conflicting evidence presented by the defence. This was clearly a breach of the rule. The breach is somewhat muted, however, because G.B. was clear and unequivocal in her evidence about what had occurred. Further, the Crown did not seek a remedy concerning these breaches. Accordingly, having regard to the Crown’s position, I have not drawn an adverse inference from the failure to put the defence position to G.B.
[53] Having rejected Mr. Idoko’s testimony, I must now assess the totality of the evidence to determine whether on the evidence I do accept, the Crown has satisfied me of Mr. Idoko’s guilty beyond a reasonable doubt.
[54] I find that G.B. was a credible witness. She testified in a manner that was clear, compelling, and persuasive. She was consistent and unshaken on the key elements of her evidence as they related to the sexual assault and her communicated lack of consent.
[55] G.B.’s evidence was not, however, without its issues. She did not recall all details from that evening. More significantly, she was inconsistent about which of the sexual acts prior to intercourse were consensual. During examination in-chief she said that other than the kissing, all the sexual activity prior to the penetration was not consensual. After being presented with her police statement in cross-examination, G.B. corrected herself and acknowledged that except for the sexual intercourse, all the sexual activity was consensual.
[56] Having reviewed the entirety of her evidence, I accept G.B.’s explanation for the discrepancy. Listening again to the audio of her testimony, I believe that she was genuinely surprised by what had been misunderstood in her testimony. When the discrepancy was presented to her, G.B. clarified that it was Mr. Idoko moving her hand and penile penetration that were not consensual. Having experienced a traumatic event coupled with the challenges of testifying in court, it is understandable that G.B. did not recall all the details or was mistaken in aspects of her recollection, especially when those details did not relate to the alleged criminal offence. I reject the defence suggestion that these inconsistencies are because G.B. had fabricated the allegations.
[57] The defence also suggests that G.B.’s questions to Mr. Idoko in the bedroom and her comments to the paramedic reveal that she was unsure whether intercourse had in fact taken place. G.B. explained that her questions and comments were not because she was unsure about what had happened. Rather, she was in shock that someone she thought of as a friend would violate her. G.B.’s sense of shock is entirely reasonable in the circumstances. Moreover, given the hysterical state G.B. was in when speaking with the police, her use of the words “I think” or her not remembering all the surrounding details do not unduly impact her credibility or reliability. To the extent that there were memory gaps, they do not reflect adversely on G.B.’s credibility or reliability.
[58] I have considered G.B.’s evidence carefully, particularly considering the concerns raised about her credibility and reliability. Looking at the whole of the evidence, the inconsistencies and other concerns expressed about G.B.’s account do not cast doubt about the credibility or reliability of the core aspects of her account that Mr. Idoko put his penis in her vagina without her consent.
[59] That, however, does not end the analysis. A determination of whether there was penile penetration depends upon G.B.’s core assertion that she felt Mr. Idoko’s penis inside her vagina. It is true, as the defence argues, that G.B. did not see Mr. Idoko put his penis in and that her conclusion that it was a penis was based on feeling. However, G.B. was adamant that she felt Mr. Idoko put his penis inside. She was clear and unequivocal that she knew the difference between a finger and penis. She was certain that what she felt was his penis. G.B. provided a detailed account of what it felt like and how she distinguished it from a finger. G.B. explained her feeling in this way:
Cross-examination
Q. Okay. So you didn't actually see any penetration? It's, it's, it's tactile?
A. You can feel the difference between a finger and a penis. Yes.
Q. Okay. No. So, so you didn't see it, correct?
A. Correct. The covers were over top of him.
Q. Okay. You're, you're – what you're saying is completely based on tactile sensation, is that correct? That – tactile means touch.
A. He was thrusting as well.
Re-examination
Q. When my friend asked you whether you saw the vaginal penetration or just felt it, you indicated that you can feel the difference between a finger and a penis. Is there any further description that you can give to that?
A. I jumped and you can feel the size difference, the, the width, the, the thrusting motion. That's all tactile things that you can feel. And even when covers are on top of you you know when someone's inserting themself into your vagina, I say.
Q. What about Mr. Idoko's positioning in respect of your body indicated to you that he was using his penis not his hand?
A. His hips were on top of my hips. Like, where his penis was was lined up with where my vagina was in terms of height and – like if I'm lying down, he's on top of me, his – our – like his penis was at the same position as my vagina.
[60] I accept that G.B. was able to reliably determine that there was penile-vaginal penetration. In doing so, I am reminded of the following comments of Justice Martin in R. v. Kruk at para. 109:
Where a person with a vagina testifies credibly and with certainty that they felt penile‑vaginal penetration, a trial judge must be entitled to conclude that they are unlikely to be mistaken. While the choice of the trial judge to use the words “a woman” may have been unfortunate and engendered confusion, in context, it is clear the judge was reasoning that it was extremely unlikely that the complainant would be mistaken about the feeling of penile‑vaginal penetration because people generally, even if intoxicated, are not mistaken about that sensation. In other words, the judge’s conclusion was grounded in his assessment of the complainant’s testimony.
[61] G.B.’s credibility and reliability is also enhanced by several pieces of confirmatory evidence. Indeed, Mr. Idoko confirms many aspects of G.B.’s narrative. He confirmed that G.B. covered her vagina with her hand to indicate that she did not want to have sex. He also confirmed that G.B.’s demeanour changed after the sexual activity ended. Most significantly, Mr. Idoko confirmed that he told G.B. that he put his penis inside her and that she was no longer a virgin.
[62] G.B.’s demeanour following the alleged sexual assault serves as additional circumstantial evidence supporting her account. Post-event demeanour evidence, or the emotional state of a sexual assault complainant, may be used as circumstantial evidence to support an allegation of sexual assault: see R. v. Rose, 2021 ONCA 408, paras. 21-33.
[63] G.B.’s demeanour during the 911 call is one of severe emotional trauma. The audio recording reveals G.B. in obvious distress; an emotional state that stands in stark contrast to Mr. Idoko’s description of her in the moments after he said their sexual activity came to an end. He claims he saw no signs of distress. However, W.M. confirmed that G.B. was highly emotional. She was crying hysterically when she first entered the bedroom until after the police and paramedics arrived. W.M. was never challenged on any observations and I find as a fact that G.B. was distraught as she left the bedroom.
[64] I accept both the credibility and reliability of G.B.’s evidence completely. I find that G.B. made it clear to Mr. Idoko that she did not want to have sex. Her subjective lack of consent would have been apparent to Mr. Idoko. On his own evidence, Mr. Idoko confirms that she twice said no to sex. Moreover, she was covering her vagina which was further unequivocal evidence of her non-consent. From her words and actions I am satisfied that Mr. Idoko knew G.B. was not consenting to sexual intercourse.
[65] The courts have long acknowledged that “no” does not mean keep trying. This is a reality that Mr. Idoko would have done well to acknowledge and accept. He did not. Instead, Mr. Idoko launched himself on a course of unwanted sexual conduct to achieve his stated goal of having sexual intercourse with G.B. that evening.
[66] As I am satisfied that there was penile penetration, I do not need to address the alternate route of liability advanced by the Crown, namely that Mr. Idoko failed to take reasonable steps to ascertain consent.
[67] I am satisfied beyond a reasonable doubt that Mr. Idoko sexually assaulted G.B. as alleged.
Released: March 20, 2025
Signed: Justice Seth Weinstein