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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court Information

Date: August 14, 2025

Ontario Court of Justice Toronto

Between: His Majesty the King — And — Gerardo Tapia Plata

For the Crown: A. Nash For the Defendant: S. Yeghoyan

Heard: May 29, 30; June 10, 2024

Reasons for Judgment

Russell Silverstein, J.:

A. INTRODUCTION

[1] The defendant is charged with a single count of sexual assault on S.V. arising out of an incident alleged to have occurred on January 21, 2024.

[2] The defendant was staying with his brother, Erick Trujillo Plata (Erick) in an apartment on Lippincott Street in Toronto. On the evening in question, S.V., and some of her friends, including the defendant, Erick, and Erick's girlfriend, Alexis, went to a local bar to celebrate S.V.'s birthday. S.V. got quite intoxicated and decided to spend the night on the couch in Erick's apartment, which he shared with Alexis.

[3] S.V. alleges that while she was lying on the couch, recovering from having vomited from too much alcohol consumption, the defendant twice ran his hand up her leg and under her shorts without her consent.

[4] The Crown proceeded summarily, and the defendant pleaded not guilty.

B. THE EVIDENCE

(a) Introduction

[5] S.V. testified for the prosecution. The defendant and his brother testified for the defence.

[6] Some text messages between S.V. and her friend, sent at or around the time of the alleged sexual assault were put into evidence.

[7] I shall not set out the evidence in detail. A transcript of the evidence is readily available. Rather I shall summarize the evidence with emphasis on the salient aspects of the witnesses' testimony.

(b) S.V.'s Account

[8] S.V. was acquainted with the defendant, having met him several times when S.V., her best friend Alexis, and Alexis's boyfriend, Erick (the defendant's brother) had gone out together. She did not know the defendant's name on the evening in question.

[9] She and her friends gathered at Erick's apartment before they all left to go to Hush Hush, a nearby club. S.V. consumed three alcoholic drinks in the hour or so before they set out around 11:00 pm.

[10] They stayed at the club until 2:30 am the next day. S.V. consumed eight alcoholic drinks at the club. She was extremely intoxicated when they left the club to return to Erick's apartment – so much so that she needed help from her friends in walking, although she was "aware of where she was going".

[11] Once back at the basement apartment, her friends Alexis and Camilla laid her on a couch and brought her water, pizza, and a plastic bag to throw up into in case she got sick. She ate some pizza, drank some water, and dozed off.

[12] She then awoke and without leaving the couch, vomited into the bag. She did not see the defendant at that time. Alexis and Camilla were still nearby.

[13] Camilla announced that she was leaving, and Alexis went off to sleep in her room which was on the other side of the wall that the couch was against. S.V. dozed off again.

[14] She awoke again feeling sick. The defendant was beside her holding back her hair as she again vomited into the plastic bag.

[15] S.V. dozed off again five minutes later. While dozing off this time she felt the defendant's hands reaching under her blanket. The defendant ran his hands up her leg "towards [her] butt". She only partially opened her eyes but did recognize the defendant. Neither he nor she said anything. The lights of the apartment were off, and it was dark.

[16] S.V. made some jerking movements and he stopped touching her. Soon after, the defendant began touching her the same way, but this time got his hands as far up as to be under her underwear close to her vagina. Again, her eyes were partially shut yet she could see it was the defendant. He had a cell phone in his other hand. The lights in the apartment were still off.

[17] The defendant soon stopped and went to the washroom. S.V., still on the couch, took out her phone and texted her friend Carlos, who was in Morocco at the time. Her text was to the effect that the defendant was taking pictures of her. Three minutes later the defendant left the washroom and S.V. immediately went into the washroom and locked herself in. She continued to exchange text messages with Carlos. They spoke on the phone as well.

[18] S.V. also phoned her mother from the bathroom. Alexis then came to the bathroom. She told S.V. that she had received calls from S.V.'s mother and from Carlos. Eventually S.V.'s father came to the apartment and took S.V. to the police station.

[19] When asked why she didn't call out to her best friend Alexis in the nearby bedroom instead of texting her friend in Morocco, S.V. said she feared the defendant and did not want to make noise. She admitted that she had Alexis's phone number on her phone. She also chose to text Carlos because she knew he would be awake in Morocco's time zone.

(c) Erick's Version of Events

[20] Erick attended the party at Hush Hush. He testified that he does not drink yet he also testified that he had three drinks over the course of the evening. He saw S.V. drink a lot and, according to him, she "behaved poorly". The defendant does not drink alcohol and did not drink at all that night.

[21] S.V. vomited "more than five times" after returning to the apartment. Her vomiting started in the bathroom and continued on the couch. After she was done vomiting, she fell asleep on the couch. He watched as the defendant went to his room and closed his door. Then he and Alexis turned off the lights and went to their room. When the lights are off, the apartment is very dark.

[22] All he heard after that was S.V. going to the washroom.

[23] Erick described himself as a light sleeper. He believed he would have heard the defendant's door open if the defendant had left his room after he went to bed. He heard no such thing.

[24] At some point Carlos called Alexis's phone and Erick answered. Carlos was angry but Erick could not understand why. Carlos said that S.V.'s parents were on their way to pick her up. Erick understood that Carlos was alleging some impropriety on the part of the defendant towards S.V. Erick woke up his brother to find out what the commotion was all about. The defendant told him he had been sleeping and had no idea what the problem was.[1]

(d) The Defendant's Version of Events

[25] The defendant went to Hush Hush with the group. He had nothing alcoholic to drink that night. S.V. got very drunk that night. She began vomiting in the living room then vomited further in the bathroom after returning to the apartment. She then continued vomiting on the couch.

[26] Alexis and Camilla were helping S.V. while the defendant cleaned up then went to bed after escorting Camilla to her Uber. He had nothing to do with S.V. while she vomited and did not touch her.

[27] Erick woke him up and told him about Carlos's allegations which he denied.

C. ANALYSIS

(a) Introduction

[28] This case turns principally on the credibility and reliability of the three witnesses, and because the defendant testified and denied the alleged offence, I must thus apply the rule in R. v. W.D., [1991] S.C.J. No. 26, which can be summarized as follows: if I believe the testimony of the defendant, I must of course find him not guilty. Even if I am not convinced by his testimony, it may nonetheless, when examined in the context of all the evidence, raise a reasonable doubt. If it does, I must also find the defendant not guilty. If it does not raise a reasonable doubt, I must examine the evidence that I do accept to see if it proves the criminal allegation against the defendant beyond a reasonable doubt. If it does not, the defendant must be acquitted. If it does, he must be found guilty.

(b) The Credibility and Reliability of the Witnesses and Their Accounts

[29] The defendant's testimony was delivered in a calm and succinct manner. Nothing in his in-chief testimony or his cross-examination leads me to doubt his credibility.

[30] Erick's testimony is not particularly helpful. According to him, he went to bed before the incident is alleged to have taken place. I do not accept the accuracy of his belief that if the defendant had assaulted S.V. he, Erick, would have heard the defendant leave his room. There are simply too many vagaries surrounding what will or will not waken a person in any particular circumstances on any particular night.

[31] S.V.'s testimony was delivered in a calm and articulate fashion. Nothing in her testimony leads me to doubt her credibility. She was not seeking to mislead the court. She honestly recounted what she believes occurred that evening.

[32] It is the reliability of S.V.'s account that suffers. I accept her assertion that someone touched her inappropriately. It is difficult to imagine that, despite her intoxication, she would incorrectly perceive the nature of the alleged touching. It is her identification of the defendant that is suspect. She claims to have identified the defendant as the perpetrator while the basement lights were off, the room was dark, her eyes were half closed, and she was extremely intoxicated.

[33] The defendant was not the only person in the apartment who had the opportunity to commit the offence. While Erick was not asked by defence counsel whether he committed the offence (for reasons that are obvious; he is the defendant's brother), I am of the view (and both counsel agree) that that does not prevent me from considering him a possible alternative suspect, in so far as the accuracy of S.V.'s identification is concerned. The same can be said of Alexis who did not testify.

[34] This is not a case like R. v. J.J.R.D., [2006] O.J. No. 4749 (C.A.) where, despite the lack of any badges of incredibility attaching to the testimony of the defendant, the overwhelmingly cogent evidence of the complainant carried the day.

[35] S.V.'s identification of the defendant is uncorroborated and took place under conditions that undermine the strength of that identification.

D. CONCLUSION

[36] The reliability concerns surrounding S.V.'s identification along with the lack of indicia of testimonial incredibility on the part of the defendant leave me with a reasonable doubt that the defendant committed the alleged crime. The Crown has thus not met its burden of proof.

[37] The charge is dismissed.

Released on August 14, 2025

Justice Russell Silverstein

[1] This statement of the defendant was led by the Crown on Erick's cross-examination. It is thus admissible for its truth.