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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: September 19, 2025

Court File No.: Windsor 23-80200525

Between:

His Majesty the King

— and —

Brian Woltz

Before: Justice A. Campbell

Heard on: June 4, 5, 6, 2025

Reasons for Judgment released on: September 19, 2025

Counsel:

• Jayme Lesperance — counsel for the Crown
• Jessica Grbevski — counsel for the accused Brian Woltz

CAMPBELL J.:

Introduction

[1] Brian Woltz (hereinafter "the Defendant"), is charged with one offence. He is alleged to have committed a sexual assault against the complainant K.L. on or about the 25th day of November 2023.

[2] The Defendant entered a plea of not guilty and the trial proceeded on June 4, 5, & 6, 2025.

[3] The events that culminated in the charge against the Defendant began on Friday November 24th, 2023, when common law partners Z.H. and K.L. were at their home, and plans were made to attend the home of Z.H.'s employer J.G. The Defendant was invited to attend at the behest of his very close friend Z.H. Z.H. was determined to make efforts to secure additional employment for the Defendant. They attended J.G.'s address and alcohol was consumed by all parties. The evening was largely uneventful, with everyone imbibing and socializing. Z.H., K.L., J.G. and the Defendant spent several hours in the hot tub at J.G.'s residence. In the early morning hours of November 25, 2025, K.L. began to feel tired. She decided to attend the spare bedroom on the second floor to sleep as she had done on past occasions. Z.H., J.G. and the Defendant continued socializing and drinking in the hot tub. After some time, the Defendant announced he had to go to the bathroom, and he left the hot tub and entered the home. K.L. awoke to use the bathroom on the second floor. She attended the bathroom and left the door ajar. When she was finished, she proceeded towards the door and was pushed back by the Defendant entering. She was then accosted by the Defendant, who grabbed her arms, forcibly turned her around and proceeded to have sexual intercourse with her for a very brief period. While this was occurring, K.L. struggled to break free, and she was successful. She ran down the stairs naked and fell on her buttocks. She managed to get up and continued down the stairs, out the patio doors and into the hot tub. Both Z.H. and J.G. described K.L.'s demeanour at that time as hysterical and they both observed her crying. K.L. said she was raped. J.G. immediately went inside to confront the Defendant and found him with his head in his hands. J.G. asked the Defendant what happened, and he said he didn't do anything. At first, Z.H. remained in the hot tub to console K.L., but then he attended inside the home and made his way to the front door. The Defendant left the premises and police were called. The police arrested the Defendant nearby while he was walking away, noticeably intoxicated. Expert evidence from the Centre of Forensic Sciences (CFS) was tendered and it was determined that K.L.'s DNA could not be excluded as a contributor to the DNA that was found on a penile swab taken from the Defendant.

[4] Admissions were made at the outset and throughout the trial and it was agreed that there was no issue with date, time, jurisdiction, identification, continuity of the penile swab, and the DNA samples. Nor was there any issue with the admission of the photos of J.G.'s home and items found there. Photos taken of injuries suffered by K.L. to her arm, buttocks and her back were admitted. The expertise of Joanne Cox, CFS Forensic Biologist was admitted. Further, the Sexual Assault Examination Report was tendered on consent of the parties for the purpose of demonstrating the continuity of samples for DNA comparison.

Position of the Parties

[5] The Crown submits that the evidence demonstrates beyond a reasonable doubt the guilt of the Defendant. The Crown relies upon the testimony of K.L., Z.H., J.G., Constable Ronal Hazael, Constable Justin Keating and the evidence of the CFS expert Joanne Cox. Nine exhibits were tendered during the trial.

[6] The Defendant completely denies that the sexual assault occurred. The Defence submits that based on the analysis required under W.D., that the Defendant should be believed and acquitted. That in the alternative, if the Defendant is not believed, that his evidence should leave the court with reasonable doubt. As well, the Defence submits that the remainder of the evidence does not prove the offence beyond a reasonable doubt. The main points the Defence relied upon include:

1. The Defendant's evidence should be believed because his version of events coincides with the events as described by K.L. until he exits the hot tub in the early morning hours.

2. That both Z.H. and J.G.'s evidence was inconsistent on several points, including how they attended at J.G.'s home, who was present within the home and what K.L. was wearing in the hot tub.

3. That the intoxication of all the parties diminishes their reliability.

4. The physical impossibility of the assault and sexual assault as described by K.L.

5. That the DNA evidence is speculative and could be the result of transference.

The Law

[7] The offence charged is sexual assault, contrary to section 271 of the Criminal Code. The elements of the offence are as follows:

Sexual assault, section 271

(1) Date and time

(2) Jurisdiction

(3) Identity of accused

(4) Assault (application of force — s. 265)

(5) Violation of sexual integrity

(6) Complainant did not consent

[8] As per Ewanchuk, a conviction for sexual assault requires proof BARD of two basic elements – consisting of the actus reus and mens rea.

[9] The actus reus, or unwanted sexual touching, is established by proof of three basic elements: (1) touching (2) the sexual nature of the touching and (3) the absence of consent. The latter is a purely subjective determination and determined having regard to the complainant's state of mind at the time of the touching. In this regard, credibility must be assessed by the trier of fact in light of all of the evidence. It is open to the accused to claim that the complainant's actions or words, before and during the incident, raise a reasonable doubt as to her assertion that she, in her mind, did not want the touching to take place.

[10] The mens rea requirement consists of two components (1) an intention to touching, and (2) knowing of or being willfully blind to the lack of consent, either by words or actions, from the person being touched. Consent is also an integral component of the mens rea requirement but considered from the accused's perspective. Where the evidence demonstrates that he believed the complainant communicated consent to engage in the sexual activity in question, the mens rea requirement would not be met, assuming the belief is not tainted by an awareness of any of the factors in 273.1(2).

[11] This case requires me to make determinations on the credibility and reliability of the witnesses, and I must consider the analysis set out by the Supreme Court of Canada in R. v. W.D., 1991 1 SCR No 742. The W.D. framework is used by triers of fact in assessing the impact of Defence evidence on the ultimate question as to whether the Crown has proven the case against the accused beyond a reasonable doubt. The test is generally articulated as follows:

Firstly, if I believe the exculpatory evidence of the accused, he must be acquitted;

Second, if I do not accept the evidence of the accused but am left with a reasonable doubt by it, he must be acquitted; and

Third, even if I reject the accused's evidence and am not left with a reasonable doubt by it, I must still go on to determine whether the Crown has proven the accused's guilt beyond a reasonable doubt based on the evidence that I do accept.

[12] I note that when evaluating the two accounts of the events, I am not engaging in a contest of credibility where I must choose one version over the other as truth (R. v. Graham, 2023 ONSC 4300). If I am unable to decide which account to believe, the accused must be acquitted (R. v. JHS, 2008 SCC 30).

[13] Based on the analysis below, I reject the Defendant's evidence. I found much of his evidence illogical, inconsistent and contrived. I am not left with a reasonable doubt by the Defendant's evidence. On the remainder of the evidence that I do accept, I find that the Crown has proven the Defendant's guilt beyond a reasonable doubt.

The Evidence

K.L.

[14] The complainant K.L. testified. She lives with her common law partner Z.H., and they have two children together, and K.L. has three other children from a previous relationship. The children were aged between 1 and 10 at the time of the incident. The plan to attend J.G.'s home was made earlier in the day on Friday, November 24, 2023. J.G. extended the invitation the day before. K.L. arranged for the children to be cared for by their respective grandparents.

[15] K.L. testified that Z.H. came home around 6 p.m. and he brought home a little bottle of vodka. She had two mixed drinks, and she believed that Z.H. may have only had one because he was driving.

[16] Z.H.'s friend C.W. was at their home, and C.W. picked the Defendant up and brought him back. Z.H. drove everyone to J.G.'s and picked up another friend named A on the way. They stopped at the LCBO, and K.L. believes Z.H. purchased a six-pack of Twisted Teas for her. She was uncertain whether the others purchased anything for themselves.

[17] When they arrived at J.G.'s home, they hung around the island in the kitchen, enjoying drinks. The others were talking about an upcoming roofing job. She recalled that part of the conversation involved Z.H. asking J.G. if the Defendant could assist on the next job.

[18] A and C.W. had departed earlier. J.G. then suggested they all go in the hot tub. J.G. provided bathing shorts to Z.H. and the Defendant. K.L. wore her bra and a pair of shorts that J.G. had left over from a girlfriend that lived there.

[19] Everyone attended the hot tub around 10:30 p.m. and they drank, conversed and listened to music. At around 12:30 a.m., K.L. began to feel drowsy which was due to a combination of her alcohol consumption, the heat from the hot tub and because she routinely awoke at 5:30 a.m. with her children. She asked J.G. if she could sleep in the spare bedroom upstairs and he agreed. Z.H. assisted her upstairs and helped her take all her wet clothes off. Z.H. then returned downstairs, and K.L. fell asleep. She identified Exhibit #1 as a photo of the sparsely furnished guest bedroom with an air mattress where she went to sleep.

[20] At approximately 1:00 a.m., K.L. attended the second-floor bathroom, and she left the door ajar. She finished and walked towards the door as the Defendant came in wearing only his swim shorts. The Defendant pushed the door causing her to stumble back. K.L. said she was groggy. The Defendant appeared extremely intoxicated, like he did not know what was going on or what he was doing. No words were exchanged. Quickly, he grabbed her arms when they were face to face and he shoved her towards the sink. K.L. was now facing the sink, and the Defendant was behind her. He was grabbing her arms, and she was trying to pull away. K.L. was telling him to stop and let her go. The Defendant then penetrated her vagina with his penis. The entire interaction went on for approximately a minute and a half to two minutes. She managed to get away and she ran down the stairs naked, but she fell and bruised her buttocks. K.L. identified Exhibit #2 as photos that were taken the next day. The photos showed some bruising to K.L.'s arm and a large bruise on the left side of her buttocks.

[21] K.L. was able to get up and ran out to the hot tub via the sliding patio doors. She jumped into the hot tub with Z.H. and J.G. She did not say anything, but she was hysterical and crying. She said she had Post-Traumatic Stress Syndrome from a previous incident, and she did not know what to do. She was not sure what she told Z.H. and J.G., but it involved the Defendant forcing himself upon her. Approximately 30 seconds later, she observed the Defendant go towards the front door. She said Z.H. got out of the hot tub and chased him, and J.G. was already calling 911. The police arrived approximately 15 minutes later.

[22] K.L. identified Exhibit #3, which included the clothing that she was wearing and photos of the second-floor bathroom.

[23] She was asked to physically describe herself and the Defendant at the time of the sexual assault. She said she was five feet five inches to five feet six inches tall, weighing 120 to 125 pounds. She described the Defendant as having a larger stature, approximately six feet tall, and weighing approximately 180 to 200 pounds.

[24] K.L. described her level of intoxication as having "a good buzz" but not intoxicated. On a scale of 1 to 10, she placed her intoxication level at a 5 or 6. Throughout the night, she drank 5 to 6 Twisted Teas, and she may have had a shot or two if she was offered. She observed that Z.H. was not drinking heavily, and she said he had a couple throughout the evening. She recalled that J.G. and the Defendant were drinking quite a bit.

J.G.

[25] J.G. is Z.H.'s employer, and he testified. He invited Z.H. and his wife K.L. over to his home in Leamington to discuss some business on Friday November 24, 2023. Z.H. asked if he could bring his friend Brian Woltz over and J.G. agreed. Z.H., K.L. and the Defendant arrived between 8 p.m. and 9 p.m. J.G. did not believe that any other people attended except a man named C.W. who dropped them off and stayed briefly.

[26] Upon their arrival, the group were socializing and drinking in the home. Within the hour, they attended the hot tub outside. He recalled that Z.H. and K.L. would typically keep a bathing suit at his home, but he was unsure whether they brought one on this occasion. He did recall that K.L. had a bathing suit on while she was in the hot tub. J.G. loaned the Defendant a pair of swim shorts. They used the main floor bathroom to change.

[27] While in the hot tub they were talking about work, listening to music and drinking. About one or two hours later, K.L. said she was tired and wanted to go to bed. Z.H., K.L. and the Defendant then exited the hot tub and entered the home. After a short period of time, Z.H. and the Defendant returned, and they consumed another two or three drinks within a half hour period. J.G. then observed the Defendant exit the hot tub again and enter the house. At the time, he did not think much of it.

[28] J.G. described seeing K.L. come through the patio doors "butt naked", jumping into the hot tub and crying hysterically. J.G. asked where Brian was. He described what happened as "…very not normal." J.G. exited the hot tub and went looking for the Defendant while Z.H. stayed with K.L. J.G. found the Defendant inside his home near the front door on the end of the steps of the staircase with his hands on his head and shaking his head. J.G. asked the Defendant what happened and at first, he was silent, but then the Defendant said "I didn't do anything" twice. At that time, J.G. believed the Defendant was wearing the shorts he had on in the hot tub.

[29] J.G. recalled that the Defendant was standing by the door when Z.H. confronted him and asked, "What the fuck happened?" and the Defendant replied, "I didn't do anything". J.G. obtained a towel for K.L. and when he returned, he observed Z.H. running out after the Defendant. When Z.H. returned, J.G. asked K.L. what she wanted to do, and it was decided they would call police. J.G. could not recall if he or Z.H. called police. The police arrived approximately ten minutes after the call was made.

[30] J.G. could not comment on anyone being impaired by alcohol. J.G. would normally have six or seven beers, and he described himself as a big guy who is not affected by that amount of alcohol. J.G. said Z.H. would have had a little less than him. He was unable to comment on K.L. or the Defendant's consumption of alcohol and he was only able to say that everyone was drinking. He was unable to recall if any shots were consumed.

Z.H.

[31] Z.H. testified. K.L. is his girlfriend and the mother of their two children. He described the Defendant like a stepfather who is always there for him. Z.H. and K.L.'s children call the Defendant "grampa".

[32] Z.H. testified that on Friday November 24, 2023, he had called his boss J.G. earlier in the day asking if they could come over and play pool and go in the hot tub. J.G. agreed. At the time, Z.H. was at his home with K.L. and the Defendant. He had picked up the Defendant on an E-Bike. Z.H. was uncertain if A or C.W. were at his house. Z.H. and the Defendant took the 4-wheeler and K.L. rode the E-bike to J.G.'s house. Z.H. said they did not drink before they attended. He was not certain if they brought alcohol that they had from before or if they attended the LCBO that day. They arrived at J.G.'s house sometime between 7 p.m. and 9 p.m.

[33] When they arrived at J.G.'s, they hung out for about an hour and a half and discussed securing some work for the Defendant. They congregated in the open concept kitchen and living area where kitchen island and pool table were located. K.L. wanted to go in the hot tub and J.G. provided Z.H. and the Defendant with swim shorts. K.L. had her bikini with her. Except for J.G., they all attended the main floor bathroom to change. J.G. attended his bedroom to change.

[34] They all attended the hot tub at around 9:30 p.m. and there was music playing. They talked about work. At around 1:30 a.m., K.L. announced she was tired, and Z.H. described her as looking drained and ready for bed. He assisted her upstairs to the guest bedroom and J.G. and the Defendant remained in the hot tub. He believes K.L. took her bathing suit off and he gave her a kiss and he returned to the hot tub.

[35] J.G., Z.H. and the Defendant continued to drink and socialize in the hot tub until about 3 a.m. The Defendant said he had to go to the washroom, and he went in the house. Z.H. did not recall how long the Defendant was gone. Z.H. then observed K.L. running downstairs with something resembling a blanket and she was naked. She jumped into the hot tub. She put her head in the corner and did not say anything. Z.H. went to her, and she yelled at him not to touch her. She began screaming that Brian had just raped her. J.G. then exited the hot tub. Z.H. then asked her if she wanted him to chase the Defendant, beat him or if she wanted to go through the police and send him to jail.

[36] Z.H. exited the hot tub and entered the house towards the front door, and he observed the Defendant at the end of the driveway. Z.H. believed the Defendant was wearing the clothing he arrived in and not the shorts he was wearing in the hot tub. He observed the Defendant walking or running away. He went back in the house to comfort K.L. Z.H. could not recall if it was him or J.G. that called police.

[37] Z.H. agreed that everyone was drinking and that the hot tub amplified the effects. They began drinking in J.G.'s kitchen. He was uncertain if K.L. was drinking Twisted Teas and believed she was drinking Smirnoff vodka. He had purchased a 26-ounce bottle of vodka which was mixed with orange juice and a six pack of Smirnoff Ice. Z.H. said the Defendant was drinking the most as he was a heavy drinker for many years. He described the Defendant as definitely more impaired than both him and J.G.

PC Ronald Hazael

[38] Ontario Provincial Police constable Ronald Hazael testified. He was dispatched at 3:26 a.m. for a sexual assault. Information received from dispatch was that the suspect, Brian Woltz, had just left, and he was wearing a black leather coat, dark clothing and had long black hair in a ponytail. He and PC Chauvin observed the Defendant walking on the sidewalk and he matched the description. PC Chauvin also noted he was wearing dark pants and shoes. The officers confirmed his identity, and they arrested him on an unrelated warrant. Constable Hazael is a breath technician, and he noted the Defendant was intoxicated and he described him as "really drunk". The officer smelled alcohol on the Defendant's breath, he was mumbling his words, his speech was slurred, and he was unsteady on his feet. Once the Defendant was secured in the police vehicle he was given his rights to counsel, caution and he was re-arrested for sexual assault. The officers seized his clothing and transported him to the OPP detachment.

PC Justin Keating

[39] Ontario Provincial Police constable Justin Keating testified. He was also dispatched at 3:26 a.m. and he was the first on scene at J.G.'s home. Upon his arrival, he observed alcoholic beverages on the kitchen island and counter, and bottles near the hot tub. K.L. was standing with a towel covering the top portion of her body with no other clothes on. He noted she was crying. He spoke to both Z.H. and J.G. and took statements from both. He attended the upstairs bedroom and then the upstairs bathroom. He observed unflushed cigarettes and urine in the toilet, a pair of pink women's undergarments beside the sink and a wet towel on the floor. He noted visible water on the wall and floor. He took photographs of both rooms and K.L.'s clothing, filed as Exhibit #3. He described J.G. as very low level intoxicated and in a sense of disbelief.

Joanne Cox

[40] Joanne Cox is a Forensic Biologist from the CFS. She testified at the trial. Her statement of qualifications was filed as Exhibit #5. On consent, she was properly qualified to provide expert opinion on the examination of items for the presence of blood, semen, and saliva, the interpretation of body fluid testing and DNA typing results in autosomal and YSTR systems. She was also qualified to prepare and provide forensic reports, and expert testimony regarding body fluid identification and DNA analysis, including deposition, transfer and persistence of bodily fluids or DNA. She had previously provided expert opinion evidence in the same areas 55 times in both the Ontario Court of Justice and the Superior Court of Justice.

[41] Four Biology Reports were filed as Exhibits #6 through #9. An interior vaginal swab was taken from K.L. and semen was detected from one male. That sample was compared to the Defendant and Z.H. and the Defendant's DNA was excluded as the source. Z.H. could not be excluded as the contributor.

[42] A penile swab was taken from the Defendant. There was a mixture of DNA found from two contributors on the swab, and K.L. could not be excluded as a contributor. Z.H. was excluded as a potential contributor. Ms. Cox was not able to determine if the deposition of K.L.'s DNA was as a result vaginal secretions or another source, but she did indicate that bodily fluids would be a rich source of DNA.

Brian Woltz

[43] At the closure of the Crown's case, the Defence elected to call evidence, and the Defendant testified. The Defendant has known Z.H. since he was a child. On November 24, 2023, he and Z.H. worked on a roof along with C.W. and another male he did not know. They ended the day at around 5 or 6 p.m. He was dropped off at his home and Z.H. called him and asked if he wanted to go to J.G.'s house and discuss the possibility of further work. The Defendant agreed and Z.H. picked him up on an E-bike and they returned to Z.H.'s home.

[44] K.L. and C.W. were there when the Defendant and Z.H. arrived. K.L. was the only one drinking at that time. They were smoking weed and the Defendant did as well. They got into C.W.'s white Ford truck, picked up A and then they went to the LCBO. Z.H. purchased a 26-ounce bottle of Wiser's for the Defendant and a 26-ounce bottle of vodka and some Twisted Teas. From there, they attended J.G.'s home.

[45] When they arrived, they were drinking and playing pool for a couple of hours. He recalled that J.G., C.W., Z.H., K.L. and A and the other male that he worked with that day were present.

[46] K.L. and Z.H. decided they wanted to go in the pool. J.G. gave the Defendant a pair of swimming shorts with a string to tie them up. Z.H., K.L., J.G. and the Defendant went into the pool. At the time, C.W. and A were playing pool and sitting at the bar inside the home. He believes C.W. left at some time after dark.

[47] He recalled that it was cold out and there was ice on the ground. They were in the pool, drinking and talking about work that the Defendant has done in the past. He recalled they were in the pool for approximately three to four hours and that no one left except to go to the bathroom or to get a drink near the pool.

[48] He recalled that K.L. was wearing a bathing suit and Z.H. and J.G. were wearing swim shorts. He believed that Z.H. and K.L. went upstairs for a while, although he did not observe them when they did. He then observed Z.H. come back alone. He was not aware of where K.L. went, and he recalled that C.W. and "them" were still in the house.

[49] At some point, the Defendant told J.G. and Z.H. that he was going to the bathroom. He attended the bathroom and changed his clothing because he was freezing. He was now wearing grey and white Under Armor pants, Adidas shoes, a shirt, an Anarchy sweater and a leather coat with red flames. When he exited the bathroom, he observed K.L. standing at the patio door with a towel wrapped around her. He went out the front door and sat on a step with a smoke in his hand.

[50] A short time later, Z.H. came out and threw him to the ground and said "Go". He replied "what" and "I didn't do anything", and Z.H. repeated "Go". Z.H. then grabbed him and threw him on the grass. The Defendant then left, walking away.

[51] The Defendant and C.W. were drinking Wiser's mixed with Dr. Pepper. He described his intoxication as "a little bit G(n)arly", resulting from him smoking weed, drinking and being in a hot tub for four hours.

[52] K.L. was drinking Twisted Teas and taking shots of vodka and any other shots that J.G. had. He testified that K.L. liked drinking, and she drank too much. He said that Z.H. told him not to give her any alcohol on many occasions. He described her as really drunk.

[53] J.G. was drinking mixed whisky drinks. Z.H. was not a heavy drinker, and his drinking was not heavy that evening. The Defendant observed that J.G. had a whole bunch of booze. He said, "We were all pretty drunk".

[54] In cross-examination, the Defendant agreed there were no issues or problems between him, Z.H. and K.L. He admitted that he had quit drinking a year prior and that he used to be an alcoholic, but that he was drinking on the evening in question and sharing a bottle of Wiser's with C.W.

[55] He denied that he sexually assaulted K.L., and he implied that it could have been someone else. When he was confronted with the CFS evidence from his penile swab, he suggested that he should not have worn someone's else's shorts.

Analysis

[56] W.D. requires that I begin with my assessment of the Defendant's evidence.

[57] The Defendant's evidence was internally and externally inconsistent. Further, I do not find the Defendant's evidence credible or reliable. On the second branch of W.D., I find that the Defendant's evidence does not leave me with a reasonable doubt.

[58] The Defendant was cross-examined for some time on his alcohol consumption and his issues with alcoholism. His answers were internally inconsistent, contradictory and evasive. He admitted in cross-examination that he quit drinking a year prior to the evening in question and that he used to be an alcoholic, but he was pressed by the Crown on the obvious contradiction in his evidence on this point. In response, he said "Yeah, have a couple of drinks, casual drinking shit" and "I drank a couple of drinks once in a while, not all the time." On many occasions, he denied that he was impaired on the evening in question, but then he would admit that he was combining his drinking with smoking marijuana on two occasions, and that the extended time in the hot tub likely contributed to his impaired state.

[59] The Crown continued questioning the Defendant on his impairment and his observations of the others level of impairment on the evening in question. He became evasive and his answers were contradictory. On at least two occasions, the Defendant lashed out. The first time he did so, he said "Well, I don't know. I don't even fucking know what you want." On the second occasion, he denied that he was an alcoholic despite his previous admission that he had been an alcoholic and quit drinking. In response to the Crown's continued questioning on the topic, he said "Well, that's what you're fucking assuming, and it's pissing me off." The Defence submits that Defendant responded in this way because it is a sensitive topic for him. I view his responses as a frustrated attempt to thrust an illogical point of view on a straightforward series of questions.

[60] Externally, the Defendant's testimony regarding his impairment was inconsistent and it did not align with the observations of almost every other witness. Z.H. recalled that the Defendant was drinking the most on the evening in question. He described the Defendant as a heavy drinker for many years and that Defendant was more impaired than J.G. and him. K.L. also observed the Defendant drinking quite a bit. K.L. testified about encountering the Defendant in the bathroom and she said the Defendant looked extremely intoxicated, like he didn't know what was going on or what he was doing. Constable Hazeal, a breath technician, described the Defendant as "really drunk" when he encountered him. The confluence of this evidence completely contradicts the Defendant's poor attempts to minimize his drinking and impairment on that evening.

[61] The Defendant's evidence demonstrated an illogical and mostly unprompted need to overemphasize K.L.'s drinking and impairment. He testified that he, K.L., Z.H., and C.W. smoked a marijuana joint before attending J.G.'s home, and K.L. and Z.H. denied this. At the beginning of the Defendant's cross-examination, the Crown was confirming that there were no issues between the Defendant, K.L. and Z.H., and that he was considered part of the family. The Defendant agreed. Then, unprompted, the Defendant said, "she just liked drinking" and "she drank too much". He followed this by saying that Z.H. told him on many occasions not to give K.L. alcohol. Later in cross-examination, the Defendant was asked about K.L.'s level of intoxication and he said she was really drunk and that she was drinking vodka, Twisted Teas and shots. When the Crown inquired if he could really tell how much she had to drink he said, "Why would I keep track?". When the Crown suggested he did not know how much she drank, he replied "Guess not".

[62] In response to key questions regarding his knowledge of and potential attendance to the bathroom upstairs where the sexual assault occurred, he was equivocal and unable to answer directly. When asked how many bathrooms he was aware of in J.G.'s home, he said, "One, as far as I know". I note that he was asked twice in examination in-chief if he had ever attended the upstairs bathroom. Instead of clearly answering in the negative, he said, "Not that I recall, no" and "not that I recall". Z.H. testified that he gave the Defendant a tour of the upstairs when they arrived. In cross-examination, the Crown asked the Defendant if this occurred and he said, "Not that I recall". The Defendant then admitted to being shown the main floor. The Crown asked the Defendant if he denied ever going upstairs, the Defendant replied "I cannot – cannot tell you that. I don't remember. All I know is I was playing pool and all that, down at the main floor." The Crown asked again if at any point he attended the upstairs of the residence and he responded, "I didn't go upstairs as far as I know". When the Crown noted the uncertainty in the Defendant's responses and the Defendant said, "No, I didn't go upstairs…if that's what you want." The Defendant's answers to these questions denotes clear uncertainty.

[63] The Defendant completely denied that the sexual assault occurred, and he confirmed that there was no conflict between him, Z.H. and K.L. The Defendant agreed that he and Z.H. were very close and that he was part of Z.H. and K.L.'s family. He agreed that while he was at J.G.'s, Z.H. was trying to help him obtain more employment. However, the Defendant testified that at the end of the evening, he suffered an unprovoked attack by his extremely close friend and quasi-family member, Z.H. The Defendant did not provide any context as to why Z.H. would confront him, grab him and throw him to the ground and tell him to go. This defies logic. Based on the evidence of the Defendant, Z.H. and J.G., I can surmise that some form of confrontation occurred. The Defendant's illogical evidence on this point leads me to conclude that there was conflict, and that the Defendant made no effort to explain it.

[64] He was unable to answer the difficult questions posed to him about other key areas. He showed evasiveness and a lack of preparedness to answer questions about the DNA evidence and K.L.'s detailed allegation of the sexual assault.

[65] In the face of compelling circumstantial evidence that K.L.'s DNA could not be excluded as a source of the DNA which found on the penile swab of his penis, his denials rung hollow. His explanation was that he should not have worn someone else's shorts, implying that the presence of K.L.'s DNA on his penis was the result of transference. He initially denied suggesting that K.L. wore the shorts that he was loaned by J.G., but then he waivered on his answers and he suggested it again. This is despite the lack of any evidence that this possibly occurred. I will further address the transference argument later in my reasons.

[66] The Crown then suggested that he sexually assaulted K.L., and the Defendant responded, "It wasn't me". The Crown then asked the Defendant if he was suggesting that someone else committed the sexual assault, and the Defendant replied "Could be. Wasn't – I wasn't – wasn't upstairs in the bathroom." The trial evidence provides no basis to suggest a third party was responsible and no third-party suspect application was advanced by the Defence.

[67] The Defence suggests that the Defendant is worthy of belief because his evidence leading up to the point where he leaves the hot tub conforms with K.L.'s evidence. Even if this was true, which I find it is not in many respects, it does not detract from the lack of reliability and credibility demonstrated by the Defendant's evidence on the key aspects of this event. The Defendant and K.L. both testified that C.W. and A were present at J.G.'s home. They both recalled that K.L. was drinking before they left for J.G.'s. They both testified that they all attended the LCBO and Z.H. bought Twisted Teas. They both testified that A was picked up on the way. Further, they both testified that they all attended in one vehicle. However, they differ on the issue of whether they smoked any marijuana. They differed on who picked up the Defendant and brought him back to Z.H. and K.L.'s home. They differed on who drove to J.G.'s, with the Defendant indicating that C.W. drove his white truck and K.L. saying it was Z.H. who drove. They differed on what K.L. was wearing while in the hot tub.

[68] I conclude that the Defendant was likely too impaired on the evening in question to reliably remember the events. I also find that he is simply not credible, and he was being evasive throughout his testimony. His evidence leaves me with no reasonable doubt.

[69] Having rejected the Defendant's evidence on the first and second branch of W.D., I will now address the remainder of the Crown's evidence to determine whether they have proven the offence beyond a reasonable doubt.

[70] I agree that both Z.H. and J.G.'s evidence was externally inconsistent on several peripheral issues. However, I disagree that these inconsistencies should result in a finding that they were unreliable or lacking in credibility regarding their key observations, particularly the post-offence demeanour of K.L. and their observations of the Defendant departing the home quickly.

[71] Z.H. testified that there was no plan to attend J.G.'s home from the day before November 24, 2023, which differed from K.L.'s evidence. He said that K.L. brought her bikini and that she was wearing it in the hot tub, which differed again from K.L.'s evidence. He said that he drove the Defendant on his four-wheeler to J.G.'s home and that K.L. took the E-Bike, which did not accord with K.L.'s evidence. He recalled that he brought a 26-ounce bottle of vodka and a six pack of Smirnoff Ice, which differed slightly from K.L.'s recollection that they stopped at the LCBO, and he purchased Twisted Teas for her to drink. He did not believe that K.L. drank at their home prior to leaving, again differing from K.L.'s evidence. He was unsure if C.W. or A were at J.G.'s home, again differing from K.L.'s evidence.

[72] J.G. testified that he invited Z.H. to his home on November 24, 2023, but K.L. said it was a plan from the day before. J.G. was unable to recall the presence of A, but he believed C.W. was in attendance briefly. He recalled that K.L. had a bathing suit on. He testified that there was no one living with him in 2023, but K.L. said she borrowed shorts from J.G., who had them left over from a girl who lived there. He recalled an exchange of words between Z.H. and the Defendant after the incident, but Z.H. doesn't recall saying or doing anything to the Defendant.

[73] Despite these peripheral external inconsistencies, I believe both Z.H. and J.G.'s observations of K.L. in the immediate aftermath of the sexual assault. I have no doubt, based on their evidence, that she exited the home naked through the patio doors in the early hours of November 25, 2023, hysterical, crying and making a complaint of sexual assault. I also believe that J.G. observed the Defendant with his head in his hands and that the Defendant was initially silent when he was asked what happened and that he finally responded by saying, "I didn't do anything". Further, I believe that both J.G. and Z.H. made efforts to confront the Defendant, and that the Defendant quickly fled the home fully clothed. I have very little concern that their alcohol consumption affected their ability to recall these core events.

[74] I find that K.L.'s overall credibility and reliability was exceptional. She fairly admitted her alcohol consumption and her level of intoxication, but her evidence was logical and showed no reliability issues. She was not shaken in cross-examination at any point. Her evidence was internally and externally consistent. Her post-offence demeanour, observed by both Z.H. and J.G., demonstrates that she was escaping the sexual assault that occurred 30 seconds prior. That evidence is highly probative and bolsters her credibility. The photos taken showed that she had bruising on her arm consistent with a struggle with the Defendant. The photos also showed the bruising on her buttocks from falling on the staircase. Further, her evidence is bolstered by the observations of both Z.H. and J.G. in the immediate aftermath.

[75] I also reject any suggestion that the DNA evidence was a result of any spurious hypothetical transference from a towel or the shorts the defendant borrowed from J.G. According to the evidence of Forensic Biologist Joanne Cox, the DNA evidence could not exclude K.L. as the source of the DNA found on the penile swab of the Defendant. Ms. Cox fairly agreed that the deposition of that sample could conceivably have been the result of some form of innocuous transfer. However, coupled with the evidence that I do accept, this is not a logical conclusion and is speculative. The logical conclusion that is borne of this circumstantial evidence, based on the primary facts that I do accept, is that the Defendant's penis penetrated K.L.'s vagina. Coupled with the testimony of the witnesses, the DNA evidence is highly probative and reliable circumstantial evidence of sexual contact between them.

[76] I also reject the Defence submission that the initial assault and sexual assault as described by K.L. were anatomically impossible. The Defence attempts to shake K.L. in cross-examination on this point were not fruitful. K.L.'s description of the Defendant grabbing her arms while they were face to face and forcing her to turn were detailed and vivid. She went on to describe that he grabbed her arms from behind her and she was trying to pull away and telling him to stop. The size difference between the two was compelling and I have no concerns about whether the Defendant was able to overpower her and quickly expose his penis by pulling his swim shorts down. There was nothing in her description that would cause me to question whether the events were physically possible.

Conclusion

[77] I reject the Defendant's evidence. As well, the Defendant's evidence does not leave me with a reasonable doubt. I find that the Crown has proven all the essential elements of the sexual assault beyond a reasonable doubt.

[78] As a result, I find the defendant guilty of sexually assaulting K.L.

Released: September 19, 2025

Signed: Justice A. Campbell