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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: October 28, 2025
Court File No.: 4810 998 24 48108240-00
Ontario Court of Justice
Between:
Her Majesty the King
— and —
Geonwhi Kim
Before: Justice Peter Scrutton
Heard on: September 25, 26, and 29, 2025
Reasons for Judgment released: October 28, 2025
Counsel:
- M. Friedman for the Crown
- W. Jaksa for the Defendant
Introduction
[1] Geonwhi (Eric) Kim is charged with one count of sexual assault and one count of forcible confinement in relation to R.V. It is accepted by both parties that the defendant and complainant had their first and only date at his apartment on March 1, 2024; that when he first tried to kiss her, she pushed him away; that she told him she did not come there for sex; that they subsequently had sex, immediately after which she angrily left his apartment; and that the following day, she confronted him over text about forcing himself on her, an allegation that he did not deny in response and at least appeared to admit. R.V. testified that the defendant was sexually aggressive with her that night and forced her to have intercourse despite her repeatedly telling him that she did not want to. Mr. Kim testified that R.V. was an active, willing participant to their sexual contact.
[2] Both parties acknowledge that there is no real way to understand the evidence of either witness as giving rise to an air of reality about mistaken belief in communicated consent. The real question at this trial is whether the Crown has proved beyond a reasonable doubt that R.V. did not consent to the sexual intercourse that occurred that evening.
The Evidence
R.V.'s Account
[3] R.V. and the defendant "matched" on the Tinder dating app on February 28, 2024. The next day they began to message back and forth and eventually made plans to get together that afternoon. R.V. planned to have a short date, potentially for coffee or a trip to the gym. She arrived at Mr. Kim's apartment, which he shared with a roommate who was absent, around 5 p.m.
[4] R.V. had expected they would go out but was content to stay at the apartment. They chatted about all manner of things and the defendant made her dinner. She was interested in him and they discussed a second date. While they were sitting on the couch after dinner, Mr. Kim leaned in to kiss her. R.V. pushed him back with two hands, asked what he was doing, and explained that she did not kiss on the first date. He accepted this and backed off. She told him she was not on the dating app for hookups (sex) and that was not why she had come to his apartment.
[5] Mr. Kim initially appeared to respect these boundaries but soon after began moving closer to her on the couch; she would move away in response but he would move closer still. She told him that she needed to leave to tend to her kitten but ultimately changed her mind and decided to stay longer. He kept making advances and eventually she decided to let him kiss her, a kiss she agreed was consensual. He asked her to sit on his lap but she said "no." Eventually, he had moved so close to her side of the couch that she had no more room and sat on his lap. They kissed some more while talking intermittently. He put his hand up the back of her shirt and undid her bra, at which point she got up and went to the bathroom.
[6] R.V. decided it was time to go home. She mentioned the nice view as she stood beside a window. Mr. Kim approached her from behind and hugged her. When she turned around, he pushed her against the wall and pinned her arms above her head before he led her into his bedroom, which was right off where they were standing. He tried to get her on the bed but she pushed him away and went to the kitchen. They had a brief conversation there but as she was putting on her shoes to leave he turned her around and bent her toward the island, put his hands down her pants, and tried to pull them down in an effort to penetrate her. She asked what he was doing and he carried her into the bedroom. She said "no" and repeatedly told him to stop.
[7] Mr. Kim carried her with her legs dangling from his arms, her face pointed away from his. He put her down on the bed and took her pants off, pulled his pants down, and began to have intercourse with her, eventually ejaculating on her stomach. After, he went to the washroom and gave her a towel. She went to the washroom to clean up. As she walked out, he tried to pull her back to the bed and asked why she was leaving, did she not enjoy the sex. She said "no" and angrily left the apartment. When she got to the underground parking, she saw that she'd gotten a parking ticket, called him to come down, and angrily handed it to him. Later that night, upset about what had happened and unable to sleep, she messaged the defendant at 2:02 a.m. He did not respond until the next morning.
The Text Message Exchange
[8] R.V. began her texts the next day by asking Mr. Kim to look for an earring she thought she had lost in his apartment. They texted back and forth about his efforts to find it between 12:49 p.m. and 3:38 p.m. Just before 6:30 p.m., R.V. texted again and the following exchange occurred:
R.V.: "Also hope yk I wasn't ok with what happened last night. I said no multiple times to kissing and sex but you kept on insisting, disregarded what I said and forced yourself on me, which I am not cool with."
Eric Kim: "I know you left with anger. What can I do with this..? Do you just want to blame me?"
R.V.: "Why did you even go through with it to begin with I said no multiple times."
Eric Kim: "Sorry."
R.V.: "Like I just want an explanation…how, why you thought it was ok to do that."
Eric Kim: "No I didn't think its ok"
R.V.: "But you did it anyways??"
Eric Kim: "idk what can I say"
[9] R.V. subsequently disclosed her allegations to the police. Mr. Kim was arrested the next day.
Challenges to R.V.'s Account
[10] R.V. agreed that she and Mr. Kim had talked generally about sex and its importance in a relationship. They had not, though, discussed the topic of them having sex. She acknowledged that, by the time they were on the couch together, she liked Mr. Kim and was interested in him romantically. She denied that they had "made out" but agreed that she had sat on his lap a few times and that they had kissed periodically.
[11] R.V. did not recount lying in Mr. Kim's bedroom after the first time she went to the washroom in her examination-in-chief. When this was suggested to her, she recalled that he had briefly lied on top of her there and she had told the police that. She agreed that Mr. Kim never stopped her from leaving the apartment and acknowledged that, rather than telling the police that he had physically pinned her against the wall, she had said he kissed her up against the wall before leading her to his bedroom.
[12] R.V. initially denied ever willingly kissing the defendant after their time on the couch. She agreed, though, that she told the police she had given him a kiss goodnight when she first went to the kitchen to leave, and also that she had kissed him goodbye there. She denied any consensual sexual activity after that goodnight kiss. She similarly denied that the reason she was upset at the end of the night was because she had voluntarily broken her own rule about not having sex on the first date or because she had gotten a parking ticket.
Eric Kim's Account
[13] Mr. Kim came to Canada from Korea in 2019. He was 31 when he met R.V., eleven years older than she was. He had not spoken much English before he lived in Canada. He was proud of his command of the language but was more proficient at understanding spoken English than he was at reading it or speaking it himself. He testified in English for the vast majority of the trial but used the assistance of an interpreter on occasion.
[14] R.V. arrived around 5 p.m. They engaged in a pleasant conversation that crossed many topics. He assumed, based on the fact that she worked as a realtor and also went to school, that she was older than he came to learn she was, perhaps in her mid-twenties.
[15] After dinner, while sitting together on the couch, he leaned in to kiss her and she pushed him away in response, hard, saying "no, what are you doing?" He was worried he had made a mistake and they went back to chatting. Soon after that they began to kiss but he could not recall what precipitated this or if they had discussed it. He remembered that their eyes locked and the kiss happened naturally. They began to make out, alternatingly kissing and talking, with her moving back and forth between sitting on his lap and sitting on the couch. This went on for a long time.
[16] At some point, R.V. noticed the view and walked to the window. He followed and hugged her from behind before they kissed. She said she wanted to go to the bathroom so he took her to his ensuite and while she was there he lied down on his bed, as he was tired from all of their conversation. When she came out, she lied beside him, which was a little awkward, as he had planned to be back in the living room before she returned. They kissed on the bed briefly before she went back to the washroom and he went to the living room.
[17] At this point Mr. Kim was tired and ready to end their date; at the same time, a friend had started to message him about meeting at a bar. When R.V. re-entered the living room, she told him that she needed to go home to feed her cat. He walked her to the kitchen, expecting her to leave. She stopped suddenly, turned around, and kissed him intensely. As they were kissing, he lifted her up to sit on the island. They kissed passionately and she said "ok, let's fuck it". He picked her up and they continued to kiss as he carried her to his bedroom. He put her on the bed, took her pants off, and she guided his penis inside her. She never said no or asked him to stop at any point that night after the first time he tried to kiss her on the couch. Had she done so, he would have stopped.
[18] After, Mr. Kim gave her some tissue from the bathroom so that she could clean up. He noticed that her demeanour had changed. She seemed sulky. He asked if she was ok and she said she was fine and left. She called him a few minutes later to come down to the parking garage and handed him a parking ticket before she drove away. She seemed upset. He left from the parking garage to meet his friend.
Mr. Kim's Account of the Text Messages
[19] Mr. Kim was out late and slept in. Eventually, he saw that R.V. had messaged him. He remembered two conversations, one about her missing earring and one in which she seemed very angry. He was hung over and did not want to argue over text. His responses to her angry texts were an attempt to deescalate the situation. He wanted to be nice and was thinking about how, culturally, Canadians frequently say "sorry" to be polite, even when they have not done anything wrong. He did not understand what R.V. was accusing him of at the time and had not been paying close attention to her messages.
Challenges to Mr. Kim's Account
[20] Mr. Kim understood R.V. to be referring to sex when she told him that she did not do "hookups" on the first date. He agreed that they had only engaged in conversation about sex generally, and not any discussion about them having sex. He took "ok let's fuck it" to mean either that she wanted to have sex, or that she wanted to break her rule against sex on the first date, both of which he took to mean that she wanted to have sex with him. He was surprised by this turn of events and was not thinking rationally about it in the moment.
[21] At the time they were exchanging text messages the next day, Mr. Kim thought he had understood them, and only realized what R.V. had really meant sometime after his arrest. He agreed that, at the time they were messaging, he had understood the meaning of: "I hope you know I wasn't ok with what happened last night"; "I said no multiple times to kissing and to sex"; and "you disregarded what I said." He had not understood what "forced yourself on me" meant and was surprised to learn later that it meant forced to have sex.
[22] Mr. Kim explained that when he had seen the long messages R.V. was sending, he knew she was upset but had not really read the messages. If he had known how important they would become he would have been more careful and cautious but, in the moment, he was simply trying to deescalate. He could tell R.V. was angry and did not see the point of engaging in an argument over text. He did not think that he had sexually assaulted her and had not meant to admit that. He was not sure why she was angry, perhaps because of the parking ticket or lost earring or because she had broken her own rules. He had not meant it when he said, "I didn't think it was ok", he had simply given up and wanted the messaging to end.
The Parties' Positions
[23] Mr. Jaksa argues that Mr. Kim's account of events ought to be accepted or at least raise a reasonable doubt. They mutually consented to a progression of intimacy over the course of the evening. Mr. Kim gave a reasonable, coherent account of R.V.'s communication of consent by both words and conduct. His messages should not be viewed as an admission to sexual assault but must be understood in the context of his limited proficiency in English and his explanation for their content. With respect to the forcible confinement count, R.V. was in the apartment for hours of her own free will and admitted that no threats or violence forced her to remain there.
[24] Mr. Jaksa further argues that the complainant's evidence should be rejected, as she took pains to minimize her involvement with the accused that evening and selectively omitted discussion of much more consensual kissing and intimacy than she initially described. She downplayed sitting on his lap but admitted in cross-examination that she was on and off his lap for a substantial period. She did the same with respect to the frequency of their kissing, which she was reluctant to describe as "making out." She voluntarily stayed in the apartment for approximately 5 hours despite planning to have only a short date. Her own account of being frozen during the sexual activity is inconsistent with her forceful attempt to establish boundaries the first time he tried to kiss her.
[25] The Crown submits that this is not a straight-forward credibility case but one where the complainant's evidence is materially and cogently confirmed by the defendant's admissions in their text message exchange, which provides a basis for rejecting his testimony. His explanations about the incriminating texts do not withstand scrutiny. The Crown disputes that R.V. attempted to downplay the consensual conduct that she ultimately acknowledged participating in, arguing that she fairly admitted the events when she was reminded about them. There is nothing concerning about forgetting parts of a lengthy evening.
[26] Both parties at least tacitly accept that the testimony of the two witnesses does not provide an air of reality for a potential defence of honest mistake in communicated consent. If the complainant's evidence is accepted, it establishes both that she did not consent and that the defendant knew or was at least reckless to the fact that she did not consent. According to the defendant, R.V. communicated consent to the sexual activity verbally and by conduct. I agree that this is not a situation in which it is possible to cobble together some of the complainant's evidence and some of the defendant's to provide an air of reality to that defence.[1]
Relevant Legal Principles
[27] Eric Kim is presumed innocent of these charges. The burden of proof is on the Crown, who must prove beyond a reasonable doubt that he is guilty of sexual assault and forcible confinement. There is no onus on him to prove anything. The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt and much closer to absolute certainty than proof on a balance of probabilities. Ultimately, I may only find Mr. Kim guilty if I am sure that he committed the offence alleged.
[28] Mr. Kim is entitled to the full weight of the direction in R. v. W. (D.), [1991] 1 S.C.R. 742. If I believe his evidence that he did not sexually assault R.V., then I must find him not guilty. If I do not believe his testimony but am nonetheless left in reasonable doubt by it, he must similarly be found not guilty. Even if I am not left in doubt by his evidence, I must ask myself whether, based on the evidence that I do accept, I am convinced beyond a reasonable doubt of Mr. Kim's guilt.
[29] The purpose of this framework is to emphasize the burden of proof and the presumption of innocence by ensuring that criminal cases are not reduced to credibility contests. The issue is not whose evidence I prefer but whether the Crown has proven the case against Mr. Kim beyond a reasonable doubt. There is no rigid order in which evidence must be analyzed – reasonable doubt principles are a matter of substance rather than form.
[30] This case hinges on the credibility of each witness. No magic formula applies to assessing credibility. A witness' evidence is to be considered using a common-sense approach that is not tainted by myth, stereotype or assumption. Many factors may be relevant. Some key ones include whether the witness' evidence is internally consistent, whether it coheres with evidence from other witnesses or exhibits, whether the witness has a motive to fabricate, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies, and whether the inconsistencies suggest that the witness is lying. I must also be mindful of the distinction between credibility and reliability. The former relates to the sincerity of the testimony; the latter relates to its accuracy.
Factual Findings
i) Eric Kim
[31] Mr. Kim testified in a clear, straight-forward manner. I accept his testimony that most of their long interaction that night was pleasant and that they liked talking to each other. Notwithstanding the consistency of his demeanour and denials of any misconduct, however, I do not accept material parts of his evidence.
[32] Mr. Kim said that he lied down on the bed while R.V. went to his ensuite washroom because he was tired and planned to return to the living room before she finished in the washroom. I do not accept this for two reasons. First, he had no indication of how much or little relative time R.V. would be in the washroom, such that his explanation that he merely got on the bed for a rest and meant to leave before she came out makes little sense. Second, his claim that his tiredness caused him to lie down on the bed, and that he was "exhausted" when he left the bedroom for the couch, is belied by his testimony that as soon as he returned to the living room, he began making plans to meet his friend at a bar. I find that his purpose in bringing R.V. to his bedroom after her first trip to the washroom was to try to engage in sexual activity there.
[33] More pivotally, I reject his account of R.V. kissing him intensely in the kitchen as she was about to leave and then saying "ok let's fuck it" before they became more intimate. On both of their respective accounts, R.V. told him that she needed to go home to tend to a kitten and had spent much longer in the apartment than either had anticipated. I reject Mr. Kim's testimony about this interaction because it is contradicted by his own messages with R.V. the next day, which can only reasonably be interpreted as an admission that he engaged in sexual activity with her despite her protests and an adoption of her description of her having said "no" multiple times.
[34] I do not accept Mr. Kim's explanations for why he responded to those texts in the way that he did. I do not believe him when he says he was not paying attention to the substance of what R.V. was communicating because his answers are directly responsive to her questions. In cross-examination, Mr. Kim admitted that the only part of the text exchange that he did not understand at the time was what R.V. meant by "forced yourself on me." Even assuming this is true, he nonetheless acknowledged that he understood, at the time he was replying to R.V., what "I hope you know I wasn't ok with what happened last night" meant; what "I said no multiple times to kissing and to sex" meant; what "you disregarded what I said" meant; and what "but you did it anyways" meant.
[35] Mr. Kim's explanation that he only understood that R.V. was angry and was not interpreting "word for word what she said" in these messages is belied by his own responses. It is also inconsistent with his own testimony that he understood what these texts meant at the time he responded to them. I do not believe him when he says the only thing he understood from the text messages at the time was that R.V. was upset, not why she was upset.
[36] Further, I do not believe that Mr. Kim responded in the way that he did because he was trying to placate R.V. and deescalate the situation. He conveyed in his testimony that he was essentially beaten down by this long, angry text exchange that just would not stop. But the messaging about what happened that night occurred three hours after the longer text exchange about R.V.'s missing earring. He remembered two distinct text conversations, one of which was angry. The second exchange consists of eight back and forth messages totalling just over one hundred words. Mr. Kim testified that if he had known why R.V. was upset and had done something wrong, he would have apologized to her – which is exactly what he did in those messages. For these reasons and others that I will expand on below, I reject Mr. Kim's version of events that he and R.V. engaged in consensual sex as failing to raise a reasonable doubt.
ii) R.V.
[37] In my view, R.V. answered questions thoughtfully and sincerely in cross-examination. I agree with counsel that R.V.'s evidence in-chief minimized some of the consensual intimacy that she ultimately agreed she had participated in. I have reviewed her testimony carefully in this regard. In-chief, she described how the defendant kept insisting on kissing her after dinner and that she had willingly acquiesced to this because she thought things could work out between them. She was forthright about the amount of time she spent in the apartment and that she had stayed voluntarily because she liked Mr. Kim. But she did not initially describe sitting on the defendant's lap, lying on his bed after she first went to the washroom, or giving him a kiss goodnight when she first went to the kitchen to leave the apartment.
[38] R.V. did, though, candidly agree with these suggestions when they were put to her in cross-examination and adopted the high-level sequence of events put to her without qualification. I am satisfied that her initial, unamplified account did not consciously omit these details in an effort to dissemble. Her date with the defendant lasted approximately 5 hours. I would not expect either witness to remember every aspect of it. Mr. Kim could not recall certain things about that evening and I accept that his lack of memory about those things was also sincere.
[39] I have considered R.V.'s varying accounts of what happened after she first went to the washroom. She testified that the defendant pinned her against the wall by holding her hands together above her head before aggressively leading her into the bedroom, after which she pushed her way out. She told the police that he "kissed her against the wall" and did not mention anything about him pinning her against it; that he led her to his bedroom; and also that they had been on the bed together and he had kissed her there. When she was asked about this latter part in cross-examination, she said that he lied on top of her on the bed and she pushed him off. In her statement, she said they both lied on the bed and he kissed her until "I stopped it."
[40] R.V. explained in her testimony that she was referring to pushing him off her when she said she "stopped it". I accept that her testimony was simply a more detailed description and do not find, in any event, that these descriptions are inconsistent with one another. I do not take the same view about her in-chief description of pushing her way out of the bedroom after he led her there and her elaboration in cross-examination that they had spent some time on the bed before she pushed him off her. Because of this inconsistency, and because I do not accept Mr. Kim's account of those events, I am unable to make findings about exactly what happened during that sequence of events. But, for reasons that I will expand on below, this inconsistency does not cause me to doubt R.V.'s credibility generally or her account of what happened after this interaction in his bedroom.[2]
[41] I reject the submission that R.V. had a motive to fabricate these allegations. Defence counsel suggested that R.V. was angry with herself for breaking her own rule against hookups on the first date, which she disputed. I accept her evidence on this point and note that it would be irrational to punish Mr. Kim with a false accusation because she was angry with herself. I similarly reject the idea that she was sufficiently upset about the parking ticket to fabricate these allegations, which would be a sinisterly disproportionate response to this minor inconvenience. I appreciate that there is no burden on Mr. Kim to demonstrate that R.V. had some motive to fabricate and that the absence of one here is only a neutral factor insofar as it relates to R.V.'s credibility but in my view, it is not something that negatively impacts it.
[42] R.V.'s post-event emotional state is more than a neutral factor but one that is potentially confirmatory of her testimony that she was sexually assaulted.[3] Mr. Kim admitted in his texts and in his testimony that R.V. was angry when she left his building. The most obvious and reasonable explanation – perhaps the only plausible explanation for this sudden change in her emotional state – is that she did not consent to sex with the defendant.
[43] While R.V.'s emotional state provides some limited confirmation of her testimony, Mr. Kim's texts the next day provide powerful corroboration of it. The probative value of these texts does not flow from the fact that they are a prior consistent statement of R.V. and I am not relying on them in that respect. As discussed above, I reject the defendant's explanations for those texts. I find them to be an adoptive admission assenting to the truth of R.V.'s description that their intercourse took place despite her having said no "multiple times." Mr. Kim both apologized for this and acknowledged that he "didn't think its ok." [sic]
[44] In noting these pieces of confirmatory evidence, I do not mean to suggest that any aspect of R.V.'s testimony requires corroboration before it can be relied on. But it is important in my assessment of the respective credibility of each witness, in the context of all the evidence at trial, that the most material parts of her account – that she did not say "ok let's fuck it", did not consent to sex, and actively communicated her lack of consent – are confirmed by the defendant's texts and by her emotional state in the immediate aftermath of their sexual activity.
[45] I accept R.V.'s evidence on these points as credible and reliable. I am satisfied beyond a reasonable doubt that the Crown has proved that R.V. did not consent to sex with the defendant and that he knew she did not consent. I reject Mr. Kim's evidence that R.V. communicated consent to sex as failing to raise a reasonable doubt. I find him guilty of sexual assault.
[46] The Crown did not press its theory that Mr. Kim should be found guilty of forcible confinement, a count which was premised on R.V.'s description of Mr. Kim pinning her against the wall outside his bedroom. I have already explained that I am unable to rely on R.V.'s description of that sequence of events. As such, it is not necessary to determine if the brief restraint that she described is sufficient to establish the elements of this offence. I find the defendant not guilty of that count.
Dated: October 28, 2025
Justice Peter Scrutton
Footnotes
[1] R. v. Park, [1995] 2 S.C.R. 836 at paras. 25-26