Warning and Non-Publication Order
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Case Information
Date: 2025-02-07
Location: Toronto Region
Court: Ontario Court of Justice
Between:
His Majesty the King
— and —
Benedict Okolie
Before Justice Michael Waby
Counsel:
Ms. Hauk for the Crown
Ms. Schiller for the Accused
Reasons for Judgment
Introduction
[1] Benedict Okolie is charged with one count of sexual assault as against A.A. The sexual assault is alleged to have happened on the night of September 11, 2023 at Ms. A.A.’s apartment to which they jointly returned after a day spent working together as charity canvassers. Mr. Okolie pleaded not guilty.
[2] The case for the Crown is advanced through the testimony of the complainant Ms. A.A. and video footage that was entered as an exhibit. Mr. Okolie testified in his defence and called no additional evidence or witnesses.
[3] It is common ground between the parties that the Crown’s case stands or falls on my findings of credibility and reliability on the whole of the evidence tendered at this trial.
[4] The test that governs the analysis of credibility in this context is proof beyond a reasonable doubt. It was explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) and other case law as follows:
If I believe Mr. Okolie’s evidence, I must acquit him.
Even if I do not believe his evidence but I am left in reasonable doubt by it, or any of the other evidence, I must acquit him.
Finally, even if I am not left in doubt by his evidence, I still must consider it and all of the evidence and ask myself, on the basis of the evidence that I do accept, whether the Crown has proven guilt beyond a reasonable doubt.
[5] Proof beyond a reasonable doubt goes hand in hand with the presumption of innocence which is a fundamental principal of our system of justice.
[6] The burden of proof in a criminal trial always rests with the Crown. The burden of proof is a heavy one. It is proof beyond a reasonable doubt in relation to each of the offence’s essential elements. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense.
[7] I may accept some, all or none of a witness’ evidence.
[8] To be clear, it is not sufficient that on the whole of the evidence I am satisfied that Mr. Okolie is probably guilty and a criminal trial is not a credibility contest. Even if I believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, a judge must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy the court of the guilt of the accused beyond a reasonable doubt.
[9] In R. v. J.H.S., 2008 SCC 30, the Supreme Court qualified the W.(D.) instruction with an additional prong, partly in recognition that a trier of fact “may believe some, none, or all of the testimony of any witness, including that of an accused” (para 10). This prong is that where the trier of fact is unable to decide whom to believe, the accused is entitled to an acquittal (paras. 11-12).
[10] Put another way, it reflects that the trier of fact must not treat “conflicting testimonial accounts” as a credibility contest, in the sense of deciding whether they accept one or the other. “The main point is that lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt”: J.H.S., ibid at para 13.
[11] The burden never shifts to the accused to establish their own innocence, and the onus always lies with the Crown to prove every essential element (R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13).
Issues
[12] The central issues in this case before me are those of reliability and credibility.
Summary of Relevant Evidence
Viva voce Evidence
Evidence of A.A.
[13] Ms. A.A. testified that she had known the accused as a work colleague from approximately the end of August 2023 to mid-September 2023. They each worked as door-to-door sales representatives to try and secure donations for a charity. The September 11, 2023 date was the first and only time they had worked together and they worked canvassing addresses in the Waterloo-Kitchener area before returning to Toronto at around 10:30 p.m. They shared a ride back with two other colleagues, one of whom drove them.
[14] Ms. A.A. gave evidence that throughout the day she and the Accused chatted and shared information about their lives and exchanged contacts and Ms. A.A. gave evidence that she felt she had made a new friend with Mr. Okolie. During their discussions, Ms. A.A. invited Mr. Okolie back to her apartment to have something to eat and to hang out after work with her and to meet her three emotional support rabbits.
[15] Ms. A.A. testified that upon returning to Toronto but before going to her apartment, she and the accused and one other female work colleague went to a nearby park where they smoked some cannabis together. Ms. A.A. testified that the marijuana was not like regular weed and that it got her incredibly high and as such she had difficulty remembering parts of the events of the night in question.
[16] Video footage that was entered as an exhibit shows Ms. A.A. and Mr. Okolie arriving at her apartment building at 10:33 p.m. and then travelling up in the elevator together to Ms. A.A.’s apartment and exiting at 10:33 p.m. Ms. A.A. testified that she was feeling very intoxicated. She believed that the cannabis she had smoked may have been laced with something and that she was very intoxicated and was moving slowly and she felt that her physical actions were delayed and operating in slow motion. She testified that she had “never been high like that before.”
[17] Ms. A.A. gave evidence that she and the Accused dropped off some of their things in her room and then left the apartment building, some 13 minutes later to go and get some food. Ms. A.A. testified when they arrived at her apartment building, her roommate was also present with two other friends. Ms. A.A. and the accused returned at approximately 11:00 p.m. with some food they had purchased and went into her room together. Shortly after she and the accused had returned, her roommate and the two friends said goodbye and departed.
[18] When asked by the Crown as to what the plan was, Ms. A.A. testified that it was to eat food and watch a show together. She gave evidence that they entered the room and sat down to eat and that because her rabbits roamed free, she closed the door to her bedroom when they entered. They lay the food out on the bed, sat down to eat and Ms. A.A. started an Anime show on her laptop for them to watch.
[19] Ms. A.A. testified that at some point the accused got up and locked the bedroom door and turned off the light but that she thought nothing of this. She testified that she considered herself gullible and had previously told the accused that she had a boyfriend. Ms. A.A. testified that before the accused turned off the lights and locked the bedroom door, they were sitting next to each other on the bed and he tried to kiss her but she told him again that she had a boyfriend.
[20] Ms. A.A. gave evidence that the accused tried to persuade her to let him kiss her but she said “no” and she testified that she had a strong emotional bond with her then-boyfriend and was very loyal to him. It was her evidence that she felt scared and worried but thought things would be fine as the accused was her friend and that he said words to the effect of “Come on, I’d treat you so much better”.
[21] Ms. A.A. gave evidence that the accused “backed off” and that this is when she turned the show on and he got up to turn off the lights and lock the door. Upon having the chance to refresh her memory from the statement that she provided to the police, Ms. A.A. remembered that the accused had asked her to perform oral sex on him which she had declined and that this was before the lights were turned off and the door locked.
[22] Ms. A.A. gave evidence that at the time of this incident she was a lesbian and was not into CIS men and that she told the accused this. Ms. A.A. also testified that she felt afraid for her 3 rabbits that were in the room with them. It was her evidence that after the accused had turned the lights off and rejoined her on the bed, he shoved his hand down her pants and starting playing with her vagina. She testified that she froze and was scared for herself and her rabbits and thought that if she let the accused have his way everything would be fine.
[23] She testified that the accused rubbed her vagina for about 5 minutes and she could not remember what, if anything, she or the accused said during this time and that she was seated next to the accused on the bed while this happened. After this, it was her evidence that the accused pulled down her pants and placed his penis into her vagina from behind without asking her or telling her. Her evidence was “he just did it” and that he moved her further back on the bed and penetrated her from behind after gently pushing her over with both hands.
[24] Ms. A.A. also testified that she could not remember how she got into a kneeling position on all fours as she was still very intoxicated. She gave evidence that while the accused penetrated her she said “ouch” a couple of times but that was all she remembered saying and that after 3-4 minutes, the accused pulled out of her and said “that was consensual, right?” and, in order to make him leave, she replied “yes”.
[25] In examination-in-chief, Ms. A.A. went on to give evidence that she normally only introduced people to her rabbits when she trusts them. She remembered turning the Anime show on her laptop and sitting down on the bed to watch it with the accused after he had rubbed her vagina for 5 minutes and after he tried to kiss her. Ms. A.A. testified that she remembered telling the accused that she had a boyfriend near the end of the 5-minute period when he was rubbing her vagina.
[26] She gave evidence that the accused did not ask her for her consent to any of the sexual contact that occurred and that she just said “ouch” when he penetrated her in the hope he would take the hint and stop. Ms. A.A. gave evidence that because of the cannabis she was in a daze for the whole of the evening.
[27] When asked by the Crown why she did not resist the accused or say anything to him to stop any of what was happening, Ms. A.A. testified that it was because she was scared and felt protective of her rabbits although she accepted that the accused had not threatened her or them in any way. It was Ms. A.A.’s evidence that she gave no verbal consent to what happened and that her body language also made it clear to the accused that she was not consenting. She testified that the accused contacted her the following day by text but that she blocked him.
[28] In cross-examination, Ms. A.A. agreed with defence counsel that she had forgotten about the accused asking for oral sex and that in her evidence-in-chief, she had described the accused being “very pushy” about it but had not told the police this as she said she did not consider that to be relevant.
[29] She agreed that for the 5 minutes that she lay next to the accused when he was rubbing her vagina the lights of her room were on and the door was unlocked and her roommate and friends were in the apartment.
[30] When asked by defence counsel why she then lay on the bed and watched a show with the accused with the lights off and door locked after he had spent 5 minutes rubbing her vagina if she was scared and frozen as she described, Ms. A.A. testified “you wanted me to do what? Kick him out? I was afraid for my rabbits and for me”.
[31] Defence counsel put to Ms. A.A. that she had testified in-chief that she watched the programme with the accused afterwards on her laptop because “she didn’t think anything of it’ as regards the accused rubbing her vagina for several minutes. Ms. A.A. denied changing her evidence and testified that it was just a slip up and that she was naïve and gullible and did not know what was going on.
[32] When asked by defence counsel whether her memory was affected because of the cannabis she had taken that night, Ms. A.A. testified that because of the other medication that she took the effect of the cannabis had been enhanced on her. She agreed that during the incident she was “high like never before” and agreed that she had not said anything to the accused about the effect of the cannabis on her as it was not his business and she also did not think it was a big deal as he had smoked cannabis too.
[33] Ms. A.A. agreed that she did not tell the police in her statement that she was very intoxicated and that this was something she was now testifying to. Ms. A.A. gave evidence that the police did not ask her about her degree of intoxication in her interview with them.
[34] When video footage was played by defence counsel showing them together in the elevator and walking to her apartment, Ms. A.A. gave evidence that it showed her wobbling while walking and she disagreed with the defence suggestion that the video showed no issues with her mobility or motor skills.
[35] Ms. A.A. denied a number of defence suggestions. These included that she told the accused she was planning on breaking up with her boyfriend, that she switched off the lights in her room and locked the door, that she willingly cuddled with the accused on the bed and that she placed his hand in the waistband of her pants to rub her vagina.
[36] Ms. A.A. denied trying on clothes in front of the accused she had bought at the mall but agreed that she had shown them to him. She also denied having consensual sex or any consensual sexual contact with the accused. It was Ms. A.A.’s evidence that she could not recall whether the accused ejaculated or not.
[37] Ms. A.A. also denied that while the accused was penetrating her that she received a text or notification on her phone from her boyfriend which she read while penetration was occurring and she denied saying to the accused “He’ll hate me”, meaning her boyfriend. She denied that the accused comforted her as she became upset because of the text from her boyfriend and denied walking him to the door of her apartment when he left and closing the door.
[38] Ms. A.A. denied the defence suggestion that she lied to her roommate and the police about what had happened because she had cheated on her boyfriend. It was Ms. A.A.’s evidence that she suffers from a borderline personality disorder and that her understanding of her mental health issues was that her mental health would not allow her to cheat on her partners because she is very loyal.
[39] When asked whether she agreed that the accused had noticed the tattoo on her sternum when she was trying on clothes in front of him, Ms. A.A. testified that he could have noticed this tattoo on her Instagram account some of which were visible from some of the cosplay outfits she wore and posted on her account.
Evidence of Benedict Okolie
[40] The evidence of Mr. Okolie and that of Ms. A.A. with respect to the chain of events of the night in question prior to arriving at Ms. A.A.’s apartment is largely aligned. The only significant point of difference before they arrive at the apartment is that Mr. Okolie testified that during their day working together, Ms. A.A. had told him that she was planning on breaking up with her boyfriend because he had vomited on her bed a few days earlier.
[41] He gave evidence that Ms. A.A. showed him pictures of her rabbits and invited him back to her room as he lived nearby and that Ms. A.A., him and another colleague had all smoked pot together in a park before he went back to Ms. A.A.’s apartment with her.
[42] Mr. Okolie testified that on returning to the apartment building Ms. A.A. retrieved a package from the mail room and they went to her room where he was introduced to the rabbits. It was his evidence that he noticed some anime costumes in her room that he was curious about and they spoke about anime and Ms. A.A. recommended an anime show for them to watch after they had got some food.
[43] Mr. Okolie gave evidence that they returned to the bedroom with food and sat on the bed, that Ms. A.A. turned off the lights and that they ate and watched the Anime show on her laptop for around 15 minutes and that as they stretched out Ms. A.A. started cuddling with him on the bed. It was his evidence that he began to gently caress her side of her body and then he leant in to kiss her and she told him that she wanted to break up with her boyfriend first so he stopped his advances.
[44] Mr. Okolie then gave evidence that shortly afterwards as they lay next to each other on the bed, Ms. A.A. began to caress his thigh and chest. He testified that he followed her lead and put his fingers in the waistband of her pants and asked if it was okay to go further and she said “yes”.
[45] It was his evidence that he “fingered” Ms. A.A. for about 5 minutes and that she then got up and turned the lights back on and tried some new clothes on in front of him as well as some anime costumes that she told him all about. He gave evidence that after this she put some sweatpants on and lay down on the bed with him and started hugging him again and he asked if they could “carry on” and that at this point, Ms. A.A. got up and pulled her pants down and got on all fours while he partly watched her and rubbed her vagina while partly watching the anime programme on her laptop.
[46] When the show was finished, Mr. Okolie testified that he got up and positioned himself behind her and told her he did not have a condom but would not cum inside her and was that okay and she replied “yes”. After two minutes of having sex, he gave evidence that given how small the bed was, he was afraid that Ms. A.A. was going to slip off the bed while they were having sex and land on the metal rabbit crate next to the bed. He testified that he repositioned Ms. A.A. on the bed and that sex continued until Ms. A.A.’s phone illuminated and he believed she had received a text. Ms. A.A. picked up the phone and looked at it for about 30 seconds and then placed it face down back on the bed.
[47] He testified that after this Ms. A.A. appeared tense and uncomfortable and that when he asked her if she was okay, Ms. A.A. broke down in tears. She then said to him that she had thought this encounter would be fun but that “he’ll hate me”, meaning her boyfriend. Mr. Okolie gave evidence that he comforted Ms. A.A. and told her no one would hate her. After a few minutes, he told her to call him if she needed anything and she walked him from her room and halfway to the front door at which point, he half-hugged her and she closed the door behind him and he left.
[48] Mr. Okolie testified that he resumed touching Ms. A.A. because he was following her lead and that he asked her if it was okay before he touched her and before he penetrated her. He denied that Ms. A.A. ever said “ow” or “ouch” and denied ever asking her for oral sex or asking her to leave her boyfriend. He also denied noticing any impacts of the cannabis on Ms. A.A.’s movements or behaviour or that she ever froze or that he locked the bedroom door or turned the lights out. He also denied that he was intoxicated from the cannabis he had smoked.
[49] In cross-examination, Mr. Okolie agreed with the Crown that prior to this date Ms. A.A. was basically a stranger to him and testified that he agreed to go back to her place because she invited him and he lived nearby and it wasn’t inconvenient. When asked why he went, he gave evidence that his intention was to see the rabbits.
[50] The Accused gave evidence that in their day working together they flirted and he told Ms. A.A. she was pretty and had nice eyes and that he had asked her if she had a boyfriend and that she had then told him about her plan to break up with him and why. He gave evidence that initially the plan was just to see the rabbits but that after they got to the bedroom he saw the anime costumes and was curious about them and Ms. A.A. suggested they get some food and watch an anime show. Mr. Okolie denied that when they first got to the bedroom he hoped things might get sexual.
[51] The Accused agreed with the Crown that when they were cuddling on the bed, he began to think something sexual might happen. He agreed that he initiated things after the cuddling by trying to kiss Ms. A.A. but that he stopped when she said she wanted to break up with her boyfriend first. He denied that Ms. A.A. said “no, I have a boyfriend”.
[52] He gave evidence that after they began to cuddle again he followed what he called Ms. A.A.’s lead and stroked her side and stomach and asked her if he could go further and began to rub Ms. A.A. and she moaned softly while they both watched the anime show. He denied that Ms. A.A. froze at any point and said that after she had climaxed, she got up and turned on the lights and started trying on different clothes.
[53] When asked why he was partly focused on rubbing Ms. A.A. and partly on the anime show, Mr. Okolie testified that he was a cinephile and denied that dividing his attention between the two things was strange.
[54] The accused repeated his evidence that after rubbing Ms. A.A. for several minutes he asked if it was okay for him to penetrate her without a condom if he did not ejaculate inside her and she said “yes” and got on all fours. He also repeated his concern during intercourse that the thrusting motion meant Ms. A.A. was at risk of falling off the bed and onto the rabbit cage. He denied the Crown suggestion that he penetrated Ms. A.A. without her consent and the absence of any text message received part way through.
He also denied the Crown suggestions that he forced himself on Ms. A.A. shortly after they got into the bedroom, that she had said “ow” during sex, that he knew the sexual contact between them was not consensual and that the video footage showed him looking pensive and concerned upon leaving the apartment.
Summary and Analysis
[55] It is clear that there are two competing and markedly different accounts of what took place once Ms. A.A. and Mr. Okolie returned to her apartment on September 11, 2023.
[56] I am mindful that courts should not assume a credibility gap in a complainant in sexual assault cases because of inconsistencies in their evidence around minor issues which may have a legitimate explanation.
[57] As Crown counsel rightly submitted, consent is not about ‘testing the waters” and the court may look to both direct and circumstantial evidence to assist in determining the issue of consent, credibility as well as having regard to the provisions of section 273.2 of the Criminal Code.
[58] Defence counsel submits that the evidence of Mr. Okolie should, at the very least, raise a reasonable doubt in the mind of the court and that in the alternative, given the inconsistencies and gaps in the recollection of Ms. A.A., the Crown has not met its necessarily high onus and that the Court should find Mr. Okolie not guilty.
[59] Ms. Hauk for the Crown submits that Ms. A.A. was clear and consistent in her evidence and unambiguous as to the lack of consent with respect to any sexual contact with the accused in her bedroom. The Crown also submits that Ms. A.A. was clear and consistent as to her motivation for being scared and provided a credible explanation for her actions.
[60] Ms. Hauk quite rightly identified that Ms. A.A. presented as a vulnerable, fragile and rather naïve young woman. I accept that Ms. A.A. found giving her evidence very difficult at times but I do not agree with the Crown that this enables me to conclude anything from Ms. A.A.’s demeanor while giving evidence other than at times she understandably found it a difficult experience. Similarly, the fact that a complainant reports a sexual assault and testifies at court does not, in and of itself, bolster their credibility.
[61] It is important to note that an invitation to return to someone’s apartment, is in no way indicative of consent to sexual activity. Such myths and discredited tropes have long been rightly discarded by the Courts.
[62] Similarly, as Ms. Hauk for the Crown articulated, the courts have long recognized that there is no such thing as a “standard” or ‘typical” response by a complainant in sexual assault cases. The various myths and stereotypes in respect of the impact on and responses of the victims of sexual assaults are, or should have been, firmly consigned to the distant past. It is as unremarkable for the victim of a sexual assault to freeze, in silence, as it is for them to scream for help. Each complainant and each case turn on their own particular circumstances.
[63] The reality is that Ms. A.A. presented as a sincere witness who clearly found recounting her evidence very difficult at times. With respect to the events that she was able to recall, Ms. A.A. was often, if not always, consistent in her evidence and it is clear that whatever happened that night clearly has had a significant impact on her. It is to her credit that for those events she does not recall, she did not try and guess or to speculatively fill the significant gaps in her memory.
[64] Nevertheless, there were occasions where Ms. A.A.’s evidence in-chief and in cross-examination varied and also where I find it was at variance with the observable facts. Although denying this, Ms. A.A. did testify in-chief that the reason she lay down on the bed to watch TV with the accused after she said he had rubbed her to climax was the “it was no big deal”. I also find that this admitted behaviour is clearly in contrast with the fear and concern that she also expressed for herself and her pets. It is difficult to reconcile Ms. A.A.’s behaviour in this regard with the emotions she testified to feeling at the same time.
[65] I want to be very clear, finding this as a discrepancy is not to suggest that Ms. A.A. should have acted in a particular way during that portion of the alleged sexual assault. However, describing the incident as “no big deal”, as she did in her evidence in-chief, and then lying on her bed next to the accused and turning on a TV show for them to watch together on the bed is clearly at variance with other aspects of her evidence as to how she felt and behaved during the alleged incident and her assertion that she would not behave in such a way.
[66] I do not place great weight on the fact that Ms. A.A. “forgot” about telling police that the accused asked her for oral sex and had to have her memory refreshed. As I have indicated, Ms. A.A. found the experience of testifying very difficult at times and Crown counsel is perfectly entitled to refresh a witness’ memory where appropriate. I accept that such memory gaps may have legitimate explanations, and their occurrence does not necessarily reflect adversely on a witness or complainant in a sexual assault case.
[67] Ms. A.A. describes herself as being extremely intoxicated prior to arriving at her apartment building and throughout the alleged incident. There is clear and high quality video of the Accused and Ms. A.A. entering the apartment building and riding up the elevator as well as walking from it across the hallway to the Ms. A.A.’s apartment. Having reviewed the video footage several times, I cannot accept Ms. A.A.’s evidence and the submission of Crown counsel that the video evidence shows Ms. A.A. “wobbling” while walking, almost tripping and demonstrating reduced motor skills while tapping her lift pass.
[68] There is a lack of any indicia of intoxication on the part of either Ms. A.A. or the accused that is apparent from any of the video footage and there is nothing visible to suggest that intoxication on their parts would have been apparent to the other. The video is unambiguous and shows Ms. A.A. and the Accused walking and talking and moving with no apparent difficulty and without any observable impact on Ms. A.A.’s manual dexterity or other mechanical functions.
[69] I accept that intoxication can affect each individual differently and is subject to a multitude of factors, however, the video footage cannot be reconciled with Ms. A.A.’s repeated evidence that she was exceptionally intoxicated, in a daze, moving slowly and had never been so high. It is, however, more consistent with the evidence she gave to police in her original statement where she initially denied consuming any alcohol or drugs and then told officers she had smoked “a bit of weed beforehand”. I accept the Crown submission that this topic was not substantially explored by the police but I do find that Ms. A.A.’s evidence on this important issue and on the observable facts cannot be easily reconciled by the court.
[70] The Accused generally presented as a consistent witness who was not moved from the substance of his evidence in cross-examination and who generally did not seek to embellish or dramatize or speculate when providing his version of events. He accepted that he attempted to kiss Ms. A.A. after they lay cuddling together on the bed and did not seek to deny this act and he provided his explanation as to why. On his evidence, any sexual contact with the complainant stopped and started in response to the cues the Accused testified that he received from Ms. A.A..
[71] I do, however, reject his evidence that no thought of any sexual possibility occurred to him until after he was inside Ms. A.A.’s apartment. I agree with Ms. Hauk that the video footage of him and Ms. A.A. entering her apartment clearly shows him “checking her out” from behind and seems to be highly suggestive of his hand moving towards her bottom before he seemingly changes his mind.
[72] I also reject his evidence that the reason he considered simultaneously stimulating Ms. A.A. while watching a TV show was unremarkable was because he was a “cinephile” is utterly lacking in credibility and was a preposterous answer on his part. Nevertheless, I also note that this particular portion of events was also the episode that Ms. A.A. described at one point as “no big deal” and which was a prelude to them lying together on the bed to watch TV.
[73] I don’t find it unlikely that if Ms. A.A. had her phone with her on the bed that the Accused could have noticed the phone screen illuminate in response to a received message. Whether any such message was received I cannot know for sure and no copy of any such message or the absence of one was put before the court in evidence.
[74] Similarly, while I agree with Ms. Hauk that the Accused is shown on video leaving Ms. A.A.’s apartment and he does appear to seem rather thoughtful, It would be impermissibly speculative for me to elevate his appearance to someone who was ‘pensive’ and from that to draw any adverse inferences.
[75] It is not in issue that sexual activity occurred between Ms. A.A. and Mr. Okolie and only Ms. A.A. and Mr. Okolie know precisely what occurred in the apartment that night.
[76] Given the necessarily high standard of proof required in a criminal trial, it is not enough for a judge to find that an accused is probably guilty and that he probably did some or all of what is alleged. As previously indicated, a judge must be satisfied beyond a reasonable doubt of the guilt of the accused. As I have previously indicated, a criminal trial is not a credibility contest between the parties and it cannot be reduced to that.
[77] A reasonable doubt can also co-exist with a credible complainant and the evidence of the accused was largely consistent, if not always entirely credible. Nevertheless, given the irreconcilable and mutually conflicting versions of events, I have before me and the evidential issues that do exist, on the totality of the evidence, I am unable to conclude that the Crown has proven beyond a reasonable doubt that Mr. Okolie sexually assaulted Ms. A.A. as alleged and accordingly and I find him not guilty.
Dated: February 7th, 2025
Justice Michael Waby