ONTARIO COURT OF JUSTICE

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Case Details

DATE: 2026 02 20

COURT FILE No.: Central West Region (Niagara) 998 24 21103602

BETWEEN:

HIS MAJESTY THE KING

— AND —

Colwill (a.k.a. Chaisson), Curtis

Before Justice J. De Filippis

Heard on January 26 – 28, 2026

Reasons for Judgment released on February 20, 2026

Mr. M. Sokolski................................................................................... counsel for the Crown

Ms. E. Burton................................................................................... counsel for the accused

De filippis, J.:

INTRODUCTION

[ 1 ] The defendant was charged with two counts of sexual assault. He and the complainant lived in separate units in a small building in the City of St. Catharines. The defendant occupied unit 4 with his six-year-old son. The complainant lived alone in unit 1. The parties would occasionally exchange greetings as they entered or exited the building.

[ 2 ] The offences are said to have occurred in the complainant’s apartment on May 29 and 30, 2024. The complainant claims that on both occasions the defendant had sexual intercourse with her without her consent. The defendant denies he engaged in any sexual activity with her. I heard from both parties and received an agreed statement of facts.

[ 3 ] These reasons explain why I find the defendant not guilty.

THE COMPLAINANT’S TESTIMONY

[ 4 ] The complainant is 56 years old. She is unemployed and supported by social assistance. She has a dated criminal record with two convictions for impaired driving. On May 29, 2024, after consuming a 1.5 litre bottle of wine, she went outside for a cigarette. The defendant walked by and they chatted. She told him she was out of wine and wanted something to drink because, as she explained to me, “I’m an alcoholic and I struggle”. The defendant went to his unit and returned with three tallboy cans of beer. The parties entered her unit and sat on a “love seat”, a two-seat couch, and consumed the beer.

[ 5 ] The complainant described her level of intoxication as “certainly boozy but not to the extent I was not aware of what was going on”. As they drank the beer, they discussed their lives, but the complainant does not recall the details or how long they were together. The complainant was wearing pajamas without underwear. The pajamas were removed but she does not recall how and added, “[it] happened so fast, I would have never taken them off, he took them off, they did not come off with my help…. I was on my back and he was on top of me and inside me….his penis was in my vagina and he was moving [it] on love seat couch”. The defendant was not wearing his pants, but the complainant does not recall when they were removed. No words spoken. The complainant did not “want this to happen”. She does not believe she communicated this to the defendant, nor did she tell him she consented. She explained that, “my brain froze and I shut down…I can’t say how long…less than 5 minutes”. He did not ejaculate. The complainant does not recall the defendant getting dressed or leaving but noted that “then he was gone”. She saw her pajamas on the floor and put them on. In shock and numb she curled up on the couch.

[ 6 ] The next day – the complainant does not recall at what time – she left her unit took the bus to the LCBO. She did not speak to anyone about what had happened the previous day, explaining that “I felt ashamed…I felt it was my fault”. She returned home with beer and began drinking around 6 pm. Sometime around 10 pm, the defendant was in her apartment and drinking beer with her as they sat on the love seat. She does not recall the circumstances. She said, “Obviously I let him in, but I don’t remember doing so”. The complainant was wearing the same pajama bottoms and T-shirt from the day before. By this time, she was drinking her fifth can of beer and was “feeling boozy and relaxed”. At some point, the defendant took her left hand and placed it over his pants on his penis. The complainant added, “Again, I don’t move, I go into freeze mode… he puts his arm around me and puts my head on his shoulder”. She told him she felt uncomfortable. The defendant replied, “you are safe with me…. let’s cuddle before I go, my son is alone”. The complainant said, “Ok, cuddling is fine but nothing else”. The defendant stood and walked to the bedroom. The complainant finished her beer and “in less than one minute” went to her bedroom. She saw that the defendant under the covers and explained, “I sit on the bed and was about to pull covers over me and it happened so fast and next thing I know his is on top of me and inside of me”.

[ 7 ] The complainant was wearing her clothes when she sat on the bed and as far as she recalls they were removed by the defendant. It was dark in the room and she “could not see his nakedness below his T-shirt”. The complainant said that “as he moved inside me’ the defendant told her “The things I can do to you I will do to you” and that “I kept saying no, no, no and repeatedly tried to push him off”. The defendant did not respond and “just kept going”. He did not ejaculate but when it was over, in a minute or two, he said “let’s cuddle for a little bit before I have to leave”. The complainant does not recall the defendant getting dressed but “he was gone”. She lay in bed for 30 to 60 minutes “as it slowly sank in I felt shame and [felt] it was my fault”.

[ 8 ] The complainant reported this matter to the police a week later. She would not have done so, as she felt scared and at fault, but a friend “who went through a similar circumstance” encouraged her to report it. The complainant did not have any face-to-face contact with the defendant before doing so. However, around the time she went to the police, the defendant sent her a text message informing her the police had contacted him wondering about her welfare and a second message in which he asked if she was okay. The complainant did not respond.

[ 9 ] The complainant denied the suggestion that the defendant visited her at her apartment only once. She insisted it was twice. She conceded that in her report to the police she described the events on May 30 and did not mention the events of the previous day until the end of the interview when the officer asked for clarification about a discrepancy in her account [whether the sexual assault occurred on the couch or the bed]. This question caused the complainant to remember what had happened on May 29. The complainant denied she told the police that the defendant was completely naked in her presence. When pressed on the matter, she said she could not recall saying this.

[ 10 ] The complainant agreed that when the defendant was in her apartment on May 30, she did not confront him about being sexually assaulted the day before, notwithstanding that she was uncomfortable by the fact he placed her hand on his penis. Moreover, after he said she was safe with him, she agreed to follow him to the bedroom to “cuddle…and nothing more”.

[ 11 ] The complainant testified that apart from the text message from the defendant referenced above, she did not communicate with him after the events in question. In particular, she did not initiate any such communications. She confirmed the identity of a friend named Marty Klassman but has no memory of that person calling the officer in charge of this case to conduct a wellness check on her sometime after these events.

[ 12 ] The complainant confirmed that at some point – she does not recall when – she exchanged phone numbers with the defendant. She was shown an exchange of text messages and identified her telephone number in this exchange. This exchange occurred on May 30 2024 at 11:05 pm:

From the complainant’s phone: Hey you 😊

Response: How are you?

From the complainant’s phone: 😊

[ 13 ] The next day, on May 31, another message was sent from the complainant’s phone to the defendant: “How you doing?” There was no response. A week later, on June 7, this message was sent to complainant’s phone: “Hey the police have been here twice looking to see if you’re alright…are you?” There was no response.

[ 14 ] The complainant has no memory of sending the text messages on May 30 and 31. She does recall the text message received on June 7 and confirmed this was from the defendant.

[ 15 ] The complainant was shown a video of the defendant with a boy, talking to an unknown/unseen person. The defendant says, “Happy Birthday Sophia”. He has a full beard. The complainant testified she does not recall the defendant having a beard at the time of these events. Indeed, she told the police he did not have facial hair.

[ 16 ] The complainant was shown photographs of tattoos on the defendant’s body. There is a large one – indescribable to me - on the side of his bald head. On his right forearm, from the elbow to the wrist, are six large characters that look - to me - like Chinese lettering. Across the top of his chest, in large letters, is “One Life One Love”. The complainant has no memory of seeing these tattoos.

THE DEFENDANT’S TESTIMONY

[ 17 ] The defendant is 41 years old. He testified he was inside the complainant’s apartment on one occasion, May 30, 2024. He encountered her outside their apartment building, “looking for cigarette butts”, and as he passed by, she asked him if he had cigarettes. Soon after, he obtained cigarettes from his unit and brought them to hers. She invited him into her unit. They sat on a small couch. The complainant poured the defendant a glass of wine. As they drank and talked the defendant monitored his son by a camera linked to his phone. The boy had gone to sleep at 8:30 PM immediately after a video call in which father and son sent birthday greetings to Sophia. This is the video noted above that was put to the complainant in cross-examination. The defendant drank two cups of wine. The complainant consumed three cups of wine. He denies bringing beer to the apartment with him, only cigarettes.

[ 18 ] The parties discussed recent developments in their lives. The defendant said he had obtained full custody of his son and that they had a “great relationship”. The complainant expressed her concern that her two years stay at the apartment building – run by a social agency – was coming to an end. The defendant testified that as they spoke, the complainant “moved closer and put her hand on my thigh, moving [it] to my private parts”. This made him “uncomfortable” and he said, “I have to go [see my son]”. He left. Before going to bed, he received the text messages noted above, with the “smiley faces”.

[ 19 ] The defendant did not communicate with the complainant after these events until June 7. However, on June 6, a delivery of alcohol for the complainant, erroneously came to his door. He directed the delivery person to the complainant’s unit. The defendant added that several days later, he saw the complainant “passed out” in her doorway. He was with his son at the time and made a point of taking a different route to his apartment afterwards.

[ 20 ] On June 7, the defendant sent the above noted text message to the complainant. He explained that he sent the message because the police had come to his apartment, twice, asking for the whereabouts of the complainant. The defendant understood that the police were responding to a call for a wellness check.

[ 21 ] In addition to authenticating the text and video, already referenced, the defendant confirmed that the photographs of his tattoos accurately represent his body markings at the time and that he had a full beard as depicted in the video.

[ 22 ] The defendant acknowledges that he has a four-page criminal record with offences that include assaults, failure to comply with court orders, robbery and weapons. He explained that “I have a history of fights with men, and I have always pled guilty and the bulk of it [convictions] ends when my son was born”.

[ 23 ] The defendant insists that he did not go to the complainant’s apartment on May 29. Moreover, at no time did he go to her bedroom or have sexual intercourse with her. He was arrested for the present charges on August 20, 2024. He agreed to be interviewed by the police and acknowledges he was truthful and accurate in answering questions. He added that he offered to provide a sample of his DNA to refute these allegations as well as producing his phone so the police could see the messages noted above. The defendant testified this offer was not acted upon. He was incarcerated for 30 days before being admitted to bail. He was evicted from his apartment and, with the help of his surety, rented hotel rooms to be with his son until a suitable place could be found. Eventually, he and his son moved to Ottawa.

[ 24 ] The defendant agrees the complainant was crying in recounting her concern that she would soon have to leave her residence. He denies making sexual advances toward the complainant while comforting her as she cried: “I was there to accept the offer of a drink not as an emotional support person”. The defendant agrees that his tattoos would not be visible with his chest and arms covered by a long sleeve shirt and his head covered by a hat.

[ 25 ] The defendant was closely cross-examined with respect to the statement he made to the police. At one point, he advised the officer that the complainant had taken him into her bedroom. He testified this did not happen and explained “I was nervous, what I meant is she tried to do that”. The interviewing officer repeatedly suggested the defendant had sexually assaulted the complainant. The defendant repeatedly denied this. The Crown suggested that the defendant never denied having sex with the complainant. The defendant pointed to part of the prior statement in which he said he had not had sex with the complainant on the couch. The Crown suggested that this is not a denial of sex in the bedroom and pressed this issue. The defendant agreed he told the interviewing officer that “sex is not sexual assault” and later in the interview, when asked if he had had sex with the complainant, the defendant replied, “I don’t recall, to be honest”.

[ 26 ] The cross-examination ended with this exchange:

Q: You are saying ‘I don’t recall’, this is very different than ‘no’.

A: It’s different, but it’s not yes

Q: You won’t admit having sex with [the complainant] because she was drunk, and you don’t want to get into trouble.

A: No

[ 27 ] The defendant testified that he said “I don’t recall” because “he [interviewing officer] lied to me and said my DNA was found and now, I’m thinking I’m being framed for this…[and] he told me he could make a call about my son”. He added that “at this point my mind is spinning and my world is crumbling”.

AGREED FACTS

[ 28 ] The parties agree to the following:

On June 5 th , 2024, Cst. Gooder attended at [the complainant’s] residence in response to her telephone call to police that she had been sexually assaulted.

In her description of the interaction between her and Curtis Colwill, Cst. Gooder noted that they “were fully clothed when they went to the bedroom and “there Curtis Colwill “took off all his clothes”.

In her description of Curtis Colwill, Cst. Gooder noted [the complainant] described Curtis Colwill as “tall, slim, dirty blonde, short hair, clean shaven”.

Cst. Gooder noted that [the complainant] reported only one incident to her.

Cst. Gooder’s notebook notes and will-say statement were not reviewed by [the complainant].

Thereafter, on June 27, 2024, [the complainant] gave a video-taped statement to Det. Mark Denhoed. A second incident was reported to Det. Denhoed during this interview.

Det. Denhoed does not recall seeing text messages between [the complainant] and Curtis Colwill dated May 30 and May 31, 2024. No text messages were photographed by police as part of this investigation.

SUBMISSIONS

[ 29 ] The Crown acknowledges the challenges presented by the complainant’s testimony. She is an admitted alcoholic. She does not recall many details. Nevertheless, she was clear about the sexual assaults with no apparent motive to fabricate. Counsel reviewed the evidence in urging to accept her testimony. The Crown argues the defendant’s testimony should be rejected. In this regard, counsel places great reliance on the “inconsistent” prior statement he gave to the police and “evasive” trial testimony.

[ 30 ] The Defence emphasizes the burden on the Crown in a criminal case and points to the problems with the complainants testimony; she initially did not recall the first alleged sexual assault when she went to police, she does not recall many other details, including whether the defendant had tattoos that are obvious on his body, and, contrary to other evidence showing the defendant with a full beard, she reported that he did not have facial hair. Counsel adds that according to the complainant, after she was “raped” on May 29, she had the defendant in her apartment the next day and agreed to “cuddle” with him in her bed after she “froze” when he put her hand on his penis (over his pants). Within an hour or two of the second “rape” she sent the defendant a message, with a smile face, asking how he was. Counsel argues that I should be troubled by the credibility and reliability of this evidence.

[ 31 ] Defence counsel submits I should not be troubled by the cross-examination of the defendant. He denied sexually assaulting the complainant 14 times before twice claiming he did not recall having sex. Counsel urges me to accept the defendant’s explanation for the inconsistencies between the prior statement and trial testimony, namely that he was in shock.

ANALYSIS

[ 32 ] The Crown carries the burden of proving guilt beyond a reasonable doubt. This fundamental principle of law means that if the defendant has called evidence, there must be an acquittal where the testimony is believed or where the testimony is not believed but raises a reasonable doubt. An acquittal will follow even if the defence evidence is rejected, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty ( R. v. W(D), [1991] 1 S.C.R. 742).

[ 33 ] Probable guilt is not the criminal law standard of proof – it is closer to certainty. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence ( R. v. Villaroman , 2016 SCC 33 ). In applying the standard, I can accept some, part, or none of what a witness states.

[ 34 ] The testimony of a witness is assessed based on the person’s credibility and reliability. The defendant’s criminal record is relevant to assessment of credibility, and I have taken it into consideration. The complainant’s criminal record is limited and dated. However, it suggests that her struggle with alcohol abuse is one of long standing.

[ 35 ] I agree with the Crown that the cross-examination of the defendant casts doubt on his credibility. In his statement to police, he was unwavering in denying sexual assault. He was less clear about whether he had had sex with the complainant. When pressed about this issue by the interviewing officer, he said he did not recall. This is remarkable given that the interview occurred about one month after the events in question. Moreover, he told the police that sex and sexual assault are different. To the extent that these answers suggest there was sexual activity between the parties, it directly contradicts the defendant’s trial testimony. He explained the apparently different accounts given to the police by the fact he was confused and in shock. However, given his prior criminal record, I am confident this was not the first time he found himself in a police interview room. On the other hand, the interview itself shows that at the outset the defendant expressed confusion and shock along with concern about his son. Whether these considerations mean the defendant has at least raised a doubt or whether his evidence should be rejected does not matter in this case because I have concluded the evidence of the complainant cannot safely be relied upon.

[ 36 ] The complainant does not recall many details. This is not uncommon and is not necessarily a cause for concern. However, in this case that lack of memory includes important and obvious matters. This is even more remarkable than the defendant saying he does not recall if he had sex, one month after the encounter. The complainant’s relevant lack of memory is within one week of the events in question.

[ 37 ] The complainant testified she was subject to forced sexual intercourse on two consecutive days. She went to the police six days later and reported the second event. She did not mention the first one until the end of the interview and only after the officer asked a question by way of clarification. It appears the complainant forgot about the first event until prompted.

[ 38 ] The defendant has prominent tattoos on his chest, arms and (bald) head. He and the complainant confirm he was wearing a T-shirt. There is no evidence about whether it had long or short sleeves. In the video taken minutes before the defendant went to the complainant’s apartment - the “happy birthday, Sophie” video - the defendant is wearing a baseball hat over his head. If the defendant wore a long sleeve T-shirt and hat in the complainant’s apartment, she would not have seen the tattoos. Moreover, the complainant testified the defendant removed his clothing in her bedroom and that it was dark. However, although not remembering this at trial, she told PC Gooder that they went to the bedroom [together] and that is where the defendant “took off all his clothes”. This suggests the complainant saw the defendant fully naked, tattoos and all. In any event this report to PC Gooder contradicts her trial testimony that the defendant was without pants and that she does not know when they were removed.

[ 39 ] The issue of the defendant’s beard does not admit of alternative explanations for the complainant’s lack of recall and inconsistent statements. There is no question that at the time of these events, the defendant had a full beard. The complainant described him to the police as a man without facial hair.

[ 40 ] I have no doubt that the exchange of text messages in May 2024 is between the complainant and defendant. The phone numbers in question were identified by the parties as belonging to them. Moreover, the complainant confirmed receipt of a message from the defendant to her on June 7 involving the same phone numbers. On May 30, within hours of experiencing shock at having her hand placed over the defendant’s penis, and following sudden and forced vaginal intercourse, the complainant sent him a text message. The message is “hey you”, accompanied by a smiley face”. The response is, “how are you”, which the complainant acknowledged with another smiley face. The next day, the complainant sent a message to the defendant, “how are you”, to which there is no response. The Crown cautions me not to draw an adverse inference from complainant’s conduct based on generalized assumptions about how sexual assault victims should react to the crime. Defence counsel suggests the messages are relevant as they support the defendant’s testimony that “nothing happened”. In any event, what is not in dispute, is that the complainant has no memory of sending these messages.

[ 41 ] By her own admission the complainant was feeling “boozy” on the days in question. She added that she was nevertheless “aware of what was going on”. This awareness has been shown to be limited at best. That the complainant probably saw and does not remember seeing the defendant’s prominent tattoos, and certainly forgot that he had a full beard, can only be explained by her level of impairment. I am confident this is why she initially neglected to report the first allegation of sexual assault. This also explains why she sent the text messages soon after the second allegation, about which she also later had no memory.

[ 42 ] As an alcoholic, the complainant is a vulnerable person. My sympathy with what she described as her “struggle” is not a substitute for persuasive evidence. In this case, there is no independent evidence of sexual activity between the parties. At the end of the day, the prosecution rests on the testimony of a person whose impairment caused her not to notice or forget important and obvious facts that give context to, or form part of, the allegations. In these circumstances, the Crown cannot discharge its burden of proof.

[ 43 ] The charges are dismissed.

Released: February 20, 2026

Signed: Justice J. De Filippis