COURT FILE NO.: 11-SA5047 & 12-SA5042

DATE: 2014/09/17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent Crown

– and –

M. L. S.

Applicant/Accused

Marie Dufort, for the Crown

Anne London Weinstein, for the accused

HEARD: March 31, April 1-4, May 12-17, 20-23, 26-30, June 2, 6, 9, 11, 16 and 19, 2014 (at Ottawa)

REASONS FOR JUDGMENT

M. linhares de sousa j. (orally)

INDICTMENT

[1] On the Indictment before the Court, the accused, M. L. S., is charged with 22 offences involving 7 different complainants. In reference to the complainants and in the order in which they appear on the Indictment, the 22 counts are as follows:

1. With respect to the complainant, E.C. (counts 1, 2, 3 and 4), sexual assault (s. 271(1)CC), unlawful confinement (s. 279(2)CC), failure to comply (s.145(3)CC), and interference with lawful use (s. 430(1)(d)CC).

2. With respect to the complainant, I. (M.) N. (counts 5, 6 and 7), theft under $5,000 (cell phone) (s.334(b)CC), unlawful compelling (s. 423(1)(d)CC), failure to comply (s. 145(3)CC).

3. With respect to the complainant, M. D. (counts 8, 9, 10, 11 and 12), unlawful confinement (s. 279(2)CC), sexual assault (s. 271(1)CC), theft of credit card (s. 342(1)(a)CC), theft under $5,000 (cell phone) (s. 334(b)CC), and failure to comply (s. 145(3)CC).

4. With respect to the complainant, K.C. (counts 13, 14, and 15), unlawful confinement (s. 279(2)CC), theft under $5,000 (Nova Scotia identification card) s. 334(b)CC), and failure to comply (s. 145(3)CC).

5. With respect to the complainant, S.H. (counts 16, 17, 18, as amended regarding the date to read March 20, 2011 and not April 30, 2011), 19, and 20, unlawful confinement (s. 279(2)CC), sexual assault (s. 271(1)CC), theft under $5,000 (cell phone (s. 334(b)CC), criminal harassment (s. 264(3)CC), and failure to comply (s. 145(3)CC).

6. With respect to the complainant, N.N. (count 21), criminal harassment (s. 264(3)CC).

7. With respect to the complainant, B.H. (count 22), criminal harassment (s. 264(3)CC).

THE PLEA

[2] Mr. S. pleads not guilty to all of the counts on the Indictment and Mr. S. testified on his own behalf in response to the charges.

ADMISSIONS

[3] During the course of the trial certain admissions were made on behalf of Mr. S. by Defence counsel. The admissions were the following and admit the following facts:

(1) Exhibit # 2, filed on consent, was a series of documents, the first of which was an agreed statement of facts indicating: 1. It is agreed that Mr. M.S. used the name “J.W.”. 2. It is agreed that the phone number 613-XXX-XXXX is associated to M. S. and 3. It is further agreed that on March 26, 2011, Mr. M. S. was on a recognizance of bail and was on a condition not to possess any cellular phones. Exhibit #40, filed on consent, is M.S.’s Recognizance of Bail dated January 14, 2011. Condition 2 of the Recognizance indicates that M.L.S. is prohibited from possessing “any pagers or cellular telephone.” The other documents in Exhibit #2 included the business record of Globalive Wireless Management Corp. database administrator for Wind Mobile Company, obtained as a result of a production order granted to the Ottawa police indicating that between the dates of June 19, 2010 (date of activation) and September 29, 2011 (cancellation date) the mobile phone number 613-XXX-XXXX was registered to “J.W.” of XXX D[…] St., suite XXXX in Ottawa.

(2) Exhibit #20, filed on consent for both the case for the Crown and for the Defence, is a video, taken from the video camera located in the stairwell of an entrance to XXX D[…] Street which was obtained on the request of Detective Chevalier. The date the video was recorded was April 17, 2011.

(3) Exhibit #21 was an admission regarding the evidence of Mr. M.D.1 to the effect that, M.D.1 is the father of M.D. M.D.1 was away on a trip (retreat) during the night of April 16-17, 2011. On April 17^th, he dialed his daughter’s phone number (613) XXX-XXXX and a man that he did not know answered. He then exchanged text messages with his daughter’s phone number as follows (please see attached). The attached document referred to in the admission included copies of the exchanged text messages in question.

(4) Exhibit #23, filed on consent, was a taped recording of Mr. S. calling Detective Chevalier at the Ottawa police station on May 2, 2011, regarding his missing identification card which had been taken from him by K.C. and given to the Ottawa police by her. On the tape Mr. S. requests the return of his identification card. It is admitted that that is Mr. S.’s voice on the tape.

(5) Exhibits #30 and #30A, filed on consent, consist of the sexual assault examination kit report relating to the complainant S.H. and the forensic testing results relating to that sexual assault examination kit. The content of the forensic results of the DNA testing relating to S.H. was also admitted and indicated that semen was not detected on the vaginal swab and smear taken from S.H. Furthermore, no DNA profile, other than that belonging to S.H., was detected.

(6) Exhibit #43, filed on consent, is a photo lineup given to M.W. by the Ottawa police during which she identified photograph #3 of the accused, M. S., as the man she knew as J.W.. It is also admitted that M.W. met M.S. socially as J.W.. It is further admitted that M.W. received on April 22, 2011, and days following, text messages from J.W.’ telephone number (613-XXX-XXXX) and from a telephone number that is known from the evidence to be the telephone number of E.C. When text messages came from the telephone number of E.C. the person texting identified himself as R or Paul and then eventually identified himself to M.W. as J.W..

[4] In addition to the above mentioned admissions it was also agreed between counsel that certain issues were not in dispute. The jurisdiction of this Court to hear this matter was not in dispute. The dates and times of the alleged incidents as indicated on the Indictment are also not in dispute. Finally, the question of the identification of Mr. S., specifically, that the accused person before the Court, M.L.S., is the person alleged to have committed all of the acts stated in counts 1 to 22 of the Indictment, is also not in dispute.

SIMILAR FACT EVIDENCE ADMITTED

[5] During the course of the trial, I made a ruling concerning the admission of evidence on one or more counts of the multi-count Indictment before the Court as similar fact on the other counts relating to the issues of actus reus – modus operandi and the credibility and reliability of witnesses. The reasons for the ruling form part of the record. The evidence admitted as similar fact, in accordance with the ruling was also part of the body of evidence to be considered by the Court in coming to its final decisions on each count.

JURISPRUDENCE ON ISSUE OF CREDIBILITY

[6] Given the fact that credibility and reliability is so fundamental to this case, it would do well, at the outset, to instruct oneself on the legal test established by the governing jurisprudence to be applied in cases where the credibility of witnesses is in issue. The starting point is, of course, the words of Mr. Justice Cory in the Supreme Court of Canada case of R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742:

27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra, at p. 357.

28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well [page758] instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[7] While Mr. Justice Cory was dealing with a case involving trial by jury, those words clearly apply to the self-instruction undertaken by a judge while presiding over a criminal matter not involving a jury.

[8] Put another way and as it applies to this case, the approach set out by Mr. Justice Cory essentially means the following with respect to all or any one of the charges:

(1) If I believe Mr. S.’s evidence I must acquit him.

(2) If I do not believe Mr. S.’s evidence but I am left in a reasonable doubt by it, I must acquit him.

(3) Even if I am not left in doubt by Mr. S.’s evidence, I must ask myself whether, on the basis of evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of Mr. S.’s guilt.

[9] Furthermore, if after a careful consideration of all of the evidence, I am unable to decide whom to believe, I must acquit Mr. S.

[10] As a starting point the evidence of each and every witness, inclusive of the accused, must be examined and assessed as a whole with equal scrutiny. As indicated by Finlayson J. A. in R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53, the evidence of the accused ought not to be scrutinized to a higher degree. Finlayson J. A. states:

15 The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation. ... This is particularly true where the Crown’s case depends solely on the unsupported evidence of the complainants and where the principal issue is those witnesses’ credibility and reliability. ...

[11] This approach is particularly important if the second and third branches of the W.(D.) test are to be properly applied. Citing with approval the decision of Charron J. A. in R. v. Dinardo, 2008 SCC 24, [2008] 1S.C.R. 788, McLachlin C. J., who was dealing with the issue of the sufficiency of a trial judge’s reasons in findings of credibility, had the following to say in her decision R. v. R. E. M. 2008 SCC 51, [2008] S.C.J. No.52 at paras. 31 and 50:

31 More recently, in R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24, the Court, per Charron J., rejected a formalistic approach. The case turned on credibility. The trial judge's reasons failed to articulate the alternatives to be considered in determining reasonable doubt as set out in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. Charron J. stated that only the substance, not the form, of W.(D.) need be captured by the trial judge, then went on to say:

In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. [para. 23]

50 What constitutes sufficient reasons on issues of credibility may be deduced from Dinardo, where Charron J. held that findings on credibility must be made with regard to the other evidence in the case (para. 23). This may require at least some reference to the contradictory evidence. However, as Dinardo makes clear, what is required is that the reasons show that the judge has seized the substance of the issue. "In a case that turns on credibility ... the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt" (para. 23). Charron J. went on to dispel the suggestion that the trial judge is required to enter into a detailed account of the conflicting evidence: Dinardo, at para. 30.

[12] In any case where there is conflicting evidence, such as in this case, a comparison of the credibility of the individual witnesses may be necessary and even acceptable. However, it is clear from the above mentioned jurisprudence that that alone is not sufficient if the second and third steps of the W. (D.) test are to be carried out properly, namely, there must also be a consideration of whether the evidence which is ultimately accepted by the trial judge proves the Crown’s case beyond a reasonable doubt on each of the 22 counts before this Court. Conviction of Mr. S. of any of the charged offences may only happen if I am satisfied that the Crown has proved each and every element of the offence beyond a reasonable doubt. If after considering all of the evidence I am not sure that Mr. S. committed one of the offences charged then, I must find him not guilty of that offence.

[13] In the case of R. v. Cyr, 2012 ONCA 919, the Ontario Court of Appeal was considering the failure of a trial judge to isolate a certain piece of evidence for a W. (D.) instruction to the jury. Watt J. A. at paras. 49-53 inclusive states as follows:

49 Second, the suggested instruction in W. (D.) is not a sacrosanct or sacred formula as the decision itself points out: R. v. W. (D.), [1991] 1 S.C.R. No. 742, at p. 758; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. No. 716, at paras. 20 and 23; R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at paras. 82-84. Failure to parrot the precise language of the W. (D.) formula is not fatal, provided the charge, read as a whole, makes it clear that the jury could not have laboured under any misapprehension about the placement of the controlling burden, and the substance of the standard of proof that governed their deliberations: W. (D.), at p. 758; Simon, at para. 82.

50 Third, the W. (D.) instruction, or its functional equivalent, is not limited to an accused's testimony or statement admitted at trial, rather it extends to other exculpatory evidence that emerges during trial proceedings: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 113-114.

51 Fourth, the purpose of the W. (D.) instruction or its functional equivalent is to ensure that the jury understands how to apply the burden of proof to the issue of credibility. The jury must be cautioned that a trial is not a contest of credibility between witnesses, a matter of choosing sides as it were, and that the jurors do not have to accept the defence evidence in full to find the accused not guilty: Van, at para. 23; W. (D.), at p. 757; and R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. No. 152, at para. 9.

52 Fifth, a trial judge is not required to relate his or her reasonable doubt instruction to specific items of evidence, whether consistent with the defence or the Crown's theory of the case: R. v. M.R. (2005), 2005 5845 (ON CA), 195 C.C.C. (3d) 26 (Ont. C.A.), at paras. 45-46.

53 Finally, the failure to expressly relate a W. (D.) or equivalent instruction to a particular item of evidence is not fatal, provided that the charge, taken as a whole, makes it clear to the jury that they are to apply the presumption of innocence and the burden of proof to all the evidence adduced at trial: Van, at paras. 22-23; B.D., at para. 120; and R. v. Lifchus, [1997] 3 S.C.R. No. 320, at para. 40.

THE COMPLAINANTS AND MR. S.

[14] The charges before the Court relate to the seven complainants identified in the Indictment. For the most part, the evidence in support of the Crown’s case on all of the charges was provided by those complainants who testified at trial. In addition there were eye witnesses to events relating to the charges as well as police witnesses and medical professionals who interacted with some of the complainants after the alleged events who also testified at trial. It is my intention to deal with the evidence in the order of the charges and complainants as they appear on the Indictment.

[15] In his evidence given at trial, Mr. S. does not deny interacting with all seven complainants on the dates in question and in the locations indicated in the Indictment. In his testimony, he admitted to meeting and interacting with six complainants. In the case of the seventh, B.H., Mr. S. did not meet her personally but admitted to communicating with her on her cellular telephone. However, Mr. S. denies that his interactions and communications with the complainants occurred as alleged by each of them on each count. As a result, he denies that he is guilty of the constituent elements of each of the offences on the Indictment.

[16] Furthermore, in his testimony, Mr. S. admitted to being under the influence of alcohol, or having had “a lot to drink” during his interactions with all five complainants referred to in counts 1 to 20 in the Indictment. It is not disputed that the five complainants referred to in those counts, as revealed by the evidence, were also under the influence of alcohol during their interactions with Mr. S. on the date in question.

[17] Clearly, the questions of credibility of witnesses and the reliability of witnesses’ recollection of events are in issue and fundamental to this case.

ASSESSMENT OF MR. S.’S EVIDENCE AS A WHOLE

[18] I will deal with the specific evidence presented by Mr. S. in response to each and every count on the Indictment in greater detail when I consider the evidence relating to the individual counts and complainants. It is acknowledged that Mr. S.’s evidence needs to be examined afresh with each and every charge as with all the other witnesses’ evidence needs to be assessed and evaluated in the context of each and every count and in the context of all of the evidence admitted and presented at the trial. Nonetheless, after a careful examination of all of the evidence and often based on Mr. S.’s own testimony, there are some general observations to be made with respect to the credibility and reliability of Mr. S.’s evidence.

[19] That examination, leads one to the conclusion that Mr. S.’s credibility and the reliability of his evidence was seriously challenged as suspect by the evidence as a whole. The following are just some examples of his admitted dishonesty. Mr. S. admitted to being deceitful at various times in his interactions with certain complainants for the purpose of either prolonging his time with them or for persuading them to come with him to a particular location. Mr. S. admitted to being deceitful as to his true identity in his communications with a number of the complainants. Mr. S. admitted to lying in the content of his communications with certain complainants. Mr. S. admitted to using another name, J.W., for the purpose of having a cellular phone which he was prohibited from having by a court order. Mr. S. admitted to using for his own purposes property belonging to the complainants such as a telephone and a credit card under the name of one of the complainants, Ms. M. D. Mr. S.’s statements to Detectives Jeff Webster and Denis Chevalier on May 9, 2011, which were admitted in evidence, conflicts with his evidence given at trial regarding the various counts. Mr. S. admitted to not answering honestly to the investigators’ questions because he does not like police, does not cooperate with them and would say things to them he did not mean to say in order to get them to stop questioning him. He also admitted to Detectives Jeff Webster and Denis Chevalier on May 9, 2011 that he also sometimes made up lies to “be cool.” (Exhibit #42, page 179).

[20] I now proceed to an analysis of the evidence relating to the individual counts on the Indictment.

THE INCIDENT REGARDING E.C. (COUNTS 1, 2, 3 AND 4)

EVIDENCE OF MR. S.

[21] Mr. S. testified that he recalled meeting the complainant, E.C. in the following way. He could not really remember what he had been doing earlier in the evening of April 22, 2011, maybe he had been at a strip club, but he had had a lot to drink and was intoxicated. Mr. S. admitted to being an alcoholic at that time in his life. He was driving alone in his car in the market area of Ottawa at a very slow speed when he noticed Ms. C. trying to get into his car. Mr. S. estimated that this was around 3 a.m. in the morning. According to Mr. S. he stopped his car and opened the front passenger door for her and she got in.

[22] Mr. S. testified that he recalls them exchanging names very quickly but apart from that there was no other conversation. According to Mr. S. he “needed like sorta gas money” (Proceedings at Trial, page 101, June 10, 2014) and so he was prepared to drive her somewhere if she told him where. However, apart from her name nothing else was said and so he just began to drive. When questioned about where he drove he did not know. When cross-examined about why he did not ask Ms. C. where she wanted to go Mr. S. said maybe he did ask her and maybe he forgot. According to Mr. S. he was drunk and was not thinking.

[23] Mr. S. testified that while he was driving, Ms. C., at first, seemed normal, sitting there and not saying anything. Mr. S. testified that he could not smell alcohol but he suspected that Ms. C. had been drinking. However, he disagreed with Crown counsel, on cross-examination, that Ms. C. was drunk. Then, according to Mr. S., Ms. C. began to have outbursts and would try to grab his steering wheel or change the gear shifts and try to crash his car. Mr. S.’s response was to stop the car. Ms. C. would get out of the car walk around and then come back inside his car, without saying anything again. He let her get back in the car and he would continue driving, although again he could not say where he was driving.

[24] On cross-examination Mr. S. testified that this happened at least seven times after intervals of 30 or 40 seconds. According to Mr. S. he began to drive with one hand on her and one hand on the steering wheel so that he could anticipate her movements and so prevent a disaster. After the last time, according to Mr. S., he got sick of it and when she exited the vehicle for the last time he just left her there and drove away. Mr. S. had no idea where he left Ms. C. but on cross-examination he testified that it did not take him long to get to his house from the location.

[25] When cross-examined as to why he let Ms. C. re-enter his car so many times Mr. S. testified that he was drunk and was not thinking. He kept thinking she would stop and come to her senses.

[26] Mr. S. denies ever touching sexually Ms. C. Nor did he attempt to force her to touch him, nor did he ever threaten her.

[27] It was Mr. S.’s evidence that Ms. C. left her cellular telephone in his car because he found it on the floor of the car in the front passenger side the day after the incident. He testified that he kept the telephone because it was in his car and took it to his apartment.

[28] Mr. S. admitted to using Ms. C.’s lost phone to text and call a few friends. In fact, his evidence was that he used Ms. C.’s telephone as much as he could before the telephone service was terminated. Based on Mr. S.’s evidence and the admissions made by him, one of the “girls” to whom Mr. S. texted after April 22, 2011, using Ms. C.’s telephone number, was M.W. who had met Mr. S. socially as J.W.. Exhibit #43 was the photo lineup evidence of Ms. W. identifying Mr. S. as the individual she had met socially under the name of J.W..

[29] Mr. S. never made any attempts to return Ms. C.’s phone to her and according to Mr. S., Ms. C. never attempted to call her phone while he had it. Mr. S. testified that he no longer has Ms. C.’s phone nor did he give evidence as to what he did with it or with any of the other cellular phones he acquired from the various complainants.

EVIDENCE OF E.C.

[30] Ms. C. testified that in the spring of 2011 she lived in the area of Gatineau, Quebec. On April 22, 2011, she and a group of friends planned to meet at a club, Zaphod’s, located on Y.S., in the market area of Ottawa to celebrate a friend’s birthday. K.L. was Ms. C.’s friend whose birthday was celebrated and who testified that she spent most of the night with Ms. C. because they were good friends.

[31] Ms. C. testified that to travel the distance to Ottawa from Gatineau and back, her intended mode of transportation was the use of an underground taxi service called Galaxy. She had used this service for about six years and found it to be a convenient and cheap service. According to the testimony of Ms. C., Galaxy is a small company using unmarked cars, who become familiar with you and your destination and you with them. She used this service to get to Zaphod’s around 11:00 p.m. on April, 22, 2011, and intended to use it to return home after partying with her friends.

[32] Ms. C. testified that that evening she was wearing a short print dress and boots, no underwear, a jacket, she had a clutch purse in which she had her cell phone (a white HDC dream phone) that had all her personal contacts, social and business such as her banking information and pictures. Ms. C. also had her keys, some money (she thought about $160) and cigarettes in her purse.

[33] It was also the testimony of Ms. C. that she needs and wears glasses to see distances. She was not wearing her glasses that evening.

[34] It was the evidence of Ms. C. that she celebrated with her friends at Zaphod’s until approximately 3 or 4 in the morning when she and her group of friends exited the club to go their separate ways. Ms. C. testified that before exiting Zaphod’s she had called, using her cell phone, the Galaxy dispatch to have a driver pick her up to take her home from the club.

[35] With respect to how much she had to drink, Ms. C. testified to drinking “quite a bit”. In addition, because she did not have to work the next day she had mixed her drinks. Ms. C. also testified that one of her friends had a joint of marijuana that evening and she remembered taking only one puff. According to Ms. C. this was not a usual practise for her and she had only consumed marijuana some seven years before that night. Ms. L. testified that she would have thought it out of character if she knew that Ms. C. had smoked marijuana that night. She did not see Ms. C. smoke marijuana that night.

[36] With respect to how she was feeling as she exited Zaphod’s with her friends, Ms. C. testified that she was clearly inebriated and wobbly but was not stumbling, falling down, feeling sick or disoriented. On cross-examination Ms. C. indicated that her level of intoxication that night was a unique experience in that she was more intoxicated than she had ever been in her life.

[37] Ms. L., testified that she was smoking a cigarette with Ms. C. outside Zaphod’s after her group of friends had exited Zaphod’s and had gotten some food and while Ms. C. was awaiting the arrival of her underground cab. To Ms. L.’s observation, Ms. C. was clearly intoxicated but, as she testified, not to the point of being sick or passing out. It did not cross her mind that it would be unsafe to let Ms. C. leave for home alone. She had seen her more or less as intoxicated before.

[38] Ms. L. could not remember if she, herself, had consumed alcohol before going to Zaphod’s. Her recollection was that she had had five or six drinks during the course of the evening. She acknowledged being under the influence of alcohol by the end of the evening.

[39] It was the evidence of Ms. C. that while she was standing outside Zaphod’s with her friends waiting for her underground cab she received a call from the Galaxy dispatch that her car was there. She noticed a car in front of the club that she thought was her driver so she said good bye to her friends and went towards the car and entered into the front passenger seat.

[40] With respect to her recollection of the car and its description, Ms. C. could not remember the colour of the car but she did not think it was a modern model. Ms. L. observed her friend, Ms. C. get into the front passenger seat of a bluish-green car, that she thought was the underground cab her friend had called to take her home that night. The car was not a brand new model. Ms. L. observed the driver of the vehicle to be an African Canadian black male. She could not recall hearing anything being said when her friend entered the car. That was the last Ms. L. saw of her friend that evening. She later heard from Ms. C. what Ms. C. alleges happened to her and observed her to be upset and “slightly traumatized” in the recounting of her experiences that evening.

[41] There is no dispute on the evidence that the driver and owner of the vehicle into which Ms. C. entered that evening upon leaving Zaphod’s after the celebration with her friends was Mr. S. There are some notable resemblances in the evidence of Mr. S. and that of Ms. C. concerning the entrance of Ms. C. into Mr. S.’s vehicle.

[42] Ms. C. testified that once she got into the front passenger seat, the place she usually takes, she is not sure whether she gave the driver her address. It was her evidence that because she used the service frequently, the cab service had her address on record associated with her name. On this point, Ms. C.’s evidence may indeed confirm Mr. S.’s evidence that when she entered his car he was not told by Ms. C. where she wanted to go. Ms. C. testified that upon getting into the vehicle she might have glanced at the driver but she did not think it was a full glance. Ms. C. had no recollection of having any conversation with the driver of the car.

[43] However, Ms. C.’s recollection of the drive in Mr. S.’s car was very different from that testified to by Mr. S. Ms. C. testified that she began to get nervous during the ride and found the situation weird when she noticed that the driver passed two turns which logically would have taken her to her home. When she pointed this out to the driver he did not respond in any way to her which made her more nervous and begin to feel scared. Ms. C. recalled looking at the driver at this point and noticing that he was black.

[44] As to her ability to recall the period of time in Mr. S.’s vehicle, Ms. C. testified that things were not clear in her memory, she may have had moments of going in and out of consciousness and everything was blurry and things seemed to be spinning. She recalled feeling very weak having difficulty keeping her head up straight or even turning her head. She had no knowledge of how long she was in the car driving because there were periods of time she could not remember.

[45] Ms. C. testified that she remembered getting progressively nervous and scared with her situation and she began thinking about how to get out of the car.

[46] Her evidence was that she discreetly, without the driver noticing, attempted to use her cell telephone that was in her purse but it did not work. She recalled using her telephone to call for her underground cab after the celebration at Zaphod’s but she had not powered it that day and the battery seemed dead.

[47] Ms. C. testified that she also tried the car door handle to see if it would open to let herself out but the door was locked and she could not locate the lock.

[48] Ms. C. testified that at one point when she noticed that they were crossing a bridge she tried to reach over with her right hand and grab the steering wheel from the driver in the hope of stopping the car. At this point she was very frightened. According to Ms. C., Mr. S.’s response to this was to gently nudge her with his right hand back into her seat saying to her as he did so to relax. Ms. C. testified that he did not hit her or threaten her but that he did not respond when she remembered telling him to stop.

[49] Ms. C.’ evidence was that the next memory she has is of Mr. S. coming towards her, looming over her and trying to kiss her. In her examination in chief Ms. C. stated that the car was parked at this time. On her cross-examination Ms. C. indicated that she was not sure whether Mr. S. was still driving when he attempted to kiss her. But, she turned her head away.

[50] Ms. C. testified that Mr. S. then put his left hand on her thigh and then put two fingers in her vagina. This was followed by him taking her hand and putting her hand on his bare penis, which he had taken out from his pants, to make her stroke him. In her evidence Ms. C. did not remember if she saw Mr. S.’s penis or if he was circumcised or not. She did not think that his penis was fully erect.

[51] The last memory Ms. C. had before blacking out was Mr. S. pulling her face down towards his genitals, and to her understanding attempting to have her engage in fellatio. She had absolutely no memory of what happened after that in Mr. S.’s car until she woke up later that morning in a different car.

[52] With respect to this last alleged sexual act, it was only at the trial that Ms. C. first provided this evidence. It was not a detail that showed up in the documents of the sexual assault examination kit which she subsequently underwent. It was not information she gave to Detective Cashen when the police began to investigate her case nor was it mentioned in her testimony at the Preliminary Hearing which was held in this matter. On her cross-examination Ms. C. testified that she had no specific memory of performing oral sex on Mr. S.

[53] When questioned about her response to what was happening to her in Mr. S.’s car she testified that she panicked and was crying and tried to get him off her but she could not move him. His response was again to tell her to relax.

[54] Ms. C. testified to seeing Mr. S.’s face clearly as it was coming out of the darkness towards her as he went to kiss her. Her evidence was that he reminded her of the cartoon character, Mr. Potato Head, with a big nose and lips and ears sticking out. Ms. C. recalled Mr. S. wearing jeans, and a white striped shirt that night.

[55] Ms. C., on May 16, 2011, some 24 days after the incident, participated in the photo lineup prepared by Detective Webster in the manner testified to by him at trial. She identified photograph #3 in that photo lineup as the individual in whose car she had been on the night in question. That photograph was that of Mr. S. The video and the results of Ms. C.’s photo lineup were filed as exhibits #31 and #32.

[56] The following evidence of what happened to Ms. C. when she woke up after the incident does not appear to be in dispute. Ms. C. testified that her next memory, after having lost consciousness when she stated she did, was waking up, later on the morning of April 22, 2011, around dawn, in a parked Dynacare vehicle, in the area of the General Hospital. She was slumped over the console of the car with her coat on. She had no memory of how she got into that vehicle nor did she know where she was.

[57] According to Ms. C. there was no sign of Mr. S. and she was afraid that he would return. She began to collect her personal items. She found her purse that still contained her keys and identification card and her debit card but was missing her money and her cigarettes. She specifically looked for her telephone to use it to call for help but she could not find it. She had forgotten that it had no power the night before. She tried to “jack” the car to work even though she had never done that before.

[58] With respect to how she was feeling, Ms. C. testified that, physically she was feeling fine, did not feel intoxicated, groggy or nauseous but emotionally she was vulnerable, not knowing the full extent of the sexual assault she had endured the night before.

[59] Ms. C., in her evidence, recalled, after exiting the Dynacare car, approaching a building and banging on a window and crying for help. She was not let in and was directed by an individual to go to the General Hospital which was nearby.

[60] Sherry Lynn Anne Collins was the individual in the Gama Dynacare laboratory, located in an industrial park close to the intersection of Smyth Road and Alta Vista in Ottawa, who interacted with Ms. C. for about 2 or 3 minutes, at the door of the laboratory and had to inform her, despite her pleas for help, that she could not be permitted entrance into the building and directed her to the nearby General Hospital.

[61] Ms. Collins observed Ms. C. to appear to be disoriented, not knowing where she was; her eyes glazed and had a sheen like she had been crying. She could not smell any alcohol on Ms. C. To her observation, there was no indication that Ms. C. needed medical help. Ms. Collins had no concern about her getting to the General Hospital herself, which was about a 5 minute walk away. When coming to work that morning Ms. Collins did note some vomit by the door of the lab and connected it later to the woman with whom she had interacted that day.

[62] Ms. C. testified to arriving at the General Hospital and calling her friend, S., who came to the hospital arriving shortly after her call. While Ms. C. just wanted to go home her friend insisted that she stay at the hospital for an examination and that the police be called which was what happened. Police Constable Chelsey Bull was called to the scene and took a statement about the incident from Ms. C. which included a description of the driver of the vehicle she was in. She observed Ms. C. to be emotionally upset and at times crying uncontrollably. The officer had no recollection of Ms. C.’s level of intoxication.

[63] The evidence showed that Ms. C. submitted to a sexual assault kit examination that day which was carried out by Ms. Debora Lynn Joyce, a registered nurse and specially qualified to carry out such an examination. During this examination Ms. C. testified to being emotional and scared. Physically, she was ill to her stomach after taking some medication.

[64] Ms. Joyce gave evidence about the process of the sexual assault kit examination that she carried out on Ms. C., which took a few hours. Ms. Joyce testified that Ms. C. did not appear to have much recollection of what had happened to her the night before.

[65] The report of the sexual assault examination kit carried out by Ms. Joyce was filed as exhibit #33. Page 4 of that report indicates that Ms. Joyce received information from Ms. C. that she had been kissed on the mouth and that she had been digitally penetrated in her vagina. There was no physical evidence, arising from the sexual assault kit examination of Ms. C., to link Mr. S. to the sexual assault of Ms. C.

[66] It was Ms. C.’s evidence that she never did get her telephone back. She attempted, through her service provider, to track it but without success. However, according to Ms. C. she received, orally and subsequently in a statement, from her service provider, a list of telephone numbers, texted and called from her telephone after the April 22, 2011 incident, on April 23, 2011, which she did not make. She eventually terminated her service and got a new phone.

[67] Ms. C. testified that she told her friends that she lost her telephone and to her knowledge none of her friends received any calls from her lost telephone number.

ANALYSIS OF THE EVIDENCE REGARDING THE COUNTS RELATING TO E.C. (COUNTS 1, 2, 3 AND 4)

[68] Throughout the tendering of her evidence, I was not given any reason to question Ms. C.’s honesty and credibility. She was honest in testifying about her activities and her state of intoxication on the evening in question, also confirmed by other witnesses. Ms. C. was honest and frank about what she could not remember and what she could remember of the events in question. She acknowledged on cross-examination being in and out of consciousness during part of the drive and the events. She acknowledged on cross-examination that her trial evidence about Mr. S. pulling her head towards his lap, just before she lost consciousness, was a new memory and not information she had given to the police when she was questioned by them about any sexual contact she may have had with the driver.

COUNT 1

[69] With respect to count 1 and the allegation of sexual assault, I accept that in the giving of her evidence Ms. C. was attempting to be truthful. However, in light of Ms. C.’s condition on the night in question and the fact that Ms. C.’s own evidence was that she was more intoxicated than she had ever been in her life that day, reliability, in my view, is the main issue relating to her evidence.

[70] Nonetheless, an examination of the evidence as a whole indicates that there are substantial indicia of the reliability of Ms. C.’s evidence. Based on all of the evidence, I believe her evidence and I accept her evidence as reliable for the most part for the following reasons.

[71] Firstly, despite being in and out of a state of consciousness during the drive, Ms. C., based on her evidence, had enough consciousness and mental capacity to know that something was wrong with the progress and direction of the drive she was embarked on and the lack of response from the driver when she pointed this out to him. She had enough consciousness and mental capacity to attempt to logically help herself, even if all of her attempts failed. By this, I mean her attempt to unlock the car door, use her telephone to call for help and finally in desperation take control of the wheel of the car.

[72] Secondly, despite being under the influence of the substances she consumed that evening, Ms. C. was consistent in what she testified to specifically remembering about the nature of the sexual assault she suffered that evening. She recalled Mr. S. moving to kiss her, and the penetration of her vagina with his fingers. Ms. Joyce, the nurse who carried out the sexual assault examination kit testified that Ms. C. seemed to have little memory of what had happened to her. Nonetheless, based on the documents of the sexual assault examination kit, although she could remember little of what happened to her, as testified to, Ms. C. did inform Ms. Joyce that she was kissed on the mouth and that she had been digitally penetrated in her vagina. The evidence indicated that Ms. C. was not wearing any underwear that evening so there was an easy opportunity for committing such penetration by someone sitting next to her.

[73] Thirdly, the evidence of Ms. C.’s emotional upset, as observed by a number of witnesses, is consistent with the trauma of a sexual assault testified to by Ms. C.

[74] Finally, some 24 days later, a relatively short period of time after the event, Ms. C. was able to identify Mr. S. as the individual who had sexually assaulted her on the day in question. Her eye witness identification of Mr. S., in my view, is solidly based. Ms. C. testified that she did not really look at the driver of the vehicle when she first entered it. However, as time went on and as she began to be more scared because of the direction the drive was taking, about which she was very conscious, she had the opportunity to see Mr. S. up close. She was sitting right beside him and he held her back in the seat with a stretch of his hand when she moved to grab the wheel. She noticed his skin colour. She had the opportunity to see his face directly and up close as he loomed over her in his movements to kiss her. Ms. C. requires glasses for distances so that the absence of her glasses that evening would not have affected her ability to see up close. As unflattering as it may be, Ms. C. recalled Mr. S.’s appearance by reference to a cartoon character which helped her recall aspects of his face, head and hair.

[75] The evidence tendered by Mr. S. concerning his interactions with Ms. C. cannot be believed for a number of reasons. There is evidence to support the finding that Mr. S. willingly gave rides to people for money as a way of filling up the gas tank of his car. This was information Mr. S. gave to the police even though, on his own evidence, he may have been lying to the police about this. However, this fact was supported in the evidence of other complainants by way of similar fact evidence, who also gave Mr. S., or was requested by Mr. S. to give him money, for gas, supposedly in return for the ride he was giving them such as the case with S.H., M. D. and Ms. P.T. Mr. S., himself, testified that on the night in question, he allowed Ms. C. to get into his car as he needed gas money and would have gladly driven her somewhere if she had told him where. In light of this evidence and even accounting for Mr. S. being under the influence of alcohol, as he testified, it is rather curious, to the point of incredulity, that he would not have asked her where she wanted to go when she was not forthcoming with a desired destination and that he would have just driven around, while needing gas money, without a destination.

[76] It is equally incredulous that Mr. S., even under the influence of alcohol, would have thought that this behaviour on Ms. C.’s part, just sitting there in his car and not saying anything was “normal”. From the evidence as a whole I conclude that it would have been normal from Ms. C.’s point of view, who thought, according to her evidence, that she had entered the underground taxi she had called earlier and that by just giving her name would have signalled her destination to the driver but certainly not normal from Mr. S.’s point of view.

[77] I find it equally hard to believe that Mr. S., even given his condition that evening, would have tolerated seven attempts by Ms. C. to grab control of his car and crash it before ridding himself of such a passenger. Also hard to believe is the fact that Mr. S. could recall how many times Ms. C. attempted to crash his car but he had no recollection of where he had driven that evening other than to say that when he left Ms. C. on the road he was not far from his home.

[78] For these reasons, I do not believe the evidence of Mr. S. relating to his dealings with Ms. C. on the date in question. For the same reasons, his evidence does not leave me with a reasonable doubt.

[79] Based on all of the evidence, I am persuaded that Mr. S. was well aware of the mistake Ms. C. was making when she entered his car. I conclude that he was disingenuous in testifying that while he suspected Ms. C. had been drinking he did not think she was drunk. There is sufficient objective evidence to conclude that her state of intoxication would have been obvious to anyone. Based on the evidence I accept, I am persuaded beyond a reasonable doubt of the following: that Mr. S. permitted Ms. C. to mistakenly enter his car in her drunken state, drove her in his car without informing himself of her desired destination and to where he determined to go; that he ignored her verbal protests to stop and physically prevented her from taking control of his car when she tried to grab the wheel; and that he then sexually assaulted her as testified to by Ms. C.

[80] I therefore find Mr. S. guilty of count 1 on the Indictment.

COUNT 2

JURISPRUDENCE ON OFFENCE OF UNLAWFUL CONFINEMENT

[81] The allegation under count 2 of the Indictment is that Mr. S. “did without lawful authority confine E.C. contrary to Section 279, subsection 2 of the Criminal Code.” Subsection 279(2) reads as follows:

Forcible confinement

279(2) Everyone who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; …

[82] I commence my discussion of this count with an examination of the jurisprudence dealing with the offence of unlawful confinement. This discussion will also apply and be relevant to counts 8 (M.D.), 13 (K.C.) and 16 (S.H.).

[83] Much of the jurisprudence dealing with this section and the constituent elements of the offence (the requisite mens rea and actus reus) have dealt with unlawful confinement in the context of a subsequent death or in the context of drawing a distinction between the offence of kidnapping and unlawful confinement. From this jurisprudence one is able to clearly determine the constituent elements of the offence of unlawful confinement, all of which Crown counsel must prove beyond a reasonable doubt in order to make out the charge.

[84] In the case of R. v. E. B., [2006] O.J. No. 1864 (S.C.), Watt J. (as he then was ) discussed the constituent elements of the offence of unlawful confinement, particularly the mental element as follows:

122 Unlawful confinement does not require proof of any specific intent or ulterior mental element to establish guilt. The prosecutor must establish that anyone charged with the offence intended to deprive his or her victim of his or her liberty to move from place to place, from one to another or others. See, R. v. B. (S.J.) (2002), 2002 ABCA 143, 166 C. C. C. (3d) 537, 552 (Alta. C.A.) per Berger J. A.

485 The unlawful confinement offence of section 279(2) requires proof of external circumstances that include the confinement of another person and the absence of unlawful authority, and a mental or fault element that requires no state of mind beyond the intention to cause the external circumstances of the offence. Said differently, the prosecution need not prove any specific or ulterior intent.

490 The mental element that must be established to prove an allegation of unlawful confinement is the intent to deprive the victim of movement. In the traditional but criticized division of the mental element into crimes of general and crimes of specific intent, unlawful confinement falls squarely into the general intent camp. See, R. v. B. (S. J.) (2002), 2002 ABCA 143, 166 C. C. C. (3d) 537, 552 (Alta. C. A.) per Berger J. A. CF. the mental element in kidnapping in section 279(1).

[85] Watt J. (as he then was) again discussed the constituent elements of the offence of unlawful confinement in the case of R. v. Fatima (2006), 2006 63701 (ON SC), 42 C.R. (6th) 239, 2006 CarswellOnt 5195, a case, of first degree murder rooted in an unlawful confinement at paras. 71-74:

71 Unlawful confinement is one of three offences created by s. 279(2) of the Criminal Code. The parenthetical reference to "forcible confinement" (a somewhat inaccurate description) is a descriptive cross-reference that forms no part of the provision and is deemed to have been inserted for convenience of reference only. See, Criminal Code, s. 3.

72 An unlawful confinement under s. 279(2) involves the confinement of another person without any lawful authority on the part of the accused to do so.

73 The external circumstances of the offence of unlawful confinement consist of the confining of another person. In ordinary usage, "confinement" means the state or condition of being confined, restriction or limitation. To confine another person is to keep that person in a place, within or to limits, or a defined area, to restrict or secure that person. In other words, confinement generally consists of restraining another person's liberty, though not necessarily the other's ability to escape.

74 Under s. 279(2) of the Criminal Code, an unlawful confinement also consists of restricting the victim's liberty, but not his or her ability to escape. The restriction need not be to a particular place or involve total physical restraint.

[86] The test established by Watt J. in R. v. E.B., supra was cited with approval and applied in a number of cases. In R. v. Kematch, 2010 MBCA 18, (2010), 252 C.C.C. (3d) 349, Monnin J. A. discussed the requisite actus reus of the offence of unlawful confinement in the following words at paras. 88-89 of his reasons:

88 …

…The external circumstances of the offence of unlawful confinement consist of the confining of another person. In the ordinary usage, “confinement” means the state or condition of being confined, restriction or limitation. To confine another person is to keep that person in a place, within or to limits, or a defined area, to restrict or secure that person. In other words, confinement generally consists of restraining another person’s liberty, though not necessarily the other person’s ability to escape.

Under section 279(2) of the Criminal Code, an unlawful confinement also consists of restricting the victim’s liberty, but not his or her ability to escape. The restriction need not be to a particular place or involve total physical restraint.

...At its core, then, unlawful confinement involves a deprivation of another person’s liberty.

89 … In the present case, although there were no actual physical restraints in the nature of bindings or handcuffs or barriers over Phoenix, except occasionally by a barrier, the young child was clearly physically restrained and restricted and directed at times to either remain in her bedroom or forbidden to leave the basement, to which she was regularly banished. Actual physical restraint or coercive restraint, as referred to by Binnie J. in Pritchard, is required, but depending on the circumstances it can be effected, as here, by fear, intimidation and psychological and other means…

[87] At para. 97 of Kematch, Monnin J. A. concludes as follows:

97 I am of the view that Pritchard and E. B. -- which refer to and acknowledges Gratton -- represent the correct understanding of the constituent elements of unlawful confinement. …

[88] In the case of R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at paras. 24-25 Binnie J., dealing with facts where a killing had occurred in the course of an unlawful confinement, had the following to say:

A. Unlawful Confinement

24 The authorities establish that if for any significant period of time Mrs. Skolos was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement within s. 279(2): see Luxton, at p. 723; R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), per Cory J. A. at p. 475; R. v. Tremblay (1997), 1997 10526 (QC CA), 117 C. C. C. (3d) 86 (Que. C. A. ), per LeBel J. A. (as he then was), at pp. 91-92; and R. v. Mullings, 2005 CarswellOnt 3022 (S.C.J.) per Durno J., at para. 39.

25 Some confusion is caused by the words “forcible confinement” appearing in parenthesis in s. 231(5)(3). The parenthetical note is not an operative part of s. 231(5)(e) but is inserted only for ease of reference. In s. 279(2) itself, the adverb “forcible” is used only to qualify the verb “seizes”. It is not used to qualify either “confines” or “imprisons”. The word “forcible” in s. 231(5)(e) adds nothing to the elements of the offence set out in s. 279(2). What is important to note about s. 231(5), however, is not only that it refers to the enumerated offences (such as s. 279(2)) but that it requires a temporal and causal relationship between the killing and the commission of the enumerated offence, as will be discussed.

[89] As part of the discussion about the essential elements of the offence of unlawful confinement, some other cases worth mentioning are those that had to explain the difference between the offences of kidnapping and unlawful confinement on the facts of their case. One of these is the Quebec Court of Appeal decision in R. v. Tremblay (1997), 1997 10526 (QC CA), 117 C.C.C. (3d) 86, [1997] J. Q. No. 1816. On the facts of that case, the victim accepted the invitation of a ride home after work from the accused. After getting into his car the accused repeatedly refused to follow her directions to her home. She eventually escaped by opening the unlocked car door and jumping out of the moving vehicle. The issue in the case became whether the accused could be found guilty of unlawful confinement where the victim had voluntarily entered into the vehicle where the alleged confinement had taken place.

[90] In that case the Quebec Court of Appeal examined a number of Ontario cases (R. v. Dollan and Newstead (1980), 1980 2847 (ON SC), 53 C. C. C. (2d) 146; R. v. Gratton (1985), 18 C. C. C. (3d) 462, among others) and made, at para. 26, the following distinction between the offences of unlawful confinement and kidnapping thus establishing a definition of unlawful confinement helpful to this case:

26 Forcible confinement deprives the individual of his liberty to move from point A to point B. As for kidnapping, it consists of the taking of control over a person and carrying him away from point A to point B. [English Translation]

[91] In a more recent decision of the Supreme Court of Canada the above definition of unlawful confinement was again adopted. In the case of R. v. Vu, 2012 SCC 40, [2012] 2 S.C.R. 411 at paras. 44 and 47, Moldaver J., delivering judgment for the Court stated:

44 Tremblay is significant in two respects: it adopts the view that unlawful confinement forms an essential component of the crime of kidnapping, as at common law, and it accepts the fundamental distinction, drawn at common law, that kidnapping involves movement, whereas unlawful confinement does not (pp. 94-95). In this respect, Tremblay's interpretation of the statutory offence of kidnapping is consistent with the common law definition of kidnapping as an aggravated form of false imprisonment - or, as Bishop described it, "a false imprisonment aggravated by conveying the imprisoned person to some other place" (s. 750).

47 In my view, the Canadian courts' interpretation of the Code lends considerable support to the argument that in enacting the offence of kidnapping, Parliament did not intend to abandon the meaning of the offence as it had evolved and come to be understood at common law. Based on this jurisprudence, Finch C.J.B.C. accurately summarized the basic elements of the offence of kidnapping in his reasons. For the actus reus, there has to be an abduction of a person and moving him or her to a place ("carrying away" or "asportation"), [page430] against the victim's will, which can be accomplished either by force or by fraud. The mens rea will be established if the accused has one of the intents described in s. 279(1) of the Code.

[92] One final case worth mentioning relating to the jurisprudence touching on the offence of unlawful confinement, because of it succinct and clear treatment of the subject matter is the decision of the British Columbia Court of Appeal in R. v. Niedermier, 2005 BCCA 15, 26 C.R. (6th) 215. The principles relating to the offence of unlawful confinement enunciated in paras. 42-52, inclusive, of the decision can be summarised as follows:

(1) the actus reus of the offence involves:

(a) an actual confinement whereby the complainant is prevented from moving from place to place as he or she wishes, or put another way, the complainant’s will to move is overridden by the accused,

(b) the confinement is without lawful authority, and,

(c) there is a lack of consent by the complainant to the confinement

(2) the mens rea of the offence is the intention to confine or the intent to deprive the complainant of movement. Such intention can be explicitly expressed or it can be inferred from all of the accused’s actions and the circumstances of the case.

[93] In order to succeed on this charge Crown counsel must prove each of these elements beyond a reasonable doubt.

[94] With respect to the issue of (1) (a), actual confinement, there must be proof of external circumstances that amount to a confinement of the complainant, thereby depriving the complainant of his or her liberty to move from one place to another.

[95] A number of cases have dealt with the length of time of confinement required to make out the offence. See R. v. Velauthan (1997), 1997 1625 (ON CA), 117 C.C.C. (3d) 477 at para. 6 (Ont. C.A.) and R. v. Mullings, 2005 24762 (Ont. S.C.). It is clear that the period of confinement, while unable to be definitively defined, must be “significant”, more than “de minimus” but that brief periods of confinement can still qualify as confinement so long as there was a clear restriction of the person’s movements. It is also possible that the existence of initial liberty can in the individual circumstances of a case develop into a state of forcible confinement (see R. v. Tremblay, supra).

[96] It is also clear from the case law that the actual confinement or restraint need not be by way of the application of physical force or bindings (R. v. E. B., supra). That the physical restraint be “total” in order to constitute the offence was rejected by Cory J. in the decision of R. v. Gratton, supra. As Cory J. indicated in that decision (para. 115), “confinement generally consists of restraining another person’s liberty, though not necessarily the other person’s ability to escape.”

[97] Furthermore, while “confinement” requires that there be some sort of physical restraint, such restraint need not be necessarily effected by physical means. The case law recognizes that the physical restraint required for “confinement” within the meaning of the section “may also be effected by non-physical or psychological means, such as by threats, intimidation or imposition of fear”, which may result from an unequal power dynamic between two persons (see R. v. Kematch, supra). On the facts of that case there were no actual physical restraints in the nature of bindings or handcuffs or barriers used in the confinement of a young child. The child was, nonetheless, found to have been “confined” in parts of a home where fear, intimidation and psychological and other means were used to keep her in those areas of the house. See also R. v. Cadden (1989), 1989 2847 (BC CA), 48 C.C.C. (3d) 122 (BCCA).

[98] Lack of consent to the confinement is a requisite element of the offence. In the case of R. v. McIlwaine (1996), 1996 5884 (QC CA), 3 C.R. (5th) 76, Proulx J. A. of the Quebec Court of Appeal at para. 15 indicated that,

15 … forcible confinement is inconsistent with consent: if one consents to be physically confined or submits himself willingly to be restrained, there cannot be a crime of forcible confinement.

[99] See also para. 41 of R. v. Belanger, 2009 QCCQ 11; [2009] J.Q. No. 1253 (victims had been induced to accompany the accused on basis of fraud); para. 9 of R. v. Metcalfe (1983), 1983 248 (BC CA), 10 C.C.C. (3d) 114 (BCCA) (victim accepted the accused’s fraudulent offer to accompany him by car to his home.); R. v. Brown (1972), 1972 1353 (ON CA), 8 C.C.C. (2d) 13 (Ont. C.A.) (child had gone with the accused willingly because of false statements made by accused); R. v. K. B.V., [1995] O. J. No. 1431 (C.A.) (court held that consent cannot be the product of false statements or other forms of misrepresentations amounting to fraud); R. v. Briscoe, 2007 ABQB 196 (accused used a fraudulent ploy of a fictional party to get the victim into the car so that she could be transported away); R. v. Gallup, 2002 ABQB 638 (Court held that 5 year old child does not have the capacity to give a valid consent but even if the child had the capacity, any consent obtained by the accused through fraud would not have been valid); and R. v. Parrott (1999), 1999 18980 (NL CA), 175 Nfld. & P.E.I.R. 89 (Nfld. C.A.) (an intellectually disabled patient in a hospital was induced to accompany the accused through a ruse. On a kidnapping charge, the Court found that there was no consent where the complainant may be too young or too incapacitated to give real consent.)

[100] As a result, it follows from this that consent is a defence to the charge under section 279(2). This is the case unless the consent obtained is obtained fraudulently or by deceit or if the victim did not have the capacity to consent, such as in the case of a child. In that instance then the fraud or the deceit can be a substitute for force that vitiates any apparent consent given by the complainant. It is important to keep clear here that the issue of fraud or deceit or capacity to give consent does not go to the “confinement” or “physical restraint” element of the actus reus of the offence which is still required but rather to the “consent” element of the offence.

APPLICATION OF JURISPRUDENCE ON OFFENCE OF UNLAWFUL CONFINEMENT TO COUNT 2

[101] On all of the evidence relating to this count that I have accepted I cannot find that Ms. C. was in any way forcibly made to enter Mr. S.’s car. As I have already indicated, I am persuaded by the evidence, that Ms. C. that evening entered Mr. S.’s car by mistake but nonetheless, voluntarily. It may well have been due to her state of inebriation and it may well have been contributed to by her past practise of using underground taxis. Mr. S. clearly took advantage of Ms. C.’s mistake and made no effort to set her straight. However, his silence in the face of her mistake does not change the fact that she entered his car willingly. The manner of her entry into Mr. S.’s car does not make out a case of unlawful confinement against Mr. S.

[102] However, as was pointed out in the case of R. v. Tremblay, supra, a period of initial liberty, depending on the circumstances of the case, can develop into a situation of unlawful confinement.

[103] I accept Ms. C.’s evidence that as she began to become frightened and panicked with her situation, she signaled to Mr. S. that he had missed her turn and eventually asked him to stop. She received no response from him. In her desperation she attempted to grab the wheel, not crash the car as testified to by Mr. S. but rather to get him to stop the vehicle so that she could get out. As both Ms. C. and Mr. S. testified, his response to her trying to grab the wheel was to put his arm out to hold her in her seat and, according to Ms. C., to also tell her to relax.

[104] This evidence, which I accept, proves the allegation of unlawful confinement in count 2 against Mr. S. beyond a reasonable doubt. What commenced with a period of initial freedom, as a result of a mistake developed into a situation of unlawful confinement. This occurred once Ms. C. signaled to Mr. S. that she no longer wanted to be in his vehicle and asked him to stop. Mr. S. ignored that request to stop and physically restrained her to her seat when she attempted to unsuccessfully take control of the car. Grant it, on the evidence it was a non-violent restraint as there was no hitting, striking or threats made, but a physical restraint nonetheless, given the relative sizes in the complainant and the accused. Mr. S.’s unlawful confinement of Ms. C. was followed by his sexual assault of her. In my view his intention to unlawfully confine Ms. C. can be inferred from the circumstances of his actions to physically restrain her in the car and from his subsequent sexual assault of Ms. C. in the face of her resistance and attempts to stop his vehicle.

[105] All of the elements of the actus reus of the offence have been proven beyond a reasonable doubt. There was a physical confinement in Mr. S.’s car; Mr. S. had no authority over Ms. C. to justify his physical restraint of her in his car once she signaled she wanted out; Ms. C. in no way consented to being subsequently confined to Mr. S.’s vehicle, once she realized the way events were unfolding and indicated to Mr. S. she wanted out, both verbally and physically.

[106] The requisite element of mens rea of the offence is also proven beyond a reasonable doubt. Mr. S.’s intention to confine Ms. C. in his vehicle so that he could sexually assault her can be inferred from his actions in the vehicle once he proceeded to physically restrain her and by his subsequent actions of sexually assaulting her.

[107] I therefore find Mr. S. guilty of count 2 on the Indictment.

COUNT 3

[108] With respect to count 3, failure to comply, the evidence was clear that Mr. S. retained possession of Ms. C.’s cellular telephone, which he states he found in the front passenger floor of his car. Mr. S. testified that he used the telephone to call and text some of his friends for as long as there was service on the telephone. M.W. was one of those friends.

[109] Mr. S.’s retention and use of Ms. C.’s telephone was in knowing breach of a recognizance, in place at the time and to which he was subject, not to possess a “…cellular telephone”. Exhibits #2 and #40 make out this charge. On the evidence the Crown has proven this count beyond a reasonable doubt. I therefore find Mr. S. guilty of count 3.

COUNT 4

[110] With respect to count 4, section 430(1) (d) of the Criminal Code reads as follows:

Mischief

430. (1) Every one commits mischief who wilfully

(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

[111] This count is a mischief to property offence, with the mischief consisting of “wilfully interfering with Ms. C.’s lawful use and enjoyment” of, on the evidence, her telephone. Mr. S. testified that when he found Ms. C.’s telephone in his car, he retained it, used it to text and call his friends for as long as there was service on the telephone. Mr. S. testified that he made no effort to return the telephone to Ms. C. Based on the similar fact evidence admitted relating to Mr. S. coming into possession of the telephones of other complainants, it can be presumed that Mr. S. knew how to contact Ms. C., had he wanted to do so. Nor did Mr. S. say what he did with Ms. C.’s telephone.

[112] It is accepted, as Defence counsel submitted, that section 430 (1) (d), is a specific intent offence which requires the Crown to prove beyond a reasonable doubt the mens rea of the offence, namely that Mr. S., in keeping Ms. C.’s telephone and using it in the way he did, intended to interfere with Ms. C.’s lawful use and enjoyment of the telephone.

[113] Defence counsel argues that the Crown has not proven beyond a reasonable doubt that this was Mr. S.’s intent. Rather, Defence counsel argues, that by keeping the telephone and using it the way he did Mr. S.’s intent was to enrich himself by having the telephone and being able to use it without a cost to him. Ms. C.’s deprivation of the lawful use of her telephone is a mere by-product of those intentions, Defence counsel argued.

[114] On the facts of this case, I was not persuaded by the arguments of Defence counsel. There are cases where the specific intent alleged can be very different from the actual intent borne out by the particular facts of the case. This was the case in R. v. Martin 2006 BCSC 1874, where the accused was charged with the specific intent charge of intimidation. The Defence argued in that case that the Crown had failed to prove beyond a reasonable doubt the mens rea of intimidation, namely that the accused’s purpose in pouring the paint on the head of the complainant was to compel her to abstain from cooperating with the police in their investigation of an alleged aggravated assault charge against the accused’s husband.

[115] In R. v. Martin, supra, the Court rightly held that as a specific intent offence, the section required “proof, not only of what the accused did, but as well as, the purpose she had in doing it.” After examining all of the evidence, the Court in that case determined that the evidence relating to the issue of “purpose” was equivocal. One could conclude from the evidence two plausible inferences, one that would make out the charge (the purpose being to dissuade the complainant from cooperating with the police investigation) and the other that would not (the purpose being to get back at the complainant for what she had already done). In the face of that uncertainty, the Court concluded that the mens rea had not been proven beyond a reasonable doubt and acquitted the accused on the charge.

[116] On the facts of this case there is only one plausible inference to be made when the admitted intent of taking and using her telephone for his own use necessarily conflates with the requisite intent of depriving Ms. C. of the lawful use and enjoyment of her telephone. In deciding to keep Ms. C.’s telephone and in using it the way he did, Mr. S. must be taken to have known that he was depriving Ms. C. of the lawful use and enjoyment of her telephone. He went ahead and did anyway. In so doing he must be taken to have intended the deprivation knowing that that was a natural and concurrent result of his intention to take, keep and use the telephone for his own enrichment in the way he did.

[117] For these reasons, I conclude that Crown counsel has proven count 4 against Mr. S. beyond a reasonable doubt. I therefore find Mr. S. guilty of count 4.

THE INCIDENT REGARDING I. (M.) N. (COUNTS 5, 6, AND 7)

HOW I. N. CAME TO BE IN MR. S.’S CAR AND THE EVENTS OUTSIDE XXX D[…] ST.

EVIDENCE OF MR. S.

[118] When questioned about his dealings with the complainant, Ms. N., by the police investigators on May 9, 2011, Mr. S. told the officers that he had no knowledge of such a person. He also stated that he had no recollection of having the telephone of Ms. N. and communicating with her using her telephone or of arranging a meeting with her to return her telephone to her. Mr. S. also told the officers during that police interview that he did not know a person called P.T..

[119] In his examination in chief, Mr. S. testified that on March 26, 2011, he was driving around in his car with P.T., whom he knew from work, listening to music when he encountered Ms. N. and two of her friends.

[120] Regarding the encounter, Mr. S.’s evidence in chief was that like many evenings he was at home speaking to his cyber friends. P.T. came to his home and the two of them were drinking “a lot” and were intoxicated. According to Mr. S., he and P.T. left his home in Mr. S.’s car around midnight with the plan to drive to the Ottawa market and in his own words to “go with the vibe” which Mr. S. elaborated to mean to possibly start out at a strip club, to socialize, to meet some girls and possibly hang out with them.

[121] According to Mr. S. while he and Mr. T. were in his car in the market area behind McDonald’s he saw these three black girls. Outside of his car Mr. S. began to speak to them asking them, not anyone of them in particular, where they were going. It was Mr. S.’s evidence that once he began to speak to the girls it was clear to him that the girls were arguing. What he understood from speaking to them was that two of them were holding up the third girl and were annoyed at her because they were not permitted to get into the club they wanted to go to because Ms. N. was “intoxicated” and the bouncers would not let them in.

[122] According to Mr. S., Ms. N. then indicated to her friends that if they thought she was drunk and ruining their night she would go with Mr. S. and Mr. T. According to Mr. S. he was pretty sure that Ms. N.’s friends asked her if she was sure and Ms. N. said “Yeah, fine”. Mr. S. testified that Ms. N. confirmed with them that she was willing to hang out with them and that wherever they went she would go. To Mr. S., this meant that if they were going to Mr. S.’s house she would go there with them. Mr. S., later in his evidence, indicated that he was pretty sure he asked Ms. N. if going to his house was “ok? and everybody agreed.” (Proceedings at Trial, June 9, 2014, page 34). According to Mr. S. there were no other arrangements, to meet later or otherwise, made with the other two girls.

[123] It was Mr. S.’s evidence that he did not know that Ms. N. was really drunk, but that he and P.T. led or “walked” Ms. N. to his car because she was “probably wearing high heels” and they did not want her falling. Mr. S. thought Ms. N. was fine to hang out with because she was not falling over nor vomiting. During his cross-examination Mr. S. conceded that he obviously knew that Ms. N. had a lot to drink but that he still did not know how drunk she was.

[124] Because of Ms. N.’s size (5’7” or 5’8” tall and 230 or 240 pounds by Mr. S.’s estimation) Mr. S. put her in the front passenger seat of his car and had to adjust the front seat to go back as far back as it would go. According to Mr. S., Mr. T. sat in the back seat while they drove to the destination of Mr. S.’s residence at XXX D[…] St. apt. XXXX.

[125] Mr. S. denies that he or Mr. T. in any way touched Ms. N. in the car during the ride. He further denies ever touching Ms. N., during any of his dealings with her, in a sexual way. According to Mr. S. that was not the idea which was to hang out at his house, have a little bit more to drink and listen to music.

[126] Mr. S. testified in chief that Ms. N. fell asleep during the ride from the market area to his house, a ride of approximately 15 minutes, and that he had to wake her up once he parked his car outside his building. It was then, according to Mr. S., that events took an unexpected turn. When they tried to wake up Ms. N. to have her exit the car, she refused to exit the vehicle. Mr. S. was not sure if she was passed out or not speaking. Mr. S. agreed that she may have been closing the car door as he was trying to open it. According to Mr. S. he did not want to leave her in his vehicle so with the help of P.T. he pulled her out of the vehicle. According to Mr. S. once they got Ms. N. out of the car she did not move and lay on the ground.

[127] It was the evidence of Mr. S. that he then was in shock and panicked. According to Mr. S. he just did not want to be in that situation. He moved his car into the visitor’s parking lot of his building. Mr. S. recalled two people, a man and a woman, passing by at a distance in a blue car. According to Mr. S. he asked them if they could help them but they just drove away. Mr. S. denies that he stated anything about sexually assaulting Ms. N.

[128] According to Mr. S. after parking this vehicle he then went upstairs to his apartment taking with him “a cell phone that was in his car” (Proceedings at Trial, June 9, 2014, page 43) leaving P.T. with the unconscious Ms. N. on the ground. In his examination in chief, Mr. S. explained that he was not allowed to have cell phones in his car. Later in his examination in chief Mr. S. acknowledged that the cell phone in his car which he took to his apartment that night was a cell phone belonging to Ms. N.

[129] It was his intention, after putting the cell phone in his apartment, to return to the car but he then saw the presence of the police in front of his building and decided not to return to where he had left P.T. Mr. S. testified that he then left his apartment and went for a walk. Mr. S. thought that he met up with P.T. later that night at a friend’s home.

[130] During his cross-examination Mr. S. admitted to taking to his apartment not one but two cell phones belonging to Ms. N. Mr. S. could not remember if Ms. N. had a purse that evening or if she had left anything else in his car. He had absolutely no recollection of how and when he came into possession of Ms. N.’s cell phones. On cross-examination he did not remember taking the cell phones. He just remembered having them and taking them to his apartment.

EVIDENCE OF I. N.

[131] Ms. N.’s recollection of what happened to her on the night of March 25 and the early morning of March 26 is limited. She recalled events prior to finding herself in the market area with her two friends S. and M.W.. According to Ms. N. she worked an early shift on March 25, 2011 and had arranged to meet up with some friends to go to a bar, Tequila, which is located in the market area of the City of Ottawa.

[132] Ms. N.’s recollection of what she was wearing that evening was a spanx, a blue dress and a jacket. According to Ms. N. she also had a small black purse in which she had lip gloss, a debit card and two cell phones, one that did not work properly as a cell phone but took good pictures and a second Motorola cell phone that worked properly as a phone and had all her pictures, contacts and other personal information.

[133] In the early evening she and her friends met up at one of her friend’s home for “pre-drinks”. She and her friends then took a bus, around 11:30pm, to go to the market area in Ottawa. According to Ms. N., at that time she was feeling the effect of the alcohol she had consumed during the “pre-drink” portion of her evening.

[134] With respect to how she was feeling once arriving in the market area, Ms. N. testified when she and her friends were at the McDonald’s in the market she was feeling tired and dizzy. She thought it was just a “little buzz” from the alcohol and that it would stay at that level. But, it got worse until she blacked out.

[135] At this point, Ms. N.’s memory failed her completely. She had no memory of leaving the McDonald’s and her next conscious memory is waking up, alone and without her friends, in the front passenger seat of a car she did not recognize. Ms. N. had no memory of what the car looked like. This clearly was Mr. S.’s car.

[136] According to the testimony of Ms. N. when she became conscious of being in an unknown vehicle, she heard two male voices (which she did not recognize) outside the car. Her recollection of what was being said by the voices was something like, “come on babe lets go upstairs, come on lets go upstairs” and the other voice said: “I do not think she is up to this”.

[137] According to Ms. N. when someone tried to open the car door she would try to close it. She testified that she had a bad feeling and her friends were not there. It was Ms. N.’s evidence that she did not see the faces of any males because her eyes were closed and all she wanted to do was sleep.

[138] Ms. N.’s next memory is waking up in the hospital where she remembers being in an out of sleep and being ill to her stomach. Upon being discharged from the hospital later that day Ms. N. realized after she got her property bag from the hospital that her debit card and lip gloss were there but that the two cell phones she had with her the night before were missing.

[139] M.W., Ms. N.’s friend, who was with her during the night in question also testified at the trial and was able to give evidence of what she recollected of how Ms. N. came to be in Mr. S.’s car that evening.

[140] Ms. W. recalled that when she arrived, in the market with Ms. N. and S. after their pre-drinks they were all drunk but, Ms. N. was feeling very drunk and wanted to go to McDonald’s to sit down. According to Ms. W. this was unusual for her friend Ms. N. who was generally responsible in her drinking. Ms. W. recalled there being some disagreement with Ms. N. about who would pay for some cigarettes.

[141] According to the evidence of Ms. W. by the time the three of them left the McDonald’s to go to one of the clubs, her friend Ms. N. was quite wasted and could hardly walk. She and S. had to hold her up. Ms. W. recalled that Ms. N. finally just sat down on the sidewalk of George St. and she and S. were trying to get her up.

[142] According to Ms. W. it was at about this time that they were approached by a group of “guys” that she thought might be coming from one of the clubs in the market. Her recollection was that there were about 6 or 7 of them. Two of these she recalled being an Arab guy and a heavy black guy. The guys asked them if they needed help and they offered to take Ms. N. to the club for them in their car. During her cross-examination, Ms. W. testified that by the time the group of guys approached them with their offer to take Ms. N. to the club, Tequila, in their vehicle, the three of them had already been refused entry into a club, whose name she could not remember, because of Ms. N.’s state of intoxication. She conceded on cross-examination that when arrangements were made to have Ms. N. taken to the Tequila in the vehicle, she already knew Ms. N. would probably not get in because of her state of intoxication.

[143] It was Ms. W.’s evidence that the group’s offer to take Ms. N. to Tequila’s in their vehicle was discussed between S. and the group of guys. Ms. W. recalled that it was very cold out and she was wearing a mini dress and she was standing in a corner hiding trying to stay out of the cold. After S. verified a number of times that the guys would take Ms. N. to the club they planned on going to, Tequila, the guys left with Ms. N.

[144] According to Ms. W. that was the last she saw of Ms. N. that evening. Nor did she see the group of guys again. As it turned out Ms. W. and S. could not get into the Tequila club that evening because they lacked the required ID and had to go to another club.

[145] The last person who could give evidence of how Ms. N. came to be in Mr. S.’s vehicle and subsequently in front of Mr. S.’s residence is P.T. who was called as a witness for the Crown.

[146] Mr. T.’s evidence was that he knew Mr. S., who he reluctantly identified in the courtroom, from work but that he knew him under the name of J.W.. He recalled riding in Mr. S.’s car on the night in question. Mr. T. recalled Mr. S. being drunk that evening, being agitated and wanting to speak to some girls. Mr. T. testified that he himself drank some alcohol that night but not a lot.

[147] He recalled that Mr. S. had a cell phone with him that night and they were driving in the market area of Ottawa. If Mr. T. is to be believed he was simply a passive passenger in the back seat of the drunk Mr. S.’s car, an old navy blue car, that evening, not really paying attention to what Mr. S. was doing and simply occupied with listening to music through his earphones that he had in both ears.

[148] According to the testimony of Mr. T., there was a group of three girls on the street in the market and Mr. S. stopped his car and got out of the car to speak with them. Mr. T. remained in the car. Mr. T. observed that one of the girls, who was an African girl and a little fat, was very intoxicated. It was this girl that he observed Mr. S. put in the front passenger seat. Mr. T. thought that he heard Mr. S. say that he wanted to go to his house which was where they ended up.

[149] Mr. T. testified that during the drive, while he continued to sit in the back seat listening to his music he observed the girl to be very intoxicated to the point of talking to herself. According to Mr. T. she also seemed nervous and scared, was yelling and saying something like “no, I do not want to…” According to Mr. T., Mr. S.’s response to this was something like “…come on, come on we are going to go, it does not matter…”. Mr. T. also testified that during the drive he observed Mr. S. to be touching the girl with his hand and had his arm on her. Mr. T. testified that he was aggressive and abrupt with the girl.

[150] When they arrived at Mr. S.’s residence parking lot, according to the testimony of Mr. T., he saw Mr. S. pushing the girl and using his hands and feet to get her out of the car. According to Mr. T. the girl landed on the ground where she was left by Mr. S. before he fled the scene and going into his apartment building.

[151] It was also Mr. T.’s evidence that he thinks he saw Mr. S. steal from the drunken girl, taking her phone or money and then running and going to his place on D[…] Street He, Mr. T., told S. to stop and not do that and that Mr. S. told him not to worry and not to say anything.

[152] If Mr. T. is to be believed, after Mr. S. left, he was standing there pondering the why’s and how’s of the situation. He recalls thinking that someone should be called for the drunken girl. Mr. T. recalled approaching some guy with a dog to get help. However, the police arrived on the scene very soon after Mr. S. had gone. Mr. T. wanted to explain to the police what had happened but the police officer, according to Mr. T., was very aggressive with him and treated him as if he was the perpetrator of the drunken girl’s condition.

[153] Mr. T. recalled directing the police officer to Mr. S.’s car which was locked but still contained some of Ms. N.’s belongings. Through police investigation Mr. S.’s vehicle eventually was connected to him. After their questioning of him, the police subsequently let Mr. T. go. Mr. T. recalled the drunken girl being taken away in the ambulance.

[154] The evidence revealed that the reason the police appeared on the scene so quickly after Mr. S. left with Ms. N.’s cell phones was because two independent witnesses, who were in the process of driving out of the visitor’s parking section of XXX D[…] St. had what they considered a troubling encounter with Mr. S. and Mr. T. and decided to call the police.

[155] The two individuals were Mr. F.A. and his friend Ms. E.L. Their evidence indicated that they had been to visit a relative of Mr. A. who lived in the same building as that of Mr. S. and were exiting the parking lot in Mr. A.’s car when the vehicle was approached by two men. Mr. A. was driving the vehicle. He had not had any alcohol to drink and Ms. L. was in the front passenger seat. Neither Mr. A. nor Ms. L. had ever seen these two males before.

[156] The descriptions of the two men, given by both Mr. A. and Ms. L. in their testimony, were very similar. Mr. A. described one of them as a bigger African black male. Ms. L. described one of the individuals as a dark male, tall, medium to large built with dark coarse hair.

[157] The second male was described by Mr. A. as a smaller Asian male. Ms. L.’s description of this second male was an Asian, shorter, slim built. To Ms. L., the Asian male looked a little sketchy.

[158] According to Mr. A., when the two males approached his car he rolled down his window to speak to them. Mr. A., as did Ms. L., noticed that there was a chubby black African woman on the ground who appeared unconscious and whose clothes were disheveled. According to Mr. A. her breasts might have been exposed. Ms. L. testified that she observed the Asian male trying to get the unconscious girl off the ground. Mr. A. testified that he knew from speaking to these two individuals that they had consumed alcohol and were probably drunk.

[159] Mr. A.’s evidence was that the large black male was the main one to speak to him although Mr. A. recalled both of them speaking. Ms. L. recalled that it was the large black male who was mainly interacting with them. Mr. A. testified that the large black male pointed to the unconscious girl on the ground and asked him if he had a place where they could take the girl to have sex with her. Mr. A. recalled that the words used by the large black male were “gang bang” and “rape”. On cross-examination Mr. A. testified that the large black male kept insisting that his friend, namely the Asian male, wanted to have sex with the girl. According to Mr. A. he was even asked if he wanted to take part. Ms. L.’s recollection of what the two males were asking Mr. A. was whether he knew of a place where they could take her to “fuck” her or “rape” her. According to Ms. L. they said this as if it were a big joke and did not seem to take it seriously.

[160] According to Mr. A. he recalled being shocked by what he heard but informed the two males that he would speak to a cousin who lived nearby and drove away. He called the police as soon as he had the opportunity to do so out of the sight of the two males and waited for the police to arrive.

[161] According to Mr. A. by the time the police arrived the large black male had disappeared but he observed the police stop and question the Asian male he had spoken to that evening and then eventually the police let him go. Both Mr. A. and Ms. L. gave separate statements to the police.

[162] Subsequently, on May 10, 2011, both Mr. A. and Ms. L. participated in a photo lineup prepared by Detective Webster, to see if they could identify the two males that had approached the vehicle that morning and spoken to them. Mr. A. was able to identify one Asian male as the individual to whom he spoke. Ms. L. was unable to identify any Asian male in the photo lineup. However, both Mr. A. and Ms. L. were able to identify the large black male as Mr. S. (see exhibit # 9 photo #1 and exhibit #12 photo #6). Ms. L. testified that she could not forget the face of the large black male, the body, the hair, those eyes, nose and facial features.

POST EVENT COMMUNICATION BETWEEN MR. S. AND I. N.

EVIDENCE OF MR. S.

[163] The evidence showed that the day after this incident Ms. N. called her lost cell phone to try and locate it and to get it back. Mr. S. responded to the call but was less than frank with her as to whom he really was. He eventually admitted to Ms. N. that he indeed had her telephone. He admitted saying something, “stupid” (page 61 Proceedings at Trial, June 9, 2014), to Ms. N. about being a business man and giving back her phone for a “reward”.

[164] Mr. S. did not deny entering into a series of communications with Ms. N., via her cell phone and subsequently via e-mails when her cell phone ran out of power, in an attempt to arrange a meeting with her to return her phones in exchange for an amount of money. It was also his evidence that Ms. N. indicated to him that she was interested in being informed by him if she received any calls on her cell phones which is why he suggested to her at one time that she recharge her cell phone for him. According to Ms. N. she had at this time purchased herself a new phone.

[165] In his evidence Mr. S. referred to the amount of money he was to receive from Ms. N. for the return of her cell phones as a “reward”. He later explained that the money would be to compensate him for the risk he would take in having the cell phones in his possession given the fact that he was on a recognizance at the time not to possess cell phones. Mr. S. denied that he would ever get money for someone else’s property and that if he would have met Ms. N. and she would have hung out with him, he probably would have returned her cell phones to her. It was Mr. S.’s evidence that it was Ms. N. who set the amount of money to be exchanged for the cell phones. Mr. S. testified that he was hoping that Ms. N. would become a friend and that she might connect him with some of her friends.

[166] Mr. S. admitted to using Ms. N.’s telephone. Whether he went through her telephone to get the contact of some of her friends is less clear from his evidence. Ms. W. recalled getting a message from Ms. N.’s telephone number when she already knew that her friend had lost her telephone. Ms. W. also testified to getting text messages on her telephone from a person calling himself, J.W., from a number that had a 600 in it pretending he had met her at a bar she knew she did not attend. Mr. S. admitted to sending texts to Ms. W. explaining that he was always doing that and that he was bored.

[167] While there appears to be some dispute as to how, there is no dispute that during the electronic communication that went on between Mr. S. and Ms. N. and even with Ms. W. for approximately a week after the event, Mr. S.’s identity, as J.W., his registered telephone number under that name (613-XXX-XXXX), his “cashwear” e-mail address, which he had discussed with the police investigators during his police interview on May 9, 2011 and his Facebook profile name and photograph (“R”) was discovered by Ms. N. who subsequently gave the information to the police. The communication that took place between Mr. S. and Ms. N. leading up to their planned meeting on April 1, 2011 at the McDonald’s, so that Mr. S. could return Ms. N.’s cell phone in exchange for the agreed upon money, and shortly after was filed as exhibit #3.

[168] According to the testimony of Mr. S., before he could return Ms. N.’s cell phone to her he needed to have a friend to go with him to hold the cell phones. This was because he was not allowed to possess any cell phones and was afraid that the police might stop him. Mr. S. therefore arranged to have a friend from Toronto, K., drive him to the meeting place at McDonald’s on St. Laurent in Ottawa. Mr. S. did not provide K.’s last name.

[169] According to Mr. S. he brought Ms. N.’s cell phones but left them with his friend K. in his vehicle some 30 or 40 feet away from the meeting place arranged with Ms. N. Mr. S. testified that he saw Ms. N. who was with a friend at the meeting place. He did not identify himself but instead asked them for money to use the telephone and then subsequently asked them if he could use the friend’s cell phone when they told him to go away.

[170] According to Mr. S. he was then jumped by two guys and then let go when Ms. N. told them he was not the guy.

[171] Mr. S. testified that when he was let go by the two individuals who seized him, he then went inside the McDonald’s and subsequently returned to meet K. Mr. S. testified that he shortly after communicated with Ms. N. informing her that he was aware that she had arranged to have some guy beat up without telling her that he was the guy. According to Mr. S., communication between him and Ms. N. ended after that. Ms. N. never did get her phones back, nor did Mr. S. reveal what he did with Ms. N.’s cell phones.

EVIDENCE OF I. N.

[172] Ms. N. testified that once she was in communication with the person she thought had her missing phones she willingly kept up the communication in the hope of getting her phones back. From those communications, Ms. N. understood that she would have to pay $300 to get her phones back. Ms. N. testified that she presented herself as nice and friendly in these communications only because she wanted to get her phones back.

[173] Ms. N.’s evidence was that in those communications Mr. S. referred to her as “honey” and “sweetie” which she found odd given the purpose of the communications. Ms. N. also understood from the text messages she was receiving from Mr. S., that he wanted to meet some of her single friends.

[174] Ms. N. confirmed Mr. S.’s evidence that she agreed to meet up with Mr. S. at McDonald’s on St. Laurent on April 1, 2011 around 5 pm. Ms. W. was with her. Ms. N. also arranged for her brother and a friend of his to be hiding so that they could help her confront the guy. According to Ms. N. her brother and his friend acted what she thought was precipitously when this guy approached them asking for money and then to use Ms. W.’s phone and she did not think he was the guy, who she described as a “bum” and “homeless” and told them to let him go. It was only after she immediately received the texts from Mr. S. from his “cashwear” e-mail address indicating that he had been watching them and knew that they had tried to get a guy beat up, that she realized he was the person she was to meet (see exhibit #3). Mr. S. also replied to texts sent to him by Ms. W. during this aborted meeting at the St. Laurent McDonald’s (see exhibit #5). There was no more communications after that.

[175] Ms. N. eventually gave all of the information about her communications with Mr. S. to the police and she gave them a statement. Ms. N. informed Detective Webster that she had not been sexually assaulted by anyone on the night in question.

[176] Ms. N. never did get her phones back. Her evidence was that the value of her lost phones was: the Samson $300 and the Motorolla about $460. She purchased new phones at a cost of $300.

[177] Both Ms. N. and Ms. W. participated in a photo lineup on April 7, 2011, and April 13, 2011 respectively, prepared by Detective Webster, to see if they could identify the individual who approached them at the St. Laurent McDonald’s. Ms. N. identified Mr. S. as that individual (see exhibit #4 photo #10) and commented that there were similarities between the picture she identified in the photo lineup and the photograph she saw on Mr. S.’s Facebook page.

[178] Ms. W. identified Mr. S. as the individual she and Ms. N. encountered at the St. Laurent McDonald’s. Ms. W. also identified another individual as the “guy looks more like the guy from the night of the incident” (see exhibit #7 photo #9 and photo#1).

ANALYSIS OF THE EVIDENCE REGARDING THE COUNTS RELATING TO I. N. (COUNTS 5, 6 AND 7)

COUNT 5

[179] Mr. S. is charged with theft of Ms. N.’s cell phone. On the evidence as summarized above, I am persuaded beyond a reasonable doubt that Crown counsel has proven that Mr. S. is guilty of count 5. The reasons are the following.

[180] The evidence clearly establishes that Ms. N. had possession of two telephones when she entered Mr. S.’s vehicle on the early morning of March 26, 2011, in a very intoxicated state. I cannot accept Mr. S.’s evidence that Ms. N. consented to go with him and Mr. T. to his apartment. The evidence overwhelmingly establishes Ms. N. was in no state to give such consent. In coming to this conclusion I have considered the evidence of Ms. W. about her observations of Ms. N. and the difficulties she and her friend S. were having moving Ms. N. I have considered the evidence of Ms. N. I have considered the evidence of Mr. T.

[181] Finally, I have also considered the evidence of Mr. S. himself on this fact, which I found to be quite contradictory and inconsistent. Mr. S. testified a number of times that he did not know that Ms. N. was “really” intoxicated. Yet according to his version of events he was told and understood that the three girls could not get into a bar because Ms. N. was “too” intoxicated. Mr. S. testified to having to lead Ms. N. to the car so she would not fall. He also indicated that Ms. N.’s friend gave them permission to take Ms. N. (see Proceedings at Trial, June 9, 2014, page 36). I find that a curious and conflicting choice of words to describe someone who is accompanying him as her own independent agent.

[182] Even acknowledging Ms. W.’s own level of intoxication that morning, for the above reasons, I accept her evidence about how Ms. N. came to enter Mr. S.’s car over that of Mr. S. For the reasons already mentioned I find Mr. S.’s evidence about how Ms. N. came to be in his car inherently contradictory and conflicting with other more reliable evidence. I do not believe him nor am I left with a reasonable doubt about his evidence.

[183] The evidence supports the conclusion that during the ride to Mr. S.’s apartment building Ms. N. was unconscious or asleep. By the time she was taken out of the vehicle and left on the ground she was totally unconscious. Based on that evidence Mr. S. had from the beginning of the ride to its end, the opportunity to take Ms. N.’s telephones from her without any resistance from her or even without her knowing that he was doing so.

[184] In his evidence Mr. S. was notably vague about when and from where he took possession of Ms. N.’s telephones. In addition, only in cross-examination did he acknowledge that he took two telephones from Ms. N. instead of one.

[185] Mr. T. also testified that he witnessed Mr. S. touching Ms. N. during the ride. He testified that he saw Mr. S. take Ms. N.’s telephone or money and that he told him to stop but was ignored.

[186] While I consider the evidence of Mr. T. as part of the totality of the evidence, it needs to be commented on that Mr. T.’s credibility was seriously put into question.

[187] It was evident from the manner in which he gave his evidence that he was a reluctant witness at this trial. His evidence was that he has tried to forget this period in his life. He frequently refused to answer questions directly and had to be asked a question many times and in many different ways before giving an answer.

[188] It is also clear, when one considers the evidence of more objective witnesses to the events of March 25 and 26, 2011, that Mr. T. was extremely selective in what he remembered of those events and attempted to minimize as much as possible any responsibility for what happened to Ms. N. while she was with him and Mr. S..

[189] With respect to the evidence given by Mr. A. and Ms. L. about their interactions with both Mr. T. and Mr. S. and in particular, about their expressed intentions for Ms. N. that night , I was given no reason to, in any way, question, both as to veracity and reliability, the testimony of Mr. A. and Ms. L..

[190] Mr. T. testified that he wanted to cooperate with the police at the scene but for the fact that they were so aggressive towards him. However, Mr. T. was observed by P.C. Belanger, who arrived shortly after Mr. A. called the police, to be walking away from the scene even when called and that he had to be stopped for the investigation. P.C. Belanger in his interview of Mr. T. observed him to be evasive and non-cooperative.

[191] Mr. T. has a criminal record which includes one adult conviction for a crime of dishonesty. Mr. T. has shown himself to be untruthful. His cross-examination revealed that when Detective Webster came to interview him in his investigation of this case, Mr. T. was not honest about his knowing Mr. S. or knowing his name as the driver of the vehicle on the night in question. Mr. T. also lied about being in communication with Mr. S. after the incident with Ms. N..

[192] In the final result, it would be unsafe to rely on the evidence given by Mr. T. unless there is other more objective evidence to corroborate such evidence.

[193] Mr. S.’s own evidence confirms that of Mr. T., that he took Ms. N.’s telephones from her, out of his vehicle and to his apartment. His explanation was that he did so in order to avoid being breached on his recognizance.

[194] An examination of all of the evidence relating to the circumstances in which Mr. S. found himself that morning, even accounting for his state of intoxication, belies his explanation. Furthermore, the evidence concerning his conduct relating to Ms. N.’s telephones after the incident convince me beyond a reasonable doubt that Mr. S. took Ms. N.’s telephones for his own use. Clearly evading the police on the evening in question was also on his mind.

[195] Mr. S.’s explanation of why he took Ms. N.’s telephones to his apartment is not believable. Nor does it raise a reasonable doubt about his real intention in taking them. When Mr. S. left with Ms. N.’s telephones to go to his apartment, Ms. N. had already been taken out of his car. In fact, she lay unconscious some distance from his car because Mr. S. testified that once Ms. N. was out of his car he moved his car from where Ms. N. lay unconscious on the ground to the visitors’ part of the parking lot even though he had his own parking lot at his residence. To have left the telephones with her, the rightful owner, along with her other belongings, even in her unconscious state, would have resolved Mr. S.’s fears of having been found with phones in his car. Mr. S. could have divested himself of her telephones, as he did of Ms. N., by just leaving the telephones with her. Instead what he did was retain possession and control of them and perpetuated his chances of being found in breach of his recognizance.

[196] Another logical alternative would have been to give the telephones to Mr. T. Mr. S. was prepared to leave Mr. T. at the scene with the unconscious Ms. N. to be investigated by the police.

[197] Mr. S. testified that he used Ms. N.’s telephone for his own communications. His explanation was he did this because he was bored or engaging in a bad habit or looking to meet new friends. This, alone, clearly is conversion of Ms. N.’s property for Mr. S.’s own use, “without colour of right” within the meaning of Section 322 of the Criminal Code of Canada.

[198] The evidence also established a second use Mr. S. made of Ms. N.’s phones, namely, as an instrument of getting some money from the rightful owner desperate to retrieve their telephones with all of the information contained therein. In coming to this conclusion I also consider the similar fact evidence admitted in my ruling relating to the other 6 complainants, all of whom lost either their cell phones or sim card from their telephones in their encounters with Mr. S. and never had them returned.

[199] Mr. S. explained that he saw the money as a “reward” for taking the risk of having possession of Ms. N.’s telephones and returning them to her and that it was Ms. N. who set the amount of money to be exchanged for the telephones. On the totality of the evidence I find as a fact that this was nothing short of trying to sell back to the proper owner their property for monetary gain.

[200] For all of these reasons, I conclude that the Crown has proven this count beyond a reasonable doubt.

COUNT 6

[201] Under this count Mr. S. is charged that by retaining the telephone Ms. N. owned, he did “unlawfully and without lawful authority” and with the intention of compelling Ms. N. to abstain from doing something she had a lawful right to do, namely to use her cell phone. In other words, his intention was to deprive Ms. N. of the use of her telephone.

[202] I agree with Defence Counsel that Section 423 (1) (d) of the Criminal Code is a specific intent offence. As was stated in R. v. Martin, supra, at para. 14, that as a specific intent offence, “it requires proof, not only of what the accused did, but as well, as the purpose she had in doing it.” There is no question on the evidence that the actus reus of this offence has been made out beyond a reasonable doubt. Mr. S. took her two telephones from her and retained them. To the present time Ms. N. has not had her telephones returned to her by Mr. S.

[203] The mens rea, required to be proven beyond a reasonable doubt is that Mr. S. took and retained Ms. N.’s telephone with the specific intention of depriving her of the use of her telephone, which she had a right to do.

[204] In doing what he did with Ms. N.’s telephones, namely to take them, attempt to sell them back to Ms. N. and to not return them to Ms. N., Mr. S. must be taken to know that he was depriving Ms. N. of the use of her telephones. He went ahead and took and retained the telephones. In fact, only by doing so could Mr. S. succeed in using her phone for his personal use and be in a position to obtain money for the exchange of the telephones. On the facts of this case, Mr. S.’s intentions in taking and retaining the telephones, and using them as he did, as proven on the evidence, necessarily includes the intention to deprive Ms. N. of her telephones. Although a different section of the Criminal Code, my reasoning on this count is similar to my reasoning at paras. 112 to 116 of my reasons relating to count 4 and Ms. C.

[205] For these reasons, I conclude that the Crown has proven this count beyond a reasonable doubt.

[206] Count 6 arises out of the same circumstances as count 5. There may indeed be a “Kienapple issue” as between counts 5 and 6. I await counsel’s submissions on this question before entering a conviction on either counts 5 and 6.

COUNT 7

[207] I conclude that on the evidence as summarized above, Crown counsel has proven this count against Mr. S. beyond a reasonable doubt.

[208] Mr. T. testified that he knew Mr. S. to have a cell phone and he communicated with him that way. The evidence, including that of Mr. S., showed that Mr. S. was communicating with Ms. W. using a cell phone in clear contravention of his recognizance. Given the timing of the communications that occurred between Mr. S. and Ms. N. and Ms. W. on April 1, 2011, before and after the incident at the St. Laurent McDonald’s I find that Mr. S. was also using a cell phone to effect those communications, again in contravention of his recognizance. That Mr. S. took and retained possession and control of Ms. N.’s telephones after the incident in question is not disputed. That, too, was in contravention of his recognizance.

[209] For these reasons, I find Mr. S. guilty of count 7.

THE INCIDENT REGARDING M. D. (COUNTS 8, 9, 10, 11, AND 12)

THE INCIDENT

THE EVIDENCE OF MR. S.

[210] When questioned about interactions with this complainant, M. D., by the investigating officers during his police interview on May 9, 2011, Mr. S. told the police officers that he could not remember being with a girl that evening or having a girl over to his apartment. He told the officers about a completely different incident that happened to him that night. When questioned about going up the stairs in a stairwell in his building with Ms. D., Mr. S. informed the investigators that he may have met her at the door by chance and let her into the building.

[211] In his examination in chief, Mr. S. testified that on April 17, 2011, the night he met the complainant, M. D., he could not really remember what he had been doing early in the evening although he guessed that it was what he normally does, namely being on his Facebook. He remembered being intoxicated and alone. He drove himself to McDonald’s in the Ottawa market area to talk and socialize with people.

[212] According to Mr. S. at about 2:30 or 3:00 am in the morning he saw two women in front of a bus stop near the Ottawa market area and he offered them a ride which they accepted. They gave him directions to go to a location near Algonquin College near the Baseline station. The evidence revealed that these two women were P.T. and M. D. Ms. T. got into the front passenger seat of Mr. S.’s car and Ms. D. got into the back seat. According to Mr. S. to his knowledge Ms. D. passed out in the back seat once she got into the car.

[213] To Mr. S.’s observation both women were intoxicated. His evidence was that Ms. D. was more intoxicated than Ms. T. because she was leaning on Ms. T., depending on her and Ms. T. had to help Ms. D. into the back seat. Ms. T. was the person giving him all the instructions regarding their destination. According to Mr. S., Ms. D. was “extremely” intoxicated (Proceedings at Trial, June 9, 2014, page 127).

[214] Mr. S. testified that he asked the women for gas money and he recalled making at least one stop so that Ms. T. could get money ($20) to give him.

[215] Mr. S. testified that while he was driving he was thinking that he did not want his time with these two women to end so he purposely took a wrong turn which neither of the two women commented on. In Mr. S.’s own words, “Then, I guess I was driving, driving and driving...” (Proceedings at Trial, June 9, 2014, page 126.)

[216] Mr. S. then recalled parking the car somewhere, he could not remember where, and talking to Ms. T. and trying to kiss her. According to Mr. S. she then backed off and immediately exited the car and left, leaving him with the “extremely intoxicated” and unconscious Ms. D. in the back seat of his car. He then drove to his house.

[217] Ms. T.’s evidence at trial was able to elaborate somewhat on this part of Mr. S.’s evidence. Ms. T. testified that she had little current memory of the circumstances that led her to flee Mr. S.’s car and leave her friend, Ms. D., passed out in the back seat of the vehicle. Relying on a statement given to the police on May 7, 2011, admitted as past memory recorded (see admitted portion of exhibit #22) it was Ms. T.’s evidence she and Ms. D. entered Mr. S.’s car thinking it was an underground taxi. Ms. T. described Mr. S. as an “African American, [who] had cornrows and was overweight”. Ms. T. could not remember what led her to believe she was in danger and that she had to leave. Ms. T. remembered feeling “creeped out” and that if she “did not leave things would end up worse”.

[218] Mr. S. testified that once he went home and parked his car he thought of just locking his car and leaving Ms. D. in the car and going to his apartment. He then thought about it again and decided doing that was not a good idea so he went back for her.

[219] Mr. S. testified that he had to wake her up. According to Mr. S. when Ms. D. woke up she was upset, agitated and paranoid asking where she was and where her friends were. Mr. S. testified that he tried to calm her down but without much success. He testified that he may have told her that her friends were upstairs in his apartment to get her to calm down and come with him to his apartment, which she did. In going up to his apartment from his car, Mr. S. did not recall Ms. D. having either a purse or a cell phone with her.

[220] In his examination in chief, Mr. S. was asked if he had asked Ms. D. if she wanted to be taken home. His response was no because according to him she was really out of it. During his cross-examination Mr. S. stated that maybe he asked her where she lived and if she wanted to go home. Furthermore, he did not know where she lived.

[221] Mr. S. on cross-examination denied that he brought Ms. D. to his apartment to have sex with her. His evidence was that it was to socialize with her and to hang out, if she wanted. According to Mr. S. she did not and she left.

[222] According to Mr. S. once they got to his apartment, he thinks she sat down on his couch but her upset did not change, and in fact according to him it got worse and it was clear she wanted to leave. Mr. S. did not recall offering her anything to drink nor did he think he had enough time to have a drink himself. According to Mr. S., Ms. D. then announced to him suddenly that she was leaving and went for the door. According to Mr. S. she could not have been in his apartment for more than one minute. On cross-examination he stated no more than five minutes.

[223] Mr. S. testified that in his continuing attempts to calm her down, at the door, which he did not think was locked, he then asked her for a kiss. It was Mr. S.’s evidence that he was hoping to sweet talk her and convince her to stay. Mr. S. agreed on his cross-examination that his request for a kiss probably freaked out Ms. D. even more. According to Mr. S., Ms. D. then proceeded to kiss him on the cheek, after which he asked for “more of a kiss, or something in that way” (Proceedings at Trial, June 9, 2014, page 129). According to Mr. S. at that second request on his part, Ms. D. raised her voice, saying no and opened the door and ran out into the hall and began knocking on the doors of other apartments.

[224] Mr. S. testified that he followed her to see where she was going and to see if she was okay. He observed her go into another apartment. Mr. S. then left his apartment to get something to eat at a McDonald’s nearby because at that time it was early morning.

THE EVIDENCE OF MS. D.

[225] It was the evidence of Ms. D. that on April 16, 2011, she had done some “pre-drinking” at a friend’s house before taking a taxi to the Ottawa market to go to a bar called the Lobby. This was around 10:30 or 11:00 pm. Ms. D. recalled that she was wearing that night a silk top, a zip-up blazer, a pencil skirt and a black pea jacket. She also had her purse with all her ID, her phone and maybe 20 to 40 dollars.

[226] Ms. D. acknowledged that by the time she set out with her friends to go to the Ottawa market she was tipsy but did not think she was drunk. Her plan had been to share a cab home from the market with her friend, P.T. and then go back to her boyfriend’s house.

[227] She remembered being in the Lobby drinking, and dancing. After that she had no memory until she woke up in stranger’s apartment with no idea where she was nor how she got there. She had no knowledge of what floor she was on nor could she later locate the apartment when asked to do so by the police.

[228] Ms. D. had no memory of entering Mr. S.’s apartment building. Nonetheless, when shown a video of the stairwell of Mr. S.’s apartment building on the morning in question, obtained subsequently by the police, Ms. D. identified herself in the video going up the stairs on her own with Mr. S. behind her (see exhibit #20 admitted on consent).

[229] Her recollection was that when she became conscious in the strange apartment, she was sitting on a beige couch and she saw a big black man, with corn rows hair whom she identified in Court as the accused. She did not think he was sitting beside her. Ms. D. did not know who this man was nor could she remember ever seeing him before.

[230] According to Ms. D. she realized that her purse was missing and she panicked and attempted to leave by going to the door. Ms. D. recalled Mr. S. being with her at the door and trying to calm her and soothe her and trying to get her to stay.

[231] According to Ms. D., Mr. S. then asked her to give him a kiss and repeated the request. It was Ms. D.’s evidence that she was panicked; did not want to kiss him but did not think she could leave the apartment until she had kissed him. On cross-examination Ms. D. testified that while they stood at the door and Mr. S. asked for a kiss, Mr. S. was definitely in her personal space. However, there were no threats made by Mr. S.

[232] According to Ms. D. after she kissed Mr. S. on the cheek, he informed her that that was not enough and that he wanted some “tongue”.

[233] Ms. D. understood this to mean that she should be sexual.

[234] Ms. D. testified that she then grabbed the door and bolted outside the door trying to find the stairwell. According to Ms. D., Mr. S. followed her to the stairwell, trying to get her to be quiet and to go back to his apartment.

[235] Ms. D. testified that she then began to bang on other apartment doors.

[236] Ms. D. remembered being in hysterics and panic. She was finally let into an apartment by a lady who opened her door to her.

[237] It was not disputed on the evidence that the woman who opened her door to Ms. D. on the morning in question was Ms. C. Ms. C. testified that around 5 am in the morning when she was about to take her dog for a walk she heard pounding on her door and opened it to see a crying, shaking woman. Ms. C. let her in, seeing a shadow by the stairwell as she did so, locked her door and called 911 for the police. It was Ms. C.’s evidence that Ms. D. did not want the police called but she called them anyway and had Ms. D. speak to the 911 operator.

[238] The 911 tape and transcript of Ms. D.’s discussion with the 911 operator was filed as exhibits #18 and #19 respectively. From the tape, Ms. D.’s emotional upset is obvious. What is also clear is that Ms. D. was clearly confused and not necessarily lucid. Ms. D. recounted to the 911 operator that a black male had her little sister.

[239] According to Ms. D., the police eventually arrived at Ms. C.’s apartment, took a statement from her and then drove her to the home of her boyfriend, Mr. A.O’.

[240] On cross-examination Ms. D. testified that prior to receiving the text messages from Mr. S. the following day, she was not aware of any sexual activity taking place between her and Mr. S. in the apartment or in the stairwell. Prior to receiving those texts she had no knowledge of being sexually assaulted by Mr. S. Nor did she have any physical sensation of being sexually assaulted by him.

[241] The police officer, who responded to the 911 call, Alain Rouchette did not observe any injuries on Ms. D. nor that she had been hurt or assaulted by anyone. He also noted the odour of alcohol on Ms. D. and that she was unsteady on her feet.

[242] When Ms. D. arrived home she realized that she had lost that evening, her black blazer, the belt from her jacket and her BlackBerry cell phone, which had all her personal information and contacts.

POST EVENT COMMUNICATION BETWEEN MR. S. AND MS. D.

THE EVIDENCE OF MR. S.

[243] It was Mr. S.’s evidence that he was in communication with Ms. D. after the incident in question. Mr. S. testified that when he went to McDonald’s for breakfast after Ms. D. left his apartment and he had followed her for a short period, he returned to his car and because he usually looks around to see what is in his car, he found some items in his car that Ms. D. had left behind. The items were her cell phone, her jacket belt (possibly a jacket), a wallet, her identification and a credit card.

[244] With respect to the credit card Mr. S. admitted to taking the credit card and using it on line on a site that unlocks phones to unlock a cell phone. According to Mr. S. he was just being stupid and experimenting. According to Mr. S. he had never done this before. Mr. S. testified that he did not try to use Ms. D.’s credit card again.

[245] Ms. D.’s evidence revealed that the locked telephone that Mr. S. unlocked on line with the use of Ms. D.’s credit card was in fact Ms. D.’s lost cell phone after she had called her server to lock the missing cell phone. Mr. S. testified that he could not remember what he did with Ms. D.’s credit card.

[246] According to Mr. S., the day after the incident, he received a text from Ms. D. on her telephone, from another telephone, attempting to locate and retrieve the personal items she had left behind.

[247] The evidence showed that Mr. S. was also answering Ms. D.’s cell phone when others called her and exchanging texts on her cell phone. (See exhibit #21, Statement of Facts of M.D.1). Ms. T. also testified that after the incident, she began to receive texts from a cell phone displaying the cell phone number of Ms. D.’s lost cell phone but under another name. According to the texter of those messages, he had her bus pass with her picture and he commented that she was cute. Ms. T. had lost her bus pass on the morning of the incident and never did get it back.

[248] According to Mr. S., after he received the first text from Ms. D., he then began a series of text communications with her. A copy of these texts was filed as exhibit #24. Mr. S. identified them as the communications he had with Ms. D. before ending all communication with her. Mr. S. testified that Ms. D. offered to pay him money for the return of her phone. This is confirmed at page 97 of exhibit #24.

[249] Exhibit #24 also confirms that Mr. S. was clearly interested in her offer to pay him to return her phone back, engaging in counter-offers that quickly raised the price for the return, also suggesting more money had to be paid if he returned her other lost items such as her wallet. When asked to explain this, Mr. S. testified that he regarded it as a reward, “a nice gesture” (Proceedings at Trial, June 9, 2014, page 144) to him for finding her cell phone.

[250] When questioned about why he raised the price to be paid for the return of Ms. D.’s personal property, Mr. S. testified that he had no intentions of meeting her because he had no one to go with him, even though he had tried to find someone, and he was not permitted to have possession of a cell phone. Mr. S. did not inform Ms. D. that he had no intention of meeting her because he was “bored” and just went along with the conversation (Proceedings at Trial, June 9, 2014, page 146).

[251] Despite his having no intention of meeting Ms. D. to return her lost property, Mr. S. embarked on a text exchange with her about the exchange and where they should meet for the exchange.

[252] Mr. S. acknowledged sending to Ms. D. from her cell phone the texts found in exhibit#24 including the ones in which he suggested that he and Ms. D. had engaged in sexual activity the day before. See exhibit #24, page 63 (“we had sex”, “I swear u a lil wild 1”); page 62 (“Lol u like wanted my whole cock in u”; page 61 (“It was in the staircase”).

[253] Despite having written these messages to Ms. D., Mr. S. denied that there had been any sexual activity between him and Ms. D., nor had he touched her in any sexual way. When questioned about why he sent the above messages, suggesting otherwise, Mr. S. testified that he was being “stupid” and trying to end the conversation.

THE EVIDENCE OF MS. D.

[254] Ms. D. testified that the morning after the incident she attempted to call her missing cell phone but did not get an answer. Later that day she began to get text messages from someone using her cell phone. She then, with Mr. O’s assistance who was with her, entered into an exchange of texts with that person to try and retrieve her cell phone and the other belongings she left behind after the incident. There is no dispute that it was Mr. S. with whom she was texting.

[255] According to Ms. D., when discussing the possible location for the exchange with Mr. S., he expressed a concern about being caught in an ambush and made a reference to another time a girl had some guys ready to “jump” him (see page 79 of exhibit #24). Mr. S. testified that this was a reference to the meeting Mr. S. had with Ms. N. and Ms. W. at the St. Laurent McDonald’s some 17 days before this message.

[256] Ms. D. testified that Mr. S. never did show up for a meeting and she never did get any of her lost items back. Her evidence was that she later saw her cell phone for sale on Kijiji. Ms. D. also had all of her credit cards cancelled when she realized someone had used her credit card to unlock her cell phone that she had locked through Telus.

[257] According to Ms. D., she knew that during the incident she had had periods of time which she could not remember. As Mr. S.’s texts became more and more sexual in content and he began to insist that they had engaged in sexual activity, she began to get more and more upset. In her own words she felt disgusted, upset, anxious and terrified although she had no recollection of anything Mr. S. was suggesting in his texts to her. She then decided to report the incident to the police. Subsequently, Ms. D. went to the hospital for a sex assault examination kit. The results of that test were filed as exhibit #17 and were negative for semen. There is no forensic evidence connecting Mr. S. with Ms. D.

ANALYSIS OF THE EVIDENCE REGARDING THE COUNTS RELATING TO M. D. (COUNTS 8, 9, 10, 11, AND 12)

COUNT 8

[258] Under this count Mr. S. is charged with the unlawful confinement of Ms. D. The jurisprudence discussed under count 2 at paras. 81 to 100, inclusive also applies to this charge. In order to succeed on this charge Crown counsel must prove beyond a reasonable doubt firstly, the actus reus, namely that Mr. S. actually confined Ms. D. so that her will to move from place to place was overridden by Mr. S.; that Mr. S. had no lawful authority to so confine Ms. D. It may be stated here that it is not disputed that Mr. S. did not have any lawful authority to confine Ms. D. or any of the other complainants; and, that Ms. D. did not consent to be so confined.

[259] Secondly, Crown counsel must prove beyond a reasonable doubt that Mr. S. intended to so confine Ms. D., explicitly expressed or as can be inferred from all of Mr. S.’s actions and the circumstances of the case.

[260] In considering this charge, one must examine two different time periods of the events that morning, namely the time Ms. D. spent in Mr. S.’s car and the time Ms. D. spent in Mr. S.’s apartment before fleeing it.

[261] I am not persuaded that Crown counsel has made out this charge against Mr. S., beyond a reasonable doubt, for the following reasons.

[262] With respect to the time Ms. D. spent in Mr. S.’s car, the evidence does not support the finding that Ms. D. entered Mr. S.’s car against her will. In fact, it was her friend Ms. T. who appears to have negotiated the ride with Mr. S. and put Ms. D. in the back seat of his car because Ms. D. was in no condition to do so herself. Ms. D. had no memory of this part of the evening. It is also evident from the evidence that upon being put in the back seat of Mr. S.’s car, Ms. D., if she was not so already, quickly became asleep or unconscious. It is evident that Ms. D. was in no condition to consent or not consent to being driven in Mr. S.’s car.

[263] Mr. S. was given a destination to drive the two women. A money transaction for the ride was even agreed to between Ms. T. and Mr. S. By his own evidence, Mr. S. ignored those directions and just began to drive around for his own reasons, namely, that he did not want the evening to end.

[264] From the evidence one can conclude that Mr. S. had another reason for ignoring the destination instructions of Ms. T. namely, that Ms. T. would become intimate with him after he tried to kiss her. He parked his car and asked her for a kiss. Ms. T. could not remember exactly what gave her discomfort in Mr. S.’s car so that she had to leave immediately and abandon her friend in the back seat. However, Mr. S.’s evidence, I believe, explains her precipitous exit from his car. Being asked by a stranger for a kiss in a parked car that you thought was taking you home for money, could reasonably have been why. On these facts, I find that, when Mr. S. succumbed to the voice in his head by making the decision to set his own destination for this ride, Mr. S. did not have the consent of either Ms. T. or Ms. D. to be in his vehicle.

[265] After Ms. T. fled his vehicle, Mr. S. drove the unconscious Ms. D. to his residence, a ride to which she clearly did not consent. But in accordance with the jurisprudence, can it be found that during that ride Ms. D.’s will to move from place to place was overridden by Mr. S.? I cannot make that finding on the evidence. Clearly on the facts Ms. D.’s intoxication and unconsciousness is what kept her in Mr. S.’s vehicle during the ride to Mr. S.’s apartment.

[266] With respect to the time Ms. D. found herself in Mr. S.’s apartment until exiting it, was she unlawfully confined to that apartment by Mr. S.? Upon arriving at Mr. S.’s residence, Mr. S. woke up Ms. D. and by a ruse convinced her to follow him up to his apartment. Ms. D. has no memory of this time period. However, I am prepared to accept Mr. S.’s evidence on this because of the more objective and reliable evidence of the stairwell video obtained by the police in the course of their investigation. Exhibit # 20 clearly shows that, however he convinced her, Ms. D. apparently entered Mr. S.’s building of her own volition and on her own. The video shows that she is climbing the stairs on her own. She is not being held nor carried by Mr. S. She does not appear to be forced up the stairs.

[267] Nonetheless, the case law makes it clear that consent obtained fraudulently or by deceit cannot amount to real consent. On the facts, I cannot find that Ms. D. consented to be in Mr. S.’s apartment but went there on the basis of his deceit.

[268] Once in the apartment was Ms. D. actually restricted in her ability to move from place to place by Mr. S.? Perhaps a more specific way to formulate this question in the circumstances of this case is as follows: was Ms. D.’s ability to leave the apartment overridden by Mr. S.? There is no evidence of any physical restraints exercised by Mr. S. There is no evidence of any threats made against her made by Mr. S. As the jurisprudence points out the absence of such indicia does not necessarily prevent a finding of unlawful confinement.

[269] The fact that Ms. D. was subsequently able to flee Mr. S.’s apartment through an unlocked door, also does not necessarily prevent a finding of unlawful confinement.

[270] As the case law points out restriction of movement or physical restraint can also be effected “by fear, intimidation and psychological and other means...” (see R. v. Gratton, supra; R. v. Kematch, supra, and R. v. Cadden, supra).

[271] Ms. D. testified that upon finding herself in Mr. S.’s apartment she was panicked and wanted to leave. That Ms. D. wanted to leave his apartment almost as soon as she entered it also did not escape and could not have escaped Mr. S.’s knowledge. Ms. D. testified that when Mr. S. first asked her for a kiss he was clearly in her personal space and, she did not think that she could leave the apartment until she had given him one. It was for that reason she kissed him on the cheek.

[272] At that moment, I find on the evidence that there was an unequal power dynamic between Ms. D. and Mr. S. for the following reasons. Based on my observations in court, Mr. S. is a much larger and stronger person than Ms. D. He obviously could have easily physically overpowered her. When Ms. D. went for the apartment door, Mr. S. followed her and placed himself in close proximity to her at the door area before asking for a kiss. Furthermore, Ms. D.’s faculties were seriously impaired by alcohol as is clear from the content of the 911 call that took place in Ms. C.’s apartment minutes later.

[273] Mr. S. testified that he too was intoxicated that night. Nonetheless, based on the similar fact evidence admitted, like with a number of the other complainants, he appeared to have been quite capable of negotiating a price for giving two strangers a drive in his car, of deciding to drive to another place than where he was supposed to go, of driving around as he chose and of purposefully finding his way home. Based on the content of the texts he sent Ms. D. the day following the incident, he also seemed to have an accurate recall of the alleged sexual activity that supposedly had gone on between Ms. D. and himself during the incident. I find that the effect of Mr. S.’s intoxication on his mental faculties appears to have been minimal.

[274] Based on these facts I accept that on a subjective and objective standard, Ms. D. believed that she could not leave Mr. S.’s apartment until she had kissed him. She clearly wanted badly to leave and, hence, kissed him on the cheek. Through psychological intimidation Ms. D.’s movement can be found to have been restricted by Mr. S.’s actions at the moment of his request for a kiss and then by his second request for “tongue”, ending with her successful flight from the apartment.

[275] In my view, Crown counsel has made out, beyond a reasonable doubt, the actus reus of the offence in count 8. The final question is whether Crown counsel has also proven the requisite mens rea beyond a reasonable doubt on all of the evidence.

[276] On the evidence as a whole, can this Court find or infer from Mr. S.’s actions, with respect to Ms. D. and all of the circumstances of this case, that he intended to unlawfully confine Ms. D. in his apartment?

[277] Mr. S. testified that he asked Ms. D. to kiss him in order to calm her down. Even accepting that he may have been operating under the influence of some alcohol, I find that he would genuinely believe that a way to calm a panicked woman in such circumstances would be to ask the woman for a kiss immediately followed by a request for another kiss with some “tongue” is simply incredible. It is unbelievable because of his experience with Ms. T. earlier that same evening. It is unbelievable because of his awareness of Ms. D.’s upset at finding herself in his apartment, without her friends, and because of his knowledge that she wanted to quickly leave his apartment. For the same reasons, Mr. S.’s evidence does not raise a reasonable doubt in my mind concerning his intentions during his interactions with Ms. D. at his door prior to her precipitous exit from his apartment.

[278] On all of the evidence I am satisfied, beyond a reasonable doubt, that Mr. S.’s intention in his interactions with Ms. D. in his apartment, inferred from his actions, his own evidence and all of the circumstances of the events of that morning, was to keep Ms. D. in his apartment long enough while he attempted to engage her in some preliminary intimate activity that would lead ultimately to sexual activity between them. For this reason, I find that the Crown has proven the requisite mens rea of this charge beyond a reasonable doubt.

[279] On the evidence, the period of unlawful confinement of Ms. D. by Mr. S. was brief, from the moment he asked for a kiss to the moment she fled the apartment. Based on both the evidence of Ms. D. and Mr. S. this all occurred in a matter of minutes and possibly seconds. As the case law discussed earlier suggests, there is no defined length of time of unlawful confinement required to make out the charge other than it must be “significant”, more than “de minimus”. On all of the evidence, I cannot find that the unlawful confinement of Ms. D., compelling her to kiss Mr. S. against her will, was so “de minimus” as to not make out the charge.

[280] For these reasons, I find Mr. S. guilty of count 8.

COUNT 9

[281] Under this count Mr. S. is charged with the sexual assault of Ms. D. Sexual assault is common assault (intentional application or threat of force without consent) in circumstances of a sexual nature such that the sexual integrity of the complainant is violated. Putting aside for the moment the fact of the kiss, which I will deal with separately below, there is no direct and reliable evidence provided by Ms. D. to support, beyond a reasonable doubt, a charge of sexual assault against Mr. S. Ms. D.’s evidence was that but for the texts she subsequently received from Mr. S. she had neither knowledge nor memory of any sexual activity that had gone on between her and Mr. S. Furthermore, after the incident, Ms. D. testified that physically, she had no reason to suspect that Mr. S. had sexually assaulted her. She had no sensation of having been sexually assaulted which is what she also told Police Constable Rouchette on the morning of the incident and also subsequently to the detectives investigating this matter.

[282] The examination of more objective evidence from the incident leads to the same conclusion. Police Constable Rouchette, who responded to the 911 call from Ms. C.’s apartment did not make any observations of injuries or assault on Ms. D. Neither did Mr. O’ when Ms. D. arrived at his home after the incident. According to Mr. O’, Ms. D. was more concerned at that time with the loss of her personal items. There was nothing in the sexual assault kit examination (exhibit #17) undertaken by Ms. D. to indicate that any sexual assault by Mr. S. had taken place. Even the fact that Ms. D. may have left certain items of clothing behind in Mr. S.’s apartment, a jacket belt and possibly a blazer, while suspicious on the totality of the evidence, does not meet the standard of proof required to establish sexual assault.

[283] In fact, the most direct evidence of any sexual activity that might have occurred between Ms. D. and Mr. S. is from Mr. S. himself, based on the content of the texts he admitted to sending to Ms. D. the day after the incident. Given Ms. D.’s level of intoxication on the morning in question, acknowledged by Mr. S. himself, it is clear that Ms. D. for the duration of time she was with Mr. S., was not in any condition to give consent to such reported sexual activity.

[284] In his oral testimony Mr. S. denied that any sexual activity took place between himself and Ms. D. One can reasonably conclude from the texts he sent Ms. D. the day after the incident, found in exhibit #24, that he certainly wanted her to believe such sexual activity had gone on between them.

[285] All of Mr. S.’s evidence, more specifically his various explanations for the telephone texts he sent to Ms. D. the day after the event are not worthy of belief. Based on the similar fact evidence admitted from the other counts, concerning Mr. S.’s penchant for seeking financial gain for the return of the other complainant’s cell phones which were in his possession, I cannot believe that Mr. S. did not intend to obtain similar financial gain from Ms. D. through the transaction of returning her personal items and her telephone to her. Nonetheless, he did not follow through and go to meet Ms. D. Based on his reference in one of the texts, to being “jumped” during his planned meeting with Ms. N. at the St. Laurent McDonald’s, shortly before this incident, it is reasonable to conclude that Mr. S. just concluded that the risk to him was just not worth the risk of the meeting.

[286] Mr. S.’s explanation that his suggestions to Ms. D. of sexual activity having gone on between them during the incident was his way of ending their text conversation is also unworthy of belief. That Mr. S. would not think of just stopping to respond to the text messages as a way of stopping the text conversation also defies credulity. Mr. S. just stopped texting Mr. D. and the conversation ended (exhibit #21). Based on his own evidence, Mr. S. spent a lot of his time communicating with his friends through the internet and cell phone activity. He must be taken to know how to end a text conversation other than suggesting the occurrence of sexual activity.

[287] What is the more credible explanation by Mr. S. was that he was just being “stupid”, to which I would add to his own assessment, that he was also being purposefully cruel.

[288] For all of the above reasons, I conclude that even Mr. S.’s evidence about sexual activity between himself and Ms. D. during the incident, as recounted in his telephone texts to Ms. D., is unreliable in the face of his lack of credibility and contradictory evidence. Consequently, it would be unsafe to base a conviction of sexual assault on that alone in this count. One simple example of why is found in Mr. S.’s text suggesting that he and Ms. D. had sex in the stairwell of his building. Exhibit #20, the stairwell video clearly shows no such activity took place.

[289] Can Crown counsel rely on the circumstances surrounding Ms. D. giving Mr. S. a kiss on the cheek to make out the charge of sexual assault? Ms. D.’s evidence was that she believed she had to kiss Mr. S. before she could leave the apartment. For the purpose of count 8 I have found that for that brief period of time Ms. D. was constrained to Mr. S.’s apartment by psychological intimidation.

[290] Nonetheless, for the purposes of count 9, one must still find on the evidence relating to the kiss that Mr. S. applied force or threat of the use of force, without Ms. D.’s consent, in circumstances of a sexual nature such that the sexual integrity of Ms. D. was violated. It has already been established that Ms. D. was in no condition to consent and Mr. S. was well aware of this.

[291] The evidence indicates that Mr. S. did not exercise any physical force on Ms. D. to make her kiss him. According to Ms. D., confirmed by the testimony of Mr. S. himself, he simply asked her for a kiss at the door. The evidence also establishes that Mr. S. did not utter any threats of the use of force to make Ms. D. kiss him. Mr. S. did not kiss Ms. D. Rather it was Ms. D. that kissed Mr. S. and she controlled the nature of the kiss, prompting him to ask for another more elaborate one. While Mr. S. was obviously quite capable of over-powering Ms. D. and forcing the more elaborate kiss, he did not exercise such force or even utter any threats of the use of force. Mr. S. was a stranger to Ms. D. He was not in any position of trust, power or authority to her.

[292] I agree with Defence counsel’s submissions that on the basis of the totality of this evidence, Ms. D.’s subjective belief alone that she had to kiss Mr. S. before she left the apartment and did so, cannot make out this charge. Based on the admitted similar fact evidence relating to other complainants on the issue identified by Crown counsel, namely Mr. S.’s modus operandi of taking advantage of vulnerable (intoxicated) women who he encounters in one circumstance or another in the Ottawa market area, I am convinced that Mr. S. would have been prepared to engage in sexual activity with Ms. D., if her response had been otherwise than to flee the apartment. However, on the actual evidence, as it relates to the incident with Ms. D., she clearly would not go further than the cursory kiss on the cheek. She demonstrated her lack of consent by bolting from his apartment. Mr. S. did not exercise force or threat of force to get her to comply with his second request.

[293] One must look at the evidence as a whole, the surrounding circumstances of the request and giving of the kiss, the actions of Mr. S. and the actions of Ms. D. On the evidence, I am left with a reasonable doubt as to whether the request by Mr. S. for the kiss followed by the subsequent events can support a conviction of sexual assault on this count. While not wanting to minimize or negate in any way, Ms. D.’s fearful predicament on the morning in question, I also have a reasonable doubt as to whether in all of the circumstances of this case it can be found that the kiss was in circumstances of a sexual nature such that Ms. D.’s sexual integrity was violated.

[294] For all of these reasons, I conclude that Crown counsel has not met the onus on this charge and I acquit Mr. S. on count 9.

COUNT 10

[295] Mr. S. admitted to using Ms. D.’s credit card in order to unlock her phone which he retained in his possession. His evidence was that he did so because he was curious and to experiment. This explanation is not very convincing. Regardless of Mr. S.’s stated reasons, the evidence is clear that while he had possession of it and knowing that it was hers, he converted Ms. D.’s credit card for his own use, compounding the taking of her telephone by using her credit card to permit the continued conversion to his use of her telephone. Ms. D. never received her credit card back.

[296] Crown counsel has proven this charge beyond a reasonable doubt. I therefore find Mr. S. guilty of count 10.

COUNT 11

[297] Crown counsel has also proven this charge beyond a reasonable doubt. The evidence, as summarized earlier, indicates that Mr. S. kept possession of Ms. D.’s telephone and never gave it back to her. Ms. D.’s evidence was that she later saw her telephone on Kijiji for sale. There is also evidence indicating that Mr. S. used Ms. D.’s telephone to text Ms. T. for his own purposes. He also texted Mr. M.D.1 with Ms. D.’s cell phone. All of this evidence supports the conclusion beyond a reasonable doubt that Mr. S. converted Ms. D.’s cell phone to his own use and is therefore guilty of the theft of Ms. D.’s BlackBerry telephone.

[298] For all of these reasons, I find Mr. S. guilty of count 11.

COUNT 12

[299] Crown counsel has also proven this charge beyond a reasonable doubt. Mr. S.’s use of Ms. D.’s cell phone, as demonstrated by the evidence that supported his conviction under count 11, was done during the period of time when he was prohibited from having possession of any cellular telephones. His conduct therefore was clearly in breach of his recognizance of which he was fully aware.

[300] I therefore find Mr. S. guilty of count 12.

THE INCIDENT REGARDING K.C. (COUNTS 13, 14 AND 15)

THE INCIDENT

THE EVIDENCE OF MR. S.

[301] When questioned about Ms. K.C. by Detectives Webster and Chevalier during his police interview on May 9, 2011, and asked if he lost a piece of identification, Mr. S. recalled his encounter with Ms. K.C. He told the officers that he was driving around with her in his car, because he had agreed to give her a ride home. According to the information Mr. S. gave the investigating officers, Ms. K.C. said something about a Prince of Wales destination and so he was driving and she did not really know where she lived. He got lost and then Ms. K.C. began to panic. According to Mr. S. she was drunk and she was freaking out. She got out of his car and took his identification with her. When specifically asked as to whether he took Ms. K.C. to his apartment, Mr. S. informed the officers that they “went there for a quick second.” (See exhibit 42, page 111).

[302] Mr. S. further told the investigating officers that he saw Ms. K.C. again after the incident when he met her at the St. Laurent Shopping Centre. Mr. S. told the officers that Ms. K.C. left her identification in his car, the morning in question and he arranged to meet her to give it back to her. He denied having her cell phone because according to Mr. S., Ms. K.C. gave him her cell phone but he then gave it back to her. When questioned by the police officers, Mr. S. denied taking the sim card out of Ms. K.C.’s cell phone or having possession of it. Mr. S. also denied to the investigating officers that he had his own cell phone and was using it in his car on the morning Ms. K.C. was in his car.

[303] In his examination in chief at the trial Mr. S. testified that on or about April 30, 2011, he was doing what he normally does, namely communicating with his friends through the internet or on Facebook. Mr. S. recalled pre-drinking with some friends and that he had had a lot to drink and was really intoxicated. Mr. S. recalled that his intention had been to go clubbing but ended up leaving his house really late, around 1:30 am or so, and found himself at McDonald’s in the Ottawa market area. He was alone because he thought he had an argument with his friend who then left.

[304] Mr. S. testified that he met Ms. K.C. at the McDonald’s and began a conversation with her. According to Mr. S. she told him she wanted a ride to go to an Ottawa club that he thought might be “Tequila”, which Mr. S. conceded, on his cross-examination, was located close by to where they were. According to Mr. S. he then led Ms. K.C. to his parked car nearby and began to drive. Ms. K.C. sat in the front passenger seat of his car.

[305] With respect to his observations of Ms. K.C. when he met her, Mr. S. testified that he did not really know if she was intoxicated. She looked normal, although it was his evidence that most people at McDonald’s at that time are intoxicated.

[306] It was Mr. S.’s evidence that once in his car he drove to his residence at XXX D[…] Street. It was Mr. S.’s evidence that he wanted to hang out and “chill” with Ms. K.C. which is why he drove her to his residence.

[307] In his examination in chief Mr. S. acknowledged that he did not take Ms. K.C. to where she asked to go. His only explanation seemed to be his intoxication level that prevented him from making the right decisions, especially when he makes decisions at the last minute.

[308] When cross-examined about why he took Ms. K.C. to his house when she had asked him to take her to a bar not far away from where they were Mr. S. did not have a clear answer but various explanations such as that Ms. K.C. could have told him she did not want to go there; or that he was drunk and not all there; or that he was “stupid.” On further cross-examination Mr. S. indicated that he was intoxicated but that he knew what he was doing that night.

[309] The drive took about 15 to 20 minutes and the doors to his car were unlocked. Mr. S. also agreed that during the ride to his house Ms. K.C. appeared in and out of consciousness. According to Mr. S. had Ms. K.C. expressed the desire to exit his vehicle he would have stopped to let her out.

[310] According to Mr. S. once he arrived at his residence, he had to tap Ms. K.C. on the shoulder to wake her up. When he did wake her up, he then led her up to his apartment with Ms. K.C. following behind him.

[311] Mr. S. was questioned about whether any conversation had taken place between himself and Ms. K.C. when he arrived at his apartment building and woke her up. After some persistent questioning Mr. S. admitted that maybe, when he woke her up in his vehicle outside of his residence, he tricked her by saying that her friends were up in his apartment. When cross-examined about this Mr. S. was less clear about what he may have said to Ms. K.C. to get her to follow him to his apartment.

[312] Mr. S. testified that when he was on the elevator with Ms. K.C. going to his apartment, he met another tenant whose apartment he had not seen before. He therefore, decided to take Ms. K.C. to his apartment, left her there while he visited with the other tenant just out of curiosity. According to Mr. S. he was not gone long, maybe some three or four minutes. When he returned to his apartment Ms. K.C. was not there so he went looking for her and found her in the lobby of his apartment building and brought her back to his apartment again.

[313] According to Mr. S. once she was in his apartment again she became very angry (“she really got pissed off”) (see Proceedings at Trial June 9, 2014, page 86). Mr. S. understood her to be angry because he had not taken her to the bar “Tequila” to meet her friends. Mr. S. testified that Ms. K.C. then began to threaten to throw things in his apartment if he did not take her where she wanted to go. The items Mr. S. mentioned as being the subject of Ms. K.C.’s threats to throw were his T.V. Mr. S. testified that she actually picked up a phone, he was not sure if it was her phone or somebody else’s phone or his phone, and threw it across the room.

[314] Mr. S. denied ever touching Ms. K.C. in his apartment or in his car. He never touched her sexually at any time. Mr. S. testified that he never threatened Ms. K.C.

[315] According to Mr. S., Ms. K.C. then told him to forget taking her to “Tequila” and to take her home. At that point, according to Mr. S., they had been back in the apartment for about a minute. Mr. S. testified that although Ms. K.C. wanted him to take her home, she did not tell him the exact address of where she lived but may have told him an area of Ottawa which he could not remember. Mr. S. agreed to this and began driving even though he did not really know where he was going and he could not exactly remember where he ended up driving. According to Mr. S., Ms. K.C. never asked him to get out of his car.

[316] Mr. S.’s recollection was that on the return trip Ms. K.C. was again in the front seat of his car. He could not remember if she had a purse or her phone but he thought she had her phone. Mr. S. testified that he thought the return trip was quite late, around 3:30 or 4:00 am. Like the trip to his apartment, Mr. S. recalled Ms. K.C. going in and out of consciousness on the return trip.

[317] Mr. S. recalled being off Bank Street the second or third time Ms. K.C. became conscious; she asked where they were and she then began freaking out. He thought that she might have tried to call her friends on her cell phone. According to Mr. S. she tried to grab the wheel from him and then told him she was going to call 911. On cross-examination Mr. S. indicated that he did not know if she tried to grab the steering wheel.

[318] According to Mr. S. he was aware that Ms. K.C. had called 911 and what she told them about being in his car and being kidnapped by him.

[319] Mr. S.’s evidence was that at that point he told her to get out of his car but she would not and insisted that he still take her home. When she would not exit his vehicle, Mr. S. testified, that he then grabbed her cell phone, which he thought was in Ms. K.C.’s hand and threw it out the window in an effort to get her out of car. Just at that moment, according to Mr. S. as he got up to grab her phone, Ms. K.C. grabbed his identity card on which he had been sitting. She then ran out of the car with it. According to Mr. S. he then returned to his car and left the scene. Mr. S. explained he did not stay for the police because he knew that he was intoxicated and did not want to get in trouble with the police.

THE EVIDENCE OF MS. K.C.

[320] Ms. K.C. testified that on or about April 30, 2011, she was new to Ottawa, having come from Nova Scotia. On the night in question she had gone to the home of her sister’s friend for some pre-drinks. Ms. K.C. recalled that she was wearing a dress and heels. Ms. K.C. also remembered taking a clutch purse in which she had her debit card, her Nova Scotia identification card and her cell phone. After this, the group, apparently, took a rented limo to Tequila Jack’s in the Ottawa market area.

[321] Ms. K.C. recalled that when the group of friends headed out for the market, she had had three or four drinks and was tipsy. She acknowledged being drunk on her arrival at Tequila Jack’s. Ms. K.C. was not sure what more she drank there because she had no memory of that. She recalled being with the group of friends and dancing.

[322] She then remembered being at the McDonald’s in the market area but was not sure how she got there. On her cross-examination Ms. K.C. testified that she knew she was at the McDonald’s because only later did she find an ATM receipt she had which was from the ATM machine at the McDonald’s restaurant.

[323] Ms. K.C. testified that her next memory was waking up in the front passenger seat of a strange car beside a man who was driving the car. According to Ms. K.C. the driver was dressed casually, wearing jeans and a white striped shirt. Ms. K.C. identified the driver of the vehicle as Mr. S.

[324] Ms. K.C. testified that when she woke up in the car she did not know who the driver was and may have asked him who he was. Ms. K.C., in her testimony, recalls that he said he was friends with the group of people with whom she went to the club. According to Ms. K.C. she then asked him to drive her back to the club and her friends. Ms. K.C. then recalled texting her friends that she was coming back to the club. Ms. K.C. also observed Mr. S. to be texting on his cell phone while he was driving.

[325] According to Ms. K.C., Mr. S. seemed to be driving for a long time to get back to the club. On cross-examination Ms. K.C. conceded that her memory of that part of the evening was “episodic”, in that she had flashes of memory of things that happened but then had total black outs or gaps in her memory, such as not remembering being at McDonald’s, and how she got into Mr. S.’s car. Ms. K.C. also agreed that when she was drunk she did not necessarily appreciate the accurate passage of time. Ms. K.C. had to frequently refresh her memory from her previous police statement.

[326] It was the evidence of Ms. K.C. that after a period of black out, her next memory is waking up in the same car that is parked in a parking lot. Ms. K.C.’s evidence was that she did remember Mr. S. saying to her that her friends were upstairs in the apartment building. According to Ms. K.C. she believed him when he said that and for that reason followed him into the building to his apartment.

[327] Ms. K.C. recalled Mr. S. unlocking the door to his apartment with a key. When she entered the apartment she noticed that it was dirty and messy and she also noticed that her friends were not there.

[328] According to Ms. K.C. she then confronted Mr. S. and asked him why he lied to her. Mr. S.’s response was to tell her to relax.

[329] Ms. K.C. testified that she then went to text her friends but realized that she was missing her Nova Scotia identification card, her debit card and her cell phone was registering no sim card. According to Ms. K.C. she then asked Mr. S. if he took her sim card. She recalled him denying he took it and saying to her that it probably fell out of her phone, which she did not believe. She recalled him looking rather stupid and clueless which is the way he behaved that evening.

[330] Ms. K.C. recalled becoming angry at the situation. On cross-examination Ms. K.C. indicated that she did not feel scared of Mr. S. Nor did she think he would hurt her. However, in her anger she picked up his flat screen television and threatened to throw it if he did not give back her sim card and drive her home. Ms. K.C. recalled Mr. S. telling her that he did not have his car because he had given it to a friend.

[331] Ms. K.C. recalled leaving the apartment and wandering around the apartment building until Mr. S. came to find her and told her that he had his car after all. It was the testimony of Ms. K.C. that in all the time she was in Mr. S.’s apartment and the whole time she was with him, he never hurt her or assaulted her either physically or sexually.

[332] It was Ms. K.C.’s evidence that the two of them then returned to Mr. S.’s car where Mr. S. took the driver’s seat. Ms. K.C. recalled sitting in the back seat so that she could look for he lost identification card. According to Ms. K.C. she told Mr. S. to take her to the Overbrook area. Ms. K.C. acknowledged not giving Mr. S. the specific address of her home.

[333] With respect to this ride, Ms. K.C. testified that it seemed to her that Mr. S. was driving and driving and seemed to be taking a long time to get to her destination. She also observed that he was texting on his cell phone as he was driving. To Ms. K.C., Mr. S. seemed relaxed.

[334] According to Ms. K.C. she was feeling scared, confused and many other emotions.

[335] On cross-examination Ms. K.C. testified that she did not ask him to let her out of the car because she would have been in an area of Ottawa which she did not know. For this reason she wanted to go to her home area or with her friends.

[336] At some point Ms. K.C. realized that she could call 911 even though she did not have a sim card in her phone which is what she did. The audio recording of that call was filed as exhibit #15 and the audio recording transcript was filed as exhibit #16. The call was made at approximately 5 am in the morning.

[337] In the 911 recording Ms. K.C.’s upset is evident as is the fact that she was under the influence of alcohol. In the call Ms. K.C. informed 911 that Mr. S. had kidnapped her, taken her personal items (her identification card, her debit card and the sim card from her cell phone); she also stated that she had asked him to take her to Presland and that he was just driving around and not taking her where she wanted.

[338] What is also clear from the 911 recording is that Mr. S. was not responding to a question put to him by Ms. K.C. and responded incorrectly to another question about the colour of his car. It is also clear from the 911 recording that some three minutes or so after the commencement of the 911 call Mr. S. became very vocal and proactive in getting Ms. K.C. out of his car. He stated to her a number of times to get out of his car. Ms. K.C. replied back that she wanted her identification back. After two screams, there is a break in the communication and subsequently, Ms. K.C. informed the 911 operator that Mr. S. threw her cell phone out of the car and that she had exited his vehicle and had gotten Mr. S.’s identification card from the car before leaving it. This identification card was filed as exhibit #14.

[339] In her testimony at trial Ms. K.C. could not exactly remember the sequence of events but she thought that when Mr. S. was telling her to get out of his car and she was responding that she wanted her identification card, he grabbed her cell phone and threw it out the window. According to Ms. K.C., she then tried to move to the front of the car and grab the steering wheel. Mr. S. pulled over and she ran out to get her cell phone which she found in the middle of the road. As she was leaving the car she noted Mr. S.’s identification card and she grabbed it. By the time she found her phone Mr. S. was gone.

[340] Ms. K.C., as the evidence shows, eventually found a taxi driver to help her until Police Constables Archer and Warren arrived on the scene to investigate the incident shortly after the 911 call. These officers obtained Mr. S.’s identification card from Ms. K.C. and gave it to the investigators in this case and they were able to trace Mr. S.’s name to a vehicle registration. Exhibit #23, admitted on consent, indicates that Mr. S., a number of days after the incident with Ms. K.C., contacted the Ottawa police to see if he could get his identification card back. In that tape Mr. S. made reference to driving around with a girl and that nothing happened.

[341] Both Police Constables Archer and Warren observed Ms. K.C. to be upset, crying, shaking and intoxicated. There was no reporting of an assault or sexual assault. Ms. K.C. testified in cross-examination that Mr. S. did not hurt her, did not sexually assault her, nor physically force her to stay when she wanted to leave his apartment.

POST-EVENT COMMUNICATION BETWEEN MR. S. AND MS. K.C.

THE EVIDENCE OF MR. S.

[342] It was the evidence of Mr. S. that the next day he was in contact with Ms. K.C. When asked how he knew to contact her he indicated he was not sure exactly. Then Mr. S. began to discuss a number of ways he could have been in contact with her. He could not remember if she had given him her phone number. He also stated that he started talking to her on Facebook “or something like that…” (see Proceedings at Trial, June 9, 2014, page 109). When asked how he was able to communicate with her on Facebook, Mr. S. testified that he found Ms. K.C.’s cell phone sim card in his apartment and put it in a new phone he had. Mr. S. explained that the sim car must, could, have come out of Ms. K.C.’s cell phone when she was throwing it around his apartment. Subsequently, Mr. S. testified that he was not sure whether he found Ms. K.C.’s sim card in his house or in his car.

[343] It was the evidence of Mr. S. that after he put Ms. K.C.’s sim card into a new phone, his own phone, he was able to receive texts sent to her from her friends and then connect to her Facebook. Through the messages sent to Ms. K.C. by her friend to her Facebook account, Mr. S. was then able to communicate with Ms. K.C. through her Facebook account too. When cross-examined about why he put Ms. K.C.’s sim card in his own phone Mr. S. was a little evasive and finally stated that he did it because he was curious.

[344] According to Mr. S. when he communicated with Ms. K.C. the next day he did not give her his proper name. It was Mr. S.’s evidence that he could have told her his name was J.W. or R and that he wanted to be her friend and possibly go out with her. After some discussion, he informed her that he was the guy from the night before. Ms. K.C. then asked for her Nova Scotia identification card back. In return he asked to be given his identification card back. According to Mr. S. he was informed by Ms. K.C. that she had given his identification to the police and so she no longer had it.

[345] According to Mr. S. they then agreed to meet at the St- Laurent Shopping Centre so that he could return her Nova Scotia identification card. Mr. S. testified that because of his intoxication the night before, he could not remember what Ms. K.C. looked like. When he went to the mall to meet her she saw him first and recognized him. Mr. S. gave Ms. K.C. her Nova Scotia identification card when they met. He did not, however, return her cell phone sim card. According to Mr. S. she did not ask for it and had already purchased a new one and did not need her old one.

[346] According to Mr. S., while they were at the St-Laurent Shopping Centre he offered to buy Ms. K.C. a pair of shoes in order to make up for messing up her night and not having driven her where she wanted to go.

THE EVIDENCE OF MS. K.C.

[347] Ms. K.C. testified that after the incident she purchased a new sim card. She then began to get texts messages on her cell phone asking her if she was Sarah. The person texting her used different names such as Daniel and Jessica which she found weird.

[348] According to Ms. K.C. these strange texts persisted until the texter admitted that he was the driver of the vehicle on the morning in question. According to Ms. K.C. he apologized for the way the morning went and told her that he wanted to have a relationship with her. Furthermore, he wanted to take her shopping and that he had a clothing store and wanted to take her on trips.

[349] Ms. K.C.’s evidence was that she informed him that she very much wanted her Nova Scotia identification card back. Ms. K.C. also testified that Mr. S. asked her to return his identification card which she had taken from his car. According to Ms. K.C. she informed him that she had already given his identification card to the police.

[350] Ms. K.C. testified that she agreed to meet Mr. S. at the St. Laurent Shopping Centre on May 4, 2011. Ms. K.C. also agreed that it was her idea to meet Mr. S. because she wanted her personal items back. According to Ms. K.C. when she first saw Mr. S. at the meeting place she recognized him right away and recognized him first before Mr. S. seemed to recognize her. To her he looked “sketchy” and was looking around as if he was afraid someone was there to beat him up.

[351] It