Court File and Parties

Court File No.: 13-SA5092 Date: 2016-05-18 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Mohamad Kamel Sleiman, Accused

Counsel: J. Bocking, for the Crown P. Lewandowski, for the Accused

Heard: February 22-26, and March 24, 2016

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT MAY NOT BE PUBLISHED BY ANY METHOD PURSUANT TO SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA.

Reasons for Judgment

Toscano Roccamo J. given orally

Nature of these Proceedings

1Mohamad Sleiman, hereafter referred to as “Moe”, has admitted that on the evening of October 20, 2013, he had sexual intercourse with the complainant, T.P., hereafter referred to as “T.P.” As such, he has pled guilty to sexual interference, that is, touching for a sexual purpose the body of T.P., who was only 15 years of age at the time, contrary to section 151 of the Criminal Code, R.S.C. 1985, c. C-46, as well as the sexual assault of T.P., contrary to section 271 of the Criminal Code. Moe pled guilty to these offences solely because T.P. was a minor and did not have the legal capacity to consent to sex at the material times.

2At the time of these offences, Moe was also bound by the terms of probation ordered on January 18, 2013 by Justice Charles T. Hackland of this Court, requiring him to keep the peace and be of good behaviour, and barring him from being in the presence of females under the age of 18, except as approved by his probation officer. By engaging in sex with T.P., Moe has breached the terms of his probation and has, therefore, also pled guilty to two charges under section 733.1(1) of the Criminal Code.

3Moe has pled not guilty to the remaining three charges arising from the incident of October 20, 2013, those being the forcible confinement of T.P. contrary to section 279(2) of the Criminal Code, a threat to cause her death and a threat to cause bodily harm to her family contrary to section 264.1(2) of the Criminal Code.

4In addition to the trial in relation to the charges of forcible confinement and threatening, this matter also required a Gardiner hearing on the section 271 sexual assault and the section 151 sexual interference charges. According to R. v. Gardiner, [1982] 2 S.C.R. 368, where following a guilty plea there is conflicting evidence with respect to the factors going to the gravity of the offence, the onus is on the Crown to prove the aggravating facts beyond a reasonable doubt. Furthermore, section 724(3)(e) of the Criminal Code states that “[w]here there is a dispute with respect to any fact that is relevant to the determination of a sentence, … the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.”

Position of the Crown

5The Crown takes the position that T.P. was a vulnerable teen, who not only did not have the legal capacity to consent to sex with Moe, but who also had been bullied prior to the charged events; and had admitted to cutting herself. T.P. shared the intimate details of her troubles with Moe. The Crown takes the position Moe psychologically compelled T.P. to have sex with him by befriending her and then manipulating her to his ends, by suggesting to her they could be boyfriend and girlfriend, and by intermittently threatening to withdraw his friendship and cut off communications if T.P. did not agree to being “friends with benefits.” The Crown argues that the text communications between T.P. and Moe show that, prior to October 20, 2013, Moe had made many attempts to get T.P. to meet with him and was getting frustrated and angry at T.P.

6The Crown takes the position T.P. had other plans than to have sex with Moe on October 20, 2013 and that she was in the company of her family and friends when she left to go to the Silver City convenience store to purchase a soft drink for her sister’s boyfriend. The Crown submits that in his text messages to T.P., Moe told T.P. he wanted to meet with her for two minutes. The Crown submits that Moe used the invitation to meet for two minutes as a ruse to pick T.P. up and to take her away to have sex with him noting that T.P.’s behaviour was inconsistent with attending the parking lot at the Silver City convenience store for sex, as she bought a can of Mountain Dew for her sister’s boyfriend.

7The Crown posits that, when T.P. arrived at the store, Moe was waiting for her in the parking lot, called her over, opened the door, pulled her inside, took her phone, forcibly confined her, drove her around in his vehicle for almost two-and-a-half hours without letting her out of the vehicle, in the course of which he took her to a wooded area east of the city off Highway 401 and sexually assaulted her. After that, he threatened to shoot her and harm her family members if she told anyone about the encounter.

8The Crown submits that, even if the Court rejects T.P.’s evidence as untruthful, right up to the point she walked towards Moe’s vehicle after coming out of the Silver City convenience store, the Court can accept her version of events that followed once she got into Moe’s vehicle. The Crown argues that T.P.’s version of what took place in Moe’s vehicle “makes sense” when it is considered in conjunction with the other evidence received at trial.

Position of the Defence

9Moe takes the position that he and T.P. planned to meet on October 20, 2013, that the sexual intercourse between them took place voluntarily, and that T.P. was in no way physically or emotionally compelled to enter his vehicle for this purpose. Moe posits that by the date of the incident, a relationship had developed between them. It was a relationship of some depth that T.P. herself had solicited and encouraged by text communications and phone calls. In addition to these communications, Moe and T.P. had met face-to-face on at least two other occasions, including in the company of T.P.’s best friend and schoolmate, S.M.D., Moe maintains that T.P. was fully aware that he was older than her, that he was in his twenties and that he had had casual sex with her friend and neighbour, S.S. before October 20, 2013.

Admissions

10Moe admits that his DNA was found inside T.P. after a rape kit was administered by Nurse Gabrielle Belanger at the Children’s Hospital of Eastern Ontario on October 20, 2013. DNA was taken from a vaginal swab and a swab of T.P.’s external genitalia and sent to the Centre for Forensic Sciences for analysis. Melissa Kell, an expert in bodily fluid identification and interpretation of the findings of DNA analysis, offered the unchallenged opinion that DNA found in T.P. matched that of Moe and likely came from his semen.

11Moe admits that his DNA was deposited in T.P. when they had sex on October 20, 2013, and while he was prohibited from being in the presence of any female under the age of 18. For this, Moe accepts that he will face justice.

The Issues

12On the other hand, it remains in issue whether T.P. voluntarily entered Moe’s vehicle, voluntarily engaged in sexual intercourse with Moe and subsequently fabricated aspects of the incident to suggest that she was forcibly confined and received a death threat as well as a threat of injury to her family.

13Also in issue as a result of the Gardiner hearing is whether the Crown has proven beyond a reasonable doubt the aggravating fact of forced and involuntary sexual activity.

Applicable Law

14T.P.’s credibility was central to the Crown’s case. In assessing the evidence she provided by way of videotaped statement taken on October 21, 2013 and tendered on consent under Section 715.1 of the Criminal Code, as well as the evidence she gave at trial, I considered the direction provided by Watt J. in R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41 where he said:

Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately

i. observe; ii. recall; and iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514, at 526 (C.A.).

15In addition, I considered the recent holding of the Court of Appeal in R. v. C.K., 2016 ONCA 66, at para. 17, where the Court referred to its earlier decision in R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536 [A.M.], as instructive on the evaluation of the evidence of a complainant who was 19 years old when she testified at trial regarding a series of sexual assaults that took place from the time she was approximately seven years old to the age of 17. At paragraph 10, the Court in A.M. stated that there are no inflexible rules regarding when a witness’ evidence should be evaluated according to “adult” or “child” standards. The Court also noted that the Canada Evidence Act, R.S.C. 1985, c. C-5, made no reference to “adult” or “child” witnesses, but refers only to witnesses who are “14 years or older” and “under 14 years of age.”

16In A.M., the Court also stated, at para. 11, the following regarding the credibility assessment of an adult witness testifying about events that occurred when she was a child:

Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred…

17As such, in considering the evidence of T.P., having received no evidence to question her presumption of capacity to testify upon her oath to tell the truth, I assessed her credibility according to the criteria applicable to adult witnesses. While doing so, I considered the need to apply a less exacting standard to peripheral matters in relation to the events at the material times, when she was only 15 years of age.

18I am also mindful of the flexible, common sense approach proposed by Wilson J. in R. v. B. (G.), [1990] 2 S.C.R. 30, at p. 55, where she said:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

19Furthermore, in examining the nature and circumstances of T.P. and Moe’s relationship, I have had regard to the recent Ontario Court of Appeal decision in R. v. A.B., 2015 ONCA 803, 25 C.R. (7th) 52. That decision involved a 21 year old accused charged with sexual assault for engaging in sexual intercourse with a 15 year old complainant who was under the supervision of the Children’s Aid Society. The accused and the complainant had been in a romantic relationship for 11 months. The trial judge found that section 150.1 of the Criminal Code, a provision removing the defence of consent where the accused is 5 years or more older than the complainant, was overbroad, violated section 7 of the Charter and could not be saved under section 1. She stayed the proceedings under section 24(1) of the Charter and the Crown appealed. The accused was ultimately convicted on appeal to the Ontario Court of Appeal. Justice Feldman found that section 150.1 is not overbroad, as its purpose is to protect children not simply from sexual exploitation, but from sexual contact with adults or the invitation to have sexual contact by adults. At paragraph 39, Justice Feldman stated that the close-in-age exceptions reflect Parliament’s view that the inherent power imbalance between adults and children vitiates consensual sexual relations between them.

20Finally, I have also had regard to the Supreme Court of Canada’s decision in R. v. Barabash, 2015 SCC 29, [2015] 2 S.C.R. 522, where the accused, aged 60 and 41, were charged under the child pornography provisions for making pornography of two 14 year old homeless girls who were runaways from a treatment centre and who at the time had reached the age of consent, which has now been raised to 16. The Supreme Court overturned the acquittals and ordered a new trial, holding that it was important to holistically examine the nature and circumstances of the relationship between the parties and look beyond surface indications of voluntariness.

21I am mindful of these decisions, which recognize the need to protect young people, especially in cases in which it is difficult to see the exploitation and where the complainants may have initiated the sexual activity, or otherwise appear to have consented to it.

T.P.’s Evidence

22Having directed myself as to the law, I first considered the evidence provided in T.P.’s videotaped statement. Her account of the charged events can be summarized as follows.

23T.P. recalled being introduced over the phone to Moe in August or by the beginning of September, 2013 when her friend, S.S., received a call from Moe on her cell phone. Moe asked S.S. who she was with and then asked S.S. to pass the phone to T.P. Moe subsequently asked S.S. for T.P.’s cell phone number. T.P. gave S.S. permission to share her phone number, but implied that she did not remember her phone number was being proffered to Moe, and suggested she was under the impression that S.S. was giving her phone number to somebody they both knew. T.P. did not know Moe at this time. T.P. said S.S. did not tell her until after T.P. was sexually assaulted by Moe that Moe had had sex with S.S., and had offered her money and cigarettes.

24T.P. acknowledged that giving her phone number to Moe opened the door to text communications and phone calls between them, but claimed that she had no wish to have a relationship with Moe and was in no way planning to have sex with him on October 20, 2013.

25T.P.’s statement suggested that she would have seen Moe parked in a beige, older model vehicle at the Overbrook Community Centre Park on a prior occasion while she was walking her dog in the company of cousins. She also suggested that he was seen driving by her school and asked her why she was not wearing her uniform while she was with her friend, S.M.D. T.P. stated that Moe texted her to say he wanted to meet up, to rent a hotel room for them, and to be “friends with benefits”, an offer she said that she clearly declined. T.P. told the investigating officer that while she and Moe were friends, she was not comfortable with any other involvement. She suggested that she declined Moe’s advances, whereupon he cut off communications and subsequently resumed them.

26T.P.’s videotaped statement suggested that she in no way expected to encounter Moe waiting for her in the parking lot outside the Silver City convenience store on the evening of October 20, 2013. T.P. said she walked out of the store and discovered Moe parked in a grey rental Toyota or Hyundai to her left. She said that Moe called out to her through the car window, and asked to speak with her privately. She also stated he offered her “weed.” She declined his invitation, pointing out to the investigating officer that she did not use drugs or alcohol. T.P. then stated Moe pulled her inside the vehicle against her will, locked the door or alternatively asked her to close the door, and drove away quickly, proceeding in an easterly direction on Highway 401 until he stopped in a wooded area. She said that he took away her cell phone by pulling it out of her bra, in the course of which T.P. stated he scratched her left upper arm and chest. She accused him of hanging up on family and friends who tried to make contact with her when she did not return home, as planned. Once at the wooded area, T.P. stated that Moe climbed over the console, pulled off his pants and as well as hers. All the while, she screamed for him to stop, pushed and punched him in the shoulders in an effort to get out of the car, but only succeeded in getting one leg out. She stated Moe then pulled her back in the car, grabbed her by the hair at the back of her head and started choking her.

27T.P. stated that Moe then had sexual intercourse with her for approximately 5 to 10 minutes, climbed back over the console and drove away. She recalled that he made a second “pit stop” during which he tried to kiss her and hug her while she continued to try to push him away.

28T.P. stated that Moe subsequently dropped her off at the Costco on Innes Road across from the Tim Hortons, where she dialed 911 to report she had been sexually assaulted. Before she was dropped off, T.P. recalled that Moe texted a friend informing him he was on his way with T.P. and asked the friend to have a gun ready. In her videotaped statement, T.P. suggested she did not believe Moe would shoot her. She implied that she called his bluff, and behaved calmly, whereupon Moe threatened he would come after her and her family if she “snitched” on him.

29T.P. recalled that before leaving her at the Costco, Moe threw her cell phone at her, offered her money and apologized for what he had done. T.P. then noted the missed calls and unread text messages from her mother, S.S., and others who were asking where she was.

30It is noteworthy that in her videotaped statement, T.P. provided a description of Moe, although she at no time described him getting out of his grey rental vehicle on October 20, 2013. She described him as being somewhat built and between 5'3" and 5'6" tall, weighing about 150 pounds, and having short dark hair and facial hair.

31T.P. was subjected to vigorous cross-examination for over two days at trial. Her evidence as to the material events was thoroughly undermined in ways that went far beyond mere inconsistencies on peripheral matters such as time and location. In general, her evidence was riddled with contradictions of a material nature. She exhibited significant and unusual memory problems she both repressed and of select aspects of her sexual encounter with Moe, to the point some form of mental illness affecting memory, such as a dissociative disorder was called to mind. However, she testified that she was not under the care of a psychiatrist or a treating professional in relation to her memory problems and did not know if she had been treated by a psychologist in the past.

32Having received no expert opinion concerning T.P.’s mental health and how it may have affected her memory, I concluded her memory problems were contrived. Indeed, time and time again, her memory of important events failed her when other evidence contradicted her account of matters. On the other hand, her memory seemed selectively intact and reflected a defiant quality, forcibly expressed with a raised voice, at times when she testified as to the sexual assault, the forcible confinement and the threats. Moreover, aspects of her account were internally inconsistent and implausible.

33Without listing each and every instance of T.P.’s evidence that I found was problematic, I took note of the following areas of concern:

1. At trial, T.P. testified that, after making her purchase at the convenience store, her intention was to return home by walking in the direction from which she came on Lola Street. This would have required her to turn right as she exited the store and into the parking lot in front of the store. T.P. confirmed that she never had a face-to-face meeting with Moe before October 20, 2013, and that his appearance in a parked rental vehicle in the parking lot in front of the store on that day was a completely random event. She maintained that her attention was drawn to the rental vehicle after her name was called out. She recalled that she paused before walking over to the car. T.P. was subsequently confronted with the evidence of the store’s video surveillance for the evening in question, filed as Exhibit 3, which depicted her leaving the store and immediately proceeding to her left without hesitation or pause. Faced with this apparent contradiction, T.P. then altered her evidence to add a new detail – that being that she intended to visit the pizza store to the left of the convenience store before going home. This was a detail that was also missing in the videotaped statement she gave to police. This evidence raised a reasonable doubt about T.P.’s intentions on leaving the convenience store. By all appearances, she tailored her evidence as to the events after seeing the videotaped surveillance and when it was suggested to her that she was in fact planning to meet up with Moe. She nevertheless stood her ground and claimed that she had every intention to return home to her friend, S.S., and to her family and had promised to buy her sister’s boyfriend a pop, and had done so.

2. It was then put to T.P. that she had previously lied to her mother as to her whereabouts on an earlier occasion, requiring her mother to call police to collect her from her friend, Kyle Majors’ home in Barrhaven. T.P. insisted that her mother knew where she was on that occasion, and speculated that she may have turned the volume off on her cell phone and consequently failed to return her mother’s text messages or calls in a timely manner. T.P. maintained that police only became involved because she had no other way to get home from Barrhaven. T.P.’s account of the police involvement on this prior occasion seemed implausible. This evidence raised a concern that T.P. had defied parental authority on prior occasions, and may not have been so inclined to obediently return home as expected. I note that the record of cell phone calls made to T.P.’s phone which were listed in the Radiotactics Report, entered as Exhibit 10, reveals that on October 20, 2013 within only about 50 minutes of her departure from home, T.P.’s mother had both attempted to reach her and then telephoned police to report her missing.

3. T.P.’s account of her encounter with Moe in the parking lot as being purely serendipitous was laid waste in cross-examination by reference to the body of text communications between her and Moe in Exhibit 14. T.P.’s proclaimed lack of memory with respect to much of these communications raised a reasonable doubt in my mind as to whether she could in any way be believed when she denied having met up with Moe on previous occasions, including at the Overbrook Community Centre park, subsequently at a location on St-Laurent Blvd. and later yet, at Billings Bridge Plaza when she was in the company of her best friend, S.M.D. I could not believe that T.P. was unable to recall S.M.D.’s last name when asked by the defence to help locate S.M.D. to give evidence at trial on these matters. On the other hand, T.P.’s memory was curiously more intact about text messages which reflect she told Moe about intimate details of her personal life, including her self-harming behaviours in the past. She was able to recall that, just prior to October 20, 2013, Moe had expressed frustration with her repeated excuses for being unable to meet up with him and make good on their “bet”. She recalled a text message in which he informed her that he was “through” with her and wanted to meet up and date her friend S.M.D. instead. T.P. did not seem at all credible in suggesting that her text messages were meant to be protective of Moe on this occasion. She recalled refusing to give Moe S.M.D.’s cell phone number, and telling him that S.M.D. would only use him to extract money and other favors from him, describing her own best friend in derogatory terms as a young woman of no scruples. The body of text communications in Exhibit 14 seriously undermined T.P.’s credibility in relation to the nature of her relationship with Moe and raised a reasonable doubt as to whether T.P. planned to meet up with Moe on October 20, 2013 contrary to her mother’s wishes she return home as expected. T.P. claimed that her memory was a complete blank with respect to text messages from her phone to Moe’s early on October 20, 2013 reporting that she was in her sister’s black truck and would be dropped off at the Shoppers Drug Mart on Montreal Road, a location that her sister testified was near T.P.’s residence. T.P. was also unable to recall a text message from Moe to her later on the same day advising that he was close to her house in Overbrook, nor a subsequent text message from her to Moe advising him that she was going to the store and telling him to drive there. These text messages were exchanged just before the video surveillance from the convenience store depicts T.P. in the store. These text messages fly in the face of T.P.’s videotaped statement to police that Moe did not know where she lived. By contrast, T.P. was able to recall other text messages received in the period leading up to October 20, 2013, which she suggested were threatening when she refused Moe’s offers to pick her up from school when she wanted to hang out with her own friends. She agreed that one of Moe’s “pet peeves” was her hanging up on him and making excuses for being unable to be with him. She confirmed that she did make such excuses, however, she was still unable to recall texting Moe on October 20, 2013 that she would be unable to meet him because she was celebrating her nephew’s birthday, a fact not verified by her sister at trial. T.P. was unable to recall text messages from Moe on October 20, 2013 asking whether she wanted him to meet her at the park or at the convenience store. Similarly, she could not recall her reply suggesting they meet up at the store. On the other hand, she recalled that she had texted Moe that she contemplated suicide and threatened to harm herself after his text messages suggest he told her he was “through” with her excuses for failing to meet up. She admitted her memory was “a little bit” refreshed by text messages suggesting Moe wanted to take her to a hotel, and was being put off by her excuses, noting he could be with more attractive girls. Although she did not recall her own text message response about being ugly, she agreed it would be something she might write. T.P.’s selective recall of the text messages from Moe’s phone to her phone leading up to the encounter in the parking lot of the Silver City convenience store on October 20, 2013 raised a reasonable doubt about whether they had developed a relationship of some depth over the weeks before a meeting planned on October 20, 2013 to make good on a bet to have sex. T.P.’s selective memory of the text messages leading up to and including October 20, 2013, appeared to be part and parcel of efforts to distance herself from any suggestion that she and Moe were anything more than text or cell phone acquaintances.

4. T.P.’s description of how she came to be confined in Moe’s vehicle and driven away against her will from the parking lot in front of the convenience store struck me as implausible. It seemed highly unlikely that T.P. would walk over to answer the call of a man she had never met face-to-face on prior occasions, and lean over his vehicle to exchange words with him from an open car window. She testified that she was told to open the door and get into the car. It seemed implausible that T.P. would meekly follow these instructions, or alternatively, expose herself to further unwanted attention after he opened the door to the vehicle, given that he was a man she had no intention of dating or even speaking with privately, as she told police in her videotaped statement. It seemed most implausible that T.P. would then allow Moe to lean over the console and pull her through the open door of the vehicle, without her alleged screams raising the attention of other customers seen in the store video surveillance. This evidence raised a reasonable doubt that T.P. was forcibly taken into Moe’s vehicle and confined against her will.

5. Moreover, I have a reasonable doubt that a struggle took place afterwards in the vehicle when Moe took T.P. to a wooded location for sex. There were no signs of a struggle on T.P.’s person, although she indicated Moe scratched her upper chest and left upper arm when he retrieved her cell phone from her bra. I note that Moe’s DNA was not found under T.P.’s fingernails, although she told police in her videotaped statement that she pushed him at the shoulders and struggled with him to stop his sexual advances. Allowing for the fact that Moe was much heavier and stronger than T.P. and given the absence of any detail in Nurse Belanger’s description of the cuts, I cannot be satisfied beyond reasonable doubt that the scratches on her chest and arm were not related to previous episodes of cutting. I note that Nurse Belanger was also told by T.P. that her hair had not been pulled, contrary to the allegation she made to police in her videotaped statement.

6. I am also left in reasonable doubt by T.P.’s failure to identify her assailant to Constable Martinov, Paramedic Megan Nicolas and Nurse Belanger. Constable Martinov could not recall being offered T.P.’s cell phone to retrieve any text messages from her assailant. It is also noteworthy that T. did not even provide Moe’s first name until the very end of her videotaped interview by police. It was only after her friend S. notified police that Moe was Middle Eastern and possibly Arabic, and provided a Facebook snapshot of him that T.P. confirmed Moe’s identity. If T.P. had hoped to contrive a story of being sexually assaulted after her mother reported her missing to police, it would not be inconceivable that T.P. would withhold the necessary details of her assailant’s identity to prevent police from tracking him down.

7. I do not neglect to note that T.P. complained of pain behind her neck and in her abdominal area where some redness was noted by Megan Nicolas and Nurse Belanger. However, these marks might well have been left even in the context of a voluntary sexual encounter, which included kissing and sexual intercourse in the very close confines of the bucket seats of Moe’s rental vehicle. It was T.P.’s evidence that the four-door Mazda was a small vehicle, that Moe put the seat back to have sex with her, and that he climbed over the console, taking her pants off first before taking off his own. She recalled that he kissed her as he held her face down. It is not inconceivable that voluntary intercourse in such close confines would have left some redness on T.P.’s body and caused some discomfort to the back of her neck.

8. T.P. was cross-examined about her allegation that after the sexual assault, Moe called a friend to tell him to have a gun on the ready so that Moe could shoot T.P. to prevent her from revealing the sexual assault. She described how she saw Moe take his cell phone from his pocket and enter a number which caused the screen to light up as though the call was connected. She had no explanation other than to suggest that Moe faked the call, when later referred to the contents of Moe’s Fido cell phone invoice entered as Exhibit 15, which ruled out any such call activity on Moe’s cell phone, other than calls made by S.S., to try to locate T.P. after she did not return home, and secondly informing Moe that T.P. had reported being sexually assaulted by him that evening. In her videotaped statement to police, T.P. told police she expressed no fear to Moe about any of the alleged threats he made. She even suggested she mimicked behaviour she had seen elsewhere as to how to call an assailant’s bluff by remaining calm in such circumstances. This evidence left me in reasonable doubt as to whether the calm exterior she reported to police in the videotaped statement was due to the absence of any threat to her or her family on the evening of October 20, 2013.

9. T.P.’s evidence with respect to the absence of any text messages exchanged with Moe on her cell phone was internally inconsistent and could not be believed. She denied having deleted any text messages from her cell phone herself. She explained that, just before Moe dropped her off near the Costco on Innes Road, and while he was stopped at a traffic light, he navigated her text messages and selectively deleted only his. When questioned as to how he might have done so in a short timeframe, particularly due to the fact that her cell phone access was protected by a pattern password, she noted that he forced her to put the password in herself before deleting the messages. However, when she was referred to the evidence she gave in cross-examination at the preliminary inquiry to the effect that Moe held her phone tightly and asked her for the password and then put it in himself, I was satisfied that no account from T.P. about this matter could be considered reliable. Indeed, it was T.P.’s evidence that while she was in the ambulance that attended at the Tim Hortons after she dialled 911, she received a phone call from a private number and hung up when she heard Moe’s voice. She alleged that he then texted her non-stop while she was waiting in the ambulance. When it was put to her that there was no evidence of any non-stop text messaging from Moe in the Radiotactics Report, she appeared to be confused and tried to suggest that Moe had deleted those messages from her cell phone. Reminded that Moe had returned her cell phone to her before dropping her off near the Costco, T.P. had to admit that she may have been mistaken in giving this evidence in her videotaped statement and subsequently at the preliminary inquiry. Suffice to say, T.P.’s evidence about how messages came to be deleted from her cell phone, save and except a single message from Moe expressing upset after learning she had accused him of sexual assault, was entirely discredited.

34On the faith of T.P.’s evidence alone, I am not satisfied beyond reasonable doubt that she was forcibly confined in Moe’s vehicle after a random encounter at the convenience store, and received death threats and threats to harm her family members in order to silence her from revealing the sexual intercourse with Moe. Similarly, I am not satisfied beyond reasonable doubt that T.P. did not have a voluntary sexual encounter with Moe in his vehicle on October 20, 2013.

S.M.D.’s Evidence

35The evidence of 17 year old S.M.D., who described herself as T.P.’s best friend at the time of trial and at the time of the charged events, served to further undermine T.P.’s credibility, particularly as her attendance at trial was secured by subpoena and compelled by police escort.

36Despite her close friendship with T.P., S.M.D. gave evidence inconsistent with the Crown’s case as follows:

1. S.M.D. testified that she and T.P. met up with Moe in October 2013 before the charged events. This was after a text communication between T.P. and Moe, following which T.P. asked S.M.D. if it was okay if a friend picked them up from Billings Bridge. S.M.D. and T.P. were late for school that day. S.M.D. testified that T.P. behaved as though she knew Moe quite well when he arrived to pick them up and took them through a McDonald’s Drive-Thru before he dropped them off in the parking lot of Immaculata High School. S.M.D. recalled that when Moe dropped them off, he got out of the vehicle and he and T.P. hugged.

2. S.M.D. undermined T.P.’s evidence that she did not know Moe’s age. In fact, T.P. told her that Moe said he was 21.

3. T.P. told S.M.D. she and Moe met up on prior occasions, talked and texted, and that on one occasion, T.P. met him at St-Laurent.

4. Although T.P. never mentioned a “bet” to have sex with Moe, S.M.D. asked T.P. whether she and Moe had had sex because they seemed very close. S.M.D. testified that T.P. told her sex had crossed her mind, although it had not happened.

5. S.M.D. recalled that on an earlier occasion in 2013, T.P.’s mother had called police when T.P. did not come home. Although S.M.D. described T.P.’s relationship with her mother as good, she noted they argued and that T.P. would sometimes say she was going to move out of her mother’s home.

6. Finally, S.M.D. said that although she had never seen T.P. drink alcohol, T.P. smoked weed and would accept a “spliff” when offered one. At trial, T.P.’s sister notably denied T.P. drank or did drugs, but was also clear that she did not regularly see her sister or talk to her all the time.

37The evidence of S.M.D., confirmed that T.P. lied to police and lied at trial by suggesting she did not have a relationship of any note nor had ever met Moe Sleiman face-to-face before October 20, 2013. I am thus left in a reasonable doubt by the evidence, to the extent that I cannot rule out that T.P. was prepared to defy and misinform her mother, as she had done on prior occasions, and thought about having sex with Moe Sleiman before October 20, 2013.

38If, as suggested by the Crown, I accept T.P.’s version of events that follow once she got into Moe’s vehicle, I would have to minimize the evidence of S.M.D. that T.P. was a teenager who was prepared to defy and lie to her mother. If I speculate that once T.P. got into Moe’s vehicle, he overcame her, and forced himself upon her, would be presuming that Moe’s guilt as to the offences charged is the only rational inference on the evidence before me. The totality of the evidence does not persuade me that this is the case.

39In short, I am left with a reasonable doubt that T.P. was taken against her will in Moe Sleiman’s car, forcibly confined while they had sex, did not willingly engage in sex with him and subsequently received threats of death and bodily harm to her family.

S.S.’s Evidence

40Although S.S. was likely not as close to T.P. as S.M.D. was in 2013, as T.P. was younger than S.S. by a couple of years, T.P. was known to her because T.P. lived across from S.S.’s mother.

41S.S. confirmed that she received a call from Moe while T.P. was walking home with her from McDonald’s after S.S. had her tongue pierced on October 4, 2013. S.S. told T.P. that she had had sex with Moe and that he had given her money for food and cigarettes. She did not know Moe’s name and only knew that he was about 20 years old. On this occasion, Moe asked S.S. who she was with and asked S.S. to hand the phone to T.P. However, S.S.’s testimony also made it plain T.P. wanted to speak with Moe and get his name and identify for S.S. Indeed, S.S. testified that Moe and T.P. talked the rest of the way home for about 10 to 15 minutes, after which T.P. agreed S.S. could give her cell phone number to Moe. There was no mistaking T.P. knew who Moe was, that he was older, and that T.P. willingly communicated with him by text messages and phone calls after this introduction, although S.S. was never told they met up, even after S.S. relayed her concern to T.P. that she was too young to be with Moe.

42S.S. testified about being informed by police and T.P.’s mother of a prior occasion when T.P. went missing in 2013. This information was relayed to S.S. on the day of the charged events, after police were notified that T.P. was missing. This was a mere 53 minutes after T.P. had left to go to the convenience store, and after S.S., T.P.’s mother and her sister went looking for T.P. at the convenience store.

43S.S. confirmed that T.P.’s mother was unaware of T.P.’s contact with Moe and only learned about Moe after T.P. went missing on October 20, 2013. S.S. confirmed that, at the preliminary inquiry, she testified that after she unsuccessfully tried to connect with T.P., on October 20, 2013, while looking for her, she texted T.P. photographs of police at T.P.’s home to encourage her to come home. S.S. confirmed that she subsequently spoke with Moe at 8:30 p.m. and 9:12 p.m., as confirmed in Moe’s Fido invoice. While Moe denied having been with T.P., he expressed no surprise to S.S. that T.P. was missing. On the other hand, he was notably surprised to learn from S.S. that T.P. had reported that she had been raped by him.

44Again, from S.S.’s evidence, I am not satisfied beyond reasonable doubt that T.P. did not meet up with and accompany Moe Sleiman willingly on October 20, 2013 as pre-planned. I am not satisfied that Moe was responsible for cutting her communications with friends and family while they proceeded to the wooded area where they engaged in sex. T.P. was prepared on prior occasion to defy and lie to her mother. I am not satisfied beyond reasonable doubt that this was another such occasion. Indeed, it could well be that T.P.’s mother was alive to this possibility little more than 50 minutes after T.P. went missing.

45Finally, I cannot be satisfied that T.P. was not motivated to have sex with Moe on October 20, 2013 after he told her he was “through” with her and asked for S.M.D.’s cell phone number. S.S. confirmed that Moe asked her to get S.M.D.’s phone number off T.P.’s cell phone, although S.S. never met S.M.D. and had no intention of doing so.

Megan Nicolas’ Evidence

46From the evidence of paramedic, Megan Nicolas, I learned that T.P. was taken to the Children’s Hospital of Eastern Ontario. T.P. did not tell Ms. Nicolas her assailant was Moe. Ms. Nicolas observed that T.P. reported pain in her pelvic abdominal area and around her neck. Ms. Nicolas noted an area of redness along T.P.’s left lower abdominal side, but no redness at her neck where T.P. had told police Moe had grabbed and choked her. She also noted a left knee abrasion, but did not note any tears in T.P.’s clothing or other signs of a struggle, such as scratches T.P. alleged she sustained at the top of her chest and arm. Ms. Nicolas noted that T.P.’s cell phone went off repeatedly as she tried to get T.P.’s story, and T.P. told her a call had been received from her assailant. T.P. provided to Ms. Nicolas an account of events broadly consistent with her videotaped statement to police about a sexual assault and threats to “bash her head in” and kill her family if she revealed the sexual assault. T.P. told Ms. Nicolas, as she did police, that her assailant had offered her drugs, but that she did not do drugs or drink alcohol. Unprompted by any related question, T.P. also told Ms. Nicolas she was a virgin.

Nurse Gabrielle Belanger’s Evidence

47Nurse Gabrielle Belanger was in her first year of practice as a sexual assault nurse when she met with T.P. on October 20, 2013 at the Children’s Hospital. Like Ms. Nicolas, she recorded in her Forensic Evidence Report of Sexual Assault, filed as Exhibit 9, the complaints conveyed to her by T.P. Nurse Belanger noted pain reported at the right and left shoulders, where T.P. alleged she was held down by her assailant, a red mark at the left lower abdomen, and a red line at the left upper arm. Regrettably, Nurse Belanger failed to record any other properties of the red line, such as whether it was thick or thin and whether it was a fresh wound, newly red and bleeding, or a scar from a prior cutting.

48Nurse Belanger was present when Dr. Cindy McLaughlin used a speculum to make observations of T.P.’s vagina. The doctor noted no injuries to T.P.’s vagina such as tearing, bleeding or injury to the hymen. She was told by T.P. there was kissing and no condom was used during intercourse. Nurse Belanger said T.P. told her that her hair was not pulled. Nurse Belanger took swabs of T.P.’s vagina, external genitalia and from under T.P.’s fingernails.

49The DNA samples from the swabs taken by Nurse Belanger were assessed by Melissa Kell, as previously noted. From the forensic evidence collected by Nurse Belanger, further detailed in a report dated December 9, 2013, I learned that there was no male DNA taken from T.P.’s fingernail swabs.

50I am left with a reasonable doubt as to whether the areas of abrasion and redness noted by the paramedic, Ms. Nicolas and sexual assault nurse, Ms. Belanger, were marks left by the movements and exertion of two individuals having sex in the confined space of a car. I am also left in reasonable doubt about whether the red line at the top of T.P.’s left arm was left by Moe or was a mark self-inflicted by T.P., who admitted in cross-examination that on October 16, 2013, she sent a text message to Moe threatening to cut herself after he expressed a wish to have contact with S.M.D. T.P.’s evidence was unconvincing when she added the additional detail that she would have cut herself on the left lower arm on this occasion, rather than at the top of her arm.

51I have concluded that the content of the records made by Ms. Nicolas and Nurse Belanger with respect to the cause of T.P.’s reported pain and discomfort turns on T.P.’s credibility regarding the events that transpired between her and Moe on the evening of October 20, 2013.

52Although Ms. Kell noted the presence of a low amount of DNA from a third individual on T.P.’s vaginal swabs, it was insufficient to conclude whether it was transferred from Moe’s penis from a third party or whether it was from another sexual encounter T.P. had had prior to being with Moe on October 20, 2013. I note that T.P. did not recall a text message from her cell phone to Moe’s on October 12, 2013 in which she informed Moe that she was going through a rough time, had had sex with a boyfriend and feared being pregnant. While T.P.’s prior sexual encounters with anyone else have no bearing on the issue of whether or not her sexual encounter with Moe on October 20, 2013 was voluntary, and are in no way probative of any issue, I cannot rule out from this evidence, coupled with evidence I heard from S.M.D. that T.P. had had a number of boyfriends before Moe, whether T.P. was trying to portray herself to police and at trial as someone who did not engage in sex with Moe.

Conclusion

53In summary, based on all of the evidence I received at trial, I am not satisfied on a criminal standard of proof beyond reasonable doubt that:

1. T.P. did not plan to meet up with Moe to make good on a bet they had discussed, and did not contemplate having sex with Moe on this occasion;

2. T.P. did not enter his vehicle, as in the past voluntarily, or was forcibly confined;

3. Once in Moe’s vehicle, T.P. did not turn off her own cell phone, or turn down the volume or otherwise make herself unavailable to receive the call and texts her friend S.S., and her family members; and

4. After learning her mother had notified police about 50 minutes after T.P. left home, she did not choose to tell her mother and others that she had been sexually assaulted by an unknown assailant, when she clearly knew Moe prior to the charged events.

54I am simply unable to rely on T.P.’s evidence, nor am I able to reconcile the tangle of lies she told at trial with the allegations underpinning the charges to a criminal standard of proof.

55As it relates to the Gardiner hearing, I am not satisfied beyond a reasonable doubt of the existence of the aggravating fact that the sexual intercourse took place against T.P.’s will.

56Accordingly, I am obliged to enter acquittals on the charges of forcible confinement, threat to cause death, and threat to cause bodily harm to the family members of T.P.

Madam Justice Toscano Roccamo

Released: May 18, 2016