Court File and Parties

Court File No.: CR-16-70000055-0000 Date: 2017-04-28 Ontario Superior Court of Justice

Between: Her Majesty the Queen R. Nathanson and M. Mungovan for the Crown

- and -

O.K. J. Hue and K. Schofield for the Accused

Heard: January 24, 25, 26 and February 10, 2017

T. Ducharme J.

PUBLICATION BAN Information contained herein is prohibited from publication pursuant to the Order of Justice Ducharme, Superior Court of Justice, Tuesday, January 24, 2017, and that is specifically concerning the identity of the complainant.

Reasons for Judgment

1O. K. stands charged that, on or about May 29, 2014, he did commit a sexual assault on S. H. He elected trial by Judge alone. These are my reasons for judgment.

General Principles of Law

2Prior to reviewing the evidence in this trial, I wish to briefly outline some of the fundamental principles of our criminal law that I must apply in this case.

Burden on the Prosecutor

3It is for the Crown to prove beyond a reasonable doubt that the acts alleged occurred and that K committed them. K does not have to prove that the events never happened. K need not prove anything. The issue in this case is narrow, that is, has the Crown proven beyond a reasonable doubt that K sexually assaulted H? Given that there is no dispute that the sexual contact occurred, the only questions are: (1) did the contact occur without H’s consent? (2) if H did not consent to the sexual contact, did K honestly but mistakenly believe that she did consent?

4The phrase "beyond a reasonable doubt" is not an ordinary expression. It is a term that has been used for a very long time and is an important part of our criminal justice system. A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. It is a doubt about an essential element of the offences charged.

5This standard is a formidable one. Proof beyond a reasonable doubt is closer to absolute certainty, rather than a balance of probabilities: see R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.) and R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C).

Presumption of Innocence

6The presumption of innocence means that K started this trial with a clean slate. The presumption stays with him throughout the case. It is only defeated if and when Crown counsel satisfies the court beyond a reasonable doubt that K is guilty of the crimes charged. The presumption of innocence also means that K did not have to testify, present evidence or prove anything in this case. In particular, K does not have to prove that he is innocent of these crimes.

Assessment of Evidence Generally

7It is not proper, in a case such as this, for a trial judge to simply decide whether or not he believes the evidence of the complainant and, on that basis, reach a conclusion of guilt beyond a reasonable doubt. The totality of all of the evidence must be examined in a cumulative way to determine if there is a reasonable doubt notwithstanding the apparent credibility of the complainant: see R. v. Richardson (1992), 9 O.R. (3d) 194 (C.A.); R. v. M.(P.) (1983), 31 C.R. (3d) 311 (Ont. C.A.).

Review of the Evidence

8The resolution of this case requires me to assess the reliability and credibility of primarily H and K. The Court may believe all, none or some of a witness' evidence. However, a determination of guilt or innocence must not devolve into a mere credibility contest between two witnesses in a trial. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt. Equally, it must be acknowledged that mere disbelief of the accused's evidence does not satisfy the burden of persuasion on the Crown. This principle applies to the testimony of the accused and the defence evidence. The Court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt. In other words, in a criminal case it is inappropriate to determine a verdict by asking simply, "Whom do I believe?"

9In assessing the evidence, I must do so in a global fashion, assessing the evidence cumulatively and as a whole. Once I have done that, my deliberations should be guided by the three step approach set out by Cory J. in R. v. W.D., [1991] 1 S.C.R. 742.

Step One

10If I believe K's evidence that he did not commit the offence charged, then I must find him not guilty.

Step Two

11Even if I do not believe K's evidence, if it leaves me with a reasonable doubt about his guilt, or about an essential element of the offence charged, I must find him not guilty of that offence.

Step Three

12Even if K's evidence does not leave me with a reasonable doubt of his guilt, or about an essential element of the offence charged, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

Significance of Demeanour

13In assessing the credibility of witnesses, it is important for a trial judge to keep in mind the caution of O'Halloran J.A in Faryna v. Chorny, [1952] 2 D.L.R. 354 at p. 357 (B.C.C.A.), "[t]he law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses." It is an error to make a credibility determination based solely on the demeanour of a witness. While the demeanour of a witness is a factor that may be considered, it is only one factor to be considered in the context of a cumulative assessment of all the evidence. As O'Halloran J.A stated in Faryna v. Chorny, supra, at p. 357 (B.C.C.A.):

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [Emphasis added.]

14Thus, while I can properly consider the demeanour of any witness in assessing his or her credibility, my assessment of his or her credibility turns on a broader assessment of his or her testimony. Whether it is consistent, whether it makes sense or is inherently hard to credit, and how it ties in to all of the evidence in the case.

The Case for the Crown

S. H.

15H testified that she met K in December of 2013 while working at a T[…] Store in the E[…] Centre. He was then travelling to Pakistan and they communicated by Skype and BBM. After he came back she went to see him at his condo at C[…] Street. After that they went on 5 dates and most of the time she saw him at his condo. Their relationship was intimate but did not involve oral sex or intercourse. Their relationship ended when K wanted to have oral sex and intercourse and she said that she was not ready to do so. She also was not prepared to have sex outside of a monogamous relationship and he was not ready for a monogamous relationship. They got into an argument, he said she was not being mature and he kicked her out of his condo.

16K later apologized for their argument and they remained friends. H resumed communication with him a few months later. They texted sporadically after that and she could not remember who had initiated this contact again. During this time she did not tell him that she had changed her views on monogamy or that she wanted to have sex with him. She had discussed a subsequent relationship she was in where she had been more lenient about monogamy with the other guy. She had complained that he was not being exclusive with her. She denied the suggestion that she told K that she was not going to be monogamous. She was also clear that the two of them had never discussed condom use.

17The next time she saw K was at Brassaii on May 28, 2014. H had plans to go there with two friends and she texted K earlier and he suggested that he might go there and she said that was fine. H explained that she was going to Brassaii because she was going to break up with her current boyfriend.

18H arrived at Brassaii around 9 pm and began drinking. She was drinking shots, vodka and tonics and gin and tonics. She spent most of the time on the patio with her friends A. and T.. At 10:47 she texted K saying, “You should come.” She was there past midnight and estimated that she had had 10 drinks. They exchanged further texts and at 1:23:46 K texted, “Walking in right now, where are you.” H replied by text, “Patio.” K arrived with another male and some girls and they said hi. H denied that this was because she wanted to see him, claiming that she was indifferent as to whether she saw K or not. H testified that she said hello to him and went back to her friends. She denied taking a drink from him. She denied speaking to him for 10 to 15 minutes.

19She, A. and T. left. She put them into a cab and was going to get into a cab herself when she noticed that there were several messages on her phone from K. She called him and he told her to come back to the bar and she did. H testified that she went back because she wanted to know what he wanted and she eventually conceded that she went back because she wanted to see him.

20K met her by the bouncers at the front entrance and they walked back into the bar together. She was not there for very long, she was not feeling very well and she told K that she wanted to go home. In cross-examination, H testified that she did not remember them being flirty with one another, holding his hand, embracing or kissing. H said that she might have hugged him or held his hand but she was adamant that she did not kiss him. H also denied that she heard one of his friends say, “Guys, get a room.”

21H left the bar and got into a taxi outside of the bar. K got in beside her. H rejected the suggestion that the cab was flagged, saying that it was parked in a line outside of the bar. She said she wanted to go home and he said he wanted to make a stop. H denied asking K if he had any alcohol at his condo. At one point the cab stopped and H threw up outside the cab. Then she passed out in the cab. She did not remember the cab making any other stops. She remembers arriving at H’s condo. She does not remember entering the building but did remember entering his unit.

22H testified that K told her to lie down and she did as she was not feeling well. He began to change her into his clothes and she ended up wearing a t-shirt and a pair of shorts. She then passed out in his bed. She woke up when she heard him speaking loudly on the telephone in the living room. She felt sick and intoxicated and she wanted to go home and have a shower. She put her clothes back on, walked out and told him she wanted to go home and shower. K replied that she could use his shower, get cleaned up and go home. She agreed, took her clothes off just outside the bathroom, and went inside the bathroom and closed the door. She was just finishing her period, she used the washroom and she removed the tampon in K’s bathroom. H explained the fact that she was just finishing her period was another reason why she did not want to have sex. She got into the shower and turned it on. She felt badly so she lay down in the bathtub facing the shower stream. She felt like she was falling asleep in the shower.

23Suddenly K was in the shower naked. The bathroom light was out and the room was now lit only with a candle. She did not remember him coming in or any discussion about his doing so. He had an erection and he grabbed her head with one hand and tried to force her to have oral sex with him. She kept moving her head away and said “I don’t want to do this and I feel sick.” Eventually he was able to get his penis into her mouth. His penis was not in her mouth very long, she moved her head and he let her go. K began to wash her body with some soap although she could not say how long this went on for. He told her to turn around. H was trying to get out of the tub when K inserted his penis into her vagina. She denied this was a single penetration and said it went on for approximately a minute. K was not wearing a condom at this point. This hurt her and she said, “No, stop” and was crying a lot. He told her to relax and to shush. She reached for the shower curtain it fell and K stopped. She believed she pulled it down and that the shower curtain rod itself came down.

24H got out the bathtub and put her clothes on. She was still crying and he was trying to calm her down saying it is okay and asking why she is doing this to him. She put her clothes on without drying herself off. She was crying and told him that she did not want him inside her and she left. She went to the elevator and he asked was she was not going to say goodbye. She felt humiliated and said goodbye when the elevator arrived.

25In cross-examination, H denied that K popped his head into the shower and asked if he could join her. She had no idea when K lit the candle. H denied telling him “sure” before he came in. She said he might have asked to come in but said she would not have responded because she was not awake. H also said she could not remember whether his feet were between her legs or outside her legs as H was standing in the shower. She denied that K helped her up to her feet. She denied that they soaped each other’s bodies. H said that K did not wrap a towel around her body and they did not lie together on the bed for approximately 30 minutes. She did not remember K saying he had to go up and deal with the bottle and she did not remember any discussion about him going out for Chinese food but she said it was because she did not remember anything.

26H took a cab and went home to the townhouse she shared with her cousin. When she got there she realized that she had left her keys at K’s house. She rang the doorbell and her cousin opened the door. She threw up again in the bathroom. She needed her keys as they also had the keys to her work. She and her cousin took a car back to K’s place. She went up alone and K’s door was unlocked. She went in and grabbed her keys. K who was smoking on the balcony asked, “Are you still mad at me?” He walked her to the elevator and he gave her a kiss on the cheek and she just walked away. K then walked to a Rabba store down the street. She went back home with her cousin and slept for a bit.

27The next morning when H awoke she had pain in her neck and in her vagina. She called a friend and the two of them went to the hospital. H ended up at the sexual trauma unit of Toronto Women’s Hospital where they performed a sex assault kit, gave her a Plan B anti-pregnancy pill as well as some medication to prevent HIV or other sexually transmitted diseases. They told H that she had a vaginal tear.

28After the exam they had a conversation by text. She went to the police about a week and a half later. She explained that when she was at Women’s College Hospital, she was told that the outcome of reporting sexual assaults to the police was not always favourable. H denied wanting to have oral sex with K or to wanting his penis in her vagina and she denied saying anything to suggest otherwise.

The Text Message Exchange

29Both H and K texted one another frequently. They admitted the accuracy of their texts that were made Exhibit 3. I will only include the texts that were sent before they met at Brassaii and then the texts that were sent after H had been to the hospital on May 29, 2014.

30The exchange of texts on May 28 then into May 29th, 2014 went as follows:

5/28/2014, 8:34:19 PM: K: Plans tonight?
5/28/2014, 8:34:45 PM: H: Brassaii
5/28/2014, 8:36:33 PM: K: Lol you too huh
5/28/2014, 8:36:37 PM: K: Bad girl
5/28/2014, 8:44:14 PM: H: You too?
5/28/2014, 8:44:33 PM: K: I have a few friends that were asking me to go there but i haven’t decided
5/28/2014, 8:44:36 PM: K: Its a bit trashy
5/28/2014, 8:44:52 PM: H: I’ve never been
5/28/2014, 8:48:10 PM: K: I might just stay in yorkville and go for drinks why don’t you come with
5/28/2014, 8:50:14 PM: H: few friends are taking me out
5/28/2014, 8:50:16 PM: H: Can’t bail
5/28/2014, 8:50:29 PM: H: If you wind up at brassaii we’ll have a drink
5/28/2014, 8:56:43 PM: K: Why are friends taking you out?
5/28/2014, 8:56:49 PM: K: Something going on i don’t know about
5/28/2014, 8:57:09 PM: H: Break up type deal
5/28/2014, 8:57:22 PM: K: I figured
5/28/2014, 8:57:36 PM: K: Are you okay?
5/28/2014, 8:58:01 PM: H: Meh been better but it’s fine
5/28/2014, 9:01:55 PM: H: Thanks for asking
5/28/2014, 9:04:39 PM: K: Cheer up your young you have so much more yo experience
5/28/2014, 9:07:47 PM: H: Definitely
5/28/2014, 10:47:25 PM: H: You should come
5/28/2014, 11:06:27 PM: K: Are you there already?
5/28/2014, 11:24:56 PM: H: Yes
5/28/2014, 11:41:15 PM: K: I might go to the patio at efs
5/28/2014, 11:44:51 PM: K: Why don’t you guys join us
5/29/2014, 12:32:25 AM: H: Friends partner runs the place
5/29/2014, 12:58:50 AM: K: So im thinking of coming to brassai
5/29/2014, 12:58:52 AM: K: Be honest
5/29/2014, 12:58:56 AM: K: Is it any good?
5/29/2014, 1:20:31 AM: H: Where are you?
5/29/2014, 1:21:58 AM: K: Be there in 2
5/29/2014, 1:23:46 AM: K: Walking in now where are you
5/29/2014, 1:26:49 AM: H: Patio
5/29/2014, 1:47:19 AM: K: Get your aaa back here!!!
5/29/2014, 2:14:31 AM: K: Where are you
5/29/2014, 2:20:26 AM: K: Tag
5/29/2014, 2:20:28 AM: K: You’re it

31The following text messages were exchanged after H had been to the hospital:

5/29/2014, 4:46:02 PM: H: What you did last night was not okay. I didn’t want to have sex with you, u knew that. I was crying and telling u I wanted to go home. To take advantage of me while I was that heavily intoxicated is messed up
5/29/2014, 5:19:56 PM: K: What do you mean you were the one that took your clothes off H
5/29/2014, 5:40:17 PM: H: To go for a shower. I never once asked you to come
5/29/2014, 5:42:34 PM: H: I told you to stop. U were hurting me. After not sleeping with you for 2 months of a relationship - u knew that I wouldn’t want up just randomly. I did not want you to have sex with me. Do you Get that ?
5/29/2014, 5:56:23 PM: K: I get it im sorry things happened the way they did
5/29/2014, 5:56:25 PM: K: Honestly
5/29/2014, 6:56:49 PM: H: This isn’t something you just apologize for. I had to go to the doctors. Got the plan B thing to be safe, you didn’t wear protection. And the physically checked me cause I was in pain. You tore something.
5/29/2014, 6:59:18 PM: K: What??
5/29/2014, 7:00:06 PM: K: Oh my god [H] im so sort
5/29/2014, 7:00:13 PM: K: Sorry
5/29/2014, 7:00:23 PM: K: You know though i don’t want to try yo say anything but
5/29/2014, 7:00:45 PM: K: When we were hooking up in the shower and i asked you turn around and bed over
5/29/2014, 7:00:51 PM: K: That’s what you did
5/29/2014, 7:03:48 PM: K: Either way
5/29/2014, 7:03:59 PM: K: It was regrettable
5/29/2014, 7:04:14 PM: K: So i am am genuinely sorry
5/29/2014, 7:06:00 PM: H: I didn’t turn around for you to have sex with me. And I was crying. I didn’t know what the Fck was happening. I was beyond out of it. I tried to get out the shower I remember I even pulled the curtain down.
5/29/2014, 7:07:03 PM: K: No that was me actually
5/29/2014, 7:07:09 PM: K: Obviously its all a bit hazy
5/29/2014, 7:11:11 PM: H: You just shouldn’t have. I’ve been crying all day. It wasn’t fair what happened and it wasn’t okay. I never hated you for all the shit you said to be that day I left your apartment and the stupid comments you made. But I genuinely hate you. I feel violated.
5/29/2014, 7:12:50 PM: K: It wasn’t my intention for you to feel like this i think obviously you had drank too much
5/29/2014, 7:13:11 PM: H: You think?
5/29/2014, 7:13:48 PM: K: I know
5/29/2014, 7:14:12 PM: K: Wish it was different [H] im sorry that you hate me now i never wouldve wanted that
5/29/2014, 7:14:15 PM: K: Before or now
5/31/2014, 7:50:19 AM: H: I don’t care if you didn’t want me to hate you. You had no respect for me. It was not consensual. Hope you know that. Next time make sure the girl says she wants it before you decide to go for it. You couldn’t even at least been safe about it. I’ve lost all respect I had for you and I never ever want to speak to you again

32After this there was no further contact between H and K.

Mr. A

33Mr. A is H’s cousin. He was in bed when at about 3 or 4 in the morning he heard loud knocking at the door. He went to the door and found H there. She was very distraught and initially all she was saying was, “He has my keys, he has my keys.” She was crying and she threw up. It appeared to him that something really, really bad had happened to her.

34They got an Autoshare car and H started to drive but after a block and a half she stopped and he drove them to K’s condo. Once there he asked if she wanted him to go up with her but she said no. She was gone for a few minutes; when she came back down K was walking with her. He had his arm around her and her arms were folded tightly. They got close to the car and K leaned over to say something to her or to kiss her. H did not react in any way and she walked to the car and K walked away. On the way home H shut down and was completely quiet.

35In cross-examination, A said H was not bleeding, there was nothing broken and there were no major rips in her clothes. He did not notice anything unusual about her appearance. He did not remember that her hair was wet but said if it was drenched he would have noticed.

Dunja Pavlic

36On May 29, 2014, she was working as a nurse at the sexual assault and domestic violence centre at Women’s College Hospital. In this case, she did oral swabs; vaginal swabs and took a DNA sample. The vaginal swabs were done blind because H could not tolerate the speculum exam. Ms. Pavlic reported that H had a 5 cm. tear on the inside of her vagina. H reported that she was menstruating at the time of the assault but not at the time of the examination. Ms. Pavlic saw no blood. H was not injured on the front, back or on her head.

The Case for the Defence

O. K.

37K is 28 years old and a full-time student at Y[…] University. He testified that he met H before Christmas in a T[…] Store in the E[…] Centre. He left the next day to go home to Pakistan but they communicated over the next three weeks by texting. He got back on January 12 th and she came over to his condo and they ordered sushi and hung out. They had several more dates. Then on their fifth date the week before Valentine’s Day, they had an argument. H said to go further in terms of physical intimacy, K would have to commit to a monogamous relationship. He said that he was not ready for that. They were lying in bed during this discussion, at least initially, but it ended with an argument and H stormed out of his condo. He did not think they would see each other again but H called him around the end of April. K apologized for what he had said during their previous fight and for not reaching out in the interim.

38K testified that between May 7 and May 28, they had 3 telephone calls. She called him late one night and wanted to hang out but he could not. He called her another time to hang out but she declined. Then about 10 to 12 days prior to the Brassaii incident she called him up and they had a longer chat. H said she was dating someone but that it was on the rocks. H said that she had tried the monogamy route but that it did not work out and she wanted a slightly more casual relationship. She said her views on monogamy had changed, that it was no longer as important. K said he did not remember if they had discussed sexual activity at all, but in cross-examination he agreed that she did not say anything about wanting to have sex with him.

39On May 28 his father was in town and they were at his uncle’s condo in Yorkville. At 10:47 he received a text message from H inviting him to Brassaii. He thought she was going there because she had broken up with her boyfriend. He was picked up by his friend S. who took him to Shangri-La. K had not had anything to drink at his uncle’s condo but he had a drink at Shangri-La. He was there with S. and his friends until 12:45 when they walked over to efs and found that it was closed for a private party. He and his friends then walked over to Brassaii. He texted H first asking if it was okay because he had been there before and had not enjoyed it.

40H texted that she was on the patio. He met her there near the bar and bought her and her friend a shot of vodka and he had another drink. They talked for 10 to 15 minutes and then they got split up again. Later he did not know where she was, so he called her. She called him back and said she was outside and he “most likely” told her to come back. He met her and they walked close to the patio. There was a lot of chaos as people were leaving the bar. As they walked K said he was pretty sure that they were holding hands. He said there was no specific reason that they were holding hands. He did not feel that she needed assistance. He said that she was not showing any physical signs of intoxication like slurring or tripping both initially and when she returned to Brassaii. They move to a quieter area of the patio and began kissing. As his friends started to leave S. said something like, “Get a room” or “Go home, kids.” There were loose plans for K’s friends to go out for Chinese food but H was not keen on that idea. H did not say she wanted to go home but she wanted to go to his place.

41They walked out of Brassaii hand in hand and, because there was a line of people where the cabs were parked outside the bar, they crossed the street and K hailed a westbound cab. H had no problem running. K opened the door, H got into the cab, and K gave the cab driver his address and he made a U-turn. K told H he only had red wine at his house and he offered to order something else and H asked for a bottle of vodka. K called Dial A Bottle and ordered a bottle of Stoli. The cab was going quite slowly along K.S.. After about 15 minutes H, who was sitting in the rear passenger seat, said she was going to be sick and K asked the driver to pull over. H opened the door and vomited. K asked if she was okay to continue and she said she was. K denied that H passed out in the cab.

42They then got to his place. K said he had to go up and pay for the bottle but if she wanted to continue in the cab that was okay with him. He said he might go to the Chinese Restaurant but that he would drop her off at home. She came up with him to his condo. They walked into his condo and she walked to his bedroom and sat on his bed. He offered her a t-shirt and shorts to change into. He said he helped her change by taking her clothes once she had removed them and putting her clothes in the corner of the room. He then spent about 10 minutes getting through to Dial A Bottle to cancel his order and then he called S. to see if they were still at the restaurant and spoke to him for about 5 minutes. In cross-examination, K said he did not know if H passed out in his bed and said he did not remember if her eyes were closed.

43H walked out of his bedroom still wearing his t-shirt and boxers. H said she was feeling gross and wanted to freshen up or have a shower and K offered her his shower and she agreed. K was adamant that she did not say she wanted to go home and take a shower. She took off the t-shirt outside of the bathroom and walked in. K said he sat for a little while. K said that the washroom door was open, that he popped into the washroom, he asked H if she was OK and he asked if he could join her and she said yes. He got undressed, lit a candle and joined her in the bathtub. She was lying on the floor of the tub and she parted her legs so he could get in. At this point, K’s penis was flaccid. In cross-examination, K denied asking H if she was OK because he thought she was drunk, saying there was no reason to think that she was not okay. He also denied that she was passed out on the floor of the tub.

44Once in the shower K extended his hand for her to get up. H took his hand and got up. She had no trouble standing or getting up. They then soaped each other’s bodies with a loofah for about 25 minutes. During this time they were kissing and touching each other. In cross-examination, K agreed that kissing her mouth after she had vomited was “not tasteful.” He did not remember if he said something or what he said but he put his back against the long wall and she began to fellate him. In cross-examination, he insisted that he did not ask her to fellate him. He agreed that he might have put his hand on her head but he insisted that he did not force her. This lasted for 2 to 3 minutes. Then, because water from the shower was getting in her eyes he said, “Why don’t you turn around and bend over.” She turned to face the wall, her knees were bent and her hands were on the wall opposite the shower. He put one hand on her hips and used his other hand to guide his penis into her vagina. H yelped and said, “Oww” and she jumped forward, startling him. K took a step back, he lost his footing and grabbed the shower curtain and a few of the rings came down. K admitted that he did not use a condom and he described it as a poor decision on his part. K also agreed that he had never discussed using protection during sex with H.

45They got out of the tub and H was in a lot of pain. K said he was apologetic and concerned for her. He grabbed some towels, wrapping one around her upper chest and body and the other around her head. H said he did this because he thought they would lie down and he did not want to get his bedding wet. They lay down on the bed. K asked if she was ok and H replied no and said that that had really hurt. K offered her some water; she was very cold and distant. H was not talking and this made K confused. They were in the bed for 20 to 30 minutes when she got up, dressed in her clothes and left the apartment. K walked her to the door and said goodbye. He saw her again when she came and got her keys. K believed that she called him and he found her keys. He said she still seemed a bit distant and said that she was still in pain. K offered to walk her out, he had his arm around her and he kissed her and said good-bye.

46K’s next contact with her was later that day when she sent him the text messages. He described himself as being stunned and absolutely floored by her message. He said he responded immediately but did not address every point in her text. He apologized because he just wanted her to feel better. He did not want to make her more upset but he wanted to be clear with her. He said it made no sense to him when she said that she did not want to have sex with him. He thought that this was something that should be discussed in person or at least over the phone. But he did not try to call her, saying that texting seemed to be the way she wanted to deal with the matter and he was respecting that choice.

47Under cross-examination, K agreed that he could not recall when it was that he thought sex might be possible that night. It was not after she vomited and when they got to his apartment he said sex was off the radar. He agreed that her getting out of her clothes and saying she wanted to freshen up and go home was not an invitation to sex. K still maintained H was not drunk at his apartment as she was able to stand, was not slurring and did not have a droopy face.

S.M.

48Mr. S.M. is 34 years of age and works at the H[…] Store on B.S.. He has known K since 2013. In May 2014 he had a group of friends that would go out 4 or 5 times a week. On May 28, 2014, he and his friends were going downtown and he was the designated driver. He picked up K just after midnight on May 29, 2014 and they went to Shangri-La, arriving there about 12:20 or 12:30. They decided to go to efs; they got there at 1:10 a.m. to discover that it was a private party. They walked to Brassaii, arriving there at 1:20 or 1:30 a.m. When they arrived K met a friend of his named H. A friend P. bought a round of vodka shots and H had one of them. M and his friends stood outside and K and H went inside. Towards the end of the evening they were leaving and M invited him to come for Chinese food. K and H were walking out holding hands and they began to make out. M and his friends made a joke about this. K and H left the bar and he went across the street, hailed a cab and opened the door for H to get in and he got in after her.

Assessment of the Evidence

O. K.

49I have considered K’s evidence carefully and I disbelieve many aspects of it:

(1) I do not believe K’s assertion that H indicated at Brassaii that she wanted to go back to K’s place. She had already started to leave for home once. While she went back to Brassaii to see K, I accept her testimony that she was intoxicated and feeling unwell and I find she just wanted to go home; (2) I accept that H passed out in the cab for at least some period of time during the trip to K’s condo and I reject his assertion that she was awake during the entire trip. This is consistent with H’s evidence, which I accept, about how intoxicated and unwell she felt; (3) I do not believe that H and K discussed drinking more while they were in the cab or that H had suggested that he order a bottle of vodka; (4) I find K’s insistence that H appeared not to be intoxicated totally unconvincing. She had been at the bar for several hours and had had ten drinks. While K only showed up at the end of the night, given H’s testimony about her level of intoxication, this should have been apparent to K despite the fact that she could talk and walk. Certainly, once she has thrown up outside of the cab any doubt on this point must be eliminated. I reject K’s claims that he did not think that H was drunk as untrue. I find this aspect of his testimony has more to do with the fact that he subsequently had sexual contact with her; (5) I do not accept that K played such a passive role in helping H change into t-shirt and shorts as he described. They had been in a relationship of some intimacy previously. There was no reason for K to be shy in helping H change and he did not suggest any such reason. H had thrown up and was clearly intoxicated. I do not believe that K did nothing more than get the t-shirt and shorts for her and then stand by passively retrieving her items of clothing as she removed them; (6) I do not believe K’s testimony when he said that H did not say that she wanted to go home and take a shower; (7) While K agrees that H was sitting on the floor of the tub with the shower running, he said that there was nothing unusual about this as he did not know the normal way to take a shower. This is nonsense and an attempt to avoid a compelling sign that she is intoxicated and/or unwell. I reject his continued insistence here that he did not know she was intoxicated; (8) I do not believe K’s testimony that he popped into the washroom, asked H if she was OK and asked if he could join her and she said yes. I prefer H’s testimony that she did not even know he was there until he was standing over her in the tub. In this regard, I note that K maintained in cross-examination that there was no reason to think that H was not OK. So there was no reason for him to make this preliminary inquiry; (9) I reject K’s testimony that he helped H to her feet and the two soaped one another’s bodies, possibly with a loofah, for 25 minutes before H began to fellate him and then turned around when he penetrated her. I accept H’s testimony that she was feeling intoxicated and unwell. I also accept her version of what happened in the bathtub. K’s version of events is nothing more than a weak attempt to cast the entire sexual contact as being consensual. Accepting H’s testimony, I find that she was not interested in sex at that time at all. I also find that H would not have consented to unprotected sexual intercourse; (10) I reject K’s testimony that they lay down in the bed for 30 minutes before they left during which time she shut down. If the sexual contact had been consensual there would have been no reason for her to shut down, even if she was in pain. Moreover, even if she shut down, it makes no sense that he would not try to talk to her; (11) I reject K’s description about how H left his condo. I find that she left behind her keys because she was intoxicated, felt unwell and, most importantly, was fleeing the condo because of what had happened. If things had happened at the more sedate pace K described, she would have been less likely to forget her keys; and (12) I find K’s response to her texts later that day troubling. K says that he thought this was a topic that should be discussed in person or on the phone, but he made no attempt to do so because he was respecting her choice to communicate by text. I disbelieve this explanation. I find he did not call her or attempt to see her because he knew what he had done was wrong.

50The Crown has also argued that K’s testimony before me was inconsistent with what he said in the affidavits he swore out for the application he was going to make pursuant to s. 276 of the Criminal Code. While there appear to be some inconsistencies, I do not attach great weight to these, keeping in mind that the affidavits were drafted by his lawyer and not by him.

S.M.

51I do not find Mr. S.M. to be that significant a witness. Even if H was kissing K at Brassaii earlier in the evening and even if she ran to a westbound cab with K, this points at most to a concern with the reliability of her memory, which I recognize. While she may not have remembered these things, I do not find that she was lying about either of them. In no way do they undermine her credibility when she discusses either the oral sex or the vaginal penetration. I also do find that Mr. S.M. did not have sufficient contact with H to offer an informed opinion as to whether or not she was intoxicated. But ultimately, I am sceptical of the veracity of Mr. M’s evidence. He testified that he was only contacted a month prior to the trial and then, after consulting with his phone, he purported to have an extraordinarily detailed memory of the evening including exact times for their movements that night and early morning. I simply do not believe that he is testifying truthfully and I accordingly do not rely upon it.

H

52There are obviously concerns with H’s reliability because it is obvious that her memory was adversely affected by her degree of intoxication. But while she has forgotten aspects of what happened at the bar or in the cab, this does not mean that she could not recall what happened to her when she was in the shower. I do not find the fact that her memory was impaired by her level of intoxication to undermine her credibility as a witness on these points.

53Ms. Schofield also raises the concern about her credibility, pointing out that (1) she was reluctant to admit that she wanted to see K that night; and (2) she denied kissing K when it is apparent from all her evidence that she did not remember if she had done so or not. It is apparent to me that H did want to see K that evening and this is apparent from her texts to him before Brassaii and when he shows up and from the fact that after she first leaves Brassaii, she comes back in response to K’s messages. As for the kissing, H clearly could not remember if she had kissed him or not, but she answered by saying, “I did not want to kiss him so I didn’t kiss him.” Both of these suggest that H is trying to downplay her interest in K and to minimize any physical interaction with him. While I would have preferred that H had simply answered these questions clearly and honestly, I note that her equivocation here might be explained by what happened later at K’s condo and her resentment of that fact. But, despite these concerns, I find that she was telling the truth when she described both the oral sex and the vaginal penetration and I prefer her version of these events to that of K. I find that she left the condo quickly and it was her degree of upset, state of intoxication and what had just been done to her that led to her forgetting her keys.

54The Crown urges me to find that the fact of a vaginal tear is more consistent with H’s story than with that of K, who said that he had no difficulty entering her vagina or withdrawing from it. However, in the absence of any expert as to how difficult it is to produce such a tear, I am unable to come to that conclusion.

55H also had some trouble clearly describing her position in the bathtub at various points. The defence led evidence of the dimensions of the tub and put in photos to suggest that the tub was quite small. None of this evidence was particularly helpful. There is no real dispute that she was vaginally penetrated in the tub regardless of which version of events I accept. Clearly the tub was not too small for that to have happened. Moreover, there is nothing about the dimensions of the bathtub that suggests to me that the fellatio could not have occurred as H described.

56Similarly, I am not troubled by the conflicting evidence with respect to the shower curtain. H said she pulled on the curtain and the rod came down. K said that he pulled on the curtain, the curtain separated on some of its rings but the curtain rod did not come down. I reject Ms. Schofield’s suggestion that if H had pulled the curtain rod down, it would have fallen and struck her. This might have happened but it need not have happened.

Mr. A

57Mr. A was an honest witness who was largely unchallenged in cross-examination. His evidence adds little to the central issue of whether or not the sexual contact was consensual.

Conclusion About the Assessment of the Evidence

58For the foregoing reasons, I do not believe K’s denial that he committed the offence charged. Thus, I need to go on to the second step of W.D.

59Under the second step of W.D., for the same reasons, his testimony does not leave me with a reasonable doubt about his guilt, or, about an essential element of the offence charged.

60Turning then to the third step of W.D. I must consider whether or not the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt. Subject to the issue of honest but mistaken belief which I shall discuss below, as I accept H’s testimony about the nature of the sexual contact and how it came about, I find that she did not consent to the sexual contact and that both the oral sex and the vaginal penetration constitute a sexual assault.

Honest But Mistaken Belief in Consent

61Having found that the sexual contact occurred in the manner described by H, this is a simple matter. This claim simply lacks an air of reality. With respect to the oral sex, H testified, and I accept, that she kept moving her head away and saying that she didn’t want to do this and that she felt sick. K persisted, grabbing her head and eventually getting his penis in her mouth. Having overcome H’s protests in this way, there is no basis for honest but mistaken belief in consent here.

62As for the vaginal penetration, any claim of honest but mistaken belief in consent also lacks any air of reality. Silence, passivity or ambiguous conduct does not constitute consent to sexual activity. K does not claim that he asked H for her consent or that she gave her consent. H’s turning around in the manner she described cannot be said to constitute consent to vaginal penetration. Moreover, given her obvious state of intoxication, K’s decision to engage in sexual activity was either reckless or willfully blind, making honest but mistaken belief not available to him. I do not accept Ms. Schofield’s submission that since K had only bought her one drink and had not been with her all night, her level of intoxication would not be obvious to him. The vomiting alone should have made this obvious to him. But as well we have H passing out, or at least being in and out of consciousness, in the cab, on his bed and on the floor of his tub. All of this occurred before the sexual contact.

63STAND UP MR. K: On Count #1 of the indictment I find you guilty as charged.

T. Ducharme J. Released: April 28, 2017