Court File and Parties

COURT FILE NO.: CR-16-40000331-0000 DATE: 20170512 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – E.I. Accused

COUNSEL: Jose Andres Hannah-Suarez, for the Crown Anthony Bugo, for the Accused

HEARD: February 13 - 27, 2017

BEFORE: B.A. ALLEN J.

Reasons for Decision

Overview

[1] The accused, E.I., was charged that on June 30, 2015 he sexually assaulted and forcibly confined the complainant, D.H.-G. After the evidence was in Crown counsel withdrew the forcible confinement charge on the basis the evidence did not support that charge.

[2] This case involves two people meeting on an online dating site called “Plenty of Fish”. D.H.-G. was age 19 at the time and. E.I. was age 27. The two were in touch with each other through Plenty of Fish and text messages for about one week before June 30, 2015.

[3] The original plan for that day was that they meet for dinner in downtown Toronto. That plan changed because E.I. told D.H.-G. that he had a family emergency. The plan ultimately turned out to be that they meet at his place. E.I. lived in a room in a residential complex near York University campus. It was there that D.H.-G. alleges E.I. sexually assaulted her.

[4] There is no dispute that E.I. had sexual intercourse with D.H.-G. The issue is whether D.H.-G. consented to the sexual activity.

[5] The Crown called D.H.-G. and her cousin, T.H., who D.H.-G. had communicated with by phone and text after the alleged sexual assault.

[6] The defence called E.I., a sexual assault nurse from Women’s College Hospital, Officer David Christian who took a statement from D.H.-G., and the two EMS workers who transported D.H.-G. to the hospital after the alleged sexual assault.

Circumstances Leading Up to the Incident

[7] D.H.-G. and E.I. were both looking for dates on Plenty of Fish. They had put up personal profiles on the site about themselves. They chose to communicate with each other and spent some time getting acquainted first through the dating site messaging system and then through texting and cell phone calls back and forth. About a day or two before June 30th they made arrangements to meet.

[8] They shared texts about their goals in life, what they like and dislike in people and partners and about their outlooks on life. E.I. told D.H.-G. he worked as a computer systems analyst. The texts seemed to show they were becoming quite enamoured with each other. E.I. spoke of the hope of forming a serious relationship with D.H.-G. The texts showed they were anxious to meet each other.

[9] By text they planned to meet to have dinner at a restaurant downtown but it was not definite as to where. D.H.-G. indicated to E.I. that the last bus to Vaughan, where D.H.-G. lived, was at 11:00 p.m. – 11:30 p.m. E.I. offered at this point that if downtown was inconvenient for her to get home he would hire a taxi for her. E.I. suggested they could “bus it back” to his place after dinner to “chill in” and then decide if she would take a bus or taxi home. The plan was to meet when E.I. got off work at 5:00 p.m. D.H.-G. testified she left her home in the City of Vaughan at 3:00 p.m. to go to Eaton Centre.

[10] D.H.-G.’s evidence is that she had spent the night of June 29th at her cousin T.H.’s home in North York. She indicated she left and went to her home in Vaughan to shower before she headed downtown. D.H.-G. testified that her cousin was the only one who knew about her date. She said she told her about the date while at her cousin’s house and kept her updated throughout the day on June 30th by text.

[11] On June 30th, just hours before the meeting time, E.I. texted that an emergency, later described as a family emergency, had arisen that he had to attend to. She responded by text “OMG”, which she testified showed surprise and disappointment. D.H.-G. indicated she was already downtown by herself and had been there since 4:00 p.m.

[12] E.I. met D.H.-G. at around 5:00 p.m. at Eaton Centre. He offered that he could take care of the family emergency and then they could meet up later at his place. He also offered the option of rescheduling the dinner date to another time. She opted to meet him at his place. He offered to pay for her taxi and bus fare home from his place. He then left Eaton Centre.

[13] The text messages reveal that D.H.-G. left Eaton Centre at around 6:00 p.m. She therefore had been there for about two hours. The plan was for her to contact him when she reached Downsview subway station. It took her 30 - 45 minutes to get to the station. She called him when she got to Downsview. E.I. gave her directions to his place and she took the bus from the station to his place. It was a 10 - 15 minute bus ride. The bus stop is about three minutes from E.I.’s residence.

[14] About four hours had passed between when D.H.-G. arrived at Eaton Centre and when she reached E.I.’s place at 8:00 p.m.

E.I.’s Residence

[15] E.I. greeted D.H.-G. at the door to his building. E.I.’s home is in a community of houses near York University campus referred to as The Village. Each house is divided into rooms that are occupied by tenants. E.I.’s house has three storeys and he lived on the third floor. Kitchen and bathroom facilities are shared among tenants on each floor. The bathroom on E.I.’s floor was down the hall from his room.

[16] The building is not soundproof. Sounds travel easily from floor to floor. D.H.-G. testified she could hear the voices of people from a floor below speaking a Chinese dialect.

The Incident

D.H.-G.’s Account

D.H.-G.’s Evidence In-Chief

The Sexual Encounters

[17] D.H.-G. testified that when she arrived at the residence she took off her shoes and followed E.I. upstairs to the third floor. There were other doors to rooms on that floor that were closed. They entered his room and he closed the door. The room had a bed, a desk, a television and a closet. She said she sat on the corner of the bed.

[18] It is D.H.-G.’s evidence that the option of going to dinner remained a possibility after they arrived at his place. D.H.-G.’s evidence is that E.I. offered her the option of going for dinner somewhere near York University. She plugged in her cell phone because the battery was low. She said she would look up places to go. She said her original plan was to stay at his place a short while and catch the bus home at 8:15 - 8:20 p.m.

[19] D.H.-G. testified that E.I. next sat on the bed beside her, turned on the television and then sat back against the wall. He asked her to sit further back and she did. They began talking and flipping through Netflix for a movie. He then asked if she had found a place to eat and she said she had not. He asked her if she would like to reschedule the dinner so they could hang out at his place and get to know each other. She agreed.

[20] There was no consumption of drugs or alcohol. They both had soft drinks.

[21] D.H.-G. testified at the preliminary inquiry on May 11, 2016 that things started to get physical five to ten minutes after they arrived at the room.

[22] D.H.-G. said they were sitting up against the wall and he reached over and touched her stomach area. She said she did not like it, that she felt uncomfortable. She said E.I. asked her to stand up and she did so. She did not explain exactly why he asked her to stand. She testified that he then said she had nothing to worry about, that she should not feel insecure or uncomfortable about it.

[23] D.H.-G. said she recalled they were watching the movie and he started moving toward her on the bed. She said she did not respond to this and they kept talking for a while. She said E.I. then got up and walked to the desk beside the television and walked back to the bed. He had on a tank top and eventually took off his shorts and she believes he took off his underwear.

[24] D.H.-G. testified that when she was sitting on the bed, her dress was at her upper thighs and he pulled it over her head. He pulled her panties down. She said she tried to stop him from pulling her dress up by holding it down by placing her arms at her sides. Her bra was pulled up over her breasts. He took her dress off and it ended up on the floor. He then pushed her to lie down. She said she was on her back and he got on top of her and inserted his penis into her vagina.

[25] D.H.-G. testified that during the intercourse he was hurting her and she was feeling confused and scared and she just wanted to go home. She did not think she said anything to him. She put her hands on his chest to push him off. She testified he did not stop. He asked her whether she could take it. He then turned her over on her stomach and put his penis into her vagina. She said she believed he ejaculated. She said she did not see him put on a condom but she thought he had one on because when he got up she saw him take one off.

[26] D.H.-G. testified she did not consent to having sex with E.I.

[27] D.H.-G. testified that when he was finished, she got up to get dressed because she was in a hurry to leave. She had put her panties on and pulled her bra down when he handed her a towel and told her to take a shower before she left. She testified she told him she would take a shower when she got home. But he insisted she take a shower.

[28] D.H.-G. said she walked to the bathroom with her panties on. He showed her how to turn the taps on and which soap to use. He put the towel on the back of the door and locked it from the inside. After the shower, she wrapped the towel around her, carrying her bra and panties, and went back to his room to get dressed. She put her dress on.

[29] D.H.-G. said E.I. then took her by the arms and placed her on the bed on her back and got on top of her. He lifted her dress up halfway and put his penis into her vagina. She said she saw him put on a condom but did not know whether he ejaculated.

[30] D.H.-G. testified that during intercourse E.I. said something that startled her. She said he asked her if he gave her a certain amount of money would she make an arrangement with him to have sex with him again. She said she did not answer him. He then told her if she did not answer the question he would not stop the intercourse he was forcing on her. D.H.-G. testified she did not want anything from him and that he was hurting her and she started crying.

[31] She said she again did not consent to having sex with E.I. this second time.

[32] D.H.-G. said when he was finished he got up. She grabbed her things. She pulled down her dress, put on her panties and packed her bag. She said he then approached her and put $50.00 on the bed. He told her to use it to take a taxi to the bus stop to catch the bus to Vaughan. D.H.-G. said she responded that she did not need a taxi. She then checked to see when her bus would arrive. She testified he then handed her $5.00 for bus fare. She said E.I. put the $50.00 and the $5.00 into her bag.

[33] They both went downstairs. D.H.-G. put on her shoes and he asked her when she was going to come back. She does not recall whether she answered him. She then left to walk towards the campus. She said she had the money in her bag. D.H.-G. said she was not thinking about the money when she left because she was not planning to use it. She said she had not exchanged money for sex.

[34] D.H.-G. texted her cousin, T.H., from E.I.’s room between 10:05 and 10:06 and wrote: “T.H., he raped me then offered me money to pay for sex. While I was crying he asked me how much and threw $50.00 at me.” In answer to her cousin’s order for her to pick up the phone and to her questions, “Who? Where are you?” – at 10:06 p.m. D.H.-G. responded, “He’s still here. I can’t pick up.”

[35] D.H.-G. testified she spoke by phone to T.H. and her aunt after she left the building. Her aunt advised her to call 911. She walked to a building on campus and called 911.

Post-Incident Events

[36] D.H.-G. spoke to the 911 dispatcher for 16 minutes. The recording of her conversation with the dispatcher was played in open court. The Crown requested the 911 call be accepted only for the purpose of establishing D.H.-G.’s demeanor.

[37] D.H.-G. can be heard crying uncontrollably. Many of her words are indecipherable. She told the dispatcher her location and that she had been raped. She gave her name and age. She told the dispatcher the name of the person who raped her and where he lived.

[38] Two EMS paramedics arrived at 10:42 p.m. to assist D.H.-G. She was seen by a sexual assault nurse from Women’s College Hospital. D.H.-G. testified that her arms and vagina were sore. She said there were no bruises on her body.

[39] On July 1, 2015, D.H.-G. went to the police station to report the sexual assault. She gave the police the $50.00 and $5.00 and the clothes she had worn at E.I.’s place. She testified in-chief that she did not tell the police about the assault.

Cross-Examination of D.H.G.

[40] D.H.-G.’s police statement was taken on July 1, 2015 and the preliminary inquiry occurred on May 11, 2016, just under one year after the incident. The defence’s cross-examination on inconsistencies between her prior statements and between and her testimony in-chief and her prior statements cut to the heart of the credibility and reliability of her allegation of sexual assault.

Details in Police Statement Not Given at Trial

[41] The defence confronted D.H.-G. with the evidence she gave in-chief that she did not tell the police anything. She responded that she did not really recall whether she told the police anything. She then said she did tell them some things but not the details. The defence put to her that on July 1st she gave a detailed statement to Officer David Christian about many things.

[42] The defence for instance pointed to the following information in the officer’s notes: the accused’s name; that he is male, black; his address; that she met him on Plenty of Fish; that he works at BMO; their first date was June 30th; they met at a café at Eaton Centre; that he invited her back to his place later; that she was on her phone on the edge of his bed; that he offered her a blanket to cover herself; that he started moving close to her; that he pulled her towards him; that he told her to relax; that she was wearing a little orange/red dress; that he put his arm around her; that he was trying to find something to watch on the television; that he started to get more physical; and that before he took off her dress they were just talking.

[43] Defence counsel also posed questions to D.H.-G. on what she told the police about E.I.’s behaviour in relation to her taking a shower. What she told the police led to a forcible confinement charge being laid. According to her police statement, she told the police that E.I. took her to the bathroom, showed her the soap and how to use the taps and locked the door and stood watching her take the shower.

[44] In-chief at trial, confirmed on cross-examination, she testified that E.I. led her to the bathroom, turned on the pipe for her, left the towel on the back of the door, stood in the bathroom momentarily and left the bathroom locking the door from inside. The forcible confinement charge was withdrawn based on that evidence.

[45] After the defence enumerated the details of what she said to the police, D.H.-G. said she did not recall telling the police those things. Defence counsel challenged her pointing out that she gave the police the $50.00 and $5.00 so she must recall telling them something about the money. She denied giving the police details about the money.

[46] The defence put to D.H.-G., and she agreed, that she did not give the police important contextual information. She did not tell the police that E.I. had originally invited her out to a restaurant for dinner. She did not mention the change of plans, that he tried to cancel the date and offered her the option of rescheduling the date to another day. She did not relay to the police the evidence that she was still looking to go to a restaurant near E.I.’s place. Nor did she tell the police he offered her the option of hanging out at his place and that she ultimately agreed to that arrangement.

Period of Time in E.I.’s Room

[47] The defence also confronted D.H.-G. on her evidence about what occurred between her and E.I. before things got physical. Her evidence in-chief was that things got physical about five to ten minutes after they got to the room. At trial D.H.-G. stated that she did not know how long they spoke before E.I. forced sexual intercourse.

[48] The defence put to her topics of her conversation with E.I.: about where she was in her life regarding jobs and education; about her mother; and about an incident on York University campus of her being stalked and roughed up. D.H.-G. did not deny talking about those things. She said she did not remember. She confirmed that she was stalked and agreed she must have told that to E.I. D.H.-G. agreed with the defence’s suggestion that covering all those topics in a conversation would take more than five to ten minutes.

[49] The defence summarized the timing of the various occurrences based on evidence she provided at the preliminary inquiry: the first sexual assault lasting about five minutes; the shower, about five minutes; the second sexual assault happening about five to ten minutes after the first assault; the second assault lasting five to ten minutes. D.H.-G. agreed she gave those answers at the preliminary inquiry and that the answers were true.

[50] The defence also put to D.H.-G. that taking into account the five to ten minutes before things got physical and the timing of the two assaults and the shower, on those times everything would have happened by about 9:00 p.m. D.H.-G. responded that she did not know.

[51] The defence put to her that by the times on the text messages to her cousin she would have left his residence at around 10:06 p.m. to 10:07 p.m. And the 911 recording indicates she called at 10:22 p.m. D.H.-G. had no explanation. She just said, “I don’t know.”

[52] To the suggestion by the defence that there is one hour of lost time, she at first gave no answer. Then with persistence in pointing out the timing discrepancy, D.H.-G. conceded that over an hour would have passed before any sexual activity started, not five to ten minutes.

Initial Physical Activity

[53] The defence asked D.H.-G. why in the beginning when he touched her stomach and she felt uncomfortable given her original plan to leave quickly, she did not leave at that point. The defence pointed out that E.I. asked her to stand up before he got more physical and instead of leaving, she sat back down. D.H.-G. did not have an answer for that query.

[54] The defence asked whether E.I. kissed her on her neck, put his arm around her and she moved toward him, and whether they were talking before things got more physical, before he took her dress off. She responded, “No”. The defence then directed her to her police statement where she told the police that is what occurred. D.H.-G responded that she said those things to the police and that she was telling the truth. She says she now recalls him putting his arm around her but does not recall him kissing her or her moving toward him. To the suggestion that there was consensual kissing, she responded she did not recall kissing him. She rejected the suggestion that consensual kissing and hugging led to consensual, not forced, sex with E.I.

[55] Defence counsel asked D.H.-G. about her evidence that she did not see E.I. put on a condom. He pointed to her police statement where she said she saw him get up and put on a condom. She also said she saw him wearing a muscle shirt and a condom. D.H.-G. confirmed she said those things and that it is true. She gave no explanation for the divergence in her evidence.

The Sequence of the Assaults and the Shower

[56] The defence asked her whether on the version of the sexual assaults she gave in-chief, E.I. made her take another shower. D.H.-G. responded, “No”. Defence counsel then questioned her about other evidence she gave to the police. He pointed to her statement that after the first sexual assault she tried to get up; that he pushed her down; then forced sex on her again; and that after the second assault he made her take a shower.

[57] Defence counsel referred to the officer’s notes and posed to D.H.-G. that she told the police he assaulted her two times then made her take a shower after the second assault. She did not deny saying this. She said she did not recall the details of what she told the police.

Variations in the Evidence about the Money

[58] Defence counsel raised an inconsistency in D.H.-G.’s evidence about the offer of money by E.I. On cross-examination, she gave another reason that E.I. offered her money. In addition to her earlier evidence that the offer of money was for a future arrangement to have sex, she testified that when she said the sex was hurting her E.I. offered her money during the sexual assault to allow him to continue having sex with her. D.H.-G. said she did not recall during which assault he said this.

[59] The defence posed to her the serious implications of this evidence – an offer of money during a sexual assault – as to how she could forget to mention this kind of thing when answering the Crown’s questions. D.H.-G. admitted that she found it very degrading that he had just undressed her and was having sex with her and then offered her money.

[60] The defence questioned D.H.-G. on her varying evidence about the $50.00 and $5.00. He reminded her of her evidence that E.I. gave her the money and she did not want it. She clarified that he first placed it on the bed and then he put it in her purse.

[61] Defence counsel then referred her to her preliminary inquiry evidence where she said she took the money and put it in her bag. D.H.-G. stated that she did not recall saying that. He put to her that she told two opposing stories under oath on two different occasions – that she put the money in her bag and that E.I. put the money in her bag. D.H.-G. did not account for this discrepancy.

[62] The defence raised other questions about the money, this time on the variations in D.H.-G.’s evidence about the purpose for the money.

[63] D.H.-G. testified, and confirmed under cross-examination, that E.I. gave her the money only for a taxi home.

[64] The defence put to D.H.-G. that she told her cousin, T.H., by text that E.I. raped her, offered to pay her for sex and threw the money at her. Defence counsel challenged her that she told the 911 dispatcher that after it happened he handed her money and asked her how much he should pay the next time she sees him. D.H.-G. agreed she wrote that to T.H. and that the money she was referring to was the $50.00 he gave her for a taxi. She agreed she said those words to the dispatcher.

[65] D.H.-G. went on to deny the defence’s suggestion that she was trying to convey the impression that the money was payment for the sexual assault. She said that was not her intention and that she was very emotional when she said that. D.H.-G. said she was just focusing on getting help. She denied the suggestion that she fixated on the money in her story to enhance her allegation of rape.

Delay in Leaving After the Assaults

[66] Defence counsel reminded D.H.-G. that in-chief she said after the assaults she stopped to check the times for buses. He asked her why if she had just been assaulted and was in a hurry to leave she would take the time to check times for buses on her phone when she already knew the schedule. D.H.-G.’s response was that sometimes the buses are not on time and she had to check. Defence counsel suggested she delayed to check her phone because she knew she was not in danger. Her response was she did not know why she thought of checking on the buses at that time.

Cousin T.H.’s Evidence

[67] T.H. was the Crown’s only other witness. She testified briefly but she gave some evidence that in important ways contradicted D.H.-G.’s evidence.

[68] T.H. acknowledged the exchange of texts and phone calls between herself and D.H.-G. just after 7:00 p.m. on the evening of June 30th. She testified that her cousin sounded very upset and emotional over the texts and phone in telling her she was raped and that her date tried to pay her for sex and threw money at her.

[69] However, contrary to D.H.-G., T.H. said D.H.-G. did not stay at her home overnight on June 29th. T.H. said she had not seen D.H.-G. for some time before June 30th. T.H. also contradicted D.H.-G.’s contention that D.H.-G. kept her up to date throughout the day on June 30th about her date plans with E.I. In fact, when T.H. gave her statement to the police she told them she knew about the date but had actually forgotten about it.

Disposition

[70] I arrived at a verdict without the need to consider the defence’s evidence.

[71] The basic principles that underlie the assessment of guilt are common ground. The Crown’s obligation is to prove E.I.’s guilt beyond a reasonable. This means proving each element of the offences charged beyond a reasonable doubt. What follows is that the accused is innocent until proven guilty and is not required to call evidence. The accused does not have to prove his innocence. The Crown’s responsibility remains the same whether the defence calls evidence or not.

[72] E.I. does not dispute that he and D.H.-G. had sexual intercourse on the evening of June 30th. The only issue is whether D.H.-G. consented or not. The available defence is consent. D.H.-G. contends she did not consent to the sexual contact between her and E.I. Where a defence is raised the Crown has the added task of disproving the defence beyond a reasonable doubt. The Crown’s success in disproving consent in this case rests mainly in establishing the credibility and reliability of D.H.-G.’s evidence.

[73] The defence called the evidence of E.I. However, in considering whether the Crown has met its burden I conclude that I need not consider E.I.’s evidence nor the evidence of the other defence witnesses in arriving at a verdict

[74] The question is whether the Crown’s evidence is sufficient to permit a finding of guilt, that is, whether the Crown’s case is capable of supporting a verdict of guilt beyond a reasonable doubt. The absence of evidence on an essential element or the absence of sufficient evidence to disprove a defence requires an acquittal.

[75] As set out above, D.H.-G.’s evidence at trial lacked credibility and reliability in critical areas, for instance: her evidence about the length of time in E.I.’s room; her failure to tell the police about the original plan for dinner at a restaurant and the option E.I. offered to reschedule the date; the absence in her testimony in-chief about what occurred between them before things got physical; contradictions in her evidence about who put the money in her purse and about the purpose for the money; the contradictions between what she told the police and testified to at trial about the timing of the shower and the sexual assaults; and her evidence that after the alleged assault she delayed to check the bus times rather than just rushing out to get away from E.I.

[76] The only witness called to support her evidence, her cousin T.H., even contradicted her evidence.

[77] D.H.-G.’s evidence was so replete with contradictions and inconsistencies it would be dangerous to rely on her testimony to convict E.I. I further considered whether there was anything in the defence’s evidence that strengthened the Crown’s case and I found there was not. The Crown did not succeed in disproving beyond a reasonable doubt that D.H.-G. consented to the physical contact and sexual intercourse with E.I. In the result, I must return a verdict of not guilty on the charge sexual assault.

Verdict

[78] For the foregoing reasons, I am satisfied the Crown has failed to prove E.I.’s guilt beyond a reasonable doubt on count 1 on the indictment.

[79] I therefore find E.I. not guilty on count 1 on the indictment and an acquittal will be entered accordingly.

B.A. ALLEN J. Released: May 12, 2017