COURT FILE NO.: CR17100006260000

DATE: 20180525

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

– and –

WILLIAM ALIBABA

Defendant

Sam Scratch, for the Crown

Adam Newman, for the Defendant

HEARD: May 14-17, 2018

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.

SPIES J.

Introduction

1William Alibaba is charged with committing a sexual assault on L-A.B. on September 5, 2015, contrary to s. 271 of the Criminal Code. He re-elected trial by judge alone and pleaded not guilty to the charge.

2Counsel are to be commended for reducing what was scheduled to be a two-week trial to a trial that was completed in less than one week. They focused on the central issue in the case; namely, whether or not the Crown has satisfied me beyond a reasonable doubt that during the course of what was otherwise a consensual sexual interaction, Mr. Alibaba anally penetrated Ms. B. with his penis without her consent.

3The Crown called Ms. B. and the sexual assault nurse who examined her. In addition, an Agreed Statement of Facts (ASF) was filed and the evidence of the DNA expert was admitted by filing a transcript of her evidence at the preliminary inquiry Mr. Alibaba also elected to testify on his own behalf.

Issues

4This case was not what I would consider as a typical “she said/he said” case. Although much does turn on my credibility assessment of Mr. Alibaba, as he elected to testify, the primary position of the defence is that although Ms. B. may honestly believe that there was non-consensual anal penetration, she is mistaken in that regard and her assertion that it happened is not a reliable memory.

5Ms. B. testified that she knows from previous experience that if she has too much to drink that she suffers from memory loss. That was clearly the case during the night in question. It is very clear from the evidence that Ms. B.’s memory of what happened during her sexual interaction with Mr. Alibaba went from having no memory of what happened immediately afterwards to her evidence at trial when she testified that she was 100% sure that he had anally penetrated her without her consent. How and when Ms. B. has remembered more about what she alleges happened between her and Mr. Alibaba, and what may have influenced her remembering more, raises serious issues with respect to the reliability of her evidence that I will have to determine.

Evidence and Preliminary Findings of Fact

6The main dispute in the evidence is whether or not Mr. Alibaba anally penetrated Ms. B. with his penis. Much of the rest of the evidence is not in dispute because although Ms. B. could not admit Mr. Alibaba’s version of events as true, because she had no recall of what happened the night she was with him, to a large extent she admitted that his version of what occurred was possibly true. Other facts were established by the evidence of Mr. Alibaba as corroborated by facts set out in the ASF.

7The evidence that does not appear to be in dispute, or is not contradicted by Ms. B. is as follows.

8At the time of this incident Ms. B. and Mr. Alibaba lived in apartments in high-rise buildings that were across the street from each other on Dan Leckie Way. At the time Ms. B. would have been about 29 and Mr. Alibaba, 25. She had been a social worker since 2007. Mr. Alibaba came from Botswana as a refugee claimant and has now completed the necessary requirements to be deemed a protected person. The next step is for him to obtain his permanent residency status.

9Ms. B. and Mr. Alibaba had met once during the summer of 2015 at a condo party and, according to Mr. Alibaba, they spoke for about 15 minutes. As I will come to, Ms. B. initially did not recall meeting Mr. Alibaba before the night in question until Det. McInnis, who was the original officer in charge, told her what she had learned from Mr. Alibaba.

10On the Friday evening of September 4th, 2015 the start of the Labour Day weekend, Ms. B. went out with friends for drinks at the Jack Astor’s at Richmond and John Streets. She believed that she arrived between 7 p.m. and 8 p.m. and left between 9 p.m. and 10 p.m., suggesting that she was there for between one and two hours. Ms. B. admitted that she had a “few” which she later quantified as three or four, whiskey doubles. She said that she was “pretty tipsy” and “pretty drunk” when she left the bar to walk home on her own. On the way home she stopped at the LCBO at King and Spadina and bought a mickey-sized bottle of Jack Daniels whiskey. Her plan was to have another drink or two before bed and have the rest of the bottle the next day. She also stopped at a Sobey’s at Spadina and Fort York for some food.

11Mr. Alibaba testified that his Friday night started at around 8 p.m. with some drinks and dinner in his apartment. He was having a dinner party with his roommate, O.O., and three women; C.G., B.M. and R.S., who were Mr. O.’s friends. Between the hours of 8 p.m. and 11 p.m., Mr. Alibaba estimated that he had four to five mixed drinks of Jack Daniels whiskey. He said that by 11 p.m. he was not drunk but was under the influence of alcohol and said he would describe himself as “tipsy”. He said that he would not have driven a car and added that even if he had only two drinks he wouldn’t drive because that is his understanding of the law.

12While walking home, Ms. B. stopped to talk to Mr. Alibaba who was standing in front of a Tim Horton’s with another gentleman. This Tim Horton’s is on the retail level of Mr. Alibaba’s condo building. Ms. B. had never met the other gentleman before; Mr. Alibaba testified that he was a neighbour’s boyfriend (“the boyfriend”). They were smoking cigarettes together and talking and when Mr. Alibaba saw Ms. B. walking on the other side of the street he waved at her and called her to come over. Mr. Alibaba said that Ms. B.’s demeanour was quite “chipper”, although she was not loud, and that she was smiling.

13Ms. B. and Mr. Alibaba talked for perhaps 15 minutes about where she had been and what she had been doing. Mr. Alibaba admitted that they spoke about the fact Ms. B. had recently lost her husband, who had died about a year earlier, and the fact that Mr. Alibaba had recently ended a relationship with a woman he had been with for three years. Mr. Alibaba testified that he talked about his relationship ending because he felt a kind of empathy for Ms. B. and was trying to redirect the conversation. According to Mr. Alibaba, the discussion got to a point where it was a bit flirtatious.

14Mr. Alibaba invited Ms. B. up to his apartment for a drink. He told her that there were still some girls in his apartment from his dinner party. Mr. Alibaba testified that Ms. B. told him that she would agree to go to his apartment if they both had a shot from her mickey first, before going up. He testified that they each took a sip from the bottle. Ms. B. agreed that before they went up to Mr. Alibaba’s apartment that she had a “swig” of the whiskey that she had purchased at the LCBO but she was not sure if Mr. Alibaba and the other gentleman did as well. She admitted it was possible. Mr. Alibaba testified that he could not really tell Ms. B.’s state of sobriety. She seemed happy and “quite OK” to him and she was not stumbling or slurring her words.

15Ms. B., Mr. Alibaba and the boyfriend went upstairs together. When they arrived at his apartment only C.G. was there. The boyfriend went on to his apartment to change and then came back to join them. Ms. B. testified that when she arrived at Mr. Alibaba’s apartment she believed two young women were present but I find that is not correct-it was only C.G. Ms. B.’s recollection is that within a couple of minutes the two women left along with the gentleman who had come up with her and Mr. Alibaba, leaving her alone with Mr. Alibaba.

16According to Mr. Alibaba, Ms. B. talked to C.G. while he and the boyfriend had a shot. After the boyfriend left he joined the conversation on the couch. He could hear Ms. B. speaking of the loss of her husband who had passed away in November; I presume November 2014. Mr. Alibaba redirected the conversation and started talking about how he had broken up with his long-term girlfriend a few weeks earlier.

17During this discussion Mr. Alibaba testified that he and Ms. B. were becoming intimate by holding hands and she put her legs over his knees while on the couch. C.G. was still there and as they got more intimate she called Mr. O. and said she was going home. That left Ms. B. and Mr. Alibaba in the apartment alone.

18I accept Mr. Alibaba’s evidence in this regard as it is corroborated by the admitted facts of information received from C.G. In particular it is admitted by the parties that C.G. was present when Mr. Alibaba and Ms. B. arrived at his apartment around midnight and that C.G. had a conversation with Ms. B. for 15 to 20 minutes during which Ms. B. shared intimate details of her life. It is admitted that Ms. B. told C.G. that she was a “little intoxicated”. It is also admitted that C.G. left the apartment at approximately 12:30 a.m. and that as she was leaving she observed that Mr. Alibaba and Ms. B. were sitting together and C.G. believed that they were very close and potentially going to be intimate. It is admitted that C.G. would not have left Ms. B. alone with Mr. Alibaba if she felt that Ms. B. was in any danger. Given these admitted facts I find Ms. B. is mistaken about her memory of how quickly C.G. left. It was not within a couple of minutes of her arrival.

19There is no dispute at some point Mr. Alibaba and Ms. B. went into the kitchen where Mr. Alibaba poured a drink of whiskey and ginger ale for each of them. Mr. Alibaba testified that at this point C.G. was still present. He believed they took a few sips in the kitchen and then went back to the couch and put their drinks down and resumed talking. Mr. Alibaba also testified that he believes they forgot about their drinks as things started to get intimate.

20Mr. Alibaba admitted that at this time he was definitely feeling the effects of alcohol. He had had a swig of whiskey from Ms. B.’s bottle, the shot with the boyfriend and some of the mixed drink. He said he was maybe a little more tipsy with this but not drunk. According to Mr. Alibaba, he can handle his alcohol pretty well.

21Ms. B. admitted that one of the things they were talking about on the couch were “stories of loss” in that her husband had died about a year earlier and Mr. Alibaba had broken up with a long-term girlfriend. When they were talking about the death of Ms. B.’s husband, according to Mr. Alibaba, she was not distraught and there was no obvious sadness. However, he didn’t want her to dwell on something like that and so that is why he brought up the breakup with his girlfriend to steer the conversation away from this. Mr. Alibaba testified that he was definitely feeling the loss of his girlfriend at the party, especially as everyone at the party was a friend of Mr. O.’s. Nevertheless he said it was a good night.

22Both Ms. B. and Mr. Alibaba confirm that they began kissing on the couch. She had no recollection of how the kissing began but admitted it was consensual. At one point Ms. B. was sitting with her legs over Mr. Alibaba’s knees. Mr. Alibaba testified that he went to the washroom and as he came back into the living room he heard a song that he liked playing and he started dancing and reached out his hand to ask Ms. B. to dance. She stood up and they danced a bit. They were kissing while they were dancing. He heard Ms. B. say that this felt good and that she wanted to “feel better”. He pointed out to her where his bedroom was and she backed him up and embraced him and pulled him towards the door. Mr. Alibaba testified that when they were dancing Ms. B. was smiling and they were both in a good mood. He didn’t notice the effect of alcohol on her; she was not “stumbling drunk”. Things were moving quickly. I accept this evidence which was not challenged.

23Ms. B. recalled that they moved into a bedroom although she was not sure how that came about. She believes she was OK with this but did not remember. Ms. B. recalled that in the bedroom her clothes and Mr. Alibaba’s clothes came off. She could not remember who was taking them off or how this happened but she admitted this was consensual. However, at another point in her evidence when Ms. B. was asked about the kissing and the clothes coming off she testified that although she believes she consented, she was “black out drunk”. On the whole of the evidence I find that this was an exaggeration and that this evidence was given to support her position that she did not have the ability to consent to any sexual activity with Mr. Alibaba, something, as I will come to, she frequently raised at the trial.

24Mr. Alibaba testified that in the bedroom there was quite a lot of kissing and Ms. B. was trying to lift his shirt up. According to Mr. Alibaba, he asked Ms. B. if she was sure she wanted to do this and she said “yeah, yeah” and pulled off his shirt. He led her to his bed and they were taking clothes off each other and as they were sitting on the bed, Mr. Alibaba kissed and licked Ms. B.’s breasts. Mr. Alibaba also testified that there was mutual masturbation. He took out a condom and opened it and as he started to unroll it Ms. B. helped him do so and push it down on his penis. He was now naked and Ms. B. was as well, save for her bra. According to Mr. Alibaba, Ms. B. was lying across the middle of the bed on her back. She pulled him towards her and he then tried to put his penis into her vagina. He was having trouble because he was not fully aroused. Ms. B. told him to let her do it and she pulled him down so he was now on his back to her right. She then mounted him to try to insert his penis into her vagina. At that moment, according to Mr. Alibaba, the bed started to tip.

25Mr. Alibaba explained that when he lay down on the bed after Ms. B. said she would go on top, he lay next to her towards the bottom of the bed. That moved them together towards the bottom edge of the bed. Mr. Alibaba testified that because the frame of his bed stopped before the end of the bed, which is shown in the photographs entered into evidence that the combined weight of him and Ms. B. caused the bed to tip and lean over. He said that Ms. B. fell as a result and that her fall was not as a result of consuming alcohol. According to Mr. Alibaba, they both fell over and he saw Ms. B. hit her head and heard a thud. He took a tumble and hit his head on the floor. Mr. Alibaba fell almost over Ms. B. although he did not land on her. He rolled when he fell and his head ended up by Ms. B.’s feet. Mr. Alibaba said that the tipping of the bed was sudden and “almost jolted us” and that when they fell they were surprised and were not able to brace themselves.

26As soon as Mr. Alibaba recovered from his fall he testified that he immediately tried to help Ms. B. up. Mr. Alibaba testified that he saw Ms. B. almost face down on the ground between the end of his bed and the shelving unit; the gap. He sat her on the floor against the side of the bed. He could tell that she had a large cut and grabbed some wet wipes in his room to put on the wound. According to Mr. Alibaba there was a fair amount of blood on the floor and on the corner of the shelving unit. He is squeamish with blood and got a bit panicked. Blood was flowing down Ms. B.’s face “rather generously” and some was on her upper chest.

27Mr. Alibaba testified that Ms. B. seemed disoriented and said it hurt badly. She was definitely in pain and according to Mr. Alibaba, she was fairly panicked but was not tearing up. She was asking him questions in an elevated tone of voice but was not screaming. She asked him what was going on and why she was bleeding. He had not noticed that she was disoriented before this. He was trying to reassure her.

28Mr. Alibaba admitted that the gap between the foot of the bed and the shelving unit was not wide and said it was about 45 cm (18 inches) wide (the “gap”). That seems accurate based on the photographs entered into evidence. He insisted however, that Ms. B. fell into the gap. He did not see how she landed but she was face down when he got up to help her. In other words, her body position didn’t change. Mr. Alibaba said that he has been in that space before trying to get something out from under his bed and he didn’t have to squeeze to do so.

29There is no doubt that at some point while Ms. B. was in the bedroom with Mr. Alibaba that she hit the right part of her forehead on a sharp object making a cut that bled profusely. Based on the photographs entered into evidence of Mr. Alibaba’s bedroom, it seems clear that the point of contact was the top right corner of a shelving unit at the foot of the bed. It is admitted that blood was on this corner and that there was blood on the floor in this gap as well, which apparently can be seen in the colour version of the photographs that I did not see.

30As for why she hit her head, Ms. B. testified that she fell off the bed onto the floor because she was just “too drunk”. Ms. B. testified that she hit her head on a shelf or dresser that was in front of her when she fell off the bed and that after the fall the bed was to her right, behind her, and that she was facing a different dresser than the one she hit her head on. Ms. B. admitted that it was possible that it was a shelving unit at the base of the bed and that it is possible that she fell into the gap between the base of the bed and the shelving unit.

31Ms. B. testified that either before or after her head injury; she could not recall the sequence, she was on the floor, on all fours and Mr. Alibaba penetrated her anus with his penis. She said that this was unexpected and very quick because she screamed “no, no, no” very loudly and was crying a lot because it was painful. Ms. B. testified that she was sort of hysterical and crying with blood all over the place and all over her hands. Ms. B. testified that she remembers the penetration “pretty vividly” and that she is 100% sure that Mr. Alibaba anally penetrated her but, as I will come to, she did not remember this even happening initially. Mr. Alibaba denied the allegation that he anally penetrated Ms. B. and that she was screaming or saying “no, no, no”.

32On the issue of consent Ms. B. testified that anal intercourse was not something she would ever do or consent to, either sober or drunk, and that she had no recollection of any talk or other conversation about what she was consenting to in the bedroom. She was sure she consented to the other sexual activity but she was not certain if she was in a position to consent since she was so intoxicated she was blacking out. In cross-examination Ms. B. testified a number of times that she was “too drunk to consent”.

33When it was put to Ms. B. that this trial was the first time that she had said that she was too drunk to consent, Ms. B. said “no” and that she had had a lot of conversations over the years with Detective McInnis about this. Ms. B. was firm that she did not believe anyone would be able to consent in that condition if she was that intoxicated. It is admitted, however, that in fact, Ms. B. had never asserted before trial that she believed she was too intoxicated to consent and Mr. Scratch did not take that position. She was, therefore, not being truthful about this, something I will come back to. In my view the evidence is clear that Ms. B. consented to everything that happened between her and Mr. Alibaba until the alleged anal penetration and that she had the capacity to do so notwithstanding that she had had a lot to drink.

34Mr. Alibaba testified that he had no concern about Ms. B.’s consenting to the sexual activity that he admits to. He said that as the night progressed some of the sexual activity was actually initiated by Ms. B., like the kissing. According to Mr. Alibaba, there wasn’t any doubt in his mind that she was consenting. I accept that evidence.

35Mr. Alibaba denied that there was any sexual intercourse because they only attempted to and the bed tilting caused this to stop. He denied that there was any further sexual contact after Ms. B. hit her head. He denied attempting to anally penetrate her and said it was not something that he had ever done, that he didn’t like it and it was not something he would have tried with her, especially that night. He was quite shocked that she had accused him of this.

36After hitting her head Ms. B. remembered that Mr. Alibaba went to get a tissue for her injury and she recalled other people; two girls coming into the room. She also testified that when Mr. Alibaba anally penetrated her, she screamed and the women came and took her to the couch in the living room. This evidence suggested that the two women would have seen what Mr. Alibaba was doing and their entering the room caused him to stop. I will come back to this. Ms. B. had no recollection of Mr. Alibaba lifting her up and saying he could get help but said it was possible. She had no recollection of telling him not to leave but said it was possible. She had no recollection of Mr. Alibaba leaving and coming back. She just remembered the women coming into the room. Ms. B. recalled that the two girls bandaged her up and that one was a medical resident. Ms. B. believes that her first aid kit was used to bandage her up once she was back at her apartment and that at Mr. Alibaba’s apartment only tissues were used. She admitted however that it was possible that Mr. Alibaba went to get a first aid kit in his apartment for the women to use but that her memory is still “somewhat blurry”.

37According to Mr. Alibaba, no one burst into the room. He testified that he left the bedroom to get help. Mr. Alibaba testified that he could hear Mr. O. and the girls and realized that they were back in the apartment. He remembered that one of the girls was a nurse and was studying to be a doctor. Mr. Alibaba testified that he put on his pants and as he was trying to leave Ms. B. was asking him where he was going, insisting that he stay and telling him not to go. According to Mr. Alibaba, he told her he was not going anywhere and that he was going to get help and would be right back.

38Mr. Alibaba testified that he then went to the living room and asked B.M. and R.S. to come in and help him. He told the girls that he had a naked girl in his room and that she needed help because there was a wound on her head and she was freaking out and he didn’t know what to do. He also told them he would grab his first aid kit which he did and he took it into the bedroom and then left again. Mr. Alibaba said that he went back into the bedroom when he was asked where Ms. B.’s clothes were and then left again. Later Mr. Alibaba said that his bedroom door was open and the two girls were seated on either side of Ms. B. on the bed finishing up dealing with her wound. Mr. Alibaba testified that the condom was on the bed and he brushed it off the bed so it would not be right next to the women. He did not throw it in the garbage or remove it from the room and this is clear from the ASF.

39I accept Mr. Alibaba’s evidence about what happened after Ms. B. injured her head. It is corroborated by the admissions. It is admitted that Mr. O. and his friends R.S. and B.M. returned to the apartment at around 12:30 a.m. and that by that time C.G. had left. Shortly after their arrival it is admitted R.S. heard “somewhat raised voices” coming from Mr. Alibaba’s bedroom but she could not hear what was being said. It is admitted that Mr. O. heard Mr. Alibaba and a woman talking in his bedroom and that shortly after he heard Mr. Alibaba say: “I’ll be here, I will be here. I’m not leaving you. I’ll be here.”

40It is admitted that Mr. Alibaba then came out of his bedroom into the living room asking R.S. and B.M. for help and saying that he had a naked girl in his room who was “freaking out”. Mr. O. recalled that Mr. Alibaba got a first aid kit. R.S. and B.M. went into his bedroom and it is admitted that they provided first aid to Ms. B. who they observed had a cut above her eye. It is admitted that while they were doing this that Mr. Alibaba came into and out of his bedroom. It is also admitted that other than her head injury Ms. B. did not complain about any other injury to the two women and specifically that she did not say that her anus or her “butt” hurt.

41At trial Ms. B. testified that her first recall of her bum hurting was at the apartment but the evidence is clear that she never said this to anyone until she was at the hospital and spoke to the sexual assault nurse. Ms. B. testified that she did not know what she told the two women but stated that she was very intoxicated and did not know if she would have been embarrassed and not wanted to share the fact that she felt she had been raped with them. I do not accept that evidence as it is clear on the whole of the evidence that Ms. B. had no memory of her sexual interaction with Mr. Alibaba at that time when she was still in his apartment and certainly no idea that she had been raped. Furthermore, if Ms. B. was feeling pain I see no reason why she would not have told the women that; it is hardly embarrassing.

42There is no dispute that R.S. and B.M. took Ms. B. to her apartment. Ms. B. testified that this occurred because she was staggering and so the two girls had to help her home. Mr. Alibaba testified that when Ms. B. was brought out of the bedroom she was being guided out by the two women and that he believed this was because she seemed dazed and a little dizzy. This may have been due to the head injury and not the drinking. It is admitted that as she was leaving that Ms. B. told Mr. O. that she would return the next day to pick up her grocery bag, which suggests that she was not so drunk that she forgot she had bought groceries.

43Mr. Alibaba testified that R.S. came back to confront him and she was angry; accusing him of forcefully hurting and raping Ms. B. She went on a rant about this until Mr. O. calmed her down. Mr. Alibaba was surprised that she would accuse him of this knowing who he was and knowing his girlfriend who he dated for three years. She was not even trying to find out what happened. No one asked him what happened. There is no evidence to suggest that R.S. believed Mr. Alibaba had raped Ms. B. because of something Ms. B. said to her. It is not clear whether this conversation occurred in front of Ms. B. Ms. B. did not recall hearing from the two women that they thought she might have been raped.

44It is significant that there was no evidence that Mr. Alibaba cleaned his bedroom before police arrived to search it. In fact the forensic photographs show the condom on the floor in the gap.

45Ms. B. did recall sitting on the sidewalk while the two women went through her phone to see if any of her friends could come to help her. When no one answered they helped her up to her apartment. They wanted her to call a friend or go to the hospital but she just wanted to sleep. They left a note on her fridge stating that she should go to the hospital to get stitches.

46Ms. B. went to sleep but shortly thereafter was woken up by two detectives standing at the foot of her bed. I heard no evidence as to who called the police but given the evidence from Mr. Alibaba, I assume I was R.S. When the detectives woke her up Ms. B. testified that she felt very sick and nauseous and her head was pounding very hard. She also testified that she noticed that her anus was hurting when she woke up.

47It is admitted that around 5:30 a.m. on September 5th, PC Silva and PC Hopton attended at Ms. B.’s apartment and advised her that they believed she was the victim of a sexual assault and that she should attend at a hospital for a sexual assault examination. It is also admitted that Ms. B. told the officers that she did not remember anything about the night before after leaving Jack Astor’s on John Street. It is admitted that Ms. B. did not complain to the officers of any pain in her anus or rectum.

48Ms. B. admitted that she told the officers that she didn’t remember anything after she left Jack Astor’s bar save that she vaguely remembered talking to a couple of black guys and a girl. Ms. B. suggested at trial that she had only slept for a couple of hours and that she had just been woken up. I took this as her explanation for why she did not tell the police anything more but on the whole her evidence I find that it is clear that she did not remember anything more at the time.

49Ms. B. admitted that the two officers who woke her up told her that they believed that she might have been sexually assaulted and in fact she testified that the officers told her that they thought she might have been raped. She recalled that they wanted to take her to the hospital for a sexual assault kit. She did not recall if she went to the bathroom before she left with the officers but admitted that if she had and had seen blood at that time she would have told them.

50The officers first took Ms. B. to Women’s College Hospital but as there is no emergency department there and given the cut to her forehead needed to be treated, they took her to Mount Sinai Hospital where that injury was treated; apparently it was glued shut. Ms. B. testified that she was not examined to ascertain if she had suffered a concussion and no scans or other tests were done in that regard.

51At the hospital Ms. B. said that she felt exhausted, really sick and nauseous, her head was still pounding and she said it was possible that she was still intoxicated.

52Ms. B. testified that when she went to the bathroom at the hospital and had a bowel movement that she saw blood when she was wiping herself. She said it was noticeable but not a massive amount. She believed that she told the sexual assault nurse about this after the nurse took various swabs but she admitted it was possible that she had the bowel movement before meeting with the nurse. As I will come to, the evidence of the sexual assault nurse, Judy Waldman, which I prefer on this point, is that Ms. B. saw her after she had a bowel movement at the hospital. Ms. B. admitted that she knew that the reason she saw Nurse Waldman was because she was a sexual assault nurse.

53Ms. B. did not recall saying at the hospital that on a scale of 1-10, with 10 being the highest, that the pain in her anus was in the range of 1-2. She said, however, that the answer made sense as it was not horrific pain and it was at the low end of the scale. Technically the fact Ms. B. said this at the hospital was not proven by Mr. Newman as this information was included in the general Mount Sinai record which was not introduced into evidence, not in the sexual assault chart which was. Ms. Waldman was clear that she was not the one who noted this information in the chart. In any event the evidence of Ms. B. is clear that the pain in her anus was at the low end of the scale and it would appear that she reported it at the hospital before she saw Ms. Waldman. That does not mean, however, that this pain was not related to the bowel movement as she also did that before she saw Ms. Waldman.

54After the hospital, Ms. B. was taken by the police officers to the police station where she gave a videotaped statement. Ms. B. believed that this was probably seven to eight hours after the incident but I was informed the statement was given around 1 p.m. on September 5th which would make it more like 12 hours later.

55At 7 a.m. on the morning of September 5th Mr. Alibaba was woken up by loud banging on his door and it was the police who arrested him for sexual assault.

Evidence of Judy Waldman

56Judy Waldman was the sexual assault nurse who examined Ms. B. in this case. She testified with a copy of her chart which was qualified as past recollection recorded and also marked as an exhibit. Ms. Waldman had very little independent recollection of her examination of Ms. B. which is understandable as it was just over two and a half years since her examination. Her credibility as a witness was not seriously challenged although Mr. Newman suggested that she was defensive at times and biased. I found that she was being careful, not defensive, and I accept her evidence which can be summarized as follows.

57When Ms. Waldman arrived at Mount Sinai she first spoke to police who told her that they suspected sexual assault. Ms. Waldman testified she would have introduced herself to Ms. B. as a nurse specializing in sexual assault. She recalled that Ms. B. did not have a memory of what had happened and she did not say that she had been sexually assaulted or that there had been anal penetration. Ms. B. had no memory of sexual activity at all. This is confirmed by Ms. Waldman’s chart where she notes “unknown” with respect to whether or not Mr. Alibaba put his mouth on Ms. B.’s or whether there was oral, vaginal or anal penetration. Whether a condom was used is also marked unknown although Ms. Waldman was told by police that a condom had been found.

58Mr. Newman put to Ms. B. that when Ms. Waldman asked her whether there was anal penetration she told her “I don’t know”. Ms. B. admitted she was not being shy with the nurse but suggested that she had only slept a couple of hours and might still be drunk and testified that she was not surprised that she would not remember this at that point.

59Ms. Waldman testified that although Ms. B. would not have been present when she received information from the police, she probably discussed what the police said with Ms. B. I presume then that Ms. B. knew there was a condom that had been used. Ms. Waldman admitted that it was clear to her that Ms. B. knew that she had been brought into hospital because police suspected she had been sexually assaulted.

60Ms. Waldman testified that the whole process took about four hours which accords with Ms. B.’s recollection and Ms. B. was her only patient. She did not stay with Ms. B. the whole time however. In addition to the cut to her forehead, Ms. Waldman noted a bruise to Ms. B.’s right forearm. Ms. B. said it was a new bruise but did not know how it happened.

61Ms. Waldman testified, based on the hospital records, that Ms. B. had a bowel movement upon arrival in the emergency department and this is when some rectal bleeding was noted. This occurred before Ms. B. was seen by Ms. Waldman. Ms. Waldman confirmed that Ms. B. reported to her that she had rectal pain and a small amount of bleeding from the rectal area but Ms. Waldman did not observe this. When Ms. Waldman did her physical examination of Ms. B. she observed no lacerations around the anus/rectum nor any dried blood or bruising. She did not observe any external trauma and she testified that if she had seen blood she would have noted it. When asked how often she sees injuries to the genitals or rectal area, Ms. Waldman testified that in the majority of cases no injuries are seen. If injuries are seen the most common is a bit of redness. Ms. Waldman admitted that she told Ms. B. that one possible cause of her pain could be that there was anal penetration.

62Ms. Waldman admitted that a hard bowel movement or diarrhea could cause discomfort in the rectal/anal region and that there could possibly be blood in the stool.

63The forensic evidence obtained by Ms. Waldman and the results of the tests of that evidence was all admitted in the ASF. Ms. Waldman collected a number of swabs from Ms. B.’s breasts, her vagina, her external genitalia and her rectum. The samples were then delivered to the Centre for Forensic Sciences (CFS) for analysis. The condom Mr. Alibaba had put on was found on the floor of his bedroom and it, along with a voluntary mouth swab provided by Mr. Alibaba to police, was also sent to CFS. Continuity of these samples was admitted and it is admitted that these samples disclosed the following:

a) forensic analysis of the rectal swab from Ms. B. did not find Mr. Alibaba’s DNA;

b) forensic analysis of the underwear police seized from Ms. B. on the morning of September 5, 2015 did not find any traces of blood.

64At the close of the preliminary inquiry in this matter, defence requested and the Crown agreed to test the condom seized by police for fecal matter but that test was not done. However, it is admitted that no red or brown staining was observed on the condom.

Evidence of Alison Morris; DNA Expert

65As already stated, the parties agreed to simply file the transcript of the evidence of Ms. Morris from the preliminary inquiry. The relevant parts of her evidence are as follows:

a) A small amount of male DNA was found on Ms. B.’s external genitalia swab;

b) Male DNA was found on the vaginal swab;

c) The male DNA from both of these swabs was from the same man;

d) The male DNA on the vaginal swab could be skin cells from a finger and digital penetration could not be ruled out;

e) It could not be determined if there was male DNA on the rectal swab;

f) The internal swabs were not tested for body fluids, only DNA;

g) Male DNA was found on the breast swabs but it could not be determined if it was the same male as the other swabs; it could be from saliva;

h) Small areas on Ms. B.’s underwear that appeared bloodlike were tested and determined not to be blood;

i) Male and female DNA was found on the swabs from the inside and outside of the condom. Based on the report I find that the female DNA was from Ms. B. and the male DNA from Mr. Alibaba; and

j) There was no visible staining on the condom and in particular no observations were made of fecal or bloodlike staining on the condom. The condom was not tested for semen.

66In summary, the forensic testing is consistent with the evidence of Mr. Alibaba. He admitted to kissing Ms. B. on the lips and her breasts and to mutual masturbation which included digital penetration and to Ms. B. helping him put the condom on his penis. The fact no blood was found in Ms. B.’s underwear confirms that if she bled after a bowel movement that the amount of blood was slight enough that it was wiped away when she cleaned herself and that she did not continue to bleed. Furthermore, there is no evidence of anal penetration either from the rectal swab or from a visual inspection of the condom.

Analysis

Applicable Law

67I now turn to my analysis. Since Mr. Alibaba testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.)¹ apply. I must acquit Mr. Alibaba if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence, which I do accept, I am convinced beyond a reasonable doubt by that evidence, of his guilt. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt.²

68In considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of Mr. Alibaba, I am entitled to consider it in the context of all of the other evidence.³ However, I must remind myself that this is not a credibility contest.⁴ W.(D.) prohibits me from concluding that the Crown has met its burden simply because I might decide to prefer the evidence of the complainant to that of Mr. Alibaba.⁵ As I am faced with contradictory versions of what happened in this case, I would add that if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit.⁶

Credibility and Reliability of the Evidence of Ms. B.

69For the most part I find that Ms. B. was doing her best to tell the truth. There are however, a few serious concerns with her credibility that Mr. Newman relies on. First of all, although her demeanour did not change when she was cross-examined by Mr. Newman, her repeated statement, for the first time at trial, that she was too drunk to consent to all of the sexual activity she engaged in with Mr. Alibaba, short of the alleged anal penetration, appeared to me as though she was trying to become her own advocate.

70Furthermore, as I will come to, when it was put to Ms. B. in cross-examination that she only disclosed certain information to police at a recent preparation meeting on May 3, 2018 (May 3 Meeting) or for the first time at trial, she testified that this was not the case and that she had provided this new information that the defence was previously unaware of to Det. McInnis. It is admitted by the parties however, that although Det. McInnis had conversations with Ms. B. after her videotaped statement to police, Ms. B. did not provide additional information to Det. McInnis regarding further details of her memories of her interaction with Mr. Alibaba. I can only conclude that she was deliberately untruthful in giving this evidence in an effort to persuade me that her new memories were not as new as they appeared.

71By far however, my biggest concern with the evidence of Ms. B. is whether or not it is reliable. This was emphasized by Mr. Newman as his main concern. I received no expert evidence about memory. Ms. B. admitted that initially her memory was very vague. Based on the evidence I have referred to, I find that Ms. B. did not remember what happened with Mr. Alibaba and in particular had no recollection of any sexual activity with him, either when she was woken up by Officers Silva and Hopton or when she was questioned by Ms. Waldman at the hospital.

72By the time of her videotaped statement, in cross-examination Mr. Newman put to Ms. B. that although she did mention to police that her bum was sore and that she had some blood when she had a bowel movement, she did not mention anything about anal penetration. This assertion was not challenged at the time by Mr. Scratch. Ms. B. responded that she guessed she didn’t specifically say so but she thought she was implying it.

73It is important that at this point the one passage where anal penetration is mentioned by Ms. B. was not put to her. I permitted Mr. Scratch in reexamination to put two portions of Ms. B.’s videotaped statement to her as they did refer to anal penetration. The questions and answers which she adopted are as follows:

Q. Do you remember if you had intercourse last night?

A. I don’t remember. I have some pain so I can tell something happened but I don’t remember it happening.

Q. Do you know if you were kissing anyone?

A. I don’t remember.

Q. Do you feel like you may have had intercourse?

A. It’s possible. I don’t know. I feel like there was some anal penetration because it’s painful and I had some blood in my stool at the hospital.

Q. Is that where your pain is?

A. Yes.

Q. Any pain in your vagina?

A. No.

[Emphasis added]

74Given this evidence came out in reexamination rather than at the time the suggestion was put to Ms. B. by Mr. Newman that she had not mentioned anal penetration during her statement to police, I permitted Mr. Newman to ask a follow up question. He asked Ms. B. whether or not she was still of the view at the time of her videotaped statement that she was speculating that because of the pain in her bum that there was anal intercourse but that she did not actually have a recollection of anal penetration. Ms. B. responded that at the time she believed it happened because of the pain but that the memory of it came to her later.

75By the time of the preliminary inquiry Ms. B. testified that she remembered consensual kissing and an intimate embrace. Ms. B. admitted that at the preliminary inquiry she testified that she screamed very loudly “no, no, no” and the women came in and they were screaming “what are you doing to her?” Ms. B. agreed at trial that it would be very significant if this is what happened and that this would be very different from Mr. Alibaba’s version of events. She denied that she intended to say that the women coming in stopped Mr. Alibaba in the act although I don’t know how else you could understand that evidence. As the cross-examination proceeded on this point Ms. B. said she was sure that she was screaming and that someone came in. She said that she was not sure that she ever said that the women running in stopped the anal penetration.

76Mr. Newman put to Ms. B. that Mr. Alibaba’s position was that she hit her head and he went out to get help. It was then when the women came in to help her. Ms. B. testified that she did not see how it made any difference. In my view at this point Ms. B. was resiling from what she said at the preliminary inquiry to reconcile it with the evidence she gave in her evidence in chief. This raises a concern with her credibility.

77Ms. B. testified that she believes it was not until after the preliminary inquiry that she remembered moving to the bedroom and clothes coming off. She would not deny that in the bedroom there may have been consensual kissing by Mr. Alibaba of her breasts. She had no recollection but did not deny that she may have touched Mr. Alibaba’s penis or that his finger was in her vaginal area. She would have consented to that if she was able to consent. She had no recollection of helping Mr. Alibaba put a condom on. She had no recollection of more kissing on the bed after the condom was on. She had no recollection of the rest of Mr. Alibaba’s evidence although did not deny that it happened.

78At the May 3 Meeting, held with Ms. B., the Crown and the officer in charge (not Detective McInnis), Ms. B. denied that she provided information about new memories at this time. She said that it sounded like information previously discussed, presumably with Detective McInnis, had not been recorded. She wanted to make sure that the information was known. Given the admitted evidence of Det. McInnis I have already referred to, I find that further information about Ms. B.’s interaction with Mr. Alibaba that she gave at the preliminary inquiry in April 2017 or at the May 3rd Meeting was given to police and the Crown for the first time on those occasions and that there was no prior disclosure by Ms. B. to Det. McInnis as Ms. B. alleged. This impacts on her credibility.

79I find that at the May 3 Meeting Ms. B. disclosed for the first time that:

a) she remembered flirting with Mr. Alibaba;

b) she now remembered moving to the bedroom where they took their clothes off and there was kissing on the bed;

c) she remembered how her head was injured; namely that she fell and banged her head;

d) that she hit her head before the anal penetration happened but she was not 100% sure and could only be 40% sure about that; and

e) that the fooling around continued on the floor after the anal penetration.

80At trial Ms. B. gave a lot of general evidence about her memory. She admitted in cross-examination that in the past if she drinks too much friends have told her that they had full conversations with her that she did not remember the next day. Although she was asked if she could also act normally if she had too much to drink, she did not provide a response to this question although she did admit that it is entirely possible that she did things or said things, even entire conversations, that she has totally forgotten.

81Ms. B. admitted that she has had memories come back to her and that she remembers more about her interaction with Mr. Alibaba. She admitted new memories were coming out at different times and that she did not keep any kind of log of this. She could not say when or where she had a new memory or any memory come back or what prompted the memory. Ms. B. admitted that her memory seems to be better about the events before her head injury than afterwards but testified that she does remember sitting on the sidewalk with the two women and having her phone out so that they could find out her apartment number and see whether any of her friends could come to help her. She adopted the evidence that she gave at the preliminary inquiry that as time passes she is getting more memories but that she does not know if they are false but they feel real.

82When asked by Mr. Newman, Ms. B. testified that she did not remember when she first had a memory of anal penetration but that she was “gathering little pieces of it from that day – from the symptoms and the foggy patchiness”. Ms. B. testified that she remembered talking to friends that day, she knew her bum was sore, there was bleeding and the nurse was concerned that it might be related to anal penetration. Despite all of this she admitted that at that time when she was at the hospital she still did not remember the act itself. Whatever the reason, it is clear from the evidence that even when Ms. Waldman specifically asked Ms. B. whether or not there had been anal penetration that she responded that she did not know.

83Over the course of her evidence Ms. B. gave a lot of descriptors of her condition when she gave her videotaped statement. She testified that she had just undergone a trauma, was kind of confused about what happened and that she felt kind of numb, had not slept, was exhausted and still had a headache although her stomach was getting better. She also described her condition as “barely conscious” and “half asleep” and potentially still intoxicated but she agreed that she was not deliberately holding back details of what she remembered and that she answered the questions asked of her. I find that although she may not have been feeling well that Ms. B. did in fact have no recall of what had actually happened with Mr. Alibaba at the time she spoke to the officers who woke her, Ms. Waldman and when she gave her videotaped statement.

84Ms. B. testified that when she first spoke to the officers at the house and to the sexual assault nurse and during her videotaped statement, that she was remembering more over the course of that day and that her memory was coming back “in little pieces”. She also testified that thereafter things had come to her over time and that they did not come to her all at once. Ms. B. testified that what she does remember she remembers with “pretty good certainty” but that she does not remember the finer details and that her memory is “patchy”.

85Mr. Scratch submitted that how Ms. B.’s memory progressed was a matter of common sense and consistent with human experience. I would not conclude that it is consistent with human experience that someone who is so intoxicated that they have no memory of certain events that those memories are simply recovered with the passage of time. Unfortunately cases where men and women drink too much and allegations of sexual assault arise come before this court not infrequently. I cannot recall another case where, after a memory loss due to a lot of drinking, the complainant in effect recovered some of her memory. The fact that Ms. B. was straightforward and honest about her memory problems does not address this concern. I do not accept the submission that given her level of intoxication that her recovery of memory is perfectly understandable. It also does not explain why, if Ms. B. was actually feeling pain in her anus/rectum as she claimed she felt after her bowel movement at the hospital that she would not have told the women who bandaged her up or the officers she spoke to in the morning. The feeling of physical pain at that time is quite different than not having a memory of what happened during the night with Mr. Alibaba.

86It is true that Ms. B. told police during her videotaped statement that she had some pain and so she could tell that “something happened” but she did not remember it happening and when asked if she felt she may have had intercourse she said it was possible although she did not know and that: “I feel like there was some anal penetration because it’s painful and I had some blood in my stool at the hospital.” Clearly, as Ms. B. admitted in sur-reply, she had no actual memory of anal intercourse but it felt like it possibly happened because of the pain she felt and the blood in her stool at the hospital. I presume this is what she meant when she testified at trial that she had gaps in her memory and she was putting the pieces together. However, putting these pieces together of pain in her anus and a little blood to come to what Ms. B. described as being 100% certain that anal penetration occurred is not a conclusion that I can find to be reliable.

87The other significant concern raised by Mr. Newman about Ms. B.’s memory and how she remembered more of what she believes occurred is the possibility that her memory has been tainted by information provided to her. Ms. B. fairly conceded that it is possible that some of what she remembers was influenced or tainted by what other people told her and what she learned.

88I accept that sometimes someone’s memory can be legitimately jogged. Ms. B. admitted that when she first spoke to Detective McInnis that she had no memory of meeting Mr. Alibaba before. It was Detective McInnis who told her that she had met him at a condo party. After she was told this it “made much more sense” as she said she would not have gone up to Mr. Alibaba’s apartment if she did not know him. Ms. B. admitted that what Det. McInnis told her “brought the memory back” and that her memory of meeting Mr. Alibaba before was spawned or influenced by what Detective McInnis told her.

89This could be an example of Ms. B.’s memory being jogged and of course there is no dispute that this is how she met Mr. Alibaba. I am very concerned however, about other new memories of Ms. B.’s. As I have already stated, Ms. B. admitted that where her memory is lacking she has tried to fill in the gap and she testified that she remembered anal penetration and was gradually trying to “put pieces together”.

90The evidence is clear that at a point when Ms. B. had no recall of what had occurred with Mr. Alibaba that she was told by the officers who woke her up early on the morning of September 5th that they believed that she had been sexually assaulted and in fact raped which implies intercourse. She also admitted that she knew she was taken to the hospital to be examined by a sexual assault nurse and that she understood that this is who Ms. Waldman was. She signed forms with Ms. Waldman to consent to the collection of “Sexual Assault Evidence”; what Ms. B. described in her evidence was for a “Rape Kit”.

91Perhaps even more significant is that when Ms. B. had some pain in her “bum” and some slight bleeding when she wiped herself following a bowel movement at the hospital and that Ms. Waldman told her that there was a possibility that this was as a result of anal intercourse. I find that she was also told by Ms. Waldman that Mr. Alibaba had said that he used a condom. I have to consider then whether or not Ms. B. made the statements she did about anal penetration in her videotaped statement that I have set out above, because of this suggestion by Ms. Waldman and because it so happened that she was feeling some pain and had some slight bleeding with a bowel movement. I appreciate that the timing of these symptoms would be quite a coincidence but the fact is that these symptoms are also consistent with constipation.

92Mr. Scratch submitted that this information was not enough for Ms. B. to unconsciously taint her evidence and that she had no animus towards Mr. Alibaba and no reason to implicate him. He relied on what Ms. B. said about anal penetration when she gave her videotaped statement as a statement that I could use to corroborate her evidence, relying on R. v. Khan, 2017 ONCA 114.

93I agree that Ms. B. had no reason to make these allegations against Mr. Alibaba but I do not agree that the information provided to Ms. B. before she gave her videotaped statement, even if I assume it did not include any information from Det. McInnis, that it was not enough to at least possibly taint her evidence. Even if I rely on Khan and consider the fact that these statements were made by Ms. B. in considering her credibility, given how Ms. B. was putting the pieces together to fill the gaps in her memory, it may well be that the reason she said on her videotaped statement that because of the pain and the blood she “felt” that anal penetration possibly happened was because of what she had been told and learned.

94It is also significant that Det. McInnis surprisingly gave a lot of information about the investigation to Ms. B. The timing of when this occurred is not clear. According to Ms. B. however, Det. McInnis told her that a condom had been seized and that Mr. Alibaba said that he used a condom and that there was no vaginal intercourse. Det. McInnis also told Ms. B. that Mr. Alibaba had said that he had been recently tested and was negative for HIV and that Det. McInnis was trying to decide if Mr. Alibaba was legally required to have his blood tested to confirm this. Ms. B. also had a vague recollection of Detective McInnis suggesting to her that her bum may have been hurting because there was anal penetration it was possible that the pain in her bum was due to anal penetration. Ms. B. was not sure when this conversation was but said that she did talk to friends about it later that day. She was not asked about the specifics of her conversations with friends and so I have no idea about how those conversations might have influenced her memory.

95About two weeks after the incident Ms. B. was also told by Detective McInnis about the results of the forensic testing. She was initially told they found two DNA samples and then was told that one was hers and one was Mr. Alibaba’s. She was told that her DNA and Mr. Alibaba’s was found on a condom. Ms. B. testified that Detective McInnis did not tell her the details of what other witnesses said save for Mr. Alibaba.

96I appreciate that this information from Det. McInnis may have come after Ms. B. gave her videotaped statement but I presume it was told to her before the preliminary inquiry and find that it could have impacted the evidence that she gave then.

97When cross-examined about the possibility that she was conflating the pain when she struck her head to what she now believes was pain from anal penetration, Ms. B. said that it was only “very slightly possible”.

98Ms. B. initially would not admit that her evidence had changed dramatically from when she spoke to police to trial. She said that it was just more detailed. This was not a reasonable answer but later in the cross-examination she did admit that her memory had changed significantly over time on small parts and to some extent on big parts of the events. She did not know if her memory might change again in the next six months. She did not think it would change with respect to the anal penetration. When asked in reexamination whether or not anything Detective McInnis or anyone else said about the case could have influenced her memory Ms. B. said that she thought it was possible but also said that she felt she had some memory even before the conversation about the results of the forensic testing.

99I accept that at this stage Ms. B. is firm in her memory of anal penetration and that this is unlikely to change but this does not address the concerns I have raised about how this memory was formed.

100For these reasons I do have concerns about both the credibility and to a great extent the reliability of Ms. B.’s evidence.

Credibility and Reliability of the Evidence of Mr. Alibaba

101Mr. Alibaba testified that he has no criminal record here or in Africa. He attended George Brown College to study graphic design and now works in the field. He also volunteers at an outreach centre that helps the LGBT community in the area of AIDS prevention. He clearly put his character in issue and no evidence to challenge his good character was tendered by the Crown. That said I appreciate that sexual assaults can be and are committed by upstanding members of the community.

102Mr. Scratch submitted that I should reject Mr. Alibaba’s evidence entirely. He argued that it may be internally consistent but that there are some issues with his evidence. Mr. Scratch submitted that Mr. Alibaba was tripped up when he testified that he brought up the fact he had broken up with a long term girlfriend twice; while he was talking to Ms. B. outside the Tim Horton’s and again once they were in his apartment. Mr. Scratch submitted that this evidence did not make any sense because he also testified that Ms. B. was not particularly distraught and that she was in a good mood. In other words he submitted that there was no reason for Mr. Alibaba to redirect the conversation about Ms. B.’s husband on two occasions. Mr. Scratch argued that Mr. Alibaba was shading his evidence.

103I do not accept this submission. Ms. B. did admit that she and Mr. Alibaba talked about their respective losses while they were sitting on the coach and she shared intimate details of her life with C.G. I do not believe she was asked whether they also had this discussion outside the Tim Horton’s but Mr. Alibaba did admit that he was particularly feeling the loss since only Mr. O. had friends at their dinner party. In my view it is possible this subject was discussed twice because of how Mr. Alibaba was feeling and in any event this is not an issue that raises any serious credibility concerns in my mind.

104Mr. Scratch also argued that Mr. Alibaba minimized Ms. B.’s level of intoxication and that I should accept her evidence that she was quite intoxicated; more than just tipsy. Mr. Scratch submitted that although Mr. Alibaba may not have known that Ms. B. was “black out drunk” that he should have known that she was more than tipsy. I do not accept this submission. First of all I have already concluded that Ms. B. exaggerated her level of intoxication. Furthermore, even accepting that Ms. B. did not exaggerate her evidence about her level of intoxication, she admitted that she knew from friends that in the past when she has drunk too much her friends have told her that they had full conversations with her that she did not remember the next day and that it is entirely possible that she did things or said things that she has totally forgotten. There is no evidence from the independent witnesses that Ms. B. was slurring her words or staggering. In my view, considering all of the evidence it may well be that Mr. Alibaba did not know how intoxicated Ms. B. claims that she was.

105The third issue advanced by Mr. Scratch was that although he conceded that Ms. B. likely hit her head on the shelving unit I have referred to, he submitted that Mr. Alibaba’s evidence of how Ms. B. hit her head was highly improbable. He submitted that there was not enough room in the gap for Ms. B. to fall into it and that part of her body would have necessarily remained on the bed where the comforter was and yet there was no blood found on the comforter. Mr. Scratch also argued that the photographs show that the bed had a normal metal frame and that it would not have tipped suddenly and with force as Mr. Alibaba said it did.

106Based on the photographs and evidence of Mr. Alibaba I find it was possible for at least the mattress to give way and for Ms. B. to fall into the gap. In my view the gap appears to be wide enough and this is where the blood was found on the floor and that is consistent with Ms. B.’s head striking the corner of the shelving unit. There is no evidence of blood anywhere else.

107On this issue it is Ms. B.’s evidence that I have difficulty with. Her evidence that she hit her head on a shelf or dresser that was in front of her when she fell off the bed and that the bed was to her right, behind her, and that she was facing a different dresser than the one she hit her head on is not consistent with the location of the blood. Furthermore, although there are no clear pictures of the head of the bed, there does not appear to be another dresser at the head of the bed.

108As for whether the mattress could tip, the mattress does extend beyond the metal frame and the back legs of the bed frame are a few inches inside the end of the frame and even more inside the end of the mattress. Although I don’t think the whole bed would necessarily have tipped suddenly I certainly accept that if Mr. Alibaba and Ms. B. were on top of each other on the comforter at the end of the bed that the mattresses could have at least tilted enough to cause them to roll off the bed and onto the floor. If Ms. B. was sitting on Mr. Alibaba over his groin as he testified to she could have hit the right side of her head on the shelving unit on her right and fallen into the gap as he said.

109For these reasons I do not accept Mr. Scratch’s submissions that I should reject Mr. Alibaba’s evidence. On the whole, I found Mr. Alibaba’s evidence to be credible and although he too was intoxicated a great deal of his evidence is corroborated by the ASF, as I have set out and so I also find it to be reliable.

Conclusion

110Having found Mr. Alibaba’s evidence credible, I have considered it in the context of the other evidence. I have set out why I have concerns about the credibility and reliability of the evidence of Ms. B. In my mind what is most important is the corroboration of Mr. Alibaba’s evidence as to what happened after Ms. B. injured her head. That incident of course left Mr. Alibaba little choice but to go out to R.S. and B.M. and ask for help, but I find that his evidence that Ms. B. did not want him to leave her is corroborated by the evidence of Mr. O. in terms of what he overheard. Although I am mindful of the fact that there is no inviolable rule as to how a complainant of a sexual assault will behave, Ms. B. asking Mr. Alibaba not to leave her seems inconsistent with her allegation that she had just been anally penetrated without her consent. Furthermore, and more importantly, Ms. B.’s evidence that she screamed “no” when Mr. Alibaba allegedly penetrated her anus is not corroborated by either of the two women or Mr. O. Mr. Scratch submitted that Ms. B. was not 100% sure of the screaming but I don’t think that her evidence that she did scream can be disregarded on that basis. There is no doubt that had Ms. B. screamed as she suggested that she did, the people in the living room would have heard her. Their evidence tends to corroborate Mr. Alibaba’s.

111Ms. B.’s evidence at the preliminary inquiry suggesting that after she screamed the women came running in and stopped Mr. Alibaba in the act is also problematic. That clearly did not happen. If that is what she remembered at the preliminary inquiry, she pulled back from this evidence at trial but there is no explanation for why what she presented as a memory of what happened at the preliminary inquiry, was no longer a memory of what happened when she gave her evidence at trial. In other words, this was not a new memory but rather a different memory.

112Finally, I am concerned that Ms. B. cannot remember the sequence of events in terms of the alleged assault and the injury to her head. I accept, as Mr. Scratch submitted, that it is possible that as Mr. Alibaba was anally penetrating her that she reacted and fell and injured her head but that would not explain her evidence that they continued to fool around afterwards. That seems highly unlikely to have happened after her head injury when blood was flowing down her face, or after the alleged penal penetration when, on Ms. B.’s account, the women came into the room.

113In the end, although I cannot be sure of everything that happened between Ms. B. and Mr. Alibaba on the night of September 4th and into the early morning hours of September 5th, I certainly find that what Mr. Alibaba testified to could reasonably be true - it raises a reasonable doubt. That is enough to end my deliberations but in fairness to both Ms. B. and Mr. Alibaba I want to add that I believe that for the most part they were both doing their best to tell me the truth to the best of their recollection. I find that it is likely that Ms. B. is mistaken and that Mr. Alibaba did not anally penetrate her as she now recalls. Although I accept that Ms. B. may firmly believe this now, I find it likely that this is because she had no memory of what happened right after the time she spent with Mr. Alibaba and that when she tried to fill in the gaps of her memory she naturally was influenced by her symptoms of pain in her anus and some blood when she wiped herself after a bowl movement, which I believe must have simply and coincidentally been as a result of some constipation. However, given what was suggested to her by Ms. Waldman and then Det. McInnis, Ms. B. came to believe that because of the pain and the blood, she had been anally penetrated. What she originally described as a feeling that this possibly happened became a 100% certain belief once she knew more from Det. McInnis including the fact that Mr. Alibaba used a condom and that he denied there was sexual intercourse.

114In my view this case is an unfortunate example of what can happen when everyone who deals with a sexual assault complainant, especially one who professes to have no memory of what others allege was likely a sexual assault and possibly an assault by anal penetration, is not careful to avoid making suggestions and providing information that may cause the complainant to come to a belief that a sexual assault happened and then making these serious allegations against a man who in this case, in my view, is likely entirely innocent. I do not blame Ms. B. because she too was a victim of these improper suggestions and has to live with the belief that she was sexually assaulted when in my view that is likely not the case. I hope that she can understand why I have come to the conclusion that I have and perhaps accept that she may be mistaken.

115I should also say that I do not blame Ms. Waldman about what happened although if she reviews this decision I hope it will cause her to make some changes to her practice. In my view, information received by a sexual assault nurse from police can be helpful in asking open ended questions of the complainant during the examination, but the information should otherwise not be shared with the complainant. Similarly it would be better if Ms. Waldman had not offered her opinion about the possibility of what might have happened. I would say this is so in every case, regardless of what the complainant remembers.

116As for Det. McInnis, I did not hear from her but if she provided the information to the complainant that the complainant alleges that she did, that in my view is highly problematic. Again, information from Mr. Alibaba or the forensic results could have informed the need for Det. McInnis to ask Ms. B. some open ended questions but information that might taint her evidence should never have been provided to her.

117Hopefully some lessons will be learned by those in authority in dealing with cases when a complainant makes no allegation of sexual assault and has no memory of what happened during what she otherwise admits was a consensual sexual encounter.

Disposition

118Mr. Alibaba would you please stand.

119For the reasons I have given I find you not guilty of the charge of sexual assault.

Footnotes

1. 11991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
2. 2See R. v. C.L.Y., 2008 SCC 2 at paras. 7, 9; R. v. J.H.S., 2008 SCC 30 at para. 13.
3. 3See R. v. C.L.Y., ibid. at para. 6; R. v. Mends, 2007 ONCA 669 at para. 18. R. v. Carriere (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.).
4. 4R. v. J.H.S., supra at para. 9.
5. 5R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (Ont. C.A.) at para. 5. See also R. v. Van, 2009 SCC 22 at para. 23.
6. 6R. v. H.(C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (BCCA) at p. 155.