COURT FILE NO. CR-16-1333 DATE: 20180716 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ZACHARIAH PIVA

K. Doyle, for the Crown N. Baker, for the Defendant

HEARD: April 23, 24, and 25, 2018

Madam Justice S.J. Woodley

reasons for decision

WARNING INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO ANY ORDER UNDER SECTION 486.4(4) OF THE CRIMINAL CODE OF CANADA. THIS JUDGMENT COMPLIES WITH THIS RESTRICTION AND CONTAINS NO INFORMATION IDENTIFYING THE COMPLAINANT IN THIS PROCEEDING.

INTRODUCTION

[1] The complainant LB alleges that in April or May 2012—when she was 16 years old—the accused Zachariah Piva (“Zach”) sexually assaulted her inside his apartment. Zach acknowledges that he had sexual relations with LB, but maintains they were consensual.

[2] This case is somewhat unique for a sexual assault trial as a third witness KA was present and participated in the sexual activity. (For brevity, all sexual activity on the night in question, including the alleged sexual assault is referred to below as the “Incident”.)

[3] KA was LB’s friend. She was 17 years old when the Incident occurred. At first, KA’s evidence suggested that the sexual activity was initially consensual, but—sometime during intercourse—LB appeared to withdraw consent. Later, KA modified her evidence during subsequent examination by Zach’s counsel. She then confirmed that all sexual activity was consensual.

[4] Zach admitted all elements of the charge save for lack of consent. Accordingly, the sole issue to determine is whether LB consented to sexual relations with Zach.

FACTUAL BACKGROUND

The principal witnesses

[5] LB is the complainant and the Crown’s primary witness in this case. She was 16 when the Incident occurred, and lived in a small hamlet outside Peterborough with her mother.

[6] On the date of the Incident, LB’s mother drove her to Peterborough for a sleepover at her friend KA’s home. LB arrived sometime after the school day ended, believed to be a Monday. The two girls attended the same school and had classes the next morning.

[7] KA and LB had only been friends for a short period despite attending the same school for some time. KA was 17 when the Incident occurred, and lived with her grandparents in south Peterborough. At that time, she had a cell phone and an active social life that included going to bars and college parties.

[8] Zach was 32 and single, when the Incident occurred. He worked as an outcome facilitator for people with developmental disabilities. He shared an apartment in downtown Peterborough with a male roommate who was working nights the evening the Incident occurred. Zach knew KA through mutual friends and parties, but had not yet met LB.

LB’s version of events surrounding the Incident

[9] On the day the Incident occurred, LB testified that she was dropped off at KA’s home sometime after school. She stated that between about 5 to 6 pm she and KA had several small glasses of vodka and orange juice. They hung out at KA’s house until around 11 pm, when they decided to go walking around downtown.

[10] LB asserted that she never entered a bar or drank any alcohol after leaving KA’s home. They just walked around smoking cigarettes.

[11] LB testified that she told KA around 1:30 to 2 am that she wanted to return to KA’s house. KA wanted to stay out, however, and so they did.

[12] LB stated that she and KA were standing outside the bar Sin City around 2 am, when they saw Zach in the lineup waiting to enter. KA and Zach began conversing. KA introduced Zach to LB. Zach invited them to his apartment. LB told KA “no” and reiterated that she wanted to return to KA’s house. KA said “no we are going” to Zach’s apartment.

[13] LB testified that they walked a couple blocks with Zach to his apartment around 2 am. On arrival, Zach mixed them all drinks. LB began feeling anxious, set her drink down without drinking it, left her purse, went downstairs, and exited the building for a smoke, all around 2:20 am. LB spent 15 minutes outside and was “buzzed” back into the building by KA or Zach.

[14] LB said that KA and Zach were naked and having sex in the doorway when she re-entered the apartment. LB tried to retrieve her purse to leave, at which time she was prevented from leaving and forced into the bedroom and onto the bed.

[15] LB stated that she said “no” and was crying. Zach pulled up her skirt and pulled down her underwear with one hand. She tried to push Zach off, but Zach put his penis in her vagina and had vaginal intercourse with her. She looked away, had a panic attack, “froze”, and did not fight anymore. The sex lasted about ten minutes. KA was right beside her the entire time encouraging Zach to continue and telling him that LB was a virgin.

[16] LB said she consented to none of the sexual activity.

[17] LB testified that once the sex ended—at approximately 3 am— she put on her underwear, went outside, and had a panic attack. She was yelling and a few people ran over and said they would call the police but she said “no”, declining their help.

[18] LB stated that KA stayed in the apartment while she sat outside and cried for a couple of hours. LB then walked to her boyfriend’s home around 5 am, where she remained until around 7 to 8 am when she walked to school for class that morning.

LB’s version of post-offence conduct

[19] LB also provided testimony regarding post-offense conduct relating to:

• public accusations that she made, to which the accused did not react; and
• assaultive behavior by her towards the accused and KA which was not reported to the police.

[20] The post-offence conduct was introduced to demonstrate the accused`s knowledge of guilt and/or corroborative evidence of the complainant’s lack of consent.

Zach’s version of events surrounding the Incident

[21] Zach testified that he met LB and KA in the alleyway behind Sin City when he was leaving to go home. There, he made small talk about that night with KA, who introduced him to LB. He invited them both to come by later. He said that KA and LB had to walk a friend home. KA had his phone number and she texted him shortly after he arrived home—about 2:20 am—to say they were outside.

[22] Zach stated that he made them some drinks and the trio hung out in his apartment’s living room. They talked for the first five to ten minutes before they started drinking and dancing. Zach danced with both KA and LB, but more with LB; he and LB “had each other’s attention”. Eventually, the dancing became more intimate. Zach’s dancing with LB progressed from grinding to kissing. No clothes came off while they were dancing. When they stopped dancing, they sat on the couch, kissing and fondling each other. Eventually, they went to lie down in the bedroom.

[23] As they walked down the hallway, their clothes start coming off. All three of them removed their own clothes. LB and Zach both lay down on the bed, naked—LB on her back, with Zach balanced over her in the missionary position. KA had removed her shirt and was at the side of the bed close to their heads. According to Zach, they were all engaged with each other sexually.

[24] Zach testified that he and LB kissed and touched each other, with KA also involved. This progressed to vaginal intercourse between Zach and LB, starting around 2:50 am. Zach understood that LB was consenting by her lack of objection and active participation in the sexual acts. According to Zach—as he and LB kissed and fondled one another—LB undressed herself, lay down on the bed, continued kissing and fondling him, put her hands around his back, and moved with him.

[25] Zach denied that anyone acted negatively during the sexual relations. He denied that LB struck or pushed him or indicated in any way that she had withdrawn her consent.

[26] In cross-examination, Zach confirmed that he felt and noticed that LB was physically shaking when he returned from using the bathroom after having sex with her.

[27] After sex, Zach stated that he shared a cigarette and talked with LB on his balcony, and she said nothing that would have caused him concern about consent.

[28] Zach stated that LB and KA were both in bed with him when he fell asleep but were gone in the morning.

KA’s version of events surrounding the Incident

[29] KA testified that she met Zach in the back alleyway to Sin City. She initially could not recall if she and LB entered the bar, but later acknowledged the truth of her prior statement that they indeed had been drinking and dancing inside the bar with Zach.

[30] KA testified that she spoke to Zach in that alleyway close to 2 am, when he was on his way home. Zach invited them to his apartment. KA denied that LB said she did not want to go. KA said they all walked together to the apartment and began drinking on arrival.

[31] KA stated that LB was drinking at the apartment. KA did not recall LB leaving to go for a smoke. KA denied having sexual intercourse with Zach in the doorway or at all that evening. KA denied that LB tried to leave or was prevented from leaving the apartment by anyone at any time on the night of the Incident.

[32] KA stated that they all started kissing after drinking, which led to sex. LB initiated sexual contact with Zach, and invited Zach’s kissing and touching. While kissing and touching Zach, LB entered the bedroom and got on the bed on her own initiative. LB removed her own clothes and was naked on the bed. KA stood beside LB the entire time. She thought that the sex would be more of a group event, but once it moved to the bedroom it was mainly between LB and Zach, and it was consensual.

[33] KA denied that she told Zach that LB was a virgin and that he should have sex with her. KA denied that Zach forced LB to have sex with him. KA testified that all sexual activity between the parties, including LB and Zach, was consensual.

[34] According to KA’s testimony, LB finished having sex with Zach, got dressed, and then walked home with KA. On the walk home, LB told KA that she had been a virgin, which KA did not know previously. After walking to KA’s home together, LB then went to stay at her boyfriend’s house across the street. KA next saw LB at school the next morning.

[35] KA’s evidence at trial was inconsistent in several ways with her previous testimony. Due to these material inconsistencies, the Crown sought and obtained an application under s. 9(2) of the Canada Evidence Act, R.S.C., 1985, c. C-5. As a result, KA adopted several prior statements as true for this trial, including the following: “LB was fine and then she was actually doing it and then she started to freak out and she [LB] was in tears at this point and then Zach wouldn’t stop”.

[36] KA adopted more of her previous statements that tempered the above noted statement: KA qualified “freak out” with “got a little upset”; she adopted the statement that LB was dancing and kissing Zach at Sin City; and she adopted and reiterated that LB appeared to consent to all of the sexual activity occurring that evening.

POSITIONS OF THE CROWN AND DEFENCE

[37] The Crown claims that the internal integrity and consistency of the evidence presented satisfy the burden of proof beyond a reasonable doubt and render certain that the accused is guilty of the offence as charged.

[38] The defence asserts that the onus lies solely on the Crown to prove the accused’s guilt beyond a reasonable doubt on the entirety of the evidence admitted. The defence claims that the evidence here falls short of this mark; a reasonable doubt about the accused’s guilt exists on the basis of the entirety of submitted evidence. Consequently, Zach must be acquitted of all charges.

ANALYSIS AND THE LAW

Reasonable doubt and burden of proof

[39] The accused is presumed innocent of all charges and is not guilty of any offence unless the Crown proved beyond a reasonable doubt that the offence occurred.

[40] It is the Crown that bears the burden of proving guilt beyond a reasonable doubt, not the accused who must prove his innocence. Justice Cory expressed and detailed this principle’s importance in R. v. Lifchus, [1997] 3 S.C.R. 320 at paras. 27 and 39:

the standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence.… If the presumption of innocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are forever intertwined in the fabric of criminal law.

A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

[41] It is not enough for me to believe that the accused is probably or likely guilty of the offences to which he stands charged. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Having said this, it is impossible to prove anything with absolute certainty. The Crown is not required to do so. Absolute certainty is a standard of proof that is impossibly high. But, proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt.

Assessment of evidence

[42] When reviewing and assessing it, all the evidence should be considered together rather than considering individual items in isolation. In other words, the standard of reasonable doubt is not applied to individual pieces of evidence but is applied to the evidence as a whole to determine if guilt is established by the prosecution beyond a reasonable doubt. This is particularly true where the principal issue is witness credibility and reliability: see R. v. Gostick, [1999] O.J. No. 2357 (Ont. C.A.) at paras 14-8; and, R. v. B. (R.W.), [1993] B.C.J. No. 758 (B.C. C.A.) at para. 28.

[43] The court must be satisfied of two things beyond a reasonable doubt: (1) that the complainant is a credible witness; and (2) that her account is reliable: R. v. W. (J.), 2014 ONCA 322, 316 O.A.C. 395 at para. 26.

[44] Credibility is a witness’s willingness to tell the truth. Reliability is the accuracy of their testimony. Accuracy is affected by the witness’s ability to accurately observe, recall, and recount events: R. v. G. (E.), 2016 ONSC 4884, [2016] O.J. No. 4205 at para. 16.

[45] A witness whose evidence is not credible cannot give reliable evidence. A credible and honest witness, however, may still be unreliable: R. v. Morrissey, [1995] O.J. No. 639 (Ont. C.A.) at para. 33. The reliability of the evidence is what is paramount: R. v. Norman, [1993] O.J. No. 2802 (Ont. C.A.) at para. 47.

Delayed disclosure

[46] While a delay occurred between the Incident and disclosure to the police, no adverse inference is to be drawn from it.

[47] Sexual assault cases are very difficult for complainants. They must testify in court, open to the public, both at a preliminary inquiry and trial. Both times, they must describe in detail very intimate, embarrassing and painful events about the incidents in question. The Incident occurred when the complainant was 16 years old. Any delay in reporting them to the police is irrelevant when considering the consent issue.

Post-offence conduct

[48] Post-offence conduct is circumstantial evidence, and its admissibility is decided on a case-by-case basis. In certain contexts, it may provide circumstantial evidence of guilty intent. The test for its admission is as follows:

i. Is this evidence relevant and material to the issue for which it is being advanced; or, is it necessary to advance the narrative? ii. Is it subject to any other exclusionary rule? iii. Is the evidence’s probative value outweighed by its potential for prejudice? iv. Even if post-offence conduct is irrelevant to guilty intent, it may still be proffered for other issues—like identity—and will be subject to a “no probative value instruction” on the issue of intent.

Consent as it applies to sexual assault: actus reus and mens rea

[49] As the Supreme Court noted in R. v. Ewanchuk, [1999] 1 S.C.R. 330, a sexual assault conviction requires proof beyond reasonable doubt of two basic elements: that the accused committed the actus reus; and that he had the necessary mens rea.

[50] The actus reus of sexual assault is unwanted sexual touching. The mens rea is the intention to touch, while knowing of, or being reckless of or wilfully blind to a lack of consent, either by words or actions, from the person being touched.

[51] This actus reus is established by proving three elements: (i) touching; (ii) the sexual nature of the contact; and, (iii) the absence of consent. The first two of these elements are objective and are admitted in this case.

[52] The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: see Ewanchuk at para. 26. The trier is thus only concerned with the complainant’s perspective and the approach is purely subjective.

[53] While the complainant’s testimony is the only source of direct evidence about her state of mind, credibility must still be assessed by the trial judge in light of all of the evidence. It is open to the accused to claim that the complainant’s words and actions—before and during the incident—raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.

[54] If, however, the trial judge believes the complainant, that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.

[55] The complainant’s statement that she did not consent is a credibility matter to weigh in light of all the evidence, including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. In making this assessment, the trier must account for the totality of the evidence, including any ambiguous or contradictory conduct by the complainant. If the trier is satisfied beyond a reasonable doubt that the complainant did not consent, the actus reus of sexual assault is established and the inquiry must shift to the accused’s state of mind.

Application of W. (D.)

[56] This case involved radically divergent versions of the events leading to the Incident. In cases like this where conflicting evidence is tendered, the witnesses’ credibility assessment is vital to determining reasonable doubt. As such, it is necessary to apply the three-step test established in R. v. W. (D.), [1991] 1 S.C.R. 742 (S.C.C.) at para. 11:

i. First, if I believe the evidence of the accused, I must acquit. ii. Secondly, if I do not believe the accused’s testimony but am left in reasonable doubt by it, I must acquit. iii. Thirdly, even if I am not left in doubt by the evidence of the accused, I must ask whether, on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

ANALYSIS: APPLICATION OF LAW TO FACTS

LB’s credibility and the reliability of her evidence

[57] LB presented as a soft spoken but intent witness, decisive in her testimony. She claimed to have a good recall. LB was understandably upset and, at times, she was physically and emotionally distressed while describing the Incident.

[58] LB’s evidence at trial contained a few inconsistencies with her previous statements. When challenged, LB confidently asserted that the testimony provided at trial was correct and there was no inconsistency—simply a misunderstanding of what she meant to say.

[59] Despite her decisiveness, LB’s retelling of the events that occurred in the apartment appeared fractured and disjointed without a natural flow to telling the narrative. For example, on cross-examination LB could not logically describe or depict on paper the version of events that she claimed occurred that resulted in her entering the bedroom. Further, LB’s evidence was inconsistent when she said her skirt was lifted up despite earlier testimony that her skirt had been “taken off”, and her explanation that she was simply misunderstood appeared forced.

[60] I also had difficulty accepting the following of LB’s evidence:

(i) that she immediately left the apartment to go outside to smoke despite the fact that it was 2:20 am, she was anxious, and there was a balcony off the living room where she could have smoked without requiring to be buzzed back into the apartment building; (ii) that Zach and KA were having sex in the doorway, despite having just “buzzed” LB back into the apartment and upon LB’s re-entry that Zach and KA immediately interrupted their own consensual sexual encounter to jointly participate in the forced sexual assault of LB; and (iii) that following the Incident LB had a panic attack and was yelling outside, was offered to have the police called, refused that offer, and continued to sit alone outside and cry for hours, without anyone making further enquiries or ever calling the police.

[61] Although LB appeared sincere in her beliefs, her narrative presented her as a sober and unwilling participant in every activity occurring that evening, even when reason dictated otherwise.

[62] In my view, LB’s credibility and/or the reliability of her evidence was damaged by her refusal to acknowledge and/or recall seemingly uncontroversial facts, including that LB and KA drank at 11 to 11:30 pm just before going out (as opposed to drinking prior to 6 pm), and that LB and KA likely met Zach at Sin City and then later at the rear alleyway at 2 am when he was leaving (as opposed to not entering the bar or drinking at all following 6 pm and meeting Zach at 2 am while he was waiting to enter the bar).

[63] I am certain that the Incident greatly affected LB in a negative manner and caused her great emotional distress. However, I am uncertain that the Incident was accurately reflected by LB’s narrative that the entirety of the sexual activity that occurred between entering and exiting the apartment was forced upon her and non-consensual.

[64] I have great empathy for LB and am concerned and troubled by Zach’s choices and actions the night of the Incident. I am certain that LB suffered as a result of the Incident. Yet, I question the veracity of some of LB’s evidence, and by extension its reliability.

[65] As for LB’s evidence about post-offence conduct, I accept her version of the events but I find that the post-offence conduct invites speculation and conjecture that I simply will not entertain. I attach no weight to the evidence of post-offence conduct.

Zach’s credibility and the reliability of his evidence

[66] Zach mostly testified in a reasonable and straightforward manner. He was frank, relaxed, and candid in his retelling of the events and the Incident. He freely discussed the Incident without hesitation, with good recall, seemingly without artifice, and without any apparent insight into his behaviour.

[67] The following are examples of the frank and candid testimony that Zach provided which—despite reflecting poorly on his character—buttressed his credibility to appear as an unedited, non-sanitized, and genuine retelling of the events surrounding the Incident:

i. He invited LB and KA, both much younger than him, to his apartment at 2 am; ii. He did not know their ages. He knew they were young but denied knowing that they were in high school as he met KA at “college parties”; iii. Although LB appeared young, he did not question her to determine her age; iv. He served alcohol to LB and KA; v. He hoped the evening would end with a sexual encounter with one or both of LB and KA; vi. He kissed and touched both LB and KA during the evening and had sexual intercourse with LB while occasionally continuing to kiss KA; vii. He noticed that LB’s body was physically shaking after sex; viii. Having a threesome was a feather in his cap—“[i]t was a very good night” for him that he “may have relayed to others”; and ix. He made no effort to reconnect with either LB or KA after the Incident.

[68] Zach’s testimony was consistent with all his prior testimony. It seemed unrehearsed and the events as he described seemed to flow in a logical sequence. It was also largely corroborated by KA’s evidence.

KA’s credibility and the reliability of her evidence

[69] KA did not wish to be present as a witness. She did not attend the preliminary inquiry and attempted to avoid testifying at trial. After being served a subpoena, KA told the Crown that (i) she had a plane to catch; (ii) she had legal difficulties with her current partner; and, (iii) she could not make appropriate childcare arrangements to enable her attendance.

[70] During her testimony, KA arose from the witness stand and demanded she be allowed to leave immediately. She stated she had no further time to waste at the trial and her son was being dropped off at the court house imminently.

[71] KA appeared somewhat aligned with Zach at the date of trial. She stated that she did not have sex with Zach on the night of the Incident. In 2015, however, they shared an intimate romantic relationship lasting several months. Although KA testified that they no longer speak, she was clearly sympathetic to Zach and his position. This does not mean, however, that I believe KA amended her narrative to dovetail Zach’s in every regard—I believe that much of KA’s narrative was accurately detailed.

[72] As noted above in paragraphs 35-6, KA adopted several prior statements as true, due to her prior inconsistent statements. Some of the adopted prior statements assisted the Crown, while others assisted the defence providing a counter-balance. The latter adopted statements included the following: LB consented and continued to consent to the sexual activity; LB’s “freak out” was merely “getting a little upset”; and, the reason LB was “a little upset” was because she was a virgin and felt some pain.

[73] KA clearly and repeatedly stated that LB consented to all of the sexual activity that occurred on the evening in question.

[74] Crown counsel urged me to find that KA was aligned with Zach, and that her preference and alignment should give extra weight to the parts of her evidence that favour the Crown’s position—particularly those portions of her prior testimony adopted at trial. The difficulty is that KA’s evidence was not straightforward on consent. The portions that the Crown put to KA were damning to Zach on the consent issue, but those which the defence put to KA were somewhat restorative.

[75] More importantly, consent must be determined with reference to the complainant’s subjective state of mind, and is not reflective of KA’s or Zach’s interpretations except where external factors can help determine LB’s subjective state.

[76] Here, LB denied providing any consent to any sexual activity. She adamantly denied consent to kissing, touching, fondling or sexual intercourse. LB’s evidence is therefore zero consent. Further, LB provided no evidence about a withdrawal of consent, as her evidence clearly insists that she provided no consent in the first place.

[77] I agree that evidence made against interest may be given additional weight and consideration. But before such evidence is accepted, I must make a credibility finding for the witness providing the testimony and I must consider and balance all of the witness’ testimony.

[78] Regarding KA’s credibility, she presented her testimony in a defiant manner. She often claimed to not remember events and at other times had great recall. KA was clearly emotionally conflicted.

[79] While KA seemed to have little respect for the legal process, she indeed attended on three occasions to provide statements: (i) to the police; (ii) on discovery; and, (iii) at trial.

[80] Though I believe that KA balanced her testimony in favour of the defence at trial, I also believe that she tried to recall fairly and give a balanced retelling of the events. So, despite KA’s apparent preference for the defence, I find that she tried to give an honest retelling of the Incident and its surrounding events.

CONCLUSION

[81] To determine this case, I do not necessarily need to decide if I believe one witness’s testimony over another’s. The Crown always bears the onus of proving each charge beyond a reasonable doubt.

[82] I mostly prefer KA’s narrative for the events that occurred before they entered Zach’s apartment. I find it likely that the two girls walked around, went dancing, and met Zach. I have difficulty accepting LB’s version for reasons previously stated.

[83] I mostly prefer KA’s and Zach’s narrative for the events occurring from meeting Zach outside Sin City and leading up to the sexual intercourse, including all preceding sexual activity. I again have difficulty accepting LB’s version for reasons previously stated. However, having said this, I am alarmed by Zach’s choices and actions in view of the fact that he was a grown man who was 32 years old and LB was a young, inexperienced high school girl who was only 16 years old at the date of the Incident.

[84] Regarding the sexual intercourse—particularly whether LB consented or withdrew consent during sex—LB’s evidence is that there was no consent to any sexual activity. LB provided no evidence on the issue of withdrawal of consent. I am therefore left with KA’s and Zach’s evidence concerning LB’s withdrawal of consent, understanding that only LB’s subjective intention is relevant and that I must consider all evidence including external factors to determine LB’s subjective state.

[85] In applying the test established by W. (D.) (see above, at paragraph 56), I find as follows:

Step One: Having reviewed and considered all the evidence at trial, I find that I do not believe all of Zach’s evidence; Step Two: Having reviewed and considered all of the evidence at trial I do not find that I am left in reasonable doubt by Zach’s evidence; and, Step Three: Having reviewed and considered all of the evidence at trial, I find that, on the basis of the evidence I accept, I am not convinced beyond a reasonable doubt of the guilt of the accused.

[86] Accordingly, based on the totality of the evidence I accept, I find that the charge of sexual assault as contained in the indictment is not proved beyond a reasonable doubt.

[87] I find the accused Zachariah Piva not guilty and the charge will be noted as dismissed.

Madam Justice S.J. Woodley Released: July 16, 2018

COURT FILE NO. CR-16-1333 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – • Defendant REASONS FOR DECISION Madam Justice S.J. Woodley Released: July 16, 2018