Court File and Parties

COURT FILE NO.: 550/17 DATE: 20180912 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MAHIR DIABAS

Counsel: R. Prihar, for the Crown P. Singh, for the Accused

HEARD: July 30, 31, August 1, 2, 3, 7, 2018

Publication Restriction Notice

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Reasons for Judgment

Woollcombe J.

A. Introduction

[1] The accused, Mahir Diabas, is charged on a six count indictment with the following offences:

• Sexual assault (count 1) and assault (count 4) on S.S. on or about October 31, 2015;
• Assault on S.S. by urinating on her between January 1 and March 30, 2016 (count 5);
• Sexual assault on S.S. between January 1 and March 7, 2016 (count 2);
• Criminal harassment of S.S. on or about April 6, 2016 (count 3); and
• Failing to comply with his recognizance in the 30 days up to and including July 5, 2017 (count 6).

[2] A six day trial was conducted before me.

[3] At the conclusion of the evidence, before closing submissions were made, the Crown sought to re-open its case in order to introduce into evidence the accused’s recognizance, which had not been made part of the record during the trial. For oral reasons delivered at that time, I declined to permit the Crown to re-open its case. As a result, the Crown invites me to dismiss count six. Given the absence of evidence on this count, this is appropriate. Count six is dismissed.

[4] On the remaining counts, the Crown says that the elements of each of the offences have been proven beyond a reasonable doubt. The defence position is, essentially, that counts one, two, four and five turn on findings of credibility and that I should have a reasonable doubt about the complainant’s allegations. The submission is made that the complainant was not credible and that the accused’s evidence is either believable, and should be accepted, or raises a reasonable doubt, or that I should have a reasonable doubt on the basis of all of the evidence.

[5] The 37 year old complainant and 51 year old accused provided versions of events that are very different. The complainant alleges that they had a long standing arrangement in which the accused provided her with both money and crack cocaine in exchange for sex. She says that on two occasions, he forced her to have non-consensual anal intercourse. On one of these occasions he also physically assaulted her. She says that on a different occasion, he wanted her to perform oral sex on him and that when she refused, he urinated on her. Finally, she says that on April 6, 2016, he followed her while she was on the bus to college and then as she purchased a coffee and caused her to fear for her safety.

[6] The accused presents a very different picture of their relationship. He describes himself as having been in love with the complainant. He says that he never provided her with any drugs. He also says that he never had anal intercourse with her, and that all of the sexual activity between them was consensual. He says that his conduct on April 6, 2016 cannot, in law, amount to criminal harassment.

B. The Governing Legal Principles

Elements of the Offences Charged

[7] In order to establish the offence of sexual assault, the Crown must prove beyond a reasonable doubt that the accused intentionally touched the complainant in circumstances of a sexual nature, that she did not consent and that he knew that she was not consenting or was reckless or wilfully blind in relation to whether she was consenting.

[8] In order to establish the offence of assault, the Crown must prove beyond a reasonable doubt that the accused intentionally applied force to the complainant, that she did not consent, and that he was aware that she was not consenting.

[9] In order to establish the offence of criminal harassment under s. 264(2) of the Criminal Code, the Crown must prove beyond a reasonable doubt that the accused engaged in conduct that caused the complainant to reasonably fear for her safety. The conduct alleged here is repeatedly following her from place to place.

[10] The meaning of the term “repeatedly” was considered by the Court of Appeal in R. v. Ohenhen and was found, at para. 31, to mean conduct that occurs more than once, but not necessarily more than twice.

The Presumption of Innocence and the Burden of Proof

[11] The accused is presumed innocent of the offences charged. That presumption remains with him unless and until the Crown establishes his guilt beyond a reasonable doubt. This is a heavy burden and never shifts.

[12] While he was under no obligation to testify, or to establish his innocence, in this case the accused has chosen to testify. Accordingly, the important principles identified by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 are applicable. This means: (1) if I believe the evidence of the accused, I must find him not guilty; (2) even if I do not believe the evidence of the accused, I must find him not guilty if his evidence leaves me with a reasonable doubt as to his guilt; and (3) even if the accused’s evidence does not leave me with a reasonable doubt as to his guilt, I may only find him guilty of an offence only if I am satisfied, based on the evidence that I accept, of his guilt beyond a reasonable doubt.

C. Analysis

[13] There is no question, in my view, that there are genuine difficulties with the evidence of the complainant, S.S. She has been fairly challenged on a number of aspects of her evidence. On two occasions, she wrote letters in which she recanted all of her allegations against the accused. She now says that these letters were lies. In addition, there are inconsistencies between what she has said at trial and what she said before trial, either to police or at the preliminary inquiry. These difficulties have caused me to very carefully review her evidence as a whole in order to determine whether it is capable of proving the serious allegations she makes beyond a reasonable doubt.

[14] Having done so, I have concluded that the complainant is a reliable witness whose account of the serious allegations I accept. In my view, she was candid and forthright about her background as a crack addict. She admitted many things that did not reflect well about her. She acknowledged that she had recanted all of the allegations twice, and had deliberately lied, and offered what I found to be a very credible explanation for having written what purported to be a full recantation. She also acknowledged many of the inconsistencies that were put to her, and explained in a plausible way why she had said the various things that appear inconsistent or are inconsistent. In short, for the reasons set out in more detail below, I found her to be a reliable and trustworthy witness.

[15] I have also considered the evidence of the accused, who has emphatically denied ever having committed any of the offences. I found him to be an evasive and unresponsive witness. Frequently, rather than answering questions, he chose to make disparaging comments about the complainant. When confronted about what he had said previously to the police, he often resorted to claims about communication difficulties flowing from his lack of understanding of the English language. While I need not, and cannot accurately comment on his English proficiency, it appeared to me that he used this as an excuse for any prior statement from which he wanted to distance himself. Repeatedly, while the complainant testified, I observed the accused to openly scoff at her evidence in a demeaning manner, showing indifference to her and undermining the credibility of his claims of loving her. I find he was not only smug, arrogant and condescending about the complainant, but also that his evidence often made little sense, was internally inconsistent and was not credible.

[16] In order to explain why I have reached these general conclusions respecting the reliability and credibility of the evidence of the complainant and accused, I shall first review the evidence in relation to the four incidents, and then comment further on specific aspects of their evidence, apart from as it relates to the allegations, that lead me to these conclusions.

The Allegations

[17] Before addressing the specific allegations, some context is needed.

[18] According to the complainant, she and the accused met in about 2011 when her aunt brought him to her house because he was looking for a prostitute. She said that at the time, she was a crack addict. They developed what she called a kind of toxic friendship. In exchange for sex with the accused, she said that she received money and drugs from him.

[19] The accused presents a different history. He says that he came to Canada from the West Bank in January 2008 and applied for refugee protection. At the end of 2009, he met a woman at Food Basics who was looking for a ride. He told her that he was looking for friends to teach him English. She said she would take him to someone who could do that. He was taken to meet S.S. He says that after that, he paid her to teach him English. He denied paying her for sex or ever providing her with drugs.

[20] The complainant was cross-examined and the accused’s version of their meeting and relationship generally was put to her. She was unequivocal that her aunt brought him to her and told him that she was a “hooker”. She said that they made up the story about having met through Food Basics and made up the story about their agreement for her to teach him English. She explained that she did not want people assuming that she was “doing gross things with him”.

Counts 1 and 4 – Sexual assault and assault alleged at A[…] on or about October 31, 2015

The complainant’s account

[21] S.S. testified that A[…] was a crack house in Brampton where her friends, C. and B., rented a basement room. She said that she and the accused visited there regularly. Defence counsel put to her that the accused had never been at that address, which she firmly denied.

[22] S.S. testified about events around Halloween weekend in 2015. She said that it was the accused’s idea for them to go out and have fun. He drove her to A[…]. On the way, they had a conversation about sex and she understood the accused to promise her that she would not have to engage in sexual activity with him. On arrival, the complainant used crack.

[23] S.S. said that the accused then changed his mind and wanted to have sex with her. She went to the bathroom, and when she returned, he was alone in the room and told her he did not come to waste time, and that she had to have sex if she wanted more drugs. She testified that she reminded him of his promise that she did not have to do this and asked why he persisted if he loved her. She told him to stop.

[24] S.S. said that the accused grabbed at her breasts and backside and told her to stop and be quiet. She said that he got her pants down and rubbed himself on her backside to arouse himself. He shoved her forward so that her front was on the futon. He ripped at her bra and rubbed his penis on her. Her boots remained on. He penetrated her anally without a condom.

[25] S.S. testified that the anal sex lasted under five minutes. She did not believe he had ejaculated and said that there were people outside the door, and that she tried to persuade him that someone would come to the door, including her boyfriend. She also said that usually when he ejaculated, he became calm after and was sorry, but that on this occasion, he stayed angry after.

[26] Defence counsel cross-examined the complainant on numerous alleged inconsistencies between her trial testimony and what she had said previously about this incident. I will review the most significant of these.

[27] The complainant was cross-examined on the fact that at trial she said that her boots were on, but in her evidence at the preliminary inquiry, she had said that she had nothing on her feet. She agreed that she was not sure, explaining that she did not think the topic of shoes was relevant. She said that because the place was dirty, she usually kept her shoes on, but that those details were small and insignificant for her and that she could not recall them.

[28] It makes sense to me that the question of whether or not she had footwear on would seem to the complainant like a small and irrelevant detail that she would not remember. Her evidence about not being sure, and that this seemed to her like a small detail, satisfactorily explained, in my view, this inconsistency.

[29] The complainant was also cross-examined about the fact that at trial she had said that the accused penetrated her anally, but previously, at the preliminary inquiry, she had testified that the accused tried to penetrate her both anally and vaginally. She testified that her main concern had been about the anal penetration and that he had been “back to front and was both”, which I took to mean attempted penetration of both areas. She elaborated that he had rubbed himself in both areas to try to obtain an erection, but that she did not think he was trying to penetrate both areas and was more struggling to obtain an erection. She said that at the preliminary inquiry, she had been panicked and trying to speak slowly and get her story out.

[30] In my view, there is no significant or troubling inconsistency between the complainant’s evidence at the preliminary inquiry and at trial with respect to the nature of the accused’s attempts at sexual activity with her. She explained that she was more concerned about the anal penetration. It was S.S.’s evidence that she had a severe case of hemorrhoids and that she had always told the accused that anal sex was off limits because it hurt and made them bleed. Viewed in this light, it makes sense that the anal intercourse would have been her main concern. She also explained that the accused had been rubbing his penis in her vaginal area in order to obtain, or maintain, his erection. Considering her evidence on this issue as a whole, I do not accept that she is confused about what happened, or that the very minor inconsistency about the nature of this assault makes her account of it any less credible.

[31] S.S. was also cross-examined about the fact that at trial she said that the accused did not ejaculate, but that in her statement to police, she said that he had done his “business” all over her back, and that after, he had helped her to wipe it up. She clarified that he had “finished” with his hand and that maybe he had helped her wipe it up and that she was not sure.

[32] I find that the complainant’s response to this apparent inconsistency with respect to whether the accused ejaculated demonstrated her willingness to admit details about which she might be mistaken, a factor enhancing her credibility. Nothing, of course, really turns on whether or not the accused ejaculated, a fact about which the complainant candidly acknowledged being unsure. This inconsistency does not cause me to have concern about the reliability of her evidence respecting the sexual assault.

[33] After the sexual assault in the basement was over, S.S. said that she was sick and tired and wanted to defend herself. She said that the accused had known that she did not want to do this and that he had promised her she would not have to. She testified that she followed the accused upstairs and tried to attack him. During this, he hit her on the side of her face. She thought it had been with the palm of his hand under her right eye. She also said that he tried to flip her over the fence near where she was standing. There were people in the park behind and she thought that they had startled him. She was yelling about calling the police and the accused left.

[34] S.S. was cross-examined about the fact that at trial she said that she followed the accused upstairs, but in her police statement, she had said that she tried to get away and that he had run after her. She admitted that she did not know who went first. She said that she had wanted to attack him and that she did not perceive the details as to who went after whom to be important. When it was suggested to her that there was a big difference between her attacking the accused and him attacking her, she clarified that no one had been chasing anyone and that they were just getting away from everyone.

[35] While I do see an inconsistency between the complainant’s trial evidence and her statement to police, I do not draw a negative inference against her credibility because of this inconsistency as to how she and the accused proceeded upstairs. It appears to me to relate to a very minor detail in an area in which she acknowledged some inconsistency and uncertainty and explained why that might be. Moreover, I was struck by the complainant’s candour in admitting that she had tried to attack the accused, a fact that casts her in an unfavourable light and, in my view, further enhances her credibility.

[36] S.S. was also cross-examined on the fact that at trial she said that the accused almost pushed her over a fence, but in her statement to police, she said that he flipped her over a fence. She acknowledged that in her statement she said that he “like threw me to the fence and he flipped me over the fence”. She clarified that her back had been to the fence and that she had rolled into it with her back to it. She said that she had not actually gone over it. I do not see any significant difference between the manner in which she described going into the fence at trial and in her police statement.

[37] S.S. said that because she was fed up with the whole situation, she asked C. to call the police. She testified that C. refused and claimed not to have seen anything, despite the complainant believing that she and B. had heard everything in the basement. S.S. believed that C. did not want to help her because the accused was the only person around with money. She said that C., B., Nigel and her boyfriend at the time had all been outside when they were fighting but that no one did anything to assist her.

[38] After this, it was S.S.’s evidence that she and the accused talked about what had happened, as they always did, and that he said it would not happen again. That night, he showed up at her home with a $100 bill, which she took.

[39] In terms of injuries, S.S. said that she had a swollen cheek and red face.

[40] S.S. explained that she did not report this incident to the police at the time. She said that C. and B. would not have backed up her story and that she did not think the police would believe a drug addict. I found this to be a logical and reasonable explanation for her failure to make a timely police complaint.

[41] S.S. agreed under cross-examination that she had smoked crack that day. She acknowledged that she had smoked it before going to A[…] and more there. When it was put to her that her recollection might not be accurate as a result, she agreed that was true with respect to small details, but said that she was not confused about the big things. I found the honesty and candour of her response to make her more credible and believable.

The accused’s account

[42] During his examination in chief, the accused denied having sexually assaulted S.S. at A[…].

[43] Under cross-examination, the accused acknowledged having gone to A[…] with S.S. many times. He agreed that C. and B., were “our friends” and that he met them through S.S. He also acknowledged having met an individual named Nigel who lived upstairs. He knew that C. and B. consumed crack cocaine, but said that A[…] was not a crack house.

[44] Asked about acknowledging that he had been at A[…], an address that his counsel suggested to the complainant that he had never visited, the accused explained that when he had heard this address before, he had been confused and thought that the address being referred to was on Reigate Avenue in Brampton, where he said that he had lived previously for four months.

[45] I found the accused’s evidence that he confused A[…] and Reigate Avenue to be difficult to accept. The two do not sound at all similar and it is difficult to imagine how he could have been misled. Moreover, when it was put to the complainant that the accused had never been to A[…], presumably on the good faith basis that he had denied ever being there, it cannot be that he had been telling counsel that he had never been at Reigate, given that this was his former address. His evidence on this point made little sense and caused me concerns about his reliability more generally.

[46] Initially under cross-examination, the accused denied having gone to A[…] on Halloween weekend saying that the complainant’s boyfriend lived in that house that month. Subsequently, he said that he was not sure if he went there on that date or not. In the end, he seemed unsure whether or not he was there that weekend, although he repeated that he would not have been there when the complainant’s boyfriend lived there.

[47] More importantly, the accused denied that C. and B. left their basement room so that he could have sex with S.S. He denied ever having anal intercourse with S.S. He denied that he was angry with her outside and that he hit her. He said that S.S. had made up the whole story. He has unequivocally denied both the sexual assault and physical assault alleged at that address over Halloween weekend.

Count 5 – Assault by urination alleged between January 15 and March 30, 2016 near Hurontario and Steeles

The complainant’s account

[48] S.S. described an incident said to have occurred after the A[…] incident in the winter of 2016. She said that the accused called her and asked if she wanted drugs, which he already had for her. She said that he picked her up and that they drove to the parking lot at Shopper’s World in Brampton. He had a crack pipe ready for her in the car and she smoked crack. She said that all of a sudden things changed and he wanted a favour. The accused reached to her inside leg and wanted her to perform oral sex on him.

[49] After a few minutes in the car, S.S. said that they got out and the accused said that they were going to take a walk. They went to a spot that she marked on Exhibit 2. She said that as they walked, the accused was pulling at her backside in what she described as “getting himself going”. The ground was wet and he told her that he wanted oral sex. She said no. He put his sweater on the ground and pushed her shoulders so that she went to the ground with her knees on his sweater.

[50] According to the complainant, the accused told her that he loved her and to hurry. He pulled out his penis. He then urinated on her hair and clothes. He tried to tell her that she was wet because the ground was wet.

[51] The complainant said that she felt “so abused” and that this was one of the worst days of her life. She felt like the accused, someone she trusted, thought he could do what he wanted with her because he supplied her with drugs. As she described it, when he could not get what he wanted, he decided to embarrass her and show her who was “boss”.

[52] Under cross-examination, it was suggested to the complainant that the accused never urinated on her. She responded that he did it many times.

The accused’s account

[53] The accused denied the specific allegation about urinating on the complainant and said that he had never urinated on her at all. He said that the complainant’s whole story was false.

Count 2 – Sexual assault alleged between January 1 and March 7, 2016 at the White Knight Motel

The complainant’s account

[54] The complainant said that after the urinating incident, she avoided the accused. She testified about another incident that occurred at the White Knight Motel, located near Dixie and Derry Road, in Brampton. She thought this had been in February 2016.

[55] Under cross-examination, it was suggested to the complainant that she had told the police that this incident occurred on the first Thursday or Friday in March. She said that this was close to February, and that while she did not know the exact date, she was sure that it was cold out. I do not take anything from her lack of confidence as to the exact date of this incident.

[56] The complainant said that on the day in question, the accused picked her up and said that he wanted to talk to her about her boyfriend. She said that he was very jealous of the boyfriend, and she thought he was upset and just wanted to talk. He took her to the White Knight Motel, a place familiar to her and where she was comfortable, given that she knew the manager because her mother worked there.

[57] Once in the hotel room, S.S. said that she used crack provided to her by the accused. He then “ranted” to her about how she could be with her boyfriend. She said that he was telling her that he loved her and cared for her, but that he was also angry about her boyfriend.

[58] Under cross-examination, S.S. agreed that when she testified in-chief, she said that they talked at the motel for a couple of hours. She also agreed that in her police statement, she had said that the “second” they got to the hotel, “it” happened. She clarified that what she meant by “it” was the accused starting to bother her, but was clear that they talked for a couple of hours before the sexual activity. I accept that explanation and find no real inconsistency between her statement and her evidence.

[59] The complainant agreed with the suggestion put to her under cross-examination that she had consumed crack that day and was extremely intoxicated. She agreed that she had consumed beer in the motel and a couple of shots. It was put to her that at the preliminary inquiry, she had said that she had opened a beer but did not drink it. She disagreed that her testimony was inconsistent and explained that she had opened a beer in the motel room but did not know if she had finished it, and said that normally, she did not drink much when she consumed crack.

[60] There appears to be a slight inconsistency between the beer that S.S. testified she consumed and what she said previously at the preliminary inquiry. I see little of significance in this. Most significantly, she acknowledged having smoked crack and that she was impaired.

[61] S.S. described the sexual assault. The accused put his hands down the back of her pants, became aggressive and started ripping at her clothes. He told her to take her clothes off and she refused. He then pushed her shirt up, undid her bra and unbuttoned her pants. He shoved her on the bed on her stomach and was on top of her with the back of his forearm on her neck and his weight on her so she could not move. She testified that her face was pressed onto the bed and that she felt unable to breathe. She told him to stop and he told her to be quiet.

[62] S.S. described how the accused fumbled for two or three minutes and then forcefully inserted his penis into her anus. He did not wear a condom. She said that she defecated and was bleeding and that he did not stop until he ejaculated. She thought that it lasted about six or seven minutes. She said that when he was done, she took a couple of minutes to catch her breath and that there was blood and feces on her, on the accused and on the bed.

[63] S.S. said that the accused “laughed it off”. He said he was sorry that he hurt her and asked her if she wanted money or drugs. He told her to take a shower and clean herself up. She testified that she was afraid to shower as she was worried he would become “turned on” from the fact that she was in pain.

[64] The complainant said that after the intercourse, the accused was happy, but that she could see that he was worried as she felt that he knew he had done something wrong.

[65] In terms of effects of this, S.S. testified that for a couple of weeks after, she had trouble controlling her bowels. She said that she was too embarrassed to go to a hospital and report this, given that she was a prostitute and felt like she deserved what had happened because of the position she had put herself in.

The accused’s account

[66] The accused denied ever having sexually assaulted S.S. at the White Knight Motel.

[67] The accused agreed that he and S.S. had gone to the White Knight Motel together. It was suggested to him that in his statement, he had told police that he had never been at the motel. When his statement was played for him, he testified that he understood it. He agreed that when the officer said, “You picked her up and you took her there”, in reference to the motel, he had responded “I never”. He explained that when he said that, he was referring to not having sexually assaulted S.S., and not saying that he and she had never been to the hotel.

[68] The accused was then referred to a passage in his statement in which he was asked by the officer, “Well you never been to that motel” to which he responded, “no”. He agreed that he said this, but said he thought that the officer was asking about during the first week of March, and that maybe he was misunderstanding because he felt under pressure.

[69] In my view, notwithstanding any difficulties that he may have with English, the accused told the police that he had never been to the motel. His testimony during the trial was inconsistent with this part of his statement. I do not accept that he was confused. I watched his statement as it was played. It appears from the videotape that he knew what he was answering. This inconsistency is about a matter of real significance. I find that the accused told police he had never been there in an attempt to distance himself from what the complainant said occurred. I find that this is an example of deliberate deception by the accused that causes me to have real concerns about the reliability of his testimony more generally.

[70] When he was asked about the specific night that the complainant had described at the motel, the accused said that the whole incident described by the complainant never happened. Again, there has been a complete denial of the offence alleged.

Count 3 – Criminal harassment on April 6, 2016

[71] Both S.S. and her mother testified about the accused’s conduct in the period leading up to April 6, 2016. In March and April, 2016, S.S. lived at her mother’s home with her in Brampton and attended school at T[…] College.

[72] Her mother, P.S., testified that the accused was calling the home telephone line of the house “constantly” or daily in this period. He would ask for the complainant and P.S. would tell him that she was not there and would ask him to stop calling. P.S. described the accused as angry that she had let the complainant’s boyfriend move in with them.

[73] P.S. said that the accused told her on the phone that he knew that S.S. was inside because he had driven by the house and seen her go inside. He told her once that he was outside and had brought a coffee for her. She described a number of times when she was outside for a cigarette and saw him driving in the neighbourhood.

[74] The complainant also testified about the period leading up to the events of April 6, 2016. She said that the period after the White Knight incident was the first time in which she tried to separate herself from the accused, and that he called her mother’s home quite often and drove around looking for her. She testified about an incident in early April when he tried to get her mother to put her on the phone because he claimed to have seen her from outside. She saw his vehicle outside. On other occasions she saw him driving in the neighbourhood.

[75] The accused was asked under cross-examination whether, in the period leading up to April 6, 2016, S.S. was avoiding him. He said that this was not true and that what he recalled was calling her mother’s home only three times and that it did not happen every day. He denied being outside the home and telling P.S. he was there.

[76] Given the evidence of P.S. and S.S., as well as the accused’s acknowledgement that he recalled calling the home three times, I find that the complainant had distanced herself from the accused and that he was actively trying to get in touch with her over this period. I accept that he was frustrated about his inability to speak with her. He both called repeatedly and drove around in the area. Against this backdrop, I turn to the events of April 6, 2016.

[77] The complainant testified that she began taking courses in a Community Service Worker program at T[…] College. On April 6, 2016, she was on her way to school from her mother’s, travelling with her boyfriend on the bus. When they got off the bus at Queen and Centre to transfer, her boyfriend told her that he saw the accused. She said that she then saw the accused’s car pass them, do a U-turn and come back so he could speak to them. She said that the accused called her a “whore” and said to get into his car. She said “no”, and asked him why he was trying to ruin her life when she was trying to get away from drugs. She said that that the bus was coming and that they got onto it.

[78] The accused’s evidence was that he saw the complainant and her boyfriend at the bus stop and parked where the bus stops in an effort to speak with the complainant. He said that he was not angry that she had been avoiding him. He knew she was annoyed with him but says that he did not know the reason. He testified that before she told him to go away, she said something that “petrified” and scared him – that she was going to destroy him and destroy his whole family, although she did not say how. He said that he begged her to speak and that the bus was coming so he left the stop and told her he would meet her at the next stop.

[79] S.S. described how the bus had to honk to get the accused to move. She said that the accused waited for them to get onto the bus and that he then followed the bus. The bus driver asked her if he should call the police and she said, “no”. They travelled a couple of blocks on this bus and got off at Queen and Kennedy, near T[…]. As they got off the bus, she saw the accused speed off and thought he was gone. She went to get a coffee at a variety store, Ace Convenience, on the south side of Queen Street, across the road from T[…].

[80] The complainant said that from inside the variety store, she saw the accused in the parking lot racing to where she was. He argued with her boyfriend outside the variety store and tried to force his way in, but an employee she knew locked the doors and the police were called. The complainant testified that she was scared of the accused.

[81] Under cross-examination, the complainant agreed that she had been pretty upset with the accused on the morning of April 6th. She disagreed that she was angry at the accused for interfering with her relationship with her boyfriend, and said that she was more upset that he was insulting her and interfering with school. She did not agree that she wanted revenge against the accused, saying that he had apologized for the events at the White Knight and that she did not seek revenge.

[82] It was the accused’s evidence that he expected S.S. and her boyfriend to get off the bus at the next stop, at Queen and Kennedy, and that he waited for them in the parking lot. He said that he did not see them get off the bus, so he began driving home on Queen and saw them in the plaza, close to the Ace Convenience store. He said that he parked and at that moment, they went inside. He opened the Ace store door, but said that the complainant was on the phone with the police. He begged to speak with her but realized that she was on the phone with the police and so that it was too late. He went to his car and waited for the police to arrive.

[83] Officer Brandon Eaket testified that he arrived at the Ace Convenience store and saw a black Toyota in the parking lot with the accused inside. He said it looked like the car had been parked in a rush. S.S. was inside and he thought she appeared very agitated and was visibly shaking and hysterical. She continued to be so when she was in the back of his cruiser.

[84] I find the complainant’s evidence about what occurred that day to be believable and to make sense. I accept that she was not angry at the accused, but that she was fearful of him, particularly given what had happened at the White Knight Motel weeks before this and in the period leading up to it with him trying to contact her. She appeared to me to be credible in her denial of seeking revenge and assertion that she was more concerned with the accused’s interference with the fresh steps to pursue school. I also find that her description of the way in which the accused followed her and why she wanted the police called made sense.

[85] I find the accused’s version of what happened that day to be implausible and not credible. First, given that he appears to have been intent on speaking to the complainant over the weeks before this, I cannot accept that he approached her calmly to speak with her as he said. The complainant’s description about the beginning of this interaction accords much more with what was going on between them at the time. Second, I find that it makes no sense that, had the accused simply told the complainant that he wished to speak to her, that she would have spontaneously told him that she was going to destroy him and his family. This defies logic. Third, I do not accept that he just happened to see her for a second time that day as he drove home. I find that he followed her on the bus and was intent on speaking to her and that this is why he parked his car in the lot by the Ace Convenience store. He knew she was there and was determined to confront her about the fact that she had been avoiding him.

Further Credibility Findings

[86] In addition to the challenges made to the credibility of the complainant and the accused in respect of their evidence relating to the four incidents at issue, as discussed above, other aspects of the evidence give rise to genuine credibility issues.

[87] I will comment on what I consider the most serious further challenges to the credibility of the complainant and the accused.

Credibility issues respecting the complainant

[88] The most concerning aspect of the complainant’s evidence is the fact that on two occasions, after giving her initial April 6, 2016 statement to police in which she made the allegations that led to the assault, sexual assault and criminal harassment charges, she recanted her assault and sexual assault allegations.

[89] The complainant testified that between the time that the accused was charged and the preliminary inquiry on July 5, 2017, she and he were in regular contact. I did not understand him to disagree with this. During this period, she says that he offered her $40,000, as a deposit to buy her a home, if she would write a letter of recantation. She said that as a result, she wrote two such letters.

[90] In the first letter, dated November 10, 2016, she was told to say that she lied and that none of her allegations happened. She testified that she was using crack when she wrote this first letter and that she had lied in it as instructed. She did not try to make an excuse for having lied and said that she was embarrassed by what she had done. She said that she had never had anything like $40,000 and, in evidence I found compelling, explained that she had felt rich when she received a $2,500 baby bonus cheque, and that she had thought that the $40,000 promised was enough money to change her life. She testified that at the time she wrote the letter, she felt like she deserved peace of mind and a home and thought that this justified recanting as she did. She testified that she never, in fact, got the money, or the house, and that while they had looked at homes with an agent, the accused then left Canada and that when he came back, he made up excuses.

[91] Under cross-examination on the first of these two letters, the complainant acknowledged having written everything contained in the letter including that the accused did not rape her and she thought he was a good and loving, caring man and pretty close to perfect. In the letter she also said that she would not be testifying against him.

[92] Under cross-examination, the complainant confirmed that she was not sober when she wrote this letter. The accused was right beside her, forced her to write it and drove her to the court house to drop it off. She testified that most of the letter was a lie, made up because the accused offered her $40,000.

[93] The complainant denied the defence suggestion that she was willing to lie to the court for a benefit, and testified that felt manipulated by the accused.

[94] The complainant testified that before the July 2017 preliminary inquiry, the accused asked her not to attend at court and told her that if she did not go, the charges would be dropped.

[95] The complainant did testify at the preliminary inquiry, a time when she said she had been clean of drugs for about 90 days, and the accused was committed for trial.

[96] She described how, on November 18, 2017 while she was in the car with the accused, they were pulled over by the police. She said that when the officer asked her name, she lied and gave a false name. Constable Crawford, the Officer who stopped them, confirmed her evidence about having lied on November 18, 2017. She told him that they had been in court recently. She said that she had recanted her allegations, did not want to charges to proceed and was surprised that the accused was still on a recognizance. When the accused’s recognizance could not be found, he was released unconditionally.

[97] After this, S.S. said that the accused told her that he needed another letter. She placed a phone call, which confirmed for her that the charges had not been dropped. The accused offered her money, as a result of which she wrote another letter, the contents of which were not true. The accused drove her to the court house and she dropped a second letter, dated April 10, 2018, at the Victim Witness Assistance Program office.

[98] S.S. testified that the second letter was written with the accused standing behind her and telling her what to write. In the second letter, the complainant agreed that she apologized for wasting the court’s time and not having been truthful. She also acknowledged that she again said that the accused did not rape her and that he was a good man.

[99] Again, the complainant testified that she wrote this letter in order to ensure that she would receive the $40,000 that the accused promised. She said that the day she wrote this, the accused gave her a couple hundred dollars and handed her his Visa credit card and told her to buy anything that she wanted. He also paid some of her rent. He also told her that he would pay the deposit on a house for her and that he would give her a loaded credit card.

[100] The complainant was asked whether these letters were an indication of her willingness to lie. She acknowledged having lied and said that at the time, she had relapsed into drug use. She said that what she wrote was the accused’s idea.

[101] S.S. confirmed that after writing this second letter, she met the Office-in-Charge of the case, Officer Sohi, on June 25, 2018. She said that she went to meet with him in order to have the charges withdrawn. She agreed that she had been untruthful at this meeting. At the time, she said that the accused was telling her that he was sorry and wanted to make things right, and that she succumbed to the pressure.

[102] However, the complainant also testified that within a day or two of the June 25, 2018 meeting, she realized that she needed to act on the truth and so had contacted the police and Crown for a further meeting. She testified that she could not live with the lies, and that she needed to tell the Crown that she had lied in the letters. A further meeting was then arranged, the purpose of which was to ensure that the Crown knew that she had lied in the letters. She explained that she was embarrassed that she was manipulated for money, but that she believed that writing the recantation letters was wrong and that the truth needed to come out.

[103] The recantation letters and lies to Officer Sohi have certainly caused me to carefully reflect on whether the complainant is a person who lies to advance her interests as is alleged. She admits to having done so before. But, that does not mean that she always does so. She has explained why she did so previously, and why she has been truthful in court.

[104] I must consider the recantation letters and what the complainant says were her lies to Officer Sohi on June 25, 2018 in the context of the rest of her evidence in order to decide whether she has provided credible evidence respecting the allegations. Having done so, I am persuaded that the letters and statements to Officer Sohi on June 25, 2018 were not truthful. I reach this conclusion after listening closely to her evidence that she lied and why she did so. She has provided what I find to be a plausible, credible explanation for why she lied and recanted her allegations in the manner that she did. I accept her explanation. It makes sense and is logical in the context of her relationship with the accused and where she was at in her life when she was using crack and had very low self-esteem. It fits with the rest of her evidence and the evidence as a whole. She exhibited candour and what I find to be genuine embarrassment when she explained how she felt manipulated to recant for the promise of a sum of money that would have changed her life. I find that she did not downplay her complicity in what she now acknowledges was a plot of deception. She acknowledged her personal weakness and her role fully, a fact that I find further enhances her credibility. I conclude that the recantation letters are replete with lies and that she was truthful in her evidence before me about the core of the allegations.

[105] I do not accept the defence suggestion that the complainant became tangled in a web of lies when she testified or that she made up the allegations in order to exact revenge.

[106] The defence also submits that the complainant’s credibility is undermined because of Facebook messages that she sent to the accused after the incidents. These are said to be inconsistent with her having been sexually assaulted. She acknowledged having sent these messages, which include:

• a message on February 27, 2017 that included, “love you”. She explained that the accused’s father had died a few weeks before and that they had had a conversation in which he acknowledged what he had done to her at the White Knight and had said he had been jealous and was sorry. She believed him and so sent that message;
• messages of September 23, 2017 and October 1, 2017 in which she sent him photographs of her children and grandchildren. She said that he came to see her in Midland and that they went bowling and that he told her the things he would do for her;
• a message of March 31, 2018 in which she sent him a photograph to show him that she had bought groceries. She explained that at this time, he was still supporting her financially and that she was struggling financially and did not know how she was going to support herself;
• a message of March 31, 2018 in which she said, “…And what I did to you, I don’t know how to fix And I can’t live without you…” She explained that she was referring to the fact that she had slit the tires of a car in his driveway. She said that she almost felt that she should let him get away with the offences because of all the good he had done for her. She was clear that she did not regard him as an “enemy” and that her head had been “messed up” about whether she deserved what he had done to her. She also said that there were messages missing in the package of messages that was put to her and is contained in Exhibit A.

[107] I have considered the suggestion made by the defence that the complainant’s credibility undermined by the fact that she is said to have behaved in a manner inconsistent with having been sexually assault in the years after the alleged offences, particularly as demonstrated by what appear to be loving Facebook messages.

[108] The law is very clear that the credibility of a sexual assault complainant is not to be assessed by comparing how that complainant behaved with stereotypical assumptions about how such a complainant usually behaves or should behave. There is no rule to be applied as to how sexual assault victims should or will behave. More specifically, with respect to this case, it is legally impermissible to infer from the fact that the complainant maintained contact with the accused after the alleged offences, even though that contact included kind and loving sentiments, that she is less credible in her allegations: R. v. A.R.J.D., [2017] ABCA 237 at paras. 39-48; aff’d 2018 SCC 6.

[109] After considering her evidence as a whole, I accept the core of the complainant’s allegations respecting the sexual assaults and assaults.

Credibility issues respecting the accused

[110] The defence submits that the accused’s evidence was credible. The Crown points to a number of reasons why the accused’s evidence is not credible or reliable.

[111] In my opinion, there are compelling reasons to reject much of the evidence of the accused as unreliable. Generally, I found his evidence to be evasive and, when he did respond to questions, he often gave self-serving answers that stretched credulity. There are also numerous instances in which I have found his evidence to be internally inconsistent, confused, or inconsistent with what he had previously said to the police. In addition to the examples of this that I have set out when discussing the specific allegations, I will review some of the other aspects of his evidence that I found the most troubling:

• The accused gave conflicting confusing and self-serving explanations about the status of his relationship with the complainant. In his testimony, he talked about realizing he was in love with her in 2013. In his statement to police, the accused said that he had asked the complainant to be in a boyfriend/girlfriend relationship and that she had said no. Yet, when he testified, he denied that she had rejected him and said that he had never offered to be her boyfriend, appearing to suggest that she was the instigator of their relationship. At one point he said that she rejected the idea of a relationship and at another, he said that he had. In my view, he was inconsistent about who pursued who, clearly wanting to distance himself from any suggestion that he was hurt or angry when she pursued relationships with other people rather than him.
• During his cross-examination, the accused explained that the reason he had decided not to pursue a relationship with S.S. was because she had been involved with seven different men and that she had called the police on five of them and made false accusations against them. He denied, at one point, however, that he had been specifically warned to stay away from S.S. His statement, in which he said that he had been warned to stay away from “that girl” was put to him, and he said that this was not a reference to the complainant because none of the people he knew in Canada knew her. He then changed his evidence to acknowledge that this had been a reference to S.S., but sought to explain that he had been warned to stay away from all women. I found his explanation for not pursuing his love of S.S. in a relationship with her to make little sense.
• The accused appeared to want to garner sympathy for his solitary situation in Canada. He testified that he arrived in Canada as a stateless refugee on January 14, 2008. During his examination-in-chief, he said that he waited seven years to reunite with his family. He went further and asserted that S.S. and her mother were the only people he knew in Canada and that he had no friends. Under cross-examination, he said that he waited five to seven years for his family. He was reminded of his police statement in which he had said that his children had come three years earlier, meaning that he had not been alone for the seven years he claimed. He suggested that his answer in his statement was because of his limited English proficiency and that his statement had been misunderstood. I note that under cross-examination, the accused appeared to acknowledge that he had known people other than the complainant and her mother, including C. and B. and other Arabic speakers. He certainly was not friendless and alone as he tried initially to portray. In my view, in the accused’s evidence on this issue, he exaggerated the time he had been without family and friends in order to paint himself as lonely and sympathetic and in order to justify why he was so eager to be friends with S.S. that he would have given her money without expecting anything in return.
• The accused acknowledged that after his arrest in April 2016, he was released on bail with a condition that he have no contact with the complainant. He agreed that he had no reason to contact her and said that she had initiated contact. He also agreed that they had resumed things as they had been, and even agreed that it had been wrong of him. But, he attempted to justify his behaviour on the basis that he was ignorant of the laws. I do not accept this explanation. There can be no doubt that he understood after his arrest and release that he was to have no contact with S.S. I reject that the only reasons he did so were because she contacted him and because he was ignorant of the law. In my view, one of the reasons that the accused maintained contact with the complainant was because he wanted to persuade her to recant her allegations.
• In terms of understanding the prohibition on contact with S.S. after the preliminary inquiry, the accused was asked about the comments made by Justice Cowan, in which he was reminded of his recognizance term and that the no contact applied whether or not he was contacted by the complainant. Rather than acknowledging what he had been told, the accused asserted that he did not know what was going on in court at all and, because there was no interpreter, did not know what they were talking about. I cannot accept this, particularly when defence counsel at the preliminary inquiry told Cowan J. that he had spoken to the accused and that he did not need an interpreter for the preliminary inquiry. The accused agreed that his lawyer had said this, but insisted that he had not understood. I view this as an example of the accused resorting to a claim that he does not understand English whenever something has happened or been said that tends to reflect poorly on him.
• The accused agreed that after the complainant had testified at the preliminary inquiry, and given what he believed was false evidence, he had no reason to ever contact her again. It was suggested to him that the reason she was in his car on November 18, 2017, when he was stopped by police, was because he was trying to convince her to withdraw the charges. The accused denied this. But, I found his explanation for why he had S.S. in the car to be confusing. It seemed, once again, like he was trying to garner sympathy and to disparage the complainant. I say this because before answering the Crown’s question, the accused launched into an explanation of needing to travel home to see his mother who was dying of cancer. This, ultimately, had nothing to do with why he was in the car with S.S. He then said that months before, he had driven the complainant’s daughter to see her after the daughter had attempted suicide. Again, these comments had nothing to do with the question. At one point, he seemed to suggest that the complainant had told him that the charges had been withdrawn, and that there were no issues between them, although he seemed to subsequently resile from this. Ultimately, his evidence appears to have been that S.S wanted a drive to her mother’s so that she could go to court so the charges could be withdrawn. He agreed, however, that he knew that at the time the charges were outstanding and that a trial date had been set in court only four days earlier. In my view, the accused never offered a satisfactory answer for why, given the fact that he was facing a trial on these charges, he would ever have agreed to be in a car with the complainant at that time, particularly when he was aware of the no contact term of his recognizance. I find that he was with her because he was trying to persuade her, yet again, to recant her allegations.
• Asked whether he had been angry at the complainant for making up false allegations, the accused was not responsive. Instead, he made allegations that S.S. made up stories about her family and alleged that when she uses drugs, she cannot recall anything. This is but one of several examples in his testimony when he referred to the complainant’s crack usage as a basis for her not being credible. The accused’s evidence on this issue is another good example of his determination to avoid answering what was asked, to deflect attention from the issue and to disparage the complainant. When he did answer this question, he purported not to be angry, explaining that he had lived for forty years in refugee camps and saying that after forty years of suffering, he had learned to love people and to wish them well. I did not find his answer responsive or credible.
• In terms of whether and why the accused had given the complainant money since the preliminary inquiry, I found his evidence to be inconsistent and evasive. He initially said he had not sent her money. He then said he had given her $30 or $40 once or twice a month because she was asking for it and needed it for food. Asked why he would be giving money to someone who had made these allegations against him, the accused initially denied he was trying to pay for her silence or for a recantation, and insisted that the money was to confirm for her that the love and trust between them still existed. The following day, under further cross-examination, he said that on further reflection, he realized that he had been naïve and that he had let S.S. use his love. Remarkably, he insisted that his love for her had blinded him and that even after being arrested, he had not appreciated what was going on. I cannot accept that he was so naïve as to think that after being charged and committed for trial, it made sense to still give her money as an expression of his love. It makes far more sense that he was giving her money to try to persuade her to recant her allegations.
• The accused testified that he was not a lawyer and had no legal training. In his statement to police, a portion of which was played for him during cross-examination, the officer said, “You do have a lot to say”, to which he responded, “I used to be a lawyer in my back home”. Asked why he said this, the accused laughed in court as though he was mocking the entire process. He said that he meant that he knew about law and legal issues. He then claimed not to know what the expression “used to be” meant. This exchange was, for me, another excellent example of the accused seeking to use his lack of understanding English to justify inconsistencies in his evidence. In his statement, I do not think there could be any issue that he volunteered to the officer, knowing what the officer was suggesting, that he used to be a lawyer. This can only have been in attempt to create that impression to the officer. Caught out under cross-examination, the accused tried to justify his lie by claiming poor English. I do not accept this and point to it as a further example of why he was not a credible witness.
• Repeatedly, the accused suggested that at the beginning of his statement, he had asked the police for an Arabic speaker and told the officer interviewing him that he did not understand 80 percent of what was being said to him. He insisted that the first question he asked the officer was whether he spoke Arabic. Under cross-examination, after watching his statement, the accused agreed that the first question he asked was not if the officer spoke Arabic. Despite the concession by counsel that his statement was voluntary, the accused insisted that he had not understood what was being asked of him. In the small parts of the statement that I watched during the cross-examination, it appeared to me that the accused understood what was being asked and that he responded in a manner suggestive of having understood the question. In my view, the accused repeatedly tried to exaggerate his lack of understanding of English to distance himself from things he regretted saying in his statement or doing in breach of court orders.

[112] Considering all of his evidence as a whole, I conclude that the accused is not a reliable or credible witness. I cannot accept his evidence denying the allegations, nor does it lead me to have a reasonable doubt about him having committed the offences in the manner described by the complainant.

D. Conclusions

[113] The defence position is that there was an inadequate police investigation because the police never attended at A[…] or spoke to the people who might have been able to provide evidence about the Halloween weekend allegations. They also never went to the White Knight Motel to investigate whether there was feces in the room used by the complainant and the accused. While I accept that more could have been done by the police, the absence of evidence on these issues does not raise for me a reasonable doubt as to the accused’s guilt on counts 1 and 2.

[114] Having considered all of the evidence, I accept the complainant’s evidence about the sexual assault that took place at A[…], about the urinating incident and about the sexual assault at the White Knight Motel. I do not accept the accused’s denials of having committed these offences and am not left with a reasonable doubt on the basis of his evidence. After considering all of the evidence that I do accept, I am satisfied beyond a reasonable doubt of the accused’s guilt on counts 1, 2, 4 and 5.

[115] With respect to the criminal harassment count, I accept the complainant’s version of events as to what happened. The accused saw her before she got on the bus, made a U-turn, and tried to engage her in a discussion. She got onto the bus and he followed her to the area of Queen and Kennedy where he parked in the lot and got out. She reasonably feared for her safety, given the history between them, what he said to her that day and his following her to the convenience store. I find that he followed her from place to place in that he turned his car to approach her at the bus stop and then followed her to where she got off the bus, parked his car, and went to the variety store. In law, this constitutes criminal harassment. I am satisfied beyond a reasonable doubt of the accused’s guilt on count 3.

Woollcombe J.

Released: September 12, 2018