SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 2017-22 DATE: 2018-11-23

B E T W E E N:

HER MAJESTY THE QUEEN J. Tatum, for the Crown

- and -

NIMA ALAMOUTI M. Kerbel, Q.C., for the Defence Defendant

HEARD: October 2, 3 and 4, 2018

REASONS FOR JUDGMENT

Lemon J.

Overview

[1] Mr. Alamouti is charged with sexually assaulting the complainant, M.P., on or about August 10, 2016. The evidence disclosed that the alleged assault was in the early morning hours of August 11, 2016. The defence does not dispute the date or time of the offence. The only issue is whether the Crown has proved beyond a reasonable doubt that M.P. did not consent to an act of anal intercourse.

The Facts

[2] Most of what occurred on the night and morning in question is agreed. The trial turns on what occurred in a very brief time period. I will set out the agreed chronology first. I will also refer to some minor disagreements between the two principal witnesses as I proceed through the chronology.

[3] M.P. is 46 years of age. Mr. Alamouti is 35.

[4] M.P. said that she met Mr. Alamouti several years before these events. She does not recall when they first met but believes that they met seven or eight years before. They were friends and acquaintances because they moved in similar circles. Mr. Alamouti was a DJ and she knew him by his DJ name, “Aquatic Mind.” She went to his shows and followed his music. They knew a lot of the same people.

[5] M.P. did not believe that she had been to his house, nor he to her house, before August 10, 2016.

[6] Mr. Alamouti testified that he met M.P. in 2012. He was working as a DJ on a boat cruise and they met through a mutual friend. This occurred in July 2012. He accompanied his friend to M.P.’s house for a couple of hours but he had never been to her house before the events in August 2016. He saw her from time to time at his DJ gigs. She also had lunch with him and other mutual friends and acquaintances. He saw her every other week or once a month, and they would sometimes share conversations. These were not planned contacts.

[7] M.P. had invited Mr. Alamouti to her home because she was planning a party at her rural property about a month later. She wanted him to DJ, but her home was “off the grid;” there was no electrical power in the house. She therefore wanted him to look at the logistics for the party to know where to put the generators and speakers.

[8] She had spoken to him on the phone and texted in the past. There was no discussion of sexual activities that night. There were no texts or calls ahead of that night about having sexual relations. M.P. acknowledged her text to Mr. Alamouti on August 10, 2016, which stated:

FYI there is the plounge if you want to park the car. Not sure how early your morning is. I need to leave home by 1030 tomorrow morning.

[9] Mr. Alamouti arrived at approximately 9:30 p.m. and she met him outside the house when she saw him coming up the driveway. She does not remember, but she may have given him a hug when he arrived. Mr. Alamouti remembered a hug and a mutual kiss.

[10] He had brought a plastic bag containing chips and lemonade. He also brought an opened bottle of vodka. She was “okay with that” because they had discussed drinking lemonade and vodka that evening. He brought a 26 oz. bottle of vodka, but it was not full; the neck of the bottle was empty. M.P. had no impression that he had been drinking before arriving at her home.

[11] Both agree that they walked around the property. They differ as to exactly when that occurred, but nothing turns on that discrepancy. There was no flirting between them; at that time, they were simply friends or acquaintances.

[12] They went into the house. She was wearing shorts and a T-shirt. He was wearing shorts and M.P. believes he was also wearing a long-sleeve shirt. Both were dressed normally for a hot August night.

[13] When he came in, she made drinks for each of them and they sat at the table and talked.

[14] Over the next couple of hours, they each had at least three drinks of vodka, lemonade and soda water. M.P. poured the drinks. She recollected that each drink had been measured to contain one ounce of alcohol. She also had four puffs of a joint of marijuana. She offered him some, but he declined. Mr. Alamouti, however, recalled that she poured four or five large drinks without measuring the alcohol content. They were not regular bar drinks.

[15] M.P. said that both were relaxed but not intoxicated. He testified that by then, he had had five or six drinks and was drunk.

[16] They then moved from the kitchen table to what she described as a “plounge;” essentially, a large couch low to the floor. When they came inside after touring the property, the plounge had to be assembled. They differ on exactly when that occurred but nothing turns on that. It was M.P.’s idea to move to the plounge. They had been talking on the couch for a few minutes. At this point, the evidence of the witnesses diverge. I will refer to those issues below.

[17] M.P. does not remember who sat on the plounge first. When Mr. Alamouti sat on it, he was leaning against the wall, and then she sat down. She straddled him over his legs and knees. M.P. says she straddled his lower legs; Mr. Alamouti says upper legs.

[18] After the events in issue occurred, to be discussed below, M.P. pushed herself away from him and backed off the couch on all fours and went to take a shower. Her shower is on the other side of the kitchen from the plounge. After her shower, she walked past Mr. Alamouti on the plounge on the way to her bedroom. She went straight to the shower and then went straight back to the bedroom.

[19] As she passed Mr. Alamouti, he was lying on the plounge but she could not tell if he was awake. Neither of them said anything to the other. He did not move.

[20] She went to her bedroom and lay in her bed until morning. She had nothing else to drink. She does not know if he had anything else to drink.

[21] She woke up at 9 a.m. and went out of the bedroom to the kitchen. He asked what time it was and she told him 9:00 o’clock and then told him “I need you to get the hell out of my house.” M.P. remembers that she shouted this at him. Mr. Alamouti remembers only that she said that statement, however, he acknowledges that she later yelled a similar statement at him.

[22] She then went outside and lay down on her hammock. She did not wait for his response. Mr. Alamouti followed her outside; they talked further and he then left.

[23] After he left, she found the plastic bag that he had brought with him. In it was the receipt for the purchase of lemonade, chips and condoms. Although they had eaten the chips and drunk the lemonade, she did not see the condoms at any time.

[24] She agreed that she sent a text to him about the receipt on August 11, 2016. She sent him a copy of the receipt and said:

Unfuckingreal you bought condoms. You are a piece of work bro.

[25] In response, he texted:

I had no intention to ruin your [night], I was really drunk and things went differently in my mind, I am sorry.

[26] They have not communicated since August 11, 2016.

The Evidence of L.M.

[27] The Crown also called L.M.. The defence did not challenge her evidence in any real way and acknowledged her credibility in argument.

[28] Ms. L.M. testified that she has never met Mr. Alamouti before or after these events. She only knew Mr. Alamouti as a DJ that M.P. had spoken about once before. She knew nothing positive or negative about him. She was not aware that he was going to M.P.’s residence on August 10.

[29] She has known M.P. for approximately 32 years. They have been close friends in the last four years.

[30] She first heard about these events on the morning of August 11, 2016. M.P. texted her that she needed to talk and that she was “really messed up”. At the time, Ms. L.M. was in Florida and out shopping. She texted back that she would call and she immediately left the store and went home. She was concerned because M.P. had never asked anything like that before.

[31] She went home and called M.P. M.P. was “frantic, crying and swearing”. M.P. said “oh my God” and “what the fuck has just happened?” Ms. L.M. had to calm M.P. down somewhat and was able to do so after about five minutes. At that point, M.P. “started to make sense”. She had never known M.P. to act that way before. Once she had calmed M.P., she was still very upset, but Ms. L.M. could now understand her. M.P. was able to tell her what had happened and was not so scattered in what she said.

[32] As she listened to M.P., she told M.P. that she needed to call the police and go to a hospital. Instead, M.P. said she could not think and did not know what to do. She did not give a clear answer to Ms. L.M. as to whether she would go to the police or to the hospital.

[33] Ms. L.M. then told M.P. to call someone to help her. M.P. said that she was going to a friend’s cottage to get away. M.P. said that she did not know what to do or say or think.

[34] Ms. L.M. remembered only that this phone call occurred in the morning of the 11th but did not remember the specific time. M.P. told her that Mr. Alamouti was not at the house but did not tell her when he had left.

[35] Ms. L.M. spoke with M.P. again after August 11 and encouraged her to go to the police. M.P. said that she could not deal with anything and that it was hard to even get out of bed. After she had gone to the police, she did tell Ms. L.M. that she had done so. Ms. L.M. did not recall if M.P. told tell her why she had gone to the police.

Conflict in the Evidence

The Evidence of M.P.

[36] M.P. testified that she believed Mr. Alamouti arrived about two hours before the assault occurred. She therefore thought that the assault occurred between 11:30 p.m. and midnight. However, when she reviewed her video statement during her evidence, she agreed that the assault occurred at about 1:00 a.m.

[37] The two had been talking on the couch for a few minutes. She was holding a teddy bear and she put her finger in the teddy bear’s navel. Mr. Alamouti pulled up his shirt and asked her to do the same to him. She said no but, as she was sitting close to him on top of his knees and lower legs, she kissed him. She was consenting to what was happening to that point.

[38] What happened next was “fast”. He forced her face down on her stomach and pinned her legs and back. She did not have a chance to object. He then pulled down her shorts and penetrated her anally. When he pulled down her shorts, she did not help him because her arms were pinned under her. She could do nothing. When he penetrated her, it hurt her.

[39] In response, she said “what the hell is going on” and “we don’t do this”. When her shorts were pulled down, she said to stop. She did not have a chance to resist because it occurred “fast” and she did not consent.

[40] There was no warning as to what he was going to do and it took a few minutes before he ejaculated, but she testified that it felt much longer. She was “stunned”.

[41] While he was penetrating her, he said, “It’s okay, I am in the no-baby hole”, “Don’t move”, and “Stay there, I like it there”. In return, she said “Stop”, “What are you doing?”, “Get out of me” and “This is not who we are”. She said all of that while he was penetrating her and before he ejaculated. She said stop as soon as he penetrated her.

[42] He was not wearing a condom, and he ejaculated inside her.

[43] She only felt his erection and then the penetration. She denied that he ejaculated between her buttocks. She is certain that he thrust himself in and out of her four times.

[44] Before he turned her over, she does not remember what her hands were doing, but they were not on his chest. She does not remember what his hands were doing, but they were not on her breasts. She does “not recall spooning” with Mr. Alamouti at any time but agreed that it was possible that they were and that he was rubbing his penis against her buttocks.

[45] She remembered that her shirt was off but does not remember how it came off. She took off her shirt willingly, though she does not recall that her bra came off.

[46] She denied that she was angry with Mr. Alamouti because he was so quick and because she did not get any satisfaction. She did, however, agree that she used the term “minuteman” toward him the next morning. She was stunned that he was so fast in completing the act.

[47] The next morning, he appeared to be ashamed. Mr. Alamouti appeared surprised that she was upset and angry. He hung his head as if he was being schooled. It appeared that he didn’t think that he had done anything wrong.

[48] She asked him “What was last night all about?” She asked him “Where was your consent for any of that?” “Where was your sexual health?” By that, she meant to ask why he did not wear a condom. She did not consent to any penetration without a condom.

[49] She was surprised that their first sexual encounter was so short. She asked him if he wanted to be a “minuteman”. She was upset that there was no consent to the act and no passion. “Nothing about it was ideal.”

[50] In response, he put his head down in shame, but it did not appear to her that he thought that he had done anything wrong. He said, “I’m so sorry, M.” He appeared to be surprised that she was angry at him and surprised that she was so sure that he needed to leave. He did not seem prepared for her reaction.

[51] She did not remember if he said anything else. She then reviewed her police statement and realized that he said “M., I was drunk”. She cut him off, telling him that that was not an excuse. In any event, she did not feel that he had been drunk. He then left her home.

[52] At the time, he did not deny penetrating her, but she did not say that she had been penetrated. Rather, she only referred to “my ass”. He said that he was sorry, but he did not specify about what.

[53] She did not want him to drive away that night, because he had been drinking and she did not want to be responsible as his host if he was in a collision. There was no discussion about him staying before he passed out on the plounge, and there was no discussion afterwards.

[54] M.P. gave a statement to the police on September 27, 2016. However, she had contacted the police before that date to set up a meeting with a plainclothes female officer. Initially, she was scared because she did not know what would happen; she did not know how long she could put up with a prosecution and thought that it would take three years to complete. However, she did not want him to get away with what he had done. She made up her mind to go to the police a couple of days before she went to speak with them.

[55] She had spoken with friends ahead of time and they encouraged her to report what had occurred. That occurred even as early as August 11. She did not do so that day because she was still in shock and pain and did not know what to do.

The Evidence of Mr. Alamouti

[56] Mr. Alamouti agreed that he was at M.P.’s residence on August 10, 2016. She invited him to hang out with her and see her place. He was to arrive about 9:30 or 10:00 p.m.

[57] He expected to spend the night. He had made a decision to stay over before he went there. She had told him about the traffic the next morning by text. He asked if he should bring drinks. She agreed to that, as well as that he should bring vodka and mix. The vodka he brought was from an open but fairly full bottle. He purchased mix and chips, along with condoms. He assumed that they were going to be intimate.

[58] While they were outside of the house, they did not discuss the party and they had nothing to drink. They were outside for approximately 15 to 20 minutes.

[59] They then came back inside and drank the vodka and lemonade. She mixed the drinks in big glasses. She did not use a shot glass.

[60] They sat in the kitchen and had four or five drinks. They talked about parties and festivals that he had gone to in the past or that were coming up. They talked about her future party. They talked about what speakers she would need.

[61] There was what he referred to as a mattress leaning against the wall and she suggested that they go there. She set it up and he lay down. She stepped in front of him. He denied that he was sitting against the wall; rather, he was laying on his side and she sat in front of him. They continued to talk there for about a half-hour.

[62] When he testified that he was “pretty drunk”, he meant that he was “really drunk”. He thinks that he had five or six big drinks, but he did not mix them. He does not remember that there was a shot glass. He does not believe that she measured any of the drinks. He was not concerned about the amounts that she was pouring. They were sitting in the kitchen where she was mixing the drinks, and he did not see a shot glass or anything to measure the alcohol. His last drink was on the plounge.

[63] He could feel the effects of alcohol before they started kissing. If he had been working, he would not have been able to play his music. He could not have driven, but he had no trouble with balance, walking, speaking or vision. He was able to drink more and was not about to throw up. He had no alcohol to drink that day before the evening. On a scale of 1 to 10 for drunkenness, he was “a seven or eight.”

[64] She then came close to him on the plounge and kissed him. She was sitting in front of him. He kissed her back. She then sat on top of him on his upper legs. They then kissed for a long time. She was straddling him over his penis.

[65] They were mutually kissing and started “to make out”. He touched her breasts over her clothing and she did not object. He did not touch her vaginal area. He lifted her shirt and she took it off without objection. He then lifted his shirt and she took it off.

[66] He was touching under her shorts and shirt. They did not take off her sports bra. They were both wearing shorts, and he does not remember how they came off. In any event, M.P. had made no objection at this point.

[67] She held his hands over his head and said “I have been waiting for this for a very long time”. That was the first comment that she made while they were being intimate. He said nothing in return.

[68] They then switched positions so that they were lying beside each other on their sides with her back to his front. They took off their pants, but he does not remember how. His right arm was over her and his left arm was under her. They were spooning and his erection was in her buttocks. They were moving and kissing. He did not ask to have sex with her. It is possible that he manoeuvred her body but not with any force to control her. They were lying on their sides as foreplay. His penis was in her buttocks but not inside of her anus.

[69] He then turned her so that she was face down, but he did not force her. He put his hands under her bra and they took it off together. They were kissing each other and she turned her head and kissed him back. As he was rubbing his penis against her buttocks, he ejaculated.

[70] He then held her and kissed her neck. They were lying beside each other for a few seconds. He does not recall her comments.

[71] He then turned toward her, but she got up. They had only been together for a few seconds. She said nothing to him.

[72] She did not come back; instead, she went to the next room and he passed out. When he says “passed out”, he means that he fell asleep. It did not seem odd to him that she did not come back.

[73] He denies that she asked the following morning about “consent” or said that the act was “not who they were”. During the act, she did not say “stop” or “What are you doing?” He did not say “Don’t move, I like it that way”. There was no discussion about the bear’s bellybutton. He did not say anything about a “baby hole”.

[74] The next morning, he heard her walking in the kitchen and he asked her what time it was. He was hung over but not drunk. He had a headache, a “heavy head” and was dehydrated. He knew what he was saying and was able to think before he spoke. He does not know if the drinking affected his memory.

[75] She told him what the time was and told him to “get the fuck out.” He took it that she was upset, although she did not yell at him. She then went outside.

[76] He went out and she repeated that he should get out. He went back into the house to get dressed and went back out to her. He asked if she was upset about last night and she said “You think?” “Is that how you want to be with me? For a minute? In my ass?” She also referred to him as a “minuteman”. The next morning, she did not say “We are not that sort of people” or anything about consent.

[77] He then left, but she followed him outside. Again, he tried to speak with her, but she interrupted him and said “Don’t even. Get the fuck out of my property”. She was upset and speaking loudly while they were outside. He was not sure why she was upset. He did not know what she meant by “minuteman”. He thought that she was upset about his passing out. He thought that she was angry because their sexual encounter was over too soon. By the time he left, she was loud enough that he was uncomfortable staying there.

[78] He then drove toward Toronto. He tried to call her, but she did not pick up. She then sent the text to him about the condoms. He then wrote back to her.

[79] He denied that he penetrated her anus.

Legal Principles

[80] Mr. Alamouti begins the trial with a presumption of innocence; the Crown carries the burden of displacing this presumption with proof beyond a reasonable doubt that he committed the crime with which he is charged. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt or one based on sympathy for or prejudice against anyone in the trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or absence of evidence. It is not enough if I believe that Mr. Alamouti is probably or likely guilty.

[81] At the same time, it is nearly impossible to prove something with absolute certainty. If, after considering all of the evidence, I am sure that Mr. Alamouti committed the offence, then I will be satisfied of proof of the offence beyond a reasonable doubt. However, if after considering all of the evidence or the lack of evidence, I am not sure that Mr. Alamouti committed the offence, then I must find him not guilty, because the Crown will not have satisfied the burden of proof beyond a reasonable doubt.

[82] Since Mr. Alamouti chose to testify, I must consider that evidence in relation to all of the other evidence at trial. If I believe his evidence that he did not sexually assault M.P., then I must find him not guilty. Even if I do not believe his evidence but it leaves me with a reasonable doubt, then I must find him not guilty. Even if I do not accept his evidence or it does not leave me with a reasonable doubt, I may convict him only if I am satisfied beyond a reasonable doubt that he committed the offence based on the evidence that I do accept.

[83] This is not simply a matter of choosing one witness over another. The presumption of innocence and the standard of proof beyond a reasonable doubt are different than that approach. The case is solely about whether the Crown has proven the essential elements of the offence beyond a reasonable doubt.

[84] However, an accused’s evidence may in some cases be rejected when “stacked” beside other evidence. In R. v. D. (J.J.R.) (2006), 2006 ONCA 827, 215 C.C.C. (3d) 252, at para. 53, Doherty J. said:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as it is a rejection based on a problem identified with the way the accused testified with the substance of the accused’s evidence.

[85] In R. v. D.D., 2002 SCC 43, [2000] 2 S.C.R. 275, at para. 65, the Supreme Court of Canada confirmed that:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of the complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

Analysis

[86] The defence concedes that if anal intercourse is proven beyond a reasonable doubt, then there was no consent by M.P to that act. The defence does not rely on the defence of mistaken belief in consent.

[87] The defence submits that I should have a doubt about the complainant’s evidence because she failed to go to the police until the following month. I do not find that to be a delay. The unchallenged evidence of Ms. L.M. shows that the complainant went to the police shortly after the incident. Even if this could be construed as a delay, however, and keeping D.D. in mind, she explained her reasons for not reporting the incident immediately, including that she was frightened by the prospect of going through the legal system. As such, this delay argument has no impact on M.P.’s credibility.

[88] The defence submits that I should have a doubt about the complainant’s evidence given her failure to tell Mr. Alamouti to leave the property that night. Again, I place no weight on this argument. The literature and the case law show that there is no predictable way that a victim of sexual assault will conduct themselves. Even if I were going to place some weight on her reaction, she sensibly explains why she did not do so, referencing her concern that he had been drinking and she did not wish to be held responsible if he was in a collision.

[89] There was much time spent on how much each individual had to drink and their condition at the time. I place no weight on that evidence. The defence does not raise drunkenness as an issue. The complainant confirmed that Mr. Alamouti had enough to drink that he would not safely be able to drive. Mr. Alamouti candidly acknowledged that his state of sobriety may have affected his memory but did not allege that it did so. He also agreed that he had no trouble with balance, walking, speaking or vision and was not about to throw up. I can find that his level of intoxication could not in any case have amounted to that which is required to raise drunkenness as an issue.

[90] Mr. Alamouti expressed that he was sorry for what had occurred the night before, but he was not confronted with what the complainant said happened. I do not suggest that M.P. had any obligation to put her detailed history to him. However, in this case, the apology supports both versions of what occurred.

[91] Much was made of the text M.P. sent before these events and Mr. Alamouti’s purchase of condoms earlier in the day. Counsel attempted to suggest the intention of the parties in advance of the evening. Nothing turns on that and I need not make any finding in that regard. The case law is clear that anyone can change their mind and withdraw existing consent to sexual activity at any time, including during sexual activity, and that individuals cannot provide consent in advance to sexual activity. Everything up to the incident upon which the parties disagree was consensual, and I am only required to determine if the particular incident involving anal penetration occurred.

[92] The complainant gave her evidence in a clear and compelling fashion. While I can put little weight on demeanor, she testified in a fashion consistent with telling the truth. There were compelling details that provided great weight in assessing her credibility.

[93] Similarly, standing alone, there is no reason to reject Mr. Alamouti’s evidence. He responded well to a lengthy and detailed cross examination. He was credible in his testimony. There were no internal or external inconsistencies in what he said.

[94] But I must consider all of the evidence. Ms. L.M.’s evidence is unchallenged. She testified that the complainant was upset to the point of incoherence. Mr. Alamouti confirms that the complainant was so angry with him that she yelled at him and swore at him. Those two pieces of evidence are inconsistent with the argument that she was simply a disappointed lover. They are consistent with a woman who has been anally raped.

[95] However, M.P. acknowledges that, at some point, she and the accused could have been “spooning”. While ultimately her evidence is that she could not recall that, she agreed that it was possible that the couple were spooning before the disputed activity. For me to accept her evidence beyond a reasonable doubt, she would have to reject that act unequivocally. Her essential evidence is that things happened so quickly from her sitting position on his legs that she could not do anything but acquiesce. An act of spooning in any fashion is inconsistent with this history but consistent with Mr. Alamouti’s evidence. Her failure to reject that proposition is concerning.

[96] Further, M.P. describes that Mr. Alamouti appeared surprised by her reaction the following morning. If he had anally raped her while she verbally objected to the act, it is inconsistent that there would be any surprise in his reaction the following morning. Rather, that reaction is consistent with his evidence.

[97] Taking all of those factors into consideration, I have no reason to reject either of the principal witnesses, nor to accept the Crown’s evidence as being so compelling as to amount to a reason to reject Mr. Alamouti’s evidence. As a result, I have a reasonable doubt that the accused is guilty of a sexual assault.

[98] Mr. Alamouti is found not guilty.

Lemon J.

Released: November 23, 2018