COURT FILE NO.: CrimJ(P) 17-676 DATE: 2018 12 10 SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

v.

M.H.

BEFORE: Trimble, J.

COUNSEL: R. Prihar for the Crown P. Hiebert for M.H.

HEARD: October 1-5, 9 & 10, 2018

REASONS FOR JUDGMENT

INTRODUCTION

[1] A.A. says that on the afternoon of November 25, 2014, her then boyfriend, H., and two of his friends, one of whom was M.H., came to her apartment. While they were there, they smoked marijuana and drank alcohol. Some watched pornography on line. A.A. and H. had sex. After that, M.H. and A.A. had sex. While they were having sex, I.K. joined A.A. and M.H. By this time A.A. was on her bed, on her hands and knees wit. M.H. standing on the floor behind her engaging in vaginal intercourse and I.K. kneeling on the bed in front of her receiving oral se from her. A.A. ended the activity and asked them all to leave. They did. All of these sexual acts were consensual.

[2] The charges on the indictment and this trial stem from what A.A. alleges transpired later that evening when M.H. returned to the apartment.

POSITION OF THE PARTIES

A.A.

[3] A.A. says that later in the evening of the 25th, M.H. returned to her apartment, confined her by preventing her from leaving the apartment, choked and threw her to the floor, threatened to kill her and to “handle her”, and then sexually assaulted her in the bedroom and the bathroom.

M.H.

[4] M.H. exercised his constitutional right to not testify at trial, although he led one witness in his defence. His position at trial was that the Crown has not proved its case beyond a reasonable doubt.

[5] In determining M.H.’s guilt or innocence of the charges on the indictment, I deal with the following issues, in the following order:

1. THE CHARGES
2. EVIDENCE
3. GENERAL LEGAL PRINCIPLES a. Onus and Standard of Proof b. W.D. c. Myths and Stereotypes d. Reporting the Assault
4. CREDIBILITY a. Law b. Credibility Key Witnesses
5. POST EVENT CONDUCT
6. DECISION

THE CHARGES

[6] M.H. faces four charges in this trial, stemming from his involvement with A.A. on the evening of November 25, 2014:

1. common assault, contrary to section 266 of the Criminal Code;
2. knowingly uttering a death threat, contrary section 264.1(1)(a) of the Criminal Code;
3. sexual assault, contrary section 271 Criminal Code of Canada; and,
4. unlawful confinement, contrary to section 279(2) of the Criminal Code of Canada.

THE EVIDENCE

Admissions

[7] There are certain agreed facts:

1. M.H. is the person A.A. was introduced to by two nicknames;
2. A.A. identified M.H. in a photo lineup conducted on November 26, 2014;
3. M.H. was arrested for the offenses for which he stands charged, at his residence of 303 3025 The Credit Woodlands, Mississauga, at 8:48 a.m. on November 27, 2014;
4. A DNA warrant was obtained and a DNA sample taken from M.H. in March 2018;
5. Further, Officer Beata Turczak, after she completed her evidence on October 4, 2018, was asked to conduct a test to clarify some questions raised during her testimony. The officer conducted the test requested and determined that the time listed under the heading “time” on the call logs marked as Exhibits 10 and 13, referred to the beginning of a phone call regardless of whether the call was incoming or outgoing.

[8] The defence conceded that with respect to any of the charges, implied consent is not an issue.

[9] The parties also agreed that with respect to the call logs and text logs for M.H.’s cell phone (Ex. 10 and 11 respectively) the calls and texts listed were sent and received by M.H.

[10] Other than the above, all other evidence was contested.

[11] Most of the Crown’s case rests on A.A.’s evidence.

Preamble

[12] In November, 2014, A.A. was 23 years old. She worked and attended college. She had onlybeen seeing H. for about a monty. She did not know his last name. They were, however in regular contact. From 10:14:26 a.m. on November 24 through to 5:50:09 p.m. on November 26, 2014, they were in regular contact by text and phone.

[13] A.A.’s text logs (Ex. 5) indicate that at around 6 p.m. on November 24, A.A. and H. began to make plans for the afternoon of November 25. They agreed that H. would be at A.A.’s apartment at about 3 p.m. It was clear by texts that began at about 1:42:15 p.m. on the 25 th that H. was expecting sex when he got there. He indicated that a friend of his was going to come as well and that they were expecting group sex.

[14] In her testimony, A.A. acknowledged that she “played along” with the various requests for group sex. She did not say no. She did not think H. was serious. H. told her that he had known this friend for 12 years. The line of texting ended with A.A. saying “LOL OMG I doubt it”.

The First Visit to A.A.’s Apartment

[15] A.A.’s text logs indicate that at 2:31:24, H. was at the building asking to be let in, although A.A. testified that she thought it was about 3 p.m. About 45 minutes later M.H. arrived. She had not met M.H. before. H. wanted A.A. to meet him because they were close friends. M.H. was introduced as “Mo”. M.H. brought with him some food and a bottle of rum. The three smoked marijuana. The two men drank rum. A.A. did not recall whether she did. If she drank from it was from H.’s glass. They ate some food that M.H. brought. The three spent all of this time in the living room.

[16] A.A. left the living room and went into the bedroom where she called a friend. She does not recall how long this telephone call took. The call log from her cell phone (Ex. 13) indicates that there was a phone call of 28 minutes and 49 seconds at 3:50:29, which may be this call. After ending the call, she returned to the living room to find that another man present. He was introduced as “Chris”, a friend of H. and M.H. “Chris” was I.K. A.A. testified that she was not aware that I.K. was coming.

[17] The four young people stayed in the living room, and continued to smoke marijuana and drink. The discussion concerned basketball, mostly. The conversation took an uncomfortable turn when H. asked A.A. to strip for them. She refused. H. then asked to use A.A.’s computer to watch pornography. She provided her computer and password. A screen shot of the browser history (Ex. 2, photo 1896) showed that the computer was used to search for pornography.

[18] I.K. says that he arrived at A.A.’s apartment to find H., A.A., and M.H. in the living room. He confirms A.A.’s evidence that H. asked for A.A.’s computer and password so that they could watch pornography, and that they smoked and drank.

Consensual Group Sex

[19] At first, A.A. stayed within the living room while the men watched pornography but she felt uncomfortable. Therefore, she went to the bedroom. H. followed her into the bedroom and asked her to rejoin them. She declined, claiming that she was uncomfortable watching pornography with strangers. She and H. began caressing which led to sex with H. Both ended up nude, on her bed, having sex.

[20] A.A. said that during sex with H., M.H. appeared in the doorway. He walked towards the bed and sat near her head and began rubbing and caressing her face. Eventually she agreed to a threesome with M.H. and H. She was having vaginal intercourse with M.H. I.K. came into the room. H. encouraged I.K. to join the group. A.A. agreed. During this time, A.A. was on her hands and knees on her bed. M.H. was engaging in vaginal intercourse at from the rear and she was performing oral sex on I.K. She did not recall where H. was.

[21] A.A. says nobody wore condoms. She also thinks that M.H. and I.K. did not ejaculate.

[22] At some point, A.A. became uncomfortable with the situation. She was beginning to have a panic attack. A.A. thinks that she was beginning to sober up. She told the men that she had to go to the washroom. It took a couple of requests before the men allowed her to leave the bedroom. She entered the bathroom and locked the door. She was very uncomfortable and frightened. She wanted them all to leave. While she was in the bathroom, H. knocked on the door and said that she was being rude and disrespectful to the three men. She asked H., through the door, that they leave. At about 7:00 p.m. the three men left.

[23] A.A. was unsure whether she also texted the men and told them to leave. Her text log indicates that she did so, at 7:30:35, which fixes their departure time at shortly after 7:30.

[24] I.K. told a slightly different story. He said that after M.H. entered the bedroom, he was left in the A.A.’s living room, alone. He decided to go to the bathroom. As he walked towards the bathroom, H. came out of the bedroom, naked, and said words to the effect of “she’s ready for you”. He said that he reluctantly joined the group. He said that A.A. was naked on the bed. She gave him a condom before commencing oral sex on him. He assumed she gave M.H. a condom as well.

[25] In his examination-in-chief I.K. said that he saw M.H. ejaculate. In cross-examination he changed evidence. He indicated that he saw M.H. ejaculate on A.A.’s back. That is why she wanted to go to the washroom and clean up. He later said that he assumed that M.H. ejaculated.

The Lost Keys and M.H.’s Second Visit

[26] After three men left, A.A. put on her robe which had been hanging on the back of the bathroom door. She had intended to take a shower. Before she went for her shower, however, she began to tidy up. She noticed that somebody left a set of headphones in the apartment. (Police photographs - Ex. 2, photo no. 1893 - show a set of ear buds in the bathroom garbage can). She called H. to say that she had found them.

[27] A.A. testified that at about an hour after the men left, she received a phone call from H. who said that M.H. left his keys in the apartment. This is supported by a text which she received at 8:17:25 p.m. when H. texted saying “he [M.H.] forgot his house keys”. A.A. looked around her apartment but couldn’t find them. She said that she called H. back and told him this. H., however, was adamant. He could hear M.H. in the background saying that his keys were in the apartment. She told H. that M.H. could come back to look for his keys but H. had to come with him. H. agreed.

[28] A short while later (A.A. doesn’t remember how long), M.H. arrived, alone. A.A. was still dressed only in her robe. She opened the door and told M.H. that he should look for his keys, then leave. He said “okay”. A.A. says that he looked in the bedroom, bathroom, living room, and kitchen, but could not find his keys. She estimated that this took 15 to 20 minutes. During this time, A.A. waited in the living room.

[29] After five minutes, she told M.H. that he was taking too long to look for his keys and he should leave. She says that M.H. responded by saying that he would take as long as he needed to. A.A. was becoming comfortable. She began to lift her phone to make a phone call when M.H. grabbed it and put it in his pocket. He said it was disrespectful to try make a phone call when he was talking to her. She said that she was going to go to her neighbour’s apartment. She was feeling frightened at this time. She started towards the door. M.H. blocked her path and said “you’re not going anywhere”. A.A. put her hand on his chest to push him aside, but M.H. grabbed her arm, spun her around, and put her in a choke hold. He exerted pressure such that he could not breathe. She thought she might lose consciousness. He lifted her up with this chokehold and slammed her down such that she hit the coffee table on her way to the ground. The coffee table slid against the television stand. A knob on the television stand poked a hole in the leg of the table.

[30] When she was on the ground, A.A. was terrified. She was going to scream but M.H. told her to do what he said or he would kill her. She said “okay”. She tasted blood in her mouth. She spat it out on the floor. She was in survival mode at this point.

[31] M.H. told her to go to the bedroom. She complied. M.H. followed her in and told her to lay on the bed. She did, on her back. M.H. removed his pants, stood in front of her, and had vaginal intercourse. By this time, A.A. says that her robe was open. During intercourse, M.H. asked her where she wanted him to ejaculate. She said she told him to ejaculate outside of her. She thinks he ejaculated on the left side of her body and leg, and that some of it probably got on the robe. M.H. did not use a condom.

[32] That incident ended when M.H. got a phone call from H. She knew this because M.H. said “Hey H.” into the phone. When M.H. took the phone call, A.A. got up to go to the bedroom. M.H. blocked her away and said she could not go. She said she had to go to the bathroom. M.H. permitted this.

[33] A.A. stood in the bathroom for what she thought was one or two minutes. M.H. came in caressed her and said she was sexy. She told M.H. to leave. M.H. told her to bend over. She said no. She was terrified at this point and pled for him to leave. Again, M.H. told her to bend over. Again, she refused and told him to go. He said he would go when he was ready. He approached her face and said that if she disobeyed him again he would have to “handle” her. She knew this phrase to mean he would hit her again. M.H. asked her “You want me to handle you more?” She said no.

[34] A.A. was crying, but she finally bent over. She said that initially she was merely standing and bent over. Eventually she bent over the edge of the tub. M.H. penetrated her vaginally from behind without a condom. She does not think he ejaculated. She does not know how long this episode lasted.

[35] The episode ended, when M.H. got another call from H. She knew this because she heard M.H. say “Hey H.”. M.H. left the room. She looked over to see M.H. still wearing his t-shirt and blue and white checked boxer shorts. His green pants were on the floor just outside the bathroom. She noticed part of his key ring hanging out of his pant's pocket. At that point she realized that he had been lying, all along, about the keys.

[36] A.A. testified that before he left, M.H. apologized to her and said that if she had been more cooperative, “it wouldn’t have been like this.” He put on his clothes and left.

I.K.’s Evidence

[37] I.K.’s evidence also places M.H. in the apartment at the relevant time. He confirms the discusisons among H., M.H. and he about M.H. having left his keys in the apartment and M.H. expressing the intention to return to the apartment. He says that he and another friend picked M.H. up from A.A.’s apartment.

What Do The Cell Phone Records Say?

[38] A.A.’s cell phone call logs (Exhibit 13) indicate that A.A. made a phone call at 8:46:54 that lasted six minutes and seven seconds, thereby ending at 8:53:01. There is then a gap in her phone log ending at 9:21:46. This means that, assuming M.H. was in the apartment, he was there for approximately 28 minutes. Her cell phone text logs (Ex. 5) supports this. It indicates that she sent texts at 8:19:53 then at 9:38:16, both to H.

[39] M.H.’s text log (Ex. 11) supports A.A.’s evidence, too, generally. M.H.’s texting is frequent until 8:13:44. At 9:02:07, he received a text from H. in which H. asks “R u murdering it”. At 9:31:22, M.H. responded to H. saying “yeah she wanted it”. H. responded at 9:31:52 saying “well, obviously u idiot she was asking to come back U”. While these texts do not support A.A.’s evidence that M.H. was receiving phone calls from H., the texts to correspond, approximately, with two contacts with H. that M.H. had during the time he was in the apartment.

[40] That M.H. left at approximately 9:20, or 9:30, is also supported by his text logs which show that regular texting with H. and others begins at 9:47:29.

After M.H.’s Second Visit

[41] After M.H. left, A.A. was numb, scared, and overwhelmed. She was angry at H. According to M.H.’s text logs H. texted him at 9:47:51 and told him that A.A. message him saying that M.H. had raped her. This is confirmed by A.A.’s text log where that conversation begins at 9:44:58.

[42] A.A.’s text logs show that between 9:38:16 p.m. on November 25 and 9:15:34 she texted with H. accusing M.H. of rape.

[43] A.A. concluded that H. had set her up for the group sex and to be attacked by M.H. because M.H. was present with H. during the telephone calls about the loss of the keys. She wanted to confront him about it. Accordingly, she changed tactics. From 9:52:50 to approximately 10:51:33, A.A. texted H. to arrange another group sex session. She said that she did this in order to convince H. to meet with her so that she could confront him. A meeting was arranged in the parking lot at a local school.

[44] A.A. went to the school parking lot with two male friends. When H. arrived at the rendezvous point, A.A got out of the car. H. noticed that there were others in the car. He asked who was in the car, by which time the men were getting out of the car. H. left, abruptly. In his series of texts between 10:57:18 and 11:01:10, p.m. H. texted A.A. saying “Who r u tryna set up”. He threatened her by saying that “U fucked w the wrong dude”, and “you’re so god damn lucky girl that I’m on probation your boy would’ve got sliced.” He ended with “We fucked your girl nigga and if you want problems we link up 1050 Stainton U bitch nigga U know ur done.”

[45] While H. and A.A. were texting about setting up another potential threesome and about her setting him up, H. was texting M.H. In a series of texts that began at 9:47:51 p.m., H. told M.H. that A.A. accused M.H. of rape, and told M.H. to leave him [H.] out of it. H. said that he had warned M.H. not to go back to A.A.’s apartment “to fuck her”. M.H. replied “I did”. H. insisted that he wanted no part of the rape allegations to which M.H. says at 9:55:16 “yes I ain’t no rat bro”. A minute later, however, M.H. accused H. “you did this to me with that white whore don’t worry bro we good.” Texting between H. and M.H. ended and 11:49:12.

Reporting sexual assault

[46] Following the aborted attempt at confronting H., A.A. dropped her male friends at their home and went to her cousin, S.’s apartment in Scarborough. S. convinced her to get medical attention. She also convinced her to go to the police. They first attended a hospital in Toronto. They were referred to at a second hospital where new nurses were trained to do the rape kit.

[47] Next, A.A. went to Toronto police. Because she lived, and events occurred, in Mississauga, she was referred to the Mississauga police’s SVU.

[48] A.A. attended at the Peel police station on November 26, where she reported the events of M.H.’s second visit to her apartment. Following that, she and the police went to the apartment where the police searched the unit and collected evidence.

[49] During her first interview with the policel A.A. gave them her phone. The police did a dump of information on the phone. After analysing the contents of the phone, the police invited A.A. in for a second interview which took place on November 28, 2014. A.A. provided further details about the events of M.H.’s second visit on November 25.

[50] At the second interview, they asked her about texts she sent H. concerning something she texted about, which occurred the night of November 24-25. In her examination in chief, A.A. admitted that officer Harris asked her about this. This question was based on a text exchange that occurred between H. and A.A. on November 25 between 2:43:31 and 10:54:57 a.m. A.A. told the police that late on the 24 th she went to Humber College to take a text book to a friend who lived in residence. While returning to her car, she was assaulted by someone who tried to rob her. She pressed the emergency button and security came, but nothing happened after that. She did not call the police. She reported that she was stopped, grabbed, and choked by the assailant. In her text discussion with H. however she said that she was attacked at school as part of an attempted robbery in which “he was feeling me up” and “he was choking me too”.

[51] A.A. admitted that the police pressed her several times on November 28 about whether the story was true. Initially, she said that it was but, by the end of the statement had admitted that that the episode was a lie. She explained that she lied to H. because she was insecure in her relationship with H., knew that H. was interested in other women, and she wanted him to feel sympathy for her. She agreed in cross-examination that she lied to the police. She told the police that all of this was an attempt to get attention from H. She did not tell the police about it because she did not want to appear ashamed and desperate.

Other evidence

[52] T he police investigation produced a number of photographs (Ex. 2) which supported A.A.’s evidence. One showed a hole in the leg of the coffee table the size and height of the knob on the TV stand consistent with A.A.’s evidence of the whole caused when she pushed the table against the TV stand when M.H. threw her down. Another showed a stain on the floor which appeared to be saliva and blood which is consistent with A.A.’s evidence that she spat up on the floor after she was thrown down after being choked. Another showed a broken necklace, which is consistent with A.A.’s is evidence that her necklace was broken during M.H.’ S attack on her in the living room.

[53] DNA evidence was called. A drinking glass and A.A.’s robe were tested for DNA.

[54] Allison Morris, a forensic scientist with the Center for Forensic Sciences, gave evidence with respect to the DNA testing. The defence took no issue with her qualifications or with the test results. They did take issue, however, with issues of methodology which were explored in cross-examination. The Defence produced no expert. Following cross-examination I had no reasonable doubt about her methodology. I accept her evidence.

[55] DNA was taken from the rim of a drinking glass. Ms. Morris’ evidence was that the sample taken from the drinking glass showed two DNA profiles, one of which matched M.H.’s. Ms. Morris said that the probability that a randomly selected individual unrelated to M.H. who coincidentally shared the same DNA profile was one in 4.3 quadrillion.

[56] DNA was also taken from a number of semen stains on the robe. One found on the right lower front panel of A.A.’s robe contained a mixture of DNA from two individuals at least one of whom was a man. Analysis indicated that M.H. could not be excluded as a contributor to the mixture. Ms. Morris stated that the DNA results from the robe are estimated to be 140,000 times more likely to have originated from M.H. and another unknown individual than if they had originated from two unknown individuals unrelated to M.H.

[57] The DNA results from the drinking glass support A.A.’s evidence that M.H. was in the apartment during the period of consensual sex. The DNA results from the robe, while more fragile in terms of their reliability, support A.A.’s evidence that at some point while M.H. was in the apartment, he ejaculated, and was not wearing a condom. This DNA evidence is neutral in terms of A.A.’s evidence.

1) GENERAL LEGAL PRINCIPLES

a. Onus and Standard of Proof

[58] The Crown bears the onus to prove M.H’s guilt beyond a reasonable doubt. If I am left with a reasonable doubt with respect to a charge, I must acquit M.H. of that charge. The Crown’s burden is a very heavy burden. There is no controversy between the parties about this.

[59] In a sexual assault case, R. v. Ewanchuk, [1999] 1 S.C.R. 30, instructs us that the Crown must prove the actus reus and the mens reus, beyond a reasonable doubt.

[60] In order to prove the actus reus, the Crown must prove a touching, the touching was of a sexual nature, and the absence of consent. The first two of these is objective. The absence of consent is purely subjective, determined by reference to the victim’s subjective internal state of mind towards the touching of the timing it occurred.

[61] With respect to consent, the complainant’s testimony is usually the only source of evidence as to her state of mind. Her credibility, however, must still be assessed based on all of the evidence. It is still possible, based on an assessment of the complainant’s evidence with respect to consent and her actions before, during and after the event, raise a doubt about her evidence on consent.

[62] Consent, of course, must be freely given. Even if, in the circumstances of the case, it may be inferred that the complainant by her conduct appeared to consent, if her submission to the accused was by reason of force, fear, threats, fraud, or the exercise of authority, consent is not effective; see section 265(3) of the Criminal Code.

[63] The question in a sexual assault case is not whether the trial judge believes the complainant or believes the accused (if he testifies), or whether, on a different onus and burden of proof, a different result might be achieved. The only question for a trial judge is whether the Crown has proved beyond a reasonable doubt that the accused committed the crime(s) with which he is charged. With this onus and burden of proof, whether the trial judge believes the complainant is an important consideration, but it is only one consideration among many. Regardless of whether the judge believes the complainant over the accused (if he gives evidence), if the judge, after hearing all of the evidence is still left with a reasonable doubt about the accused person’s guilt, s/he must acquit.

[64] Madam Justice Molloy, in R. v. Nyznik, 2017 ONSC 4392, at para. 16, commented on this issue as follows:

It is sometimes said that the application of these principles is unfair to complainants in sexual assault cases, that judges are improperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused. In my opinion, those critics fail to understand the purpose of a sexual assault trial, which is to determine whether or not a criminal offence has been committed. It is essential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideas about how victims of assault will or will not behave. However, the focus of a criminal trial is not the vindication of the complainant. The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye-witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring that innocent people are never convicted.

[65] I will deal with legal basis for the other charges, under the “decision” heading, below.

b) W.(D.)

[66] Usually, in a sexual assault trial, the only witnesses to the various assaults are the complainant and the accused.

[67] Where the Court hears from the complainant and the accused, it is wrong to pit the complainant’s version of events against the accused': see R. v. Riley, [1978] O.J. No. 1007. The Judge must apply the principles set out in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) concerning the application of the Crown's burden of proving guilt beyond a reasonable doubt and the issue of credibility. Cory J. said at page 409:

27. In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, [1992] 1 S.C.R. 771, supra, at p. 357.

28. Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[68] Where the evidence is “he said/She said”, Cory, J.’s second level of analysis has been reformulated to be:

“If, after a careful consideration of all the evidence, if you are unable to decide whom to believe, you must find the accused not guilty because the Crown would have failed to prove the accused’s guilt beyond a reasonable doubt (see R. v. H. (1991), 68 C.C.C. (3d) 146 (B.C.C.A.) per Wood J.A. at p. 155

[69] In this case, M.H., exercising his constitutional right, elected not to give evidence, himself, although he called evidence in the form of I.K.

[70] W.(D). is also a useful tool where the accused does not give evidence. It applies as long as there are credibility or other findings to be made between conflicting evidence called by the defence or out of evidence favourable to the accused called by the Crown. The question remains, is there reasonable doubt: see R. v. B.D., 2011 ONCA 51, at para. 114.

c. Myths and Stereotypes

[71] There are many myths and stereotypes often invoked in cases of sexual assault, none of which are appropriate or proper. These include such propositions as

• women fantasize about being rape victims;
• they really mean “yes” when they say “no”;
• any woman could resist a rapist if she wanted to;
• the woman could have walked away;
• women deserve to be raped because of their conduct, dress, and demeanor;
• sexually experienced victims do not suffer harm to the same extent when raped;
• women are passive, disposed to surrender to the sexual advances of men; and
• sexual love consists of “possession” by a man of a woman.

See: R. v. Ewanchuk, [1991] 1 S.C.R/ 330, at para. 82 to 89, 93-94, and 103; R. v. A.R.J.D., 2017 ABCA 237, at para. 42 to 44.

d. Delayed or Incremental Reporting of Sexual Assault

[72] Defence counsel submits that the delay in reporting the assaults, and following delayed initial disclosure, incremental disclosure and lying thereafter, should negatively affect my assessment of the complainant’s credibility.

[73] In R. v. D.D. (2000), 148 C.C.C. (3d) 41 (SCC), the Court gave clear direction that delayed or incremental disclosure, standing alone, cannot adversely affect the credibility of a complainant. There are no fixed rules about how victims of sexual assaults must behave, including with respect to when they make reports. Indeed, one of the myths and assumptions that are improper to make in sexual assault trials is that women who are assaulted would normally report the assaults immediately, and if they do not do so, an adverse inference should be drawn that the assault did not occur as stated: see also R. M., (1992) 77 C.C.C. (3d) 402 (Ont. C.A.), para. 408-9.

[74] Some victims of sexual assault will report immediately, some later; some incrementally, and some not at all. Some will tell the truth, initially, and some later. Their reasons for not reporting, delayed reporting, or not being truthful when initially reporting are as many and varied as the victims, but include fear, guilt, embarrassment, or lack of understanding and knowledge. Justice Major said at paragraph 65 in D.D., supra: “ In assessing the credibility of a complainant, the timing of the complaint, standing alone, will never give rise to an adverse inference against the credibility of the complainant. ” The same applies with respect to delayed disclosure or only partial disclosure: see R. v. L.K., 2011 ONSC 2562, [2011] O.J. No. 2553 (S.C.J.), para. 24.

[75] It is sometimes said in cases where complainants revealed details of their ordeals in a piecemeal fashion, or make up details because they are ashamed, or embarrassed, that that they are being selectively dishonest. Subject to the overall assessment of the witnesses credibility, if the “selective dishonesty” does not concern the specific allegations that went to the core of the complaint against the accused, it should not’s, standing alone, affect the credibility of the complainant’s testimony: see R. v. F.L., 2017 ONCA 472, at para. 16, aff’g R. v F.L., 2015 ONSC 6382, at para. 93-103.

2) CREDIBILITY

a. Law

[76] The credibility of the witness is determined by addressing two questions: 1) is the witness “believable”, and 2) is the witness’s evidence “reliable”.

[77] Trial judges, like juries, rely on many factors in assessing the weight to be given to the testimony of witnesses based on an assessment of that witness' reliability and ultimate credibility. Triers of fact can also believe some, none, or all of the testimony of any particular witness.

[78] Assessing credibility involves assessing many factors. As the Ontario Court of Appeal said in R. v. M.W.M. [1998] O.J. No. 4847 at para. 3:

…In weighing credibility, it is appropriate for a trier of fact to consider a witness' motive or lack of motive to fabricate and, although the trial judge dealt with the subject at considerable length, we are not persuaded that he shifted the onus to the appellant to prove such motive nor that he equated credibility with the absence of such motive…

[79] Some of these factors are:

a) The demeanour of the witness – this is an important factor, although not the only factor. People react differently in what, to them, is a strange environment. Witnesses come from different cultural and social backgrounds. All of this means that the non-veR.B.al cues may be difficult to assess. Findings of credibility should not be made on demeanour, alone. See: R. v. L. H., [2007] O.J. No. 1588 (S.C.J.), para. 83 to 86, R. v. K.A. (1999) 123 O.A.C. 161 (C.A.), para. 172.

b) Does the evidence of the Witness make sense? - is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and condition? See: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.).

c) Internal Consistency. Does the evidence have an internal consistency and logical flow? R. v. C.H., [1999] N.J. No. 273 (Nfld C.A.).

d) Prior inconsistencies. Is the evidence consistent with prior statements (e.g. Discovery evidence)? How significant are the differences, and are they adequately explained? R. v. Dinardo, [2008] 1 S.C.R. 788.

e) Is there independent confirming or contradicting evidence? R. v. Khan, [1990] 2 S.C.R. 531.

f) Interest in the outcome and a motive to fabricate. Does the witness have such motivation? The mere motivation to win or lose the case is not sufficient. The interest must be beyond that. See: R. v. S.D, 2007 ONCA 243, 218 C.C.C. (3d) 323. The absence of evidence of motive to lie does not mean that there is an absence of motive. There is a difference between an absence of apparent motive and proven absence of motive. The Court must remember that there is no onus on the defence. See: R v. L.L. 2009 ONCA 413, [2009] O.J. No. 2029 (C.A.).

[80] No one of these factors is determinative. In addressing the credibility and reliability of each of the witnesses I have considered all of these factors as they apply to each witness. I have also considered the alleged numerous frailties in the witnesses’ testimony that were highlighted in defence counsel’s submissions.

3) Credibility of the Witnesses in this Case

[81] The main fact witnesses were A.A., and I.K. Both had witnesses had credibility issues.

A.A.

[82] M.H. says that I should not find A.A. credible. Her evidence does not get the Crown over the reasonable doubt threshold. He says this for the following reasons:

1. The complainant’s timelines cannot work. According to his call logs, M.H. was in the apartment for approximately 28 minutes. Therefore, he cannot have spent 20 to 25 minutes looking for the keys, as A.A. testified, and then had time to assault her twice, in two different places, then put his trousers on and leave.
2. Her evidence is contradictory as to where M.H. left his pants. She does not explain why they were found in the living room.
3. She did not leave the apartment when she had the opportunity.
4. She lied to H. in texts, and she lied to the police about the alleged Humber College assault. With the pilice, she held onto that lie as long as she could, relenting only when she realized the possibility that the charges would be dropped, or not succeed.
5. She did not tell her doctor or the hospital about the multi-party consensual sex that occurred earlier in the day which, M.H. says could have caused some of the injuries A.A. alleged.
6. She did not tell the police about the multiparty consensual sex.
7. While she said to the police on November 26 that M.H. threatened to kill her, the threat was only to choke her.
8. She admitted that she took her two male friends with her to meet H. and would not be upset if they beat up H.
9. She originally said she texted the three men to leave following the consensual sex when and but later agreed that she told him to leave, verbally, as well.
10. She did not refuse M.H. entry to her apartment when she insisted that H. come with him.
11. Her evidence conflicted with that of I.K., a reliable witness.

[83] Considering all of the evidence, I conclude that on questions material to the events of November 25, A.A. is generally credible. I say this for the following reasons:

1. She answered questions on cross-examination relatively forthrightly. When she could not answer a question, she admitted so.
2. More specifically, she was frank in admitting that she lied to police about the Humber College incident. She explained that she made up that story and texted H. about it because she was insecure and she knew that H. was pursuing other women. She did not tell the police about this text stream because she was embarrassed about it. She did not want to appear needy or desperate in front of the police. Her explanation is reasonable.
3. She freely admitted that after M.H. left, she was more interested in confronting and getting even with H. than going to the hospital. She explained in her examination-in-chief that this was because she believed that H. had set her up not only for the consensual group sex earlier in the day, but also for M.H.’s return visit.
4. With respect reporting to her doctors, she admitted that she did not report to the hospital, the rape kit nurse, or family doctor about the multiparty consensual sex earlier in the day. She was not asked about it and therefore did not say anything.
5. With respect to the discussion of group sex in the texts, before the group arrived at her apartment, she indicated that she was merely playing along with H. Towards the end of the discussion she did indicate that the others were “not getting any from me”. She indicated she was not going to strip in front of others. When H. suggested that they could have sex in front of the others, she said no. When H. persisted, she responded with “we’ll see”. There is no clear agreement, as M.H. suggests.
6. The call logs and text logs, generally, support her version of events. For example, she said that she left the living room to the bedroom and had a long call with her friend Natasha. There is a call of approximately 30 minutes on her call logs. While her memory of specific times is often incorrect, it is not incorrect by any order of magnitude.
7. Her memory is objectively correct, in specific detail. For example, she had a detailed memory of what M.H. was wearing when he arrived at her apartment, for the first time. She described his hat, his coat, and his trousers. The DVD containing security footage of the entrance to 3025 Credit Woodlands from later that day, M.H.’s home, indicates that he was wearing the clothes that she described.
8. M. H. argued that A.A. had a motive to fabricate; namely, she wanted to get even with H.. When she could not do that, directly, she decided to do so indirectly by inventing allegations against M.H., H.’s friend of over 12 years. This makes no sense. An easier way to get back at H. would have been to report to the police that the group sex earlier today was not, in fact, consensual.

I.K.

[84] Aside from telling the court that M.H. was reliable and would never have done what he is alleged to done, the main purpose for of I.K.’s evidence appears to have been to attack A.A.’s credibility by contradicting her evidence, or to add credibility to M.H.’s suggested version of events. For example, he said:

1. When he arrived, A.A. was in the living room, and that he was introduced to her, thereby contradicting her evidence that I.K. arrived when she was in the bedroom and that she was unaware of his arrival.
2. He saw M.H. ejaculate on A.A.’s back during the group consensual sex. A.A. testified that M.H. did not ejaculate until after sex when he returned to the apartment to assault her.
3. He heard M.H. exclaim that he could not find his keys, after they left A.A.’s, had eaten, and M.H. was going to take the bus home.
4. He said that A.A. spoke to the three men at her apartment about the made-up assault earlier in the day at Humber College. She denied that she said this to the three men.
5. He said that when he called M.H. while he was still at A.A.’s apartment, he overheard M.H. and A.A. giggling, with A.A. saying that he had to leave because her mother was coming. This speaks to the question of consent.
6. He also established the timelines, by his telephone calls, as to when M.H. was in the apartment during his second visit.

[85] Defence counsel submitted that I.K. was a good witness. All of his contradictions to the police where explained. When he lied to the police, it was submitted that the police did not tell him to tell the truth nor was he cautioned. He said that he lied because he was afraid he might be charged. He was never reassured that he would not be charged. He was candid with the court. He was candid with the Crown at trial. His story has not changed. His memory was clear on many things.

[86] I do not find I.K. a credible witness. I say this for the following reasons:

1. He admitted that he and M.H. were good friends, having known each other for 12 years.
2. He admitted that he looked out for his friends and that he wanted to protect M.H. Even without this admission, his bias was palpable.
3. He said at trial that during the consensual group sex, he thought that M.H. was wearing a condom. He later said that he was not, and that he saw M.H. ejaculate on A.A.’s back. To the police, however, he was not forthright. He originally said that he had no memory of seeing I.K. ejaculate. At another point, to the police, he said that M.H. did not ejaculate. Indeed, he gave evidence about a discussion between the three men about not ejaculate. As he spoke to the police, (as he said in a trial) he “gained recollection” during the interview.
4. In his evidence in chief he said that he had not seen M.H. in two weeks before the 25 th. In fact, M.H.’s phone and text logs indicate that they had seen each other the day before.
5. He said that trial that his memory was more clear now as it was four years ago, yet he could not remember, on cross examination, whether he heard H. ask A.A. to strip for them.
6. He said at trial that there was no discussion with H., prior to arriving at A.A.’s home, about having group sex. This is not consistent with other evidence. Given his evidence at trial, when H. left the bedroom naked as I.K. was heading to the bathroom and said to I.K. “she’s ready for you”, the natural response would have been “for what?” Further, in M.H.’s text logs, when they were arranging the afternoon at A.A.’s apartment, I.K. asked what A.A. looked like. At trial, he denied the suggestion that this was because he was expecting group sex. He said that he was merely asking because this is a “male” thing to do. His question in the text messages is more consistent with being aware of a group sex event to happen then his explanation.
7. He portrayed himself as an innocent, reluctant participant in the group sex event. He said at trial that he only participated so that he would not be seen as “a party pooper”. I do not accept this. This evidence seemed contrived. He explained some of his failure to answer these questions on the basis that he was embarrassed to admit that he was looking at another man while they were both having sex with the same woman. This makes no sense in light of other evidence where he says he was looking right at M.H. to see him ejaculate. That he was embarrassed does not make sense in light of the fact that he and one other mail were both having sex with a female while the third male stands before the bed watching.
8. His evidence about the discussion about “keys” was inconsistent. At one point he said it was at the bus stop but then says that H. texts A.A. while at the Chinese restaurant. He said that M.H. was always good at looking for his keys and his phone, yet at another time said he was always being locked out of his apartment.
9. He said at trial that when the police first approached him, he said he had no idea why they were there. This is contradicted by his statement to the police that he had heard through the defendant that A.A. was alleging sexual assault by M.H.
10. He lied to the police when he said that he had no contact with M.H. or H. after he got on the bus, when it is clear from the phone and text logs they continued in contact with M.H. after events finished at A.A.’s apartment.

[87] The overall flavor of I.K.’s evidence, and the most logical explanation for the changes and inconsistencies, is that he was trying to protect his friend.

[88] On balance, I prefer the evidence of A.A. over that of I.K. Overall, the independent and physical evidence corroborates what A.A. said.

4) POST OFFENSE CONDUCT AND THE CONSCIOUSNESS OF GUILT

[89] The Crown asks that I take into consideration post offence conduct, namely the fact that M.H. told H. to delete his phone number and texts, and to cut all ties. The Crown says that this evidence is relevant to a consciousness of guilt and is therefore admissible.

[90] M.H.’s text logs indicate that at 9:47:51 on November 25 H. told M.H., for the first time, that A.A. was alleging sexual assault. At 9:48:29, after H. texted M.H. to say that, H. told him not to go back to the apartment “to fuck her”. To this, M.H. responded at 9:48:29, “I did”, which, in contact text refers to going back and having sex with A.A. At 9:48:39, M.H. said to H. “I delete your number”. Beginning at 9:15:29, M.H. texted H. a number of things indicating that he wanted to end all connection with H. For instance he said “when I wake up or right now I don’t know tun”. Seconds later, he corrected himself by texting “I don’t know you”. H. responded with “okay”. M.H. texted again to say “delete everything”. After that time, H.’s phone showed that all messages between M.H. and H. that appeared on Exhibit 5 were deleted.

[91] In R. v. White, [1998] 2 S.C.R. 72 (White #1), beginning at para. 19, the Supreme Court of Canada held that under certain circumstances the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused’s culpability for that crime. In order to admit post offense conduct, the conduct must be consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent purpose. Such evidence is no different than any other kind of circumstantial evidence. It must be weighed in light of all the other evidence in order to determine whether it is consistent with guilt, and inconsistent with innocence. If the trier of fact concludes that the post offense evidence is consistent with guilt and inconsistent with innocence, then that evidence has to be considered with all of the other evidence of determining whether the Crown has met its burden.

[92] In R. v. White, 2011 SCC 13 (White #2), the court revisited question and held that after-the-fact conduct is still good law. At its heart, the question is one of relevance. It may be highly incriminating or merely corroborative. As with all circumstantial evidence, it is admissible if it supports the inference of guilt and no other inference.

[93] Based on my other findings, as indicated below, I am able to reach my conclusions on the charges in the indictment without reference to the post event conduct referred to. I deal with it here, for the sake of completeness.

[94] I find that M.H.’s post event conduct of deleting from his smart phone all contacts with H. is consistent with consciousness of guilt, and not consistent with any other reasonable conduct. They were close friends, for a long time. The only possible explanation is that M.H. must have thought that by having H. erase all contact with M.H. from H.’s phone, A.A. and the police would have no way of tracing or finding him. A.A. only knew him as Moe or Hakim. She did not know his last name or address. Her text logs do not include his phone number, although her phone logs do show his number. Erasing all reference to H. from his phone is consistent with an attempt to eliminate anyone’s ability to find him through H.’s phone.

DECISION

Charge number one on the indictment – common assault contrary to [section 266 of the Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/section-266.html)

[95] In order to sustain a charge of common assault, the Crown must prove that M.H. intentionally applied force to A.A., that she did not consent to the force he intentionally applied, and that M.H. knew that A.A. did not consent to the force that he applied.

[96] On all of the evidence I am satisfied that the Crown has proved the essential elements of this charge beyond a reasonable doubt. I find that after M.H. came to the apartment the second time he placed A.A. in a choke hold lifted her up and threw her down to the ground. I find that she did not consent to this contact and that M.H. knew it.

[97] Accordingly, a finding of guilt will be entered on charge number one.

Charge number two on the indictment – uttering a death threat, contrary to [section 264.1(1)(a) of the Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/section-264.1.html)

[98] In order to sustain a charge of uttering a death threat, the Crown has to prove beyond a reasonable doubt that M.H. made a threat, that the threat was to cause A.A.’s death, and that he made the threat knowingly; see, R. v. McRae, [2013] 3 S.C.R. 931.

[99] On all of the evidence, I am left with a reasonable doubt. The plaintiff’s own evidence conflicts about the elected threat to kill her. While she said in her examination for chief that M.H. threatened to kill her if she did not cooperate, in her text message to H. of 9:48:41, she said only that “He told me that if I don’t keep quiet and I don’t do what he says that he will hurt me and choke me more”. She admitted that she was inconsistent on the subject with the police.

[100] Accordingly, a finding of not guilty will be entered on charge number two on the indictment

Charge number three – sexual assault, contrary to [section 271 of the Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/section-271.html)

[101] In order to sustain a charge of sexual assault, the Crown must prove on a balance of probabilities that there was contact, that contact was of a sexual nature, the contact was intentional, and that A.A. did not consent. The accused must have the intention to touch or make contact with the accused and intend, be reckless with respect to, or wifully blind toward the lack of consent; see R. v. Ewanchuk, [1999] 1 S.C.R. 30.

[102] On all of the evidence, I find that the Crown has proven the essential elements of the charge beyond a reasonable doubt. I find that M.H. returned to A.A.’s apartment, second time, on the pretense of having lost his keys there. I find that while there he assaulted A.A. twice, intending to do so both times. I find that A.A. did not consent. Even though she did not try to leave the apartment and even though she went to the bedroom when M.H. commanded her, I find that there was no consent; she was acting out of fear, having been physically assaulted moments before.

[103] Accordingly a finding of guilty will be entered on charge number three on the indictment.

Charge number four on the indictment – unlawful confinement, pursuant to [section 279(2) of the Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/C-46/section-279.html)

[104] In order to sustain the charge of unlawful confinement, the Crown has to prove beyond a reasonable doubt that M.H. intentionally confined A.A. and that his confinement of her was without any lawful authority; see, R. v. Pritchard, [2008] 1 S.C.R. 195. This offense is a general intent offense that requires the prosecution to prove only the minimal intent to effect deprivation of freedom of movement: see, R. v. B. (S.J.) (2002), 5 C.R. (6th) 345 (Alta. C.A.). Confinement does not require proof of total physical restraint of the victim. It is not necessary for the victim to have been confined for the entire time that the accused and the victim were together. It is sufficient that the victim was restrained against her wishes for any significant period of time for confinement to taken place: see, R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.).

[105] Based on all of the evidence, I’m satisfied beyond a reasonable doubt that before he assaulted her and sexually assaulted her, M.H. barred A.A.’s path so that she could not leave the apartment. Based on all the evidence, I am satisfied that he also confined her when he prevented her from leaving the bathroom before the second sexual assault. I am also satisfied that he confined her by physically blocking her path, and through his threat of further violence, restrained her, without lawful justification.

[106] A finding of guilt will be entered in respect of count 4 on the indictment.

Trimble, J.

Date Released: December 10, 2018

COURT FILE NO.: CrimJ(P) 17-676 DATE: 2018 12 10 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – M.H. REASONS FOR JUDGMENT Trimble J. Date Released: December 10, 2018