COURT FILE NO.: 17-SA5129 DATE: June 13, 2019

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – BRIAN LANDRY

Counsel: Sabrina Goldfarb for the Crown Ian Paul for the Defendant

HEARD: May 13 to 17, 2019

THIS DECISION IS SUBJECT TO A PUBLICATION BAN ORDERED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE. any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

JUSTICE SALLY GOMERY

[1] Brian Landry is charged with sexual assault causing bodily harm contrary to section 272 of the Criminal Code against the complainant A.V. between November 30 and December 2, 2016.

Factual Overview

[2] In 2016, the defendant and the complainant were both students in the same program at A[…] College in Ottawa. They did not know each other well, but exchanged texts on November 30 after the defendant messaged the complainant on Facebook. Two friends of the defendant had been involved in a car accident earlier that day and he wanted some company. At about 10:30 p.m., he met up with the complainant on campus and they walked to the house he shared with other students. They talked in the living room for several hours. They both drank gin and tonic from the same glass, which the defendant topped up a few times.

[3] At about 2:00 or 2:30 a.m., they moved to his bedroom. The complainant lay face down on the bed. The defendant straddled her hips and gave her a massage, starting at her shoulders and moving down her back. He then began lowering her pants and underwear. The complainant asked the defendant: “What are you doing?”

[4] Their accounts of what happened next diverge significantly.

[5] According to the defendant, the complainant communicated, through her words and actions, that she was fully consenting to any and all sexual activity. He says that she specifically asked whether they would have sexual intercourse and ultimately said: “If you want to do it, let’s just do it.” After they performed oral sex on each other, he says that the complainant climbed on top of him and initiated vaginal intercourse. The intercourse ended when he accidentally thrust against the complainant’s perineum, which was painful for both of them. She then told him she did not want to resume any sexual activity, he walked her home, and they left on good terms after hugging one another.

[6] The complainant’s account of what occurred after she asked “What are you doing?” is very different. She says that the defendant pressured her, through words and gestures, to participate in further massaging, kissing and oral sex. She never clearly consented to any activity but did not object either. When however the defendant lay on top of her and began to rub his penis near her vagina, she said: “No, I’m not doing this, especially without a condom”. He replied: “I swear on my nephew’s head that I am clean” and penetrated her forcefully. A few minutes later, according to the complainant, the defendant flipped her over onto her front and penetrated her anally. She screamed: “No, get off of me” and he did. He walked her home. The following day, she reported the alleged sexual assault to police.

Legal Framework

[7] To prove that the defendant committed sexual assault causing bodily harm contrary to section 272 of the Criminal Code, the Crown must establish, beyond a reasonable doubt, that:

i. The defendant intentionally applied force to the complainant; ii. The complainant did not consent to the force that the defendant applied; iii. The defendant knew that the complainant did not consent; iv. The force applied took place in circumstances of a sexual nature; and v. The force caused bodily harm to the complainant.

[8] The complainant’s allegations about what occurred on December 1st, 2016 would, if fully accepted, satisfy all of these elements. If the defendant’s account is accepted, then the Crown either has not proved consent or he has a defence of honest but mistaken belief in communicated consent; R. v. Barton, 2019 SCC 33, at paras. 91-92. The outcome of this case therefore turns largely on issues of credibility.

[9] In R. v. W.(D.), [1991] 1 S.C.R. 742 (“R. v. W.(D.)”), the Supreme Court of Canada directed trial judges to engage in a three step analysis in a case where credibility issues are central:

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.

[10] I will accordingly analyze the evidence in this case in a way that allows me to address these three questions.

(1) Do I believe the defendant’s evidence?

[11] According to the defendant, when he began to roll the complainant’s pants down during the back massage and she asked “What are you doing?”, she did so in a “very flirty” way. He told her that her pants were in the way and she replied: “Oh, okay”. He then removed her pants but not her underwear and continued his massage, starting at her ankles and moving up to her thighs.

[12] The defendant testified that the complainant then asked him whether they were going to have sexual intercourse, and he said he would like to. She asked whether he had a condom, and he replied: “I swear on my nephew’s head I am clean”. According to the defendant, the complainant then said: “If you want to do it, let’s just do it.”

[13] The defendant said that they then each performed oral sex on each other, after which the complainant climbed on top of the defendant and inserted his penis in her vagina. The sex ended about twenty to thirty minutes later when, after they had moved into a different position where he was thrusting into her vagina from behind, he accidentally hit her perineum. This was painful for both of them and he disengaged from her. The defendant apologized and, after a few minutes, suggested that they try again or that they have a shower together. The complainant said she wanted to go home as she had commitments later that day. The defendant showered on his own, then walked her home.

[14] After carefully reviewing the defendant’s testimony, I conclude that I do not believe his account of what occurred between him and the complainant. There are three main reasons for this.

[15] First, the defendant’s account is internally inconsistent.

[16] The defendant testified that the complainant took all of the initiative in their sexual activities. He said that, while he lay with his back on the bed, she massaged his shoulders and chest, took off his pants, gave him oral sex, climbed back on top of him and inserted his penis in her vagina. He denied that he initiated vaginal sex, even though, by his own account, he could have done so as she had explicitly consented to it.

[17] The defendant more generally denied that he used any physical force or even encouraged the complainant to engage in various acts. He was not even willing to admit that he tried to persuade the complainant to have sex with him. He denied that, when he swore on his nephew’s head that he was clean, that he did so in order to convince her to have sex with him, saying “I was just letting her know that I was clean”. In short, he “wasn’t trying to convince her of anything”. The defendant went so far as to deny that sex was even “on his mind” when he asked her if she wanted to resume having intercourse after they stopped. Based on this account, the complainant was the initiator of all sexual activity and the defendant merely followed her lead.

[18] The defendant’s alleged passivity and indifference to the possibility of having sex with the complainant from the moment he began rolling her pants down is at odds with his active pursuit of sex with her both before and after they had intercourse. There are at least five examples of how he actively attempted to persuade the complainant to engage in sexual activities or proceeded to activities prior to any discussion about consent:

• The defendant admitted that he pulled down the complainant’s pants during the massage, without first asking her whether she agreed to have him touch her naked buttocks.
• When the complainant said “Oh, okay” to his explanation that her pants were in the way, the defendant interpreted this as the green light for him to remove her pants completely.
• Having removed the complainant’s pants, the defendant began massaging her naked legs. This is a more intimate activity than a massage of the complainant’s neck and back. The defendant did this without taking any steps to make sure that the complainant agreed that he could rub her legs and thighs.
• A little while later, during the defendant’s account of their discussion about whether they would have sex, the defendant swore “on his nephew’s head” that he was clean.

[19] Likewise, when they later halted intercourse, the defendant continued to actively pursue sex with the complainant. He testified that she was obviously in pain, prompting him to apologize to her. Yet, a few minutes later, he suggested that they start having intercourse again. When she said no, he suggested that they shower together. She again said no. The defendant’s attempts to persuade the complainant to either continue having sexual intercourse or to engage in another intimate activity – having a shower together – is inconsistent with his testimony about their dynamic.

[20] On the whole, the defendant’s words and actions are not those of a person indifferent to a potential sexual encounter, or someone who was lying back letting his partner take all of the initiative. This contradiction between what he says he was doing and what he actually admits to having done fundamentally undermines his credibility.

[21] Second, the defendant’s account of the conversation he had with the complainant during the massage, prior to any sexual activity, does not ring true.

[22] During his evidence in chief, the defendant said that, after agreeing that he could remove her pants to continue the massage, the complainant asked him if he thought they were going to have sexual intercourse. He replied that he would like to. According to the defendant, the complainant then said: “If you want to do it, let’s just do it”. The defendant testified that he understood this to mean that the complainant had agreed to all sexual activity, up to and including intercourse. According to him, they had no further conversation at any point during sex, except when he asked: “Why don’t you bend over the side of the bed for me?”

[23] The defendant initially repeated this same account of the discussion about consent in cross-examination. Under further questioning, however, he added a new element. He said that, in the middle of this exchange, the complainant asked if he had a condom. This question and his answer mean that their entire conversation would be as follows:

C: Do you think we are going to have sexual intercourse? D: I would like to. C: Do you have a condom? D: I swear on my nephew’s head I am clean. C: If you want to do it, let’s just do it.

[24] It is odd that the defendant testified twice, quite adamantly, about this discussion without mentioning the complainant’s question about a condom, only to suddenly remember this additional critical detail only later on in cross-examination. This raises a doubt in my mind about whether his evidence is genuine or whether he is reconstructing or fabricating the additional exchange about a condom, having heard the complainant testify earlier in the trial that she had raised this issue.

[25] I furthermore do not find the defendant’s evidence about what the complainant said to be plausible.

[26] In texts exchanged earlier that day, the defendant suggested that the complainant might come over to his house because he had to work on an essay and he had gin. He also mentioned that he had two good friends who had been in a car crash earlier that day, so he needed “a couple drinks”. The complainant responded “lol idk Brian I just met you basically and you said it yourself your not looking for anything but Netflix and chill… .” He then sent her a long text saying he was a “hard working guy who is straight up”, who was “very respectful”, loved cuddling and was “great at massages”.

[27] Neither the defendant nor the complainant testified about the meaning of “Netflix and chill”. Whatever the specific meaning, the complainant was communicating uncertainty about spending time with the defendant because she did not know him well. He responded by reassuring her of his good character.

[28] When the complainant allegedly asked again, three hours later, about the defendant’s expectations, they had only just started to have some physical contact. It is implausible that the complainant in these circumstances would have initiated the very first exchange about possible sexual activity by asking specifically about sexual intercourse. If she was in fact being “flirty”, as suggested by the defendant, this is an oddly technical question, in contrast to a more general question like “Are we going to have sex?” According to the defendant, he had given the complainant a massage, but they had not kissed, embraced or cuddled. In this context, the complainant had no reason to assume that the defendant expected to have sexual intercourse with her.

[29] I also do not find it plausible that the complainant would have told the defendant to “just do it”. In the text messages, she pointed out that she barely knew him. By his own account, she had taken the trouble to ask whether he expected that they would have intercourse and, if so, whether he had a condom. If the complainant was concerned enough to ask a specific question about sexual intercourse and a further question about protection, I do not believe that she would be satisfied with the defendant’s simple assurance that he was “clean”. As he himself acknowledged during cross-examination, there is more than one reason why a woman might want a man to use a condom.

[30] Finally, the evidence with respect to the level and duration of pain suffered by the complainant is incompatible with consensual vaginal sex and an injury caused by the defendant hitting her perineum a single time, even if, as the defendant claimed, he thrust “forcefully”.

[31] The defendant acknowledged that the complainant showed visible signs of discomfort and pain after intercourse. He apologized several times for this. The accused testified that she felt “gut-wrenching pain”. She said that she was still in serious pain when she was examined in hospital later the same day. This evidence was corroborated by her brother RW, who came to pick her up after she returned to her residence on December 1st. He testified that her behaviour was consistent with her continuing to be in pain hours later. She would not sit up in the car even after he asked her to put her seat belt on. He had to help her get out of the car and into his apartment. When they reached his apartment, she lay on her side on his couch instead of sitting. Both he and the complainant testified that he got a bag of frozen food from his freezer for her to hold against her rectal area. I accept the evidence of the complainant and RW on these issues.

[32] This evidence, along with the defendant’s own observation of the complainant’s level of pain, is consistent with forceful anal or vaginal intercourse. It is inconsistent with the defendant’s evidence that he hit the complainant’s perineum a single time. Aside from his admission that he asked the complainant to bend over the side of the bed, the defendant stated that the complainant controlled the pace and positions of their sexual intercourse and that he never tried to force her to do anything.

[33] Beyond these specific concerns, I generally did not find the defendant to be a credible witness. He flatly denied almost every suggestion put to him by Crown counsel about what occurred once they got to his bedroom, even when the suggestion was consistent with his earlier evidence.

[34] The primary example of this is the defendant’s persistent denial that he did anything to try to convince the complainant to have sex with him, even though this was contradicted by actions and words he admitted to. Another example is his denial that they went to his bedroom in part because they were concerned about noise if they stayed in the living room. The defendant stated twice that there was a hallway from the living room to the bedrooms such that the living room was actually the area farthest away from everybody. This was contradicted by his roommate Tyson Lafave, who testified that the living room was right next to the bedrooms that they respectively occupied. A further example is the defendant’s denial that he made any attempt to convince the complainant to stay over at his house after they stopped having sex. It is hard to understand why he would not have done so, given that they had both been up all night and, on his account, had just participated in consensual intercourse.

[35] In summary, I do not believe the defendant’s evidence about what occurred in his bedroom or the discussion he had with the complainant. His evidence about their interactions was not credible. I therefore cannot acquit him on the first leg of the R. v. W.(D.) test.

(2) Do I nonetheless have reasonable doubt, based on the defendant’s testimony?

[36] Under the second part of the R. v. W.(D.) test, if I do not believe the defendant’s testimony, I must consider whether I am nonetheless left in reasonable doubt by it.

[37] I have already concluded that the defendant’s account of what occurred, and the discussion between him and the complainant, is neither credible nor plausible. I cannot accept his characterization of the complainant as the sexual aggressor during their encounter given how inconsistent this is with words and actions that he acknowledges. His account of why the intercourse ceased is incompatible with other evidence that I do accept.

[38] As a result, I do not find that the defendant’s testimony gives rise to reasonable doubt about the elements of the charge.

(3) Do I have a reasonable doubt based on the evidence I accept?

[39] In order to address the third part of the test in R. v. W.(D.), I must review the other evidence at trial and determine what evidence I accept. I must then determine whether this evidence establishes, beyond a reasonable doubt, that the defendant intentionally applied force to the complainant, that the complainant did not consent to sexual activity and that the defendant did not have an honest but mistaken belief that she communicated consent.

The complainant’s evidence at trial

[40] The evidence about what occurred between the time the complainant and the defendant met up at about 10:30 p.m. at the soccer dome and the beginning of the massage in the defendant’s bedroom is largely consistent. They each said that they walked to his house and chatted briefly with two of his roommates, then sat in the living room for the next few hours, talking and sharing some gin and tonic drinks that the defendant topped up over the course of the evening. She said that he drank more than she did. She testified that he was “seven out of ten” drunk while she was only “three out of ten”.

[41] The complainant was cross-examined at length about how much alcohol she and the defendant each consumed. In cross-examination, she admitted that she did not see how much gin the defendant put into each drink. She also admitted that, although she considered that she was less inebriated than the defendant, she did not recall him showing any physical signs of drunkenness, such as slurred speech or stumbling.

[42] In examination in chief, the complainant testified that the primary reason they went to the defendant’s bedroom at 2:00 or 2:30 a.m. was to avoid disturbing his roommates. In cross-examination, she admitted that he may also have raised the issue of a massage. As already mentioned, in the text messages exchanged earlier that day, the defendant mentioned he was “great at massages”. I find that the possibility of a massage was mentioned before they moved to the bedroom.

[43] On the other hand, I accept the complainant’s evidence that she and the defendant also left the living room because they did not want to disturb his roommates. Both of them testified that he put a movie on when they got to the bedroom. I have already mentioned the evidence of the roommate Lafave that the living room was right next to his bedroom. It makes sense that the defendant suggested they go to the bedroom so that the noise from the movie would not wake Lafave up. Although the defendant’s bedroom was right across from Lafave’s bedroom, it had a door.

[44] When they got to the bedroom, the complainant said that they lay down on the bed together, watching a movie play on his laptop. She was on her side and he was behind her with his arm around her. They were cuddling but were fully clothed. The complainant testified that she was a little anxious but fine with this.

[45] The defendant offered to give her a massage. She agreed and lay on her stomach, still on the bed. He straddled her pelvis and started rubbing her shoulders and then her lower back. The defendant then began to pull the complainant’s pants and underwear down a bit. She asked what he was doing and he said everything was fine, and to just “go with it”. The complainant testified that she was a little uncomfortable, but did not say anything to stop him. She said he did not take her pants off completely before continuing to massage her.

[46] The complainant said that the defendant then encouraged her to massage him, by pulling her on top of him and putting her hands on his shoulders. She could not remember if his shirt was on. She denied helping him take any clothing off, at any point.

[47] The complainant testified that the defendant cupped her face and brought her in to kiss him. She was surprised but okay with it, even though he had not asked if he could kiss her. She then asked him if he thought they were going to have sex. He in turn asked her if she wanted to. The complainant said “I don’t know, maybe.”

[48] The complainant next recalled being back on her stomach on the bed. Her shirt was up but she still had a sports bra on. The movie was still playing. The defendant pulled her pants down further, and she again asked: “What are you doing?” He said that this was part of a “full-body massage” or something similar. He then inserted two fingers in her vagina. The complainant testified that she just lay there. She did not know what to think, so she just “went with it”.

[49] According to the complainant, the defendant then performed oral sex on her. She said that he did not ask before doing this. She was a little confused but did not think that he would go much further past this. A few minutes later, the defendant pulled the complainant back on top of him and kissed her again. He then pushed her head towards his crotch and stuck his penis in her mouth. By this time, he was not wearing any clothes.

[50] The complainant next recalled that she was on her back and the defendant climbed on top of her. She thought that her pants and underwear were off but she still had her shirt and bra on. She testified that the defendant began to rub his penis near her vagina. She said “No, I’m not doing this, especially without a condom”. He replied: “I swear on my nephew’s head that I am clean” and penetrated her vagina forcefully.

[51] The complainant testified that she was scared and did not want to have intercourse with the defendant. She was in pain. She started to push him a little but he kept thrusting. She testified that she dug her fingernails into his skin so he would stop. She also said, however, that her body “just gave up” and that she could not think, move or talk while this was happening.

[52] A few minutes later, the defendant flipped her over onto her front and penetrated her anally. She testified that this was extremely painful and she screamed: “No, get off of me”. He got off, and she moved to the opposite side of the bed, in a fetal position.

[53] The defendant put his hand on the complainant’s thigh, said it was okay and they could try again in a bit. She said: “No, I don’t want to”. The defendant said he could make her feel better, and tried to kiss her inner leg. She said again: “No, get off, I don’t want to.”

[54] The defendant suggested they could have a shower and then try again. She said she wanted to go home. He said she was being ridiculous, as it was too late to walk home, and he would drive her home the next morning. She repeated that she wanted to leave. He offered to sleep on the couch while she remained in the bed. She said again that she wanted to go home.

[55] When the complainant got up to leave, the defendant said he would walk her home. He told her that “she needed to get over her independence” and let him accompany her. The complainant testified that this made her angry. She did not want him to walk her home.

[56] While they walked back to her residence, the defendant thanked the complainant for coming over to make him feel better and said he was sorry that he had pressured her. He told her that she was beautiful and asked if she was going “to play hard to get”. The defendant said that she was a nice and good girl and she would have a hard time getting rid of him for the next two years of the program.

[57] When they arrived at her doorstep, the defendant asked the complainant for a hug and she said she was just going to go to her room. He pulled her to his side and thanked her again for making him feel better. He said that he would text her when he got home. She went inside.

[58] The complainant testified that she felt “heart-broken”, confused and in a lot of pain. Her anus hurt a lot and her vagina was also sore. When she tried to go to the bathroom, she noticed blood on the floor. It hurt to sit. She could feel liquid coming out. She thought she was peeing and there was blood in it. In cross-examination, the complainant admitted that she did not mention any bleeding in her police statement the next day.

[59] Sometime between 4:00 and 5:00 a.m., the complainant called a friend. She cried hysterically for a couple of minutes and then told her what had happened. After this call, she had a hot shower and lay on her bed. She got a text from her brother RV a short time later. He had been contacted by her friend and asked if she was okay. The complainant said no and RV said he was on his way to pick her up.

[60] When RV arrived at the residence, they went to his apartment because the complainant wanted to get away from the campus. She testified that she could not sit down on the couch because of the pain. RV gave her a bag of frozen peas and she put them between her legs. He asked her questions and typed out a chronology based on her responses. The complainant stated that the statement she gave to police the next day was more detailed, because she and RV decided to go to the hospital before her account to him was complete.

[61] The complainant and RV went to three local hospitals so that she could be examined. The first two hospitals either did not have the appropriate staff or equipment. At the third hospital, the complainant was examined by a nurse. She reported the alleged assault to the police the next day.

[62] The defendant sent the complainant a text message on December 1st asking her to let their English teacher know he would not be in class as well as further messages later that week and again after the holiday break. In early January 2017, she responded: “I don’t want to talk to you, or see you. Please respect that.” The complainant had been told by police that it would be appropriate for her to send this kind of message. The defendant replied: “Jesus, alright that’s fine. Sorry for whatever I did though! Didn’t mean to hurt or offend you in any way.”

[63] The complainant had reported the alleged assault to the college and had been told that the defendant would not be in any of her classes as of January 2017. When he was present in one of her labs, she contacted security. That was the last interaction she had with him outside of these proceedings.

Tyson Lafave’s evidence

[64] Tyson Lafave was one of the defendant’s housemates in late 2016, occupying the bedroom right across the hall from defendant’s bedroom.

[65] Lafave testified that he saw the complainant in the living room of their house late in the evening of November 30, 2016. They spoke briefly about the car accident involving the defendant’s friends. Lafave went to take a shower and then to his room to study. He said that he typically stayed up until midnight. He could not recall waking up or hearing any noise.

[66] Lafave’s evidence was not of great assistance. He contradicted the defendant’s testimony about the distance between the living room and the bedrooms. Nothing else he said was inconsistent with either the defendant’s account or the complainant’s account.

RV’s evidence

[67] RV is the complainant’s older brother. In December 2016, he was living in Ottawa.

[68] RV testified that, on the morning of December 1st, 2016, he got a text from a friend of his sister, saying that the complainant was in crisis. He contacted the complainant and they agreed that he would pick her up and bring her to his apartment.

[69] When RV arrived at the complainant’s residence on campus, she was waiting at the curb. He stated that she appeared very upset and could barely speak. As already mentioned, she did not sit up in the car and he had to assist her up to his apartment. He got a bag of frozen food from the freezer so that she could hold it between her legs while she lay on his couch. He asked her to tell him what had happened while he took notes on her computer.

[70] RV testified that they spent about an hour to an hour and a half at his apartment before leaving to go to a hospital. Like the complainant, he recalled that they went to three different hospitals before finding one with the staff and equipment to do an examination suitable for a sexual assault victim.

[71] RV’s involvement effectively ended at the hospital. He did not accompany the complainant to the police station the next day or to her video interview in January 2017. They did not discuss the alleged assault further after December 1st, 2016. He said that he did not think it would help her to talk about it further with him.

[72] RV was a credible witness in that he attempted to relate what he recalled of events more than two years earlier. He acknowledged that he and his sister are very close. I do not find that their relationship made his testimony less credible. I accept his evidence about what he observed about the complainant that morning. I also accept that he did not discuss the alleged assault with the complainant in any detail again after December 1st, 2016. He was clearly uncomfortable talking about the explicit details of her sexual interaction with the defendant, and adamant that he had no role to play after December 1st, 2016.

[73] There is one aspect of RV’s evidence, however, that must be more closely considered. This is the admissibility, use and weight of a document based on the notes he created that day.

[74] RV was working at a bank at the time and, based on his experience with robberies, believed it was important to make notes about what the complainant remembered about the alleged assault. He created a document on her computer entitled “Timeline of Events” from his notes of her account to him on December 1st, as she lay on his couch in his apartment.

[75] At trial, the Crown and the defence jointly filed an email from the complainant to a police officer on June 27, 2018, and an attached document entitled “Timeline of Events” (the “Timeline”). The Timeline is not however the same document created by RV on December 1st, 2016. A forensic investigator hired by the defence examined the metadata embedded in the Timeline and concluded it was created June 27, 2018 by using the “save as” function to copy another, unknown document. A forensic expert working with the police agreed with this conclusion. The original electronic document created on December 1st, 2016 has not been located, despite a search of the hard drives of both the complainant’s computer and RV’s computer.

[76] RV testified that he never reviewed the document or made any modifications or additions to it after creating it on December 1st, 2016. The complainant also said that she did not read the document when it was first prepared, or edit or change it at any point after that. She did not provide it to police on December 2, 2016, when she reported the alleged assault and provided a written statement, or in early January 2017 when she provided a further videotaped statement. At some point prior to the preliminary inquiry in the summer of 2018, she disclosed the document’s existence to police. She said she likely saved it as the new Timeline document on her desktop, glanced at it briefly and sent to police on June 27, 2018.

[77] There are three issues I must resolve here. First, is the Timeline admissible? Second, if it is admissible, for what purpose can it be used? Third, what weight should I give to it?

[78] Defence counsel argues that there is no way of knowing whether the Timeline had been altered after it was created but before it was disclosed. He suggested that I infer that changes had been made based on the complainant’s failure to give the document created by RV to the police when she filed her initial written statement, and the Crown’s inability to produce the original notes.

[79] I am satisfied that the Timeline is a copy of the document created by RV on December 1st, 2016. I accept the complainant’s explanation about how it was created. I also accept her evidence, and RV’s evidence, that neither of them edited the contents of his notes after he took them.

[80] The complainant acknowledged that she did not give the Timeline to the police until just before the preliminary inquiry. In cross-examination, she explained that the purpose of preparing the document was to make sure she did not forget any details. She did not review RV’s notes before reporting the alleged assault because she ended up going to the police the next day. She did not need to refresh her memory at that point. I accept this explanation as to why the complainant did not see the need to provide the notes to the police prior to June 2018. She is not a lawyer. There is no evidence that she was told about the requirement to disclose the notes prior to June 2018 or that she hid their existence from police. She was not cross-examined on any improper motive that she might have had in failing to give the notes to the police earlier.

[81] The defendant has not indicated exactly what portions of the Timeline he believes may have been altered from the original. RV testified that the language in the Timeline was his. Although he had not seen it in two and a half years, there were turns of phrase that he said was his wording rather than the complainant’s wording. He also said that the format was the one he used in preparing summaries of events for work purposes.

[82] Through its cross-examination and argument, the defense has effectively conceded that the Timeline is what the Crown says it is – an assembly of notes created a few hours after the alleged assault based on the complainant’s statements to her brother on December 1st, 2016. Defence counsel referred to the Timeline repeatedly in cross-examining the complainant, asking her to account for inconsistencies between her brother’s notes and the complainant’s statements to police, her evidence at the preliminary inquiry and her evidence at trial. He argued that the court should find that the complainant was not credible based on these inconsistencies as well as omissions in the Timeline. The defence’s reliance on the Timeline for impeachment is inconsistent with his position that it should be given no weight at all.

[83] This brings me to the question of what use may be made of the Timeline and what weight I should give to it.

[84] The Timeline contains some statements that are arguably inconsistent with the complainant’s evidence at trial or her other statements to police and at the preliminary inquiry. The defendant argued that any inconsistency undermines the complainant’s credibility. The weight I can give to this argument depends on the materiality of the inconsistencies as well as my conclusions about the reliability of the Timeline.

[85] The Timeline also contains many statements that are consistent with the complainant’s evidence at trial. Prior consistent statements are however presumptively inadmissible because they lack probative value: R. v. Stirling, [2008] 1 S.C.R. 272, at paras. 5-7; R. v. Khan, 2017 ONCA 114 (“Khan 2017”), at para. 25. In some exceptional circumstances, prior consistent statements are admissible for limited purposes. For example, a prior consistent statement may be admissible to rebut an allegation of recent fabrication. In that case, it is admitted solely to contradict the suggestion that the witness concocted allegations after a triggering event. The statement is not admitted for the truth of its contents, but only to show that the details were not added after the fact; Khan 2017, at paras. 27-28.

[86] A prior consistent statement may also be admitted for the purpose of giving background to explain how the complaint came before the court. The statement is not used to prove the truth of its contents, “nor are there any inferences arising that would make the case of one person more compelling than that of another. It is merely an aid in understanding the case as a whole.”; Khan 2017, at para. 30.

[87] The Crown argues that I should go beyond this. A prior consistent statement admitted for narrative may, in some circumstances, also assist in assessing the reliability and credibility of a witness’ in-court testimony. This is known as the “narrative as circumstantial evidence” exception; Khan 2017, at para. 31. R. v. Dinardo, [2008] 1 S.C.R. 788, at para. 39; R. v. Evans, [1993] 2 S.C.R. 629, at para. 32. The Crown contends that the Timeline falls within this exception such that it may be used to “provide context in which to assess attacks on testimonial reliability based on alleged prior inconsistencies”: R. v. M.P., 2018 ONCA 608, at para. 78, citing R. v. O.(L.), 2015 ONCA 394, 324 C.C.C. (3d) 562, at para. 34.

[88] I do not need to refer to the contents of the Timeline to understand how this case came before the court. I furthermore reject its use to corroborate the complainant’s version of events in any way. I cannot even place much weight on it as a tool for determining whether the complainant’s account of the alleged sexual assault has been inconsistent over time. This is because I have serious doubts about how accurately the Timeline reflects the complainant’s account to RV on December 1st, 2016, and about how completely it captured her recollection of events that day.

[89] First of all, RV admitted that he did not record exactly what his sister told him. He initially testified that he took “verbatim” notes, but then acknowledged a little while later that he summarized and paraphrased. For example, the Timeline refers to “oral activity”. The complainant testified that she did not use these words; she recalled that she told RV that she had given the defendant a blow job. RV admitted that “oral activity” was not the term that the complainant used to describe what had happened. He confirmed that she said she had performed fellatio on the defendant, but testified that he was uncomfortable using graphic terms in his notes.

[90] At trial, defence counsel did not take RV through the Timeline to verify whether the language he used in his notes consistently reflected the exact words used by the complainant or whether it reflected his interpretation or summary of her account. The complainant testified that she did not review RV’s notes on December 1st, 2016. It was not until June 2018 that she glanced at them. When the complainant was asked about certain passages in the Timeline during her cross-examination, she noted that the words used were her brother’s, not hers. Based on all of this evidence, I conclude that there may very well be other passages in the Timeline that, like “oral activity”, depart materially from what the complainant told RV.

[91] Second, given the circumstances in which RV took the notes, they were not complete. RV said that he wrote down what the complainant told him and would seek clarification when she was not specific enough. But he also stated that he did not prompt her beyond asking “what happened next?” The absence of any follow-up questions would have produced a less detailed account than a police interview or testimony in court.

[92] RV’s recollection was that, over the 45 minutes that he took notes, the complainant told him everything she recalled about her interactions with the defendant before they left for the hospital. He also testified, however, that while she spoke to him she was “pretty hysterical”, in a state of shock and crying.

[93] In cross-examination, the complainant was asked why the Timeline did not include some details that were included in her later accounts. She said that her description of events to RV was interrupted when they went to the hospital. She also testified that she did not provide all of the details to RV that she included in her written statement, “because it was my brother”, and that they stopped when she did not want to talk about it anymore.

[94] RV’s evidence that his notes included everything the complainant recalled about the alleged assault is based on his subjective understanding at the time. It does not mean that the Timeline actually contains everything that the complainant was able to remember. The notes are, on their face, incomplete, because they do not describe anything that happened after the defendant and complainant left his house to walk back to her residence. RV had the impression that the complainant had told him everything, but did not ask her any follow-up questions except where he did not understand something she had said. He stopped asking questions when she did not want to talk about it anymore.

[95] In these circumstances, the Timeline has very limited value as evidence, even for the purpose of determining whether the complainant’s story has changed over time.

Did the defendant intentionally apply force to the complainant?

[96] Defence counsel argued that, even if I do not accept the defendant’s account of what occurred, the Crown has not proved his guilt beyond a reasonable doubt. He contended that the complainant’s evidence was not credible, for various reasons.

[97] On the whole, I found the complainant was a credible witness. She provided a detailed and believable account of a sexual assault. Her testimony about the conversations and interactions she had with the defendant was consistent with other evidence, such as the text messages exchanged between them. She attempted to explain inconsistencies. She responded thoughtfully to questions put to her in cross-examination and made appropriate concessions.

[98] The complainant acknowledged that she agreed to a massage by the defendant, did not object when he began pulling down her pants and that, when she and the defendant first spoke about possibly having sex, she said “I don’t know, maybe.” The complainant also did not deny that she participated in oral sex with the defendant. It was only when the defendant began rubbing his penis against her vagina that she said “no”, in part because the defendant did not have a condom. Her account of a step-by-step progression of events towards the point that the defendant sought intercourse is highly plausible. In general, I accept the complainant’s account at trial of what occurred.

[99] The defence argued that the complainant’s testimony was not credible because she expressed anger and hostility towards the defendant. The complainant was sometimes clearly upset during her cross-examination, which took up more than a day of court time. She admitted that she is angry about what occurred. This is not surprising. The complainant’s discomfort with the process and feelings about the defendant did not make her testimony inherently less credible.

[100] The defence also suggested that the complainant might be motivated to lie about what occurred because she was upset at the injury she experienced during intercourse. This concedes that she was still in pain hours later which, as I have already found, is incompatible with the defendant’s account of what occurred. In any event, I do not accept that her physical discomfort could reasonably prompt her to invent an allegation of sexual assault and report it to police the next day.

[101] Defence counsel’s most serious criticism of the complainant’s evidence was that it was inconsistent with earlier accounts she gave of the alleged assault.

[102] Serious inconsistencies in a complainant’s evidence may give rise to reasonable doubt. As the Ontario Court of Appeal stated in R. v. G.(M.), 1994 CarswellOnt 181, at para. 23:

Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and to be expected. They do not generally affect the credibility of the witness. … But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth.

[103] A single minor inconsistency will not diminish a witness’ credibility, but a series of inconsistencies may. The trier of fact “should look at the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable”: R. v. Bowe, [1993] B.C.J. No. 758 (C.A.) (“R. v. Bowe”), at para. 29.

[104] The complainant has described the alleged assault on five separate occasions:

i. On December 1st, 2016, to her brother; ii. On December 2, 2016, in a written statement to police; iii. On January 5, 2017, when she was interviewed by the police on video; iv. In July 2018, at the preliminary inquiry; and v. In May 2019, during the trial.

[105] The defence argued that there were numerous inconsistencies in these various accounts.

[106] I do not agree that everything that the defence counsel raised as an inconsistency was in fact an inconsistency. For example, the defence argued that the complainant’s evidence at trial was inconsistent with RV’s note, in the Timeline, that the drinks served by the defendant were “very strong”. I have already explained my reservations about giving any weight to the Timeline. But, in any event, the complainant admitted that this reflected her subjective impression based on her limited experience with alcohol.

[107] Other alleged inconsistencies are clearly minor, in that they do not contradict the central elements of the complainant’s account.

[108] The complainant’s description of oral sex with the defendant is an example of this. At trial, the complainant said that the defendant pulled her on top of him, pushed her head towards his crotch and stuck his penis in her mouth. In contrast, in her video interview, she said that the defendant was just holding her head and she agreed with the interviewing officer’s suggestion that she was “comfortable” with various activities, including oral sex.

[109] Saying that the defendant simply put his hand on her head is different than saying he pushed her head down. At no point, however, has the complainant ever claimed that the defendant forced her to give him oral sex. She has consistently acknowledged that she decided to go along with this, if not enthusiastically. In her words: “It wasn’t cause I wanted to, I was just going with the flow of what he wanted. I didn’t think it would go past that.”

[110] There are other details that the complainant mentioned in some accounts and not in others. At trial, she stated that the defendant told her to “go with it” when she asked him why he was pulling her pants down during the massage whereas, in an earlier account, she said that the defendant told her to “go with it” after he inserted his fingers into her vagina. The complainant’s police statement on December 2, 2016 did not mention that she massaged the defendant.

[111] I consider these to be minor inconsistencies that, individually and collectively, do not affect the complainant’s overall credibility.

[112] There are four inconsistencies that are potentially more serious.

[113] First, the complainant testified at trial that the defendant inserted his fingers in her vagina, but did not mention this in her video interview in January 2017. This omission could be important since the Crown takes the position that this penetration was forceful and non-consensual. It is therefore not a minor detail.

[114] The complainant did mention the defendant’s insertion of his fingers into her vagina in her written statement to police and at the preliminary inquiry. As already noted, a prior consistent statement cannot prove an allegation. It can however be used to rebut an allegation of recent fabrication.

[115] The complainant testified that, during the video interview, she gave a full and detailed report of the alleged assault, as best she could. She also stated, however, that she felt some anxiety and pressure. She respected and trusted the police generally, but was “not a fan” of the officer who interviewed her, due to some incident that had occurred between her mother and the officer, and the fact that the complainant had to call the police many times before an interview was set up.

[116] In light of this evidence, I do not reject the complainant’s evidence about the digital penetration because she did not mention it during her video statement, or conclude that she is unreliable based solely on this omission. There is no such thing as a perfect witness. It would in fact be surprising if the complainant had provided exactly the same account on five separate occasions over the last two and a half years. It would suggest that she was telling a story she had memorized rather than trying to remember what actually occurred.

[117] Two further potentially serious inconsistencies in the complainant’s account involve her physical resistance during the alleged assault.

[118] At her evidence in chief at trial, and in her written statement to police, she said that she pushed the defendant off after he penetrated her anally. But in her video statement, she said that he “immediately jumped off of her” when she screamed. When she was asked about this in cross-examination, she initially denied that this was accurate, but eventually conceded that, whether or not she pushed him, he got off of her as soon as she screamed.

[119] In her evidence at trial, the complainant also testified that she tried to push the defendant away and dug her nails into his arms when he penetrated her vaginally. In her written statement to police and her video statement, however, she did not mention trying to use any force to resist the defendant.

[120] Aside from a more general concern about the complainant’s overall reliability as a witness, these inconsistencies could be important if they were relevant to consent. In the absence of any other evidence on this issue, if I accepted that the complainant physically resisted the defendant, I could not find either that she consented or that the defendant honestly believed that she had communicated consent.

[121] But there is other evidence on the issue of consent. The complainant testified that, when the defendant got on top of her and started rubbing his penis against her vaginal area, she said “no”. If I accept this evidence, it does not matter whether she pushed, or tried to push, the defendant away. Either way he would have known that she was not consenting to intercourse.

[122] I do not in any event find the complainant’s evidence of her reaction to the vaginal intercourse to be seriously inconsistent. She stated that the defendant was lying on top of her. At trial, she said she tried to push him away “a little”, but could not get him to move. When she realized this, she stopped trying to resist. The omission of her attempt to physically resist when he first penetrated her is understandable given that these attempts were limited and had no impact.

[123] The complainant’s description of what happened when she screamed is also consistent. She has never stated that the defendant persisted in trying to penetrate her anally. Whether or not she also reacted physically by shoving him, she concedes that he immediately disengaged.

[124] The final, and most serious, inconsistency arises from the complainant’s evidence that, when she returned home and went to the bathroom, she saw blood on the floor and when she was on the toilet. She did not mention any bleeding or blood in her written statement on December 2, 2016.

[125] I would have expected that this significant detail would have been included in her statement to police the day after the assault. This was hard physical evidence of trauma. The complainant’s omission of any reference to bleeding in the December 2, 2016 statement is concerning and leads me to reject her evidence at trial about seeing blood.

[126] This does not, however, automatically mean that I must reject the complainant’s evidence on other points. I must consider whether this inconsistency, combined with minor inconsistencies I have reviewed, lead me to conclude that the complainant’s account is not sufficiently credible or reliable to satisfy a criminal standard of proof. If I were instructing a jury on this issue, I would tell them to consider whether the inconsistencies in the complainant’s evidence make the main points of her evidence less believable and reliable, whether they seem to stem from an honest mistake or a deliberate lie, and whether the complainant had provided any reasonable explanation for the variations in her account.

[127] In R. v. Bowe, [1993] B.C.J. No. 758 (C.A.), mentioned above, the B.C. Court of Appeal overturned a conviction for sexual touching based on a series of inconsistencies in the complainant’s evidence. It noted, however, that her testimony at trial was not only inconsistent with a prior statement she had made but with the testimony of other independent witnesses, and that her account of the mechanics of what had occurred was improbable. None of those elements is present here.

[128] In my view, the inconsistencies in the complainant’s evidence about the assault itself are minor. They do not make her overall account less believable or reliable. The main points of her evidence have not changed over time. She has provided reasonable explanations for why she did not mention certain details in all of her previous accounts. I have no reason to think that she deliberately misrepresented what occurred. Although I have rejected her evidence about seeing blood after she got home, it does not put in doubt her testimony about the alleged assault.

[129] The last thing I must consider, before turning to the issue of consent, is whether, based on the evidence as a whole, there is any reasonable doubt that the defendant intentionally committed the acts that are the constituent elements of sexual assault causing bodily harm. A reasonable doubt is not a far-fetched or frivolous doubt, but a doubt based on reason and common sense, arising logically from the evidence, or a lack of evidence. The Crown is not required to prove any element of the charge to an absolute certainty. I must however conclude that the acts alleged are not merely probable. I must be sure that they occurred as the complainant says they did.

[130] On all of the evidence, I am sure that the defendant forcibly inserted his fingers into the complainant’s vagina and forcibly engaged in vaginal and anal intercourse with her on December 1st, 2016. Her evidence on these points is credible and plausible and there is no evidence that I accept, or lack of evidence, that would give rise to reasonable doubt.

[131] For reasons that were not explained, the record of the medical examination performed on the complainant on December 1st, 2016 was not produced at trial. I accept however the complainant’s evidence that the accused penetrated her anally, corroborated by the evidence of the accused and RV that she was visibly in pain after the intercourse.

[132] I find however that the Crown has not proved, beyond a reasonable doubt, that the defendant’s acts caused the complainant bodily harm.

[133] Bodily harm means “any hurt or injury that interferes with the complainant’s health, comfort or psychological well-being”, provided that it is “something more than brief or fleeting or minor in nature”; R. v. F., 2017 ONSC 5625, at para. 168. The Crown has provided me with cases where a court found bodily harm based on bruising, scraping and a goose egg on the complainant’s head (R. v. Rabieifar, 2002 CarswellOnt 5591 (ONSC), aff’d at R. v. Rabieifar, [2003] O.J. No. 3833 (ONCA)); based on a bruise and anal tearing (R. v. K(C), 2001 BCCA 379); or based on facial bruising and swelling (R. v. Peterson, 2017 ONSC 7008). These decisions suggest that the Crown does not need to show that the complainant required medical treatment to establish that she suffered bodily harm. There was however in each of these cases a record of some sort of tangible injury.

[134] The Alberta Court of Appeal held in 2015 that the threshold to establish bodily injury is low, and the Crown does not need to prove that the injury lasted for any set length of time or that any medical treatment was required. The cases it cites in support are the same ones I have just mentioned, as well as other cases involving bruising, scrapes, lacerations and pain that lasted over a week; R. v. Bulldog, 2015 ABCA 251, at para. 44.

[135] In R. v. McLeod, 2002 NSCA 24, the Nova Scotia Court of Appeal held that bodily harm includes psychological injury. In that case, the complainant suffered scrapes and cuts during her struggle with the accused, and testified that she had difficulty trusting men after the assault. We have no such evidence in this case.

[136] The complainant testified that she was in severe pain for several hours after the alleged assault, and this was corroborated by RV’s evidence. The Crown did not however produce any evidence showing that she suffered any tangible physical or psychological injury, however fleeting, that rises to the level of bodily harm. This gives rise to reasonable doubt on this element. This element of the charge of bodily harm is therefore not made out.

Does the evidence establish that the complainant did not consent or that the defendant had a mistaken but honest belief that she communicated consent?

[137] Further to subsection 273.1(1) of the Criminal Code, consent in the context of sexual assault means “the voluntary agreement of the complainant to engage in the sexual activity in question”. Consent must be present at the time the sexual activity takes place, and the question of whether consent has been obtained is a question of law.

[138] Under subsection 273.1(2), no consent is obtained if the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or if the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

[139] A defendant may raise a defence of honest but mistaken belief, subject to subsection 273.2 of the Code. The defence is not available, however, if the defendant’s belief arose from recklessness or wilful blindness, or the complainant expressed a lack of agreement to either engage in or continue to engage in sexual activity. The defence is also not available if the defendant took no reasonable steps to ascertain that the complainant was consenting, or there is no evidence that “the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct”. It is “not sufficient for the accused to have believed the complainant was consenting: he must also take reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question”; R. v. A(J), 2011 SCC 28, at para. 48.

[140] Even on the defendant’s own account, he engaged in a sexual activity – lowering the complainant’s pants to touch her buttocks – before any conversation about consent. When she questioned what he was doing, according to him he said that her pants were in the way and she said “Oh, okay”. In cross-examination, the defendant acknowledged that, by saying this, the complainant did not explicitly agree to have her pants removed. He instead relied on her overall manner, which he described as “very flirty”.

[141] Section 273.2 requires that “a person about to engage in sexual activity take reasonable steps … to ascertain that the complainant was consenting”; R. v. Cornejo, [2003] OJ No 4517 (ONCA), at para. 32, citing the Court’s earlier decision in R. v. Darrach (1998), 122 C.C.C. (3d) 225 (ONCA), aff’d R. v. Darrach, [2000] 2 S.C.R. 443. As the Supreme Court has held, a “belief by the accused that the complainant, in her own mind, wanted him to touch her but did not express that desire, is not a defence”; R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 46. The defendant’s belief that the complainant wanted to engage in sexual activity because of his interpretation of her overall manner or tone of voice does not establish consent.

[142] Again on the defendant’s own account, when the issue of consent was raised a little while later, it was the complainant who initiated the discussion, by asking whether he thought they were going to have sexual intercourse. He never in fact asked her if she agreed to any specific activity, assuming that “If you want to do it, let’s just do it” implied blanket consent. As recently held by the Supreme Court of Canada in its endorsement of a decision by the Court Martial Appeal Court, a defendant must obtain consent for “each sexual act in the course of their activities”; R. v. Gagnon, [2018] CMAC 1, aff’d by the Supreme Court of Canada at R. v. Gagnon, 2018 SCC 41, at para. 28. Even if I accepted the defendant’s evidence about the consent discussion, and his evidence that she later climbed on top of him and initiated vaginal intercourse, he did not take steps to ascertain what exactly the complainant was agreeing to before performing oral sex on her. There was also no discussion about anal sex.

[143] Defence counsel argues that the defendant’s prompt discontinuation of intercourse when he thrust against the complainant’s perineum, and his subsequent questioning of whether she wanted to resume having sex, shows that he was alive to the issue of consent and allows me to infer that he genuinely thought that the complainant had consented up to that point. I do not accept this argument. The defendant testified that the sexual intercourse stopped because the complainant screamed and they were both in pain. Despite this, a few minutes later, he pressed her to resume intercourse or engage in other intimate activities. The defendant does not benefit from a positive inference about the complainant’s prior consent simply because he did not physically force himself on a woman who was in physical distress and repeatedly told him she wanted to go home.

[144] In any event, all of this is a moot issue, because I do not accept the defendant’s evidence about what occurred and, specifically, the discussion he said he had with the complainant about consent. Since I accept the complainant’s account of what occurred, the Crown has proved that the complainant did not consent to the defendant inserting his fingers into her vagina or having vaginal and anal intercourse with him.

[145] There is furthermore no basis for a defence based on honest but mistaken belief in the communication of consent. According to the complainant, before the defendant inserted two fingers into her vagina, they had a brief conversation about what was going to happen. She asked him if he thought they were going to have sex, he asked her if she wanted to, and the complainant said: “I don’t know, maybe.” On the basis of this evidence, which I accept, she did not consent to any sexual activity with the defendant. A “maybe” is not a “yes”. As the defendant admitted in cross-examination, the complainant’s answer indicates she was uncertain. Prior to touching the complainant’s vagina, the defendant took no further steps to ascertain if she was agreeing to sex and, if so, what specifically she was agreeing to. He did nothing to obtain her consent.

[146] Although she subsequently participated in oral sex, the complainant did not communicate, simply by doing so, that she also consented to vaginal or anal intercourse. The complainant in fact actively refused consent to intercourse. I accept her evidence that, when she realized that the defendant was getting ready to penetrate her vaginally, she said “No, I’m not doing this, especially without a condom”. This was a clear denial of consent.

[147] Based on this evidence, I cannot find that the defendant had an honest but mistaken belief that the complainant communicated consent to vaginal touching or vaginal and anal intercourse.

Conclusion

[148] The charge of sexual assault causing bodily harm has not been made out, but the Crown has proved that the defendant sexually assaulted the complainant on December 1st, 2016. I therefore find him guilty of sexual assault contrary to section 271 of the Criminal Code.

Justice Sally Gomery Released: June 13, 2019