Her Majesty the Queen v. Yannick Mugabo

COURT FILE NO.: 17-SA-5099 DATE: 20190904 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – YANNICK MUGABO Accused

Counsel: Kerry McVey, for the Crown Genevieve McInnes, for the Accused

HEARD: May 30, 31, June 3, 4, 10, 11, and 13, 2019

Restriction on Publication

An Order was made under section 486.4 of the Criminal Code of Canada that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way. This decision does not refer to the complainant or witnesses by name, uses abbreviations, and may be published.

REASONS FOR DECISION

ROGER J.

Introduction

[1] The accused is charged with sexual assault, robbery, and fraud (in relation to a taxi fare). The taxi fare charge is not disputed by the accused, and a conviction will be entered for that charge.

[2] The events occurred in the stairwell of an Ottawa apartment building during the early morning hours of September 2, 2017. The complainant and the accused had never met. After an evening out with friends, the complainant was returning to her apartment when she came into contact with the accused in the vestibule of her apartment building. The complainant “buzzed” herself in and entered her building, thereby allowing the accused to enter with her; on video surveillance the accused is seen seemingly talking to the complainant as they walk towards the elevators. They took the elevator to the tenth floor where the complainant resided, spoke briefly in the elevator and in the hallway, and then proceeded into the stairwell.

[3] It is not disputed that the accused offered the complainant money for sex. There is also no dispute that the accused and the complainant had sex in the stairwell of her apartment building, although certain acts are disputed (the complainant does not remember giving the accused oral sex, and the accused denies attempting or having vaginal intercourse with the complainant).

[4] The core issues in dispute are: (1) whether the complainant consented; and if I find beyond a reasonable doubt that the complainant did not consent, (2) whether the accused had an honest but mistaken belief that the complainant had communicated her consent? As well, as indicated above, the accused denies any vaginal intercourse, and (3) whether this is established beyond a reasonable doubt is also a key issue.

Background

[5] When the parties’ versions of events are considered, two conflicting sets of facts stand out: (1) the complainant said that she opted for the stairwell as the safest option to get rid of the accused, rather than to enter her nearby unlocked apartment (to protect the occupants of her apartment according to her, not to have sex as is alleged by the accused); and (2) the accused said that the complainant agreed to have sex with him in the stairwell of her apartment building for his promise of $300 within minutes of meeting the accused at about 3:50 a.m. in the vestibule, elevator, and hallway of the complainant’s apartment building, as the complainant was returning home.

[6] The complainant is a 20-year-old university student (she was 19 at the time). She lived in a three-bedroom apartment on the tenth floor of an Ottawa apartment building with her sister and a female family friend (her 19 -year-old male cousin was also visiting at the time and was sleeping on the living room couch when these events occurred).

[7] On Friday, September 1, 2017, the complainant went out with female friends. She drank some rum at her friend’s place (one mickey of rum between the three of them), and later went to a local bar. They stayed at this bar until closing at about 2:30 a.m. The complainant thought she drank three shots of vodka at this bar. She testified that she was feeling a bit drunk when she left the bar.

[8] After the bar closed, the complainant and her two friends walked to a nearby restaurant; the complainant ordered a poutine. The complainant and one of her female friends decided to go to an after-party and arrived there about 3 or 3:30 a.m.; the complainant was not certain of the time saying that she was “kind of drunk”. Upon arriving at this apartment building, the complainant realized that the after-party was at a former male friend, S’ building, and that he was out front. She became quite upset (she became emotional, was crying, and she no longer wanted to go to this after-party). The complainant texted another female friend, N, and eventually decided to go home. N made arrangements for an Uber ride for the complainant. At trial, the complainant did not remember texting N at that time (although she did, as the text messages were produced for purposes of timing and demeanor). It appears from these texts that the complainant was drunk, emotional, and very upset over being rejected by this male friend, S. During her cross-examination, the complainant agreed that, by this time, she was feeling drunk and started to have memory gaps.

[9] The complainant arrived at her apartment building at 3:48 a.m. (according to the surveillance video and admissions made under s. 655 of the Criminal Code of Canada). About 10 minutes earlier, at 3:40 a.m., the accused is observed arriving in the vestibule of the complainant’s apartment building.

[10] The accused testified. He is 25 years old and said that, at the time, he had finished a winter session at the University of Ottawa and was working. He said that he had gone out that evening, as was his routine at the time, and that over the course of the evening, he drank about seven to 13 glasses of champagne, three to four drinks of a white alcohol (probably vodka), and said that he did a line of cocaine in his friend’s limousine (the amount of alcohol he consumed was less than he usually drank on such nights out). Coincidentally, during a brief part of the evening, the accused was at the same bar as the complainant, but did not meet or see the complainant there. After the bar closed, the accused met a friend (in this friend’s limousine). This friend and a group of people were going to another after-party (on the eighth floor of the building where the complainant resided). The accused said that he was driven there in his friend’s limousine with others. The accused said that, upon arriving at this building, he stayed behind and did not immediately enter the building with the others because he decided to stay with a “cute girl” he had just met in the limousine, during the ride over. The accused said that this girl wanted to go home, and that he decided to wait with her until her Uber ride arrived. The accused said that he then realized that he had lost his phone (probably in the limousine) when he asked this girl for her number. After she left, the accused entered the vestibule hoping for someone to let him in because, he said, he did not know the apartment number of the after-party. The accused said that he was freaking out because he had lost his phone and felt stranded while waiting to go to this party (he appeared rather calm on the video surveillance – although my only point of reference is that, in comparison, he looked nervous and stressed when he testified). While he was waiting in the vestibule for someone to let him in, the complainant arrived.

[11] The complainant does not remember arriving at her apartment building that morning; does not remember entering or seeing anyone in the vestibule and lobby; does not remember that the accused was in the vestibule and that he followed her into the lobby and elevator; and she does not remember whether anyone was in the elevator with her. She said that she was still upset over what had happened when she had seen S, and that her plan was to go to bed; however, she probably assumes this because she does not remember arriving at her apartment building. In fact, she said that she does not remember buzzing herself into the building and does not remember going up the elevator; she only assumes that these things happened (which, she explained, is why she said that she remembered these events at the preliminary inquiry).

[12] On the surveillance video, the accused is seen talking to the complainant seemingly in a friendly way, hovering around her, as if he knew her (they had never met). The two are seen walking normally into the elevator. The elevator stopped on the eighth floor and the accused is seen (according to his version of events, the after-party was somewhere on that floor) standing almost out of the opened elevator door, appearing to talk to the complainant and then going back into the elevator. The accused is seen talking to the complainant and following her out of the elevator when it arrives on the tenth floor.

[13] The complainant said that her recollection of the accused being present starts when they leave the elevator on the tenth floor. She has no recollection of being with the accused in the elevator. As well, the complainant thought that she was talking to her friend N as she was going up in the elevator. However, on the surveillance video, the complainant is not talking on her phone while in the elevator – she stood in the forward corner where the buttons are and did not seem to engage too much with the accused who, by comparison, seemed to be talking slightly animatedly to the complainant until he is seen following her out when she gets off on the tenth floor.

[14] The complainant said that, when she exited the elevator on the tenth floor, she walked towards her apartment, but because the accused was following her, she decided not to go in; although it is not clear if she remembers this because she does not remember how long they stayed in the hallway nor what they talked about, but remembers that the accused was following her.

[15] The complainant’s Uber ride had cost more than expected (because she dropped-off a friend) and she said that she remembers that her friend N had complained about the cost. The complainant remembers the accused saying that he could pay for her Uber ride home because he was rich (he was making this up). She remembers the accused taking her phone and speaking to N (although it is not clear if the complainant remembers this or if N later told her that N spoke to the accused, nor is it clear if she remembers when this happened). The complainant remembers that the accused wanted her to go to his friend’s apartment in the same building, and that he kept offering her $300 for her Uber ride home.

[16] The complainant remembers not taking any money from the accused, but agreed that she told the accused that he could pay for her Uber ride (she testified that she did not have any cash on her the next morning). She also admitted that she might, at some point, have been friendly and flirting with the accused (although this is not apparent on the surveillance video which, however, stops when the two exit the elevator on the tenth floor). However, she also said that she did not know the accused, that she was tired, and that she just wanted to go home. She believes that she told this to the accused.

[17] The complainant does not remember whether the accused said that he wanted to have sex or wanted to have sex for $300, but she remembers that he was offering her money, wanted her to go to his friend’s place, and she assumed that he wanted her to go to his friend’s place to have sex. She admitted that the accused might have said “let’s go and have sex and I will pay you for it”, that he kept offering her money, and wanted to go to his friend’s place. She remembers understanding that he was offering her money for sex.

[18] The complainant explained that she walked to her apartment door, but decided to go down to the first floor “where there is an open space” instead of entering her nearby unlocked apartment because the accused was following her. The complainant explained that she did not go inside her unlocked apartment because she did not want to put the safety of the occupants at risk; she said that she thought she could simply go down the stairs to the open space in the lobby. She said that she decided to take the stairs down; however, after going down about two or three flights (she was not sure), she remembers that the accused had her up against the wall. She does not remember how this happened or what led to it.

[19] The complainant had difficulty remembering what happened. She remembers the accused trying to kiss her, and turning her head to avoid his kisses. At trial, she did not remember (she was not certain) whether the accused kissed or licked her breasts. She thinks that he kissed her neck when she turned her head to avoid his kisses. Male DNA was detected on the right and left side of her neck, and on her right and left breast. She next remembers being on the ground, on her back, with her legs up and the accused’s tongue in her vagina. Male DNA was detected on the external genitalia and vaginal swabs. Amylase was also detected in the crotch area of her shorts, a reaction typical of saliva. Insufficient male DNA was detected, and it was not processed further. As well, contamination from the sample/testing process could not be ruled out as a source of the male DNA detected on the external genitalia and vaginal swabs.

[20] Next, the complainant remembers the accused on top of her, trying to penetrate her vagina with his penis. She said she told him to stop and that she tried to push him off. She said that the accused put his hand over her mouth and was able to penetrate her vagina with his penis. She said that she tried to grab her phone to call someone and that he pushed it away. She does not remember how long any vaginal intercourse occurred and does not know whether the accused ejaculated. She said that she remembers that she was crying as he was penetrating her with his penis. She said that when he got off her, she put her shorts back on, grabbed her phone, and ran upstairs to her apartment. From the swab of the crotch area of the complainant’s shorts, chemical constituents were detected which may or may not indicate semen. Male DNA was detected, but it was not processed further given that it was detected at a level below the reliable limit for quantification. It is admitted that sufficient DNA is expected in circumstances where unprotected intercourse has occurred; however, it is also admitted that insufficient DNA cannot, on its own, rule out the possibility of unprotected intercourse (assuming that ejaculation on the tested area did not occur).

[21] Once in her apartment, the complainant remembers seeing her male cousin and thinking that he was the accused, and remembers her male cousin telling her that he had seen a Somalian man and asked him to leave. She took her clothes off, went to bed, and called her friend N. She remembers that she was crying.

[22] The complainant agreed that she has real issues with her memory of events that evening, including gaps, starting after she left the restaurant. She also agreed that she was nonetheless “talking and walking fine”. She agreed that she had to piece together what had happened, and that parts of her memory are incorrect. For example, she remembers talking to N in the elevator, and does not remember the accused being present in the vestibule, lobby, or elevator (until they exit the elevator).

[23] As well, although she said she remembers getting out of the elevator on the tenth floor, she agreed that she does not remember every detail afterwards; that her memory is not precise. For example, she remembers when she was up against the wall and the accused was pressing against her, but she does not remember the context of why she stopped walking down the stairs, what led to this, or how she ended up against the wall. Similarly, she does not remember if he kissed her breast, and over time, her memory of whether he performed oral sex on her has varied. She said she did not give the accused oral sex.

[24] She also has no memory of context explaining how she ended up on the floor, or how her shorts came off. She agreed that drinking would lower her inhibitions; however, she said she remembers that he was on top of her with his hand on her mouth, that she would not have consented to have sex with a stranger in the stairwell of her apartment building; that she would not have consented to have sex for money; and that she “would never have consented to unprotected intercourse”. Nonetheless, when asked to confirm that she did not know whether she did not consent to lay down with the accused and to remove her shorts, she answered that she was pretty sure that she did not consent to that: “I’m pretty sure because I don’t know how I ended up in that position, I would not have had sex in a staircase” (she explained that “pretty sure” means that she is sure subject to her memory gaps that morning). She has no recollection of resisting when he was giving her oral sex and said that she did not consent. As well, although she said that she did not agree to have sex for money, she also said, quite candidly, that she did not have “a memory one way or another”.

[25] The complainant’s male cousin testified that he was sleeping on the living room couch when he heard a noise at about 4:00 a.m. on September 2, 2017. This unknown noise woke him up; and as he slowly stood on the sofa to see what it was, he saw, in the opening of the entrance door, a man standing there facing inside the apartment. The cousin testified that he said, “who is there” and that he heard in response “oh shit” and saw the man turn and leave into the hallway. He went to close the door and did not see the man in the hallway. He said that he had not seen the complainant by this time, but then heard her crying in her room. He knocked on her door, waiting for a response and she said “ill, get away”. As he slightly opened the door, he asked the complainant again what was going on, and asked her to stop crying. She shouted for him to “get out or go away”.

[26] The cousin said the complainant kept crying for a long time, crying louder and louder, very loud, like she was wailing. He sent her a text message, apologizing for snapping at her earlier. She continued to cry so he went to her door and knocked again asking if she wanted anything; she continued to cry. He said that about 30 minutes later, he heard her talking to her friend N and that he was then able to fall asleep. He said that he had never seen or heard the complainant cry like that before. He was not cross-examined.

[27] The police were called later that morning by the complainant’s sister, apparently concerned that her sister was locked in her room. Officers attended, and the officer testified that when they arrived at the complainant’s apartment at 12:36 on September 2, 2017, the complainant was in her room. The officer knocked on the complainant’s bedroom door, and the complainant cracked the door open and nodded that only that female officer could come in. The officer testified that the complainant was looking down, crying “quiet tears”, was very soft spoken, and sat on a chair “like she sat down on herself”. The complainant provided a statement (by 12:55), and this officer transported the complainant to the hospital. The officer testified that, throughout their brief period of interaction, she observed that the complainant seemed to remain closed-in on herself and quiet. The officer was not cross-examined.

[28] The complainant’s friend, N, testified. She is 21 years old and a best friend of the complainant since high school. She lived in Toronto at the time, but was in Ottawa in September 2017 for work during which time she stayed with the complainant. N was working that night, but texted and called the complainant during the evening/morning of September 1 – 2.

[29] N indicated that, in the early morning of September 2, 2017, she called the complainant while the complainant was at a club; she said that the complainant sounded intoxicated and upset about seeing her ex-boyfriend, S, with another girl. She described the complainant as a very dramatic person. She offered the complainant an Uber ride home, but the complainant was not then ready to go home. She later spoke to the complainant, and by then, the complainant was very upset and wanted to go home. She arranged an Uber ride for the complainant and said that she spoke to the complainant during the complainant’s entire ride home; only hanging up when the complainant used her phone to buzz herself into her apartment building. She said that the complainant called her right back and that the complainant said that there was a guy in the lobby who was acting weird, and that she did not know who he was (on the surveillance video the complainant did not appear to be talking on her phone while in the lobby of her apartment building).

[30] N said that they were disconnected so she called back, and a male voice answered. N testified that the male voice told her that he did not know who the owner of the phone was and that he was looking for the owner of the phone. N also said that she heard the complainant say something in the background that sounded like “help, he has my phone” so she said that she asked the male voice who then said that the complainant was fine and gave the complainant back her phone. However, the call was disconnected and at 4:54 a.m. N then texted the complainant “why did u hang up”. N said that she was concerned because she felt that the conversation was “sketchy”. During her cross-examination, N agreed that, despite the fact that her memory was better before than it is now, she had omitted to tell the police during her statement of September 4, 2017, that the complainant had said “help” (N said, because the police officer did not ask); similarly, in a text message with the complainant, “help” was also not mentioned.

[31] After this, N testified that she tried to call four or five times, and texted as well, but said that the complainant did not answer. N said that she finally reached the complainant around 5:00 a.m. (although she was not certain who had called whom).

[32] N said that the complainant was just crying, that the complainant could not breathe or speak properly, that it was intense, and that the complainant said that she had been raped. N said that the complainant was upset and wanted to go to bed. After work, N stayed overnight with her boyfriend, and called back later in the morning. N said that she spoke to the complainant’s sister, and that the complainant’s sister was concerned that the complainant would not speak or stop crying.

[33] The accused testified that when he saw the complainant enter the vestibule, he told her that he was locked out of the building. He does not recall what she said, but she buzzed him in. He said that he walked with her to the elevator and pressed the button for the eighth floor. He asked the complainant questions about what she had done that evening and discovered that they had briefly been at the same bar. He told the complainant that he was going to the eighth floor to meet friends and invited her to this after-party. He said that the complainant said, “maybe later”, that she was waiting for her friend to return. He did not get off on the eighth floor and said that he does not really remember why; just that he was talking to the complainant and spontaneously asked her if she could help him find his phone (he also said that it would have been cool if the complainant changed her mind and decided to come to the after-party).

[34] The accused said that he asked the complainant if he could borrow her phone to locate his, using the “Find My Phone” app. He said that the complainant said she did not have data and needed Wi-Fi. They walked in the hallway near her apartment and he used her phone and network to try to find his phone. He said that she was standing near him, on his left, and that she gave him her phone. He said that he could see that his phone was moving, so he assumed that he left it in the limousine.

[35] He said that, while they were in the hallway, he tried again to convince the complainant to come to the after-party. He heard the complainant talking to her friend N about how expensive the Uber ride had been, and said that, by that point, he was talking, joking and flirting with the complainant. He said “I think she was into it. We were laughing, and she was not telling me to “fuck off”. He said they were standing near one another, “in each other’s bubble, really close, but not touching, I don’t think so”. He spoke to N on the complainant’s phone and said that he does not really remember what he told N, but said that he does not remember the complainant saying “help” to her friend.

[36] The accused said that he answered the complainant’s phone when he was tracking his own phone and said that he does not remember what the conversation was about, “I don’t know exactly”. He said that he spoke to N and returned the phone to the complainant. He said that he joked and told the complainant that he did not like her friend. He asked again if the complainant wanted to come to the party, and the complainant said “no”, that she was waiting for N. He said that he asked when the complainant’s friend was returning and learned that N was finishing work and coming soon after. He asked what N did and was told that she was a dancer. He said that he found this funny, that the conversation was lighthearted, and that he was joking. He said that the complainant was laughing with or at him. He said that he asked if her friend made money doing lap dances, and said the complainant was laughing when he asked her about her friend. The accused said that he did not perceive the complainant to be intoxicated, but knew that she had had alcohol to drink that evening. He said that the complainant did not appear drunk, but rather, cool and composed.

[37] He said that he asked the complainant if she would ever hook up with someone for money. He does not remember what she said in response other than “maybe”. He said he asked how much it would cost, and she said $300. He took out his wallet, thinks he had about $100 on him, but was not sure, and said that he gave the complainant $120 cash, but she refused. He said that he also gave the complainant his tangerine debit card as collateral for a promise of later payment (saying that he was a rich American making $150,000 per year), and that she put the money and card in her pocket. He said that he asked the complainant to have sex at her place, and she said no. He said that one of them suggested the stairwell, that he opened the door, and that she walked in front of him. He agreed that their only discussion about their agreement was to have sex for $300, nothing else.

[38] He agreed that it was not clear how the complainant would be later paid; he did not recall talking about it and did not give the complainant his card’s PIN number. He understood that their agreement was $300 for sex, but agreed that there was no discussion about what the money was specifically intended for. Other than for sex, it was not discussed if this agreement included oral sex, vaginal sex, or protected or unprotected oral or vaginal sex. During his cross-examination, he said that he remembered that, at the beginning, the complainant also asked if he had a condom. He said that he does not remember if he had a condom or what he said in response, but assumes that he must have said yes because his response satisfied her.

[39] He remembers kissing the complainant on the neck in the stairwell with her back against the wall. He remembers his hand between her crotch and thinking that she was not ready. He said that he asked her if she would like “having her pussy licked”, and that she said, “hum hum”. He said that she laid down on the ground, he walked to her feet, kneeled, and struggled to take off her shorts. He said that her formfitting shorts were really tight and that she lifted her hips, so he could remove them.

[40] He testified that she opened and raised her legs, and that he “licked her pussy”. He said that he was trying to get her aroused and that he was “fingering” her vagina and kissing her breasts. He said that he went back to give her more oral sex and remembers hearing her moan. He then saw something orange sticking out of her shorts’ pocket and thought it was his tangerine debit card. He decided that he could surreptitiously take his cash and card back, did so, and put them in his pocket (or at least he thought he did). He admitted that, to his knowledge, the complainant did not know that he had taken back those things. After he had taken back what he said he then thought were only his card and cash, he asked the complainant if she would give him “a blow job”. He said that he stood in front of the complainant, that she gave him a “blow job”, and that it caught him by surprise when he ejaculated in her mouth (no condom was used and they had no prior conversation about him ejaculating in her mouth, but he said that he stood in front of her and that she did what she did knowing he was not wearing a condom).

[41] He said that the complainant then said, “you bust, and we’re done”. She repeated “we are done” and put her shorts back on. He said that he wanted to have vaginal intercourse with the complainant (that he was prepared to have unprotected sex with her), but said that he never attempted to penetrate her vagina and never had vaginal sex with the complainant; he said, “my dick was never even close to her vagina”.

[42] He saw the complainant open the stairwell door and said that he was trying to talk to her because he wanted to have sex, but she left. He said that they were “beefing” (arguing) in the hallway, that he said, “I gave you money, what is going on”. He said, “I gave you money for sex, not for a fucking blow job”, but he heard the door of her apartment slam shut. He said that he then checked what he had taken back from the complainant, and only then realized he had taken back his tangerine card, the complainant’s debit and credit card, and not his cash. He said that he was not angry but felt cheated. He said that, by this time, the complainant was “dramatic” and “upset but not crying”. He would have noticed if she was crying. He said that he opened the door of the complainant’s apartment, with her cards in his hand, intending to give them back when a tall male figure with a deep voice said something. The accused said, “oh shit”, and ran away – he did not give the cards back. He said that he thought that this male was the complainant’s pimp, and that he got scared “that this guy might follow him”.

[43] It is admitted that the surveillance video shows that, at approximately 4:53 a.m., the accused is, again, seen briefly in the lobby of the complainant’s apartment building. He is seen next, entering the elevator from the lobby and exiting the elevator on the eighth floor. Minutes later, the accused is seen leaving the building via the stairwell at approximately 4:56 a.m.

[44] It is admitted that between 6:00 and 7:00 a.m. that morning, the accused flagged a taxi and was transported to the Orleans area of the city. It is admitted that the accused attempted to use the complainant’s credit card for payment. After a number of unsuccessful attempts to enter the correct PIN, it is admitted that he told the taxi driver that he had a debit card at home, and that he would return to pay. The accused is captured on the taxi video during the ride. At his destination, the accused took off running and did not return to pay the taxi driver the $45 fair owing for the ride. The accused agrees that the elements of the transportation fraud offence are met.

[45] The accused has a criminal record with convictions for a number of offences in 2008, 2009, 2012, 2014, and 2015, including for crimes of dishonesty (theft, break and enter, fraud, and failing to comply).

Legal Principles

General Principles

[46] An accused is presumed innocent and the burden of proving his or her guilt beyond a reasonable doubt is always on the Crown; this is a heavy onus.

[47] Proof beyond a reasonable doubt is a fundamental principle of our justice system. As indicated by the Supreme Court of Canada, proof beyond a reasonable doubt is a doubt based on reason and common sense that logically arises from the evidence or absence of evidence. A reasonable doubt is not far-fetched or frivolous; it does not involve proof to an absolute certainty or proof beyond any doubt, which is often impossible. On the other hand, it is not enough for the Crown to prove that the accused is probably guilty; probable or likely guilt is not proof beyond a reasonable doubt (see R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 231).

[48] To be convinced beyond a reasonable doubt means to be certain that an offence has been made out before convicting someone of the offence (R. v. Lifchus, [1997] 3 S.C.R. 320). A finding of not guilty is required where the evidence only manages to convince the decision-maker that an offence probably or likely occurred.

[49] In R. v. W.(D)., [1991] 1 S.C.R. 742, and cases that followed, the Supreme Court of Canada sets out the manner in which a court is to consider testimony from an accused (and other exculpatory conflicting accounts).

[50] First, you ask whether you believe the accused (or the exculpatory conflicting account— obviously on a material point), in the context of all the evidence called at trial, and if you do, you must acquit the accused. Second, if you disbelieve the accused (or the exculpatory conflicting account), you must still ask whether this evidence, considered in the context of all the evidence called at trial, nonetheless leaves you with a reasonable doubt about his guilt, and if it does, you must acquit. Finally, even if you disbelieve the evidence of the accused, and you are not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proven its case. Indeed, even if the accused’s evidence does not leave you with a reasonable doubt, you must still determine whether the totality of the evidence has proven the accused’s guilt beyond a reasonable doubt – whether, on all the evidence called, the Crown has proven each element of the offences charged beyond a reasonable doubt (see W.(D.), at para. 11).

[51] It is important to note, however, that in deciding a case, a judge is not comparing each account and deciding which account to believe. A judge can believe a witness, but still be left with a reasonable doubt about what happened after considering all of the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony.

[52] The rule of reasonable doubt applies where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence (or even arising out of evidence favourable to the defence in the Crown’s case). In such instances, the Court “must relate the concept of reasonable doubt to those credibility findings” such that to have reasonable doubt it is not necessary “to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves [the Court] in a state of reasonable doubt as to the accused’s guilt” (see R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114).

[53] Indeed, proof beyond a reasonable doubt is not a choice between two alternatives; a court need not resolve conflicts in evidence. As indicated by the Court of Appeal: “There was, of course, a third alternative, namely, if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal” (R. v. Nimchuk (1977), 33 C.C.C. (2d) 209 (Ont. C.A.), at para. 7).

[54] Consequently, a reasonable doubt can arise from evidence that the court ultimately does not accept. For example, in R. v. Danks (1994), [1994] O.J. No. 143 (C.A.), at para. 8, even if the evidence relating to the alibi was ultimately not accepted, this evidence could nonetheless leave the court with a reasonable doubt: “if you do not accept that evidence, but you also do not reject it so that you have a reasonable doubt whether that evidence is true then clearly you would have a reasonable doubt about whether Mr. Danks was the shooter and you would be required to acquit Mr. Danks.”

[55] Conversely, a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible Crown evidence may constitute a sufficient explanation for the rejection of the evidence of an accused (see R. v. T.M., 2014 ONCA 854, 318 C.C.C. (3d) 421, at para. 68; R. v. J.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 22-23, reversed on other grounds, 2011 SCC 17).

[56] Our law has developed in this way because of the jeopardy accused people face when they are charged with criminal offences. Before a person is required to face the consequences of a criminal conviction, a judge must be sure that the accused committed the offences with which he or she is charged. If the evidence is not strong enough to convince the judge with that degree of certainty that the accused committed the offence, the accused must be acquitted.

[57] In a case like this, my assessments of the credibility and reliability of the witnesses’ evidence are particularly important.

[58] Credibility relates to a witness’s veracity, whereas reliability concerns the accuracy of the witness’s testimony. Both require a careful assessment (see R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at paras. 41-44; see also R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.); and R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.)). A witness may believe his or her evidence to be true, yet that evidence may not be reliable.

Consent in Sexual Assault Cases

[59] Here, while the complainant was intoxicated, the Crown does not allege that the complainant was incapable or that she did not have the required capacity to consent (an operating mind capable of understanding: the nature and quality of the sexual activity; the identity of the person wishing to engage in the sexual activity; and, that she could agree or decline to participate in the sexual activity). The Crown specifically said that it is not making that allegation.

[60] The accused agrees that physical contact of a sexual nature occurred between him and the complainant in the early morning hours of September 2, 2017. This leaves only to determine if the act of sexual assault has been proven by the Crown, whether the complainant did not consent to this contact. At this stage, when determining whether the act of sexual assault has been proven, “consent” is a purely subjective analysis (sections 265 and 273.1 of the Criminal Code of Canada). The question at this stage is whether, in her mind, the complainant wanted the sexual touching to take place. The complainant’s evidence about her subjective view is obviously subject to the judge’s or jury’s assessment of her credibility and reliability (assessing the evidence and her words and actions during the incident to determine if they raise a reasonable doubt about her stated evidence that in her mind she did not want the sexual touching to take place). The relevant period of time to determine the subjective presence of consent is at the time of the alleged sexual act. The accused’s perception of the complainant’s state of mind, or whether the complainant expressed her lack of consent or revocation of consent are at this stage of the analysis irrelevant – what matters is the “conscious agreement of the complainant to engage in every sexual act” (see R. v. Barton, 2019 SCC 33, at paras. 88-89). It is an error of law to infer that a complainant’s consent was implied by the circumstances, or by the relationship, and it is also an error of law to assume that unless a complainant says no, that complainant has implicitly consented to sexual activities (see Barton at para. 98).

[61] If I find that the Crown has not proven the complainant’s lack of consent beyond a reasonable doubt, the accused must be acquitted (the act of sexual assault will then not have been proven) because here, as indicated above, the Crown is not arguing that the complainant was incapable of consenting to the sexual activity. Other than the evidence of the complainant’s alcohol consumption and memory gaps, I have no evidence that the complainant was not conscious throughout the sexual activities, or that she was otherwise incapable of consenting to the sexual activities (unable to understand the risks and consequences, the sexual nature, and that she could decline to participate). However, if I find that the Crown has proven beyond a reasonable doubt that the complainant did not subjectively consent, thereby finding the third, and in this case the only disputed element of the act of sexual assault, I must then determine whether the accused had the required intent to establish sexual assault – whether the accused knew or was reckless of or was wilfully blind that the complainant did not consent. Here, if I find that the Crown has established the complainant’s lack of consent, the accused argues that he did not have the required intent to establish sexual assault because, he says, he honestly, but mistakenly believed that the complainant, by her words or conduct, actually communicated consent. The principal considerations to this defence are the complainant’s communicative behaviour, and the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent (see Barton, at para. 91, and sections 265(4) and 273.2 of the Criminal Code of Canada).

[62] The issue of whether the accused had an honest but mistaken belief that the complainant actually communicated consent, whether by words or by conduct, is a defence of “mistake of fact”, and involves a two-step analysis:

1. As a prerequisite to reliance on the defence, under section 265(4), a judge must first determine whether there is an air of reality to the defence. Determining whether there is an “air of reality” to this defence requires the court to consider whether there is any evidence upon which a reasonable trier of fact acting judicially could find that the accused took reasonable steps to ascertain consent, and that the accused honestly believed that the complainant communicated consent (see Barton, at para. 121–122).
2. If there is an air of reality to the defence, the Crown must disprove the defence beyond a reasonable doubt by establishing either that the accused failed to take reasonable steps to ascertain the complainant’s consent, or by establishing that the accused did not in fact have an honest but mistaken belief in communicated consent (see Barton, at para. 123). Determining whether the accused took reasonable steps to ascertain consent involves looking at the circumstances known to the accused and asking if a reasonable person aware of the same circumstances would have taken further steps before proceeding with the sexual activity. The reasonable steps threshold is elevated in cases such as this case where the accused and the complainant are unfamiliar with one another, and the sexual activity was invasive and posed a greater risk to the health of the complainant. As well, the complainant’s silence, ambiguous conduct, or any “testing the waters” are not reasonable steps (see Barton at paras. 107-108).

Demeanour Evidence

[63] Demeanour evidence has been raised in this trial, and it is helpful to review the principles that apply to this kind of evidence. The court is mindful of the reasons for caution in considering demeanour evidence: “[w]hether demeanour is related to in-court or out-of-court behaviour, it can be easily misinterpreted” (see R. v. M.M., 2016 ONSC 5027, at para. 59; and R. v. D.M., 2016 ONSC 7224, at paras. 23 – 26, and from which I have drawn considerably). As noted in R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27, demeanour evidence has been known to play a role in wrongful convictions. Indeed, demeanour evidence alone can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness as “the law does not clothe the trial judge with divine insight into the hearts and minds of the witnesses” and demeanour should not be sufficient where there are significant inconsistencies and conflicting evidence (see Norman, at para. 55). Usually more valuable means of assessing witnesses are to consider the consistency of what they have said on a material matter (internal and external contradictions), improbabilities (exaggerations or illogical propositions), and method of testifying (hesitations, unanswered questions, challenging counsel, or run-on answers - not demeanour).

[64] However, demeanour evidence is not irrelevant, and trial judges are not required to ignore it in the assessment of witnesses. Trial judges may use demeanour evidence in conjunction with their assessment of all the evidence and in the full context of the trial (see R. v. Hull, [2006] O.J. No. 3177 (C.A.), at para. 8, citing R. v. Boyce, [2005] O.J. No. 4313 (C.A.), at para. 3). Regardless, it is clear that trial judges ought not to unduly rely on demeanour to make a credibility finding, and that any reliance on demeanour must be approached cautiously (see R. v. S.(N.), 2012 SCC 72, [2012] 3 S.C.R. 726). Indeed, a witness’s demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence (see R. v. Hemsworth, 2016 ONCA 85, 26 C.R. (7th) 79).

[65] Insofar as a complainant’s post-event emotional state is concerned, evidence of a complainant’s emotional upset may be used to support a complainant’s evidence of a sexual assault (see R. v. Varcoe, 2007 ONCA 194, 222 O.A.C. 197, at para. 33, citing R. v. Boss (1988), 17 O.R. (2d) 99 (C.A.), and see also R. v. J.A., at paras. 16-18, reversed on other grounds, 2011 SCC 17). The weight to be given this evidence is a matter for the trial judge’s discretion. Again here, a trial judge must be cautious about undue reliance on such evidence to resolve a credibility issue (see J. A., 2011 SCC 17 at para. 14).

[66] Further, as indicated in R. v. Cepic, 2019 ONCA 541: “The use of a common sense approach to credibility assessment is fraught with danger for it can “mask reliance on stereotypical assumptions”; “It is an error of law to rely on pre-conceived views about how sexual assault victims would behave”; “These are the “myths” of appropriate behavior that the law seeks to eradicate. Historically, these myths have operated to undermine a complainant’s testimony; but they may also operate in reverse, to artificially bolster a complainant’s credibility on the basis that “no young woman would consensually engage in the alleged behaviour”. Any assessment of credibility and reliability relating to conflicting facts based only on some assumptions about who would or would not do this or that risks being based on behavioural assumptions, myths, and stereotypes (rather than on an analytical assessment of the evidence) and could as such constitute an error of law (Cepic, at paras. 13 – 16, 24, and 27).

The Implication of Intoxication and Memory Blackouts in Assessing Consent

[67] As indicated above, despite the complainant being intoxicated at the relevant time, the Crown is specifically not arguing that the complainant lacked the required capacity to consent.

[68] Cases have established that the Crown cannot rely on a complainant’s lack of memory as direct evidence of the complainant’s lack of consent. Loss of memory “is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period” (see R. v. J.R. (2006), 40 C.R. (6th) 97, at para. 18).

[69] Similarity, a complainant with no or only partial memory will sometimes testify that she would not have consented to the act at issue. However, such a statement is not direct evidence of a lack of consent, but rather “a statement of her assumption or belief about how she behaved at the time she cannot recall” (see J.R., at para. 22). Such a statement may, however, be properly received as circumstantial evidence of whether consent was present at the operative time. The strength of any inference flowing from such a statement is fact specific and must be assessed in relation to the entire evidence including the possibility of the complainant behaving out of character due to her intoxication (see R. v. Meikle, 2011 ONSC 650, 84 C.R. (6th) 172, at paras. 41 – 43).

[70] As well, a complainant’s honestly held belief that she was sexually assaulted while intoxicated is not to be confused with whether this stated belief is reliable in the context of reliability concerns inherent to an intoxicated witness (see R. v. Meikle, at para. 55).

Robbery

[71] With respect to the count of robbery, the accused and the Crown jointly submitted that liability in this case will only flow if I find that, at the time that the accused committed the act of taking the complainant’s cards, the accused knew that he was taking her cards. If I find that the cards were knowingly taken during the course of the sexual assault, a conviction for robbery would follow. If I find that the cards were knowingly taken, but not in the context of a sexual assault, a conviction for the lesser included offence of theft under would follow.

Analysis

[72] The accused argues that the combined effects of his evidence with the reliability issues surrounding the evidence of the complainant are sufficient to raise a reasonable doubt. The Crown urges the Court not to confuse the forest for the trees, arguing that the accused’s version does not make sense in part because it defies logic (why a young woman would essentially agree to prostitute herself – which, I note, would engage inappropriate stereotypical thinking), the contradictions in the complainant’s evidence are minor, and the circumstantial evidence supports the complainant’s narrative.

[73] I start my analysis by pointing out, subject to exceptions that follow, and despite neither witness being perfect, that both the complainant and the accused presented as relatively acceptable witnesses. Each had a method of testifying that seemed generally spontaneous, and each appeared, for the most part, and subject to exceptions, to make reasonable efforts to answer difficult questions seemingly as best they could, even occasionally making admissions against interests (for example: the complainant agreed that she could not be certain that she did not consent, only pretty sure, because she has gaps in her memory – the accused was not clear who decided to go in the stairwell, did not overstate the conversation about the alleged agreement to have sex, and admitted that he would have been prepared to have unprotected vaginal sex with the complainant if she agreed). As well, neither appeared to make exaggerated or over-statements about the other. I raise this at the outset of my analysis despite the exceptions applicable to each of the parties (outlined below) and the fact that such evidence often has little evidentiary value (since it is often hard to assess the manner of testifying of a witness without knowing the facts, without knowing the witness, and without some comparative benchmark) because this observation, as limited as it is, distinguishes this case from others where the judge found the opposite – that one of the parties was perceived as an obvious poor witness.

[74] The Court of Appeal recently reiterated the dangers of using “a common-sense approach to credibility assessment” stating that it can “mask reliance on stereotypical assumptions”. It reminded us that “it is an error of law to rely on pre-conceived views about how sexual assault victims would behave…These are the “myths” of appropriate behaviour that the law seeks to eradicate”. The analysis must relate to the evidence, and not to some stereotypical understanding. As such, unless I can tie it to the evidence, I cannot assume, based on pre-conceived views, that the accused’s version of events of money for sex makes no sense only because “no young woman would consensually engage in the alleged behaviour”, or that the complainant’s version of events makes no sense only because no young woman would have chosen the stairwell rather than the safety of her nearby apartment unless she was consenting to sex (Cepic, at paras. 13 and 14).

Sexual Assault

[75] When I consider the evidence of the accused in the context of all the evidence, I do not believe the evidence of the accused that the complainant consented to engage in the sexual activities described by him, and that vaginal intercourse did not occur, because:

• The complainant did not know the accused, rejected his invitation to go to his stated after-party on the eighth floor, was upset over seeing S earlier that evening, and returned home to go to bed. She believes that she told the accused that she was tired and just wanted to go home.
• On the surveillance video, the accused is observed following and trying to befriend or charm the complainant, but the complainant did not appear to reciprocate – she exhibited no apparent sexual, flirtatious, or even friendly behaviour towards the accused.
• The accused said that he did not give the complainant $300, but rather $120 plus a tangerine debit card as collateral for a promise of payment (with no discussion about how the complainant could later have accessed the collateral). Although the complainant was drunk, this is nonetheless a very unlikely transaction between complete strangers – how would the complainant ever get paid?
• The accused admitted that he tried to surreptitiously take back his money ($120) and tangerine debit card. In fact, what he surreptitiously took from the complainant was: the complainant’s debit and credit cards; not his money; and if you believe the accused, his tangerine card. I do not believe the accused that the complainant accepted his stated transaction because it is too coincidental that he would have succeeded at taking back his card and not his cash – considering that he had to say this because his card was not found by the complainant later that morning. In addition, unless the accused suffers from some form of sensory loss in his fingertips or other unknown dexterity issue, I find that it is not believable that the accused would not have sensed the difference between holding one card and $120 cash (as the accused said he thought he took back) and holding three cards and no cash (what he said actually happened). This factual finding is made by inference, based on the experience common to most, of handling cash, debit, and credit cards. Moreover, and importantly, although the accused said that he wanted to return the cards to the complainant, he did not. Instead, shortly thereafter, he tried to use the complainant’s credit card to pay for his taxi fare home. As well, the complainant said that she had no cash on her the following morning (when she gave her shorts to the police).
• Despite having gaps in her memory and not remembering the context, the complainant was convincing when describing how she turned her head to avoid being kissed by the accused. To some extent, this is corroborated by the accused who said he kissed her neck, not her mouth. Moreover, the complainant was compelling when describing the alleged vaginal penetration and intercourse, by the details she provided: how she asked the accused to stop, tried to push him, tried to grab her phone to get help, how the accused pushed her phone away, placed his hand over her mouth and said “shhhhhh”, and finally, how she said he penetrated her vagina with his penis. I do not accept the accused contentions that she misapprehended his fingers for his penis and that intercourse did not occur because I do not find it believable that the complainant could have mistaken the accused fingers for his penis in her vagina – she described the accused lying over top of her with his hand over her mouth while penetrating her vagina with his penis.
• The complainant’s post-event demeanour has limited probative value considering how upset she was after seeing S shortly before that same morning, and how reluctant to describe why she was so upset after seeing S. However, the complainant appeared (from the limited observations of the complainant on the surveillance video) to have calmed down somewhat when she entered her apartment building. As a result, the severity of the complainant’s crying, immediately upon entering her apartment (as observed by her cousin), appears to contradict the accused’s version of events that the complainant was not crying, said, “you’re done”, and walked away. Similarly, although the complainant’s 5:00 a.m. text to S could be subject to varying interpretation, it is more difficult to see how it could corroborate the accused’s narrative of consensual sex and no vaginal intercourse.
• When considering all of the evidence, the accused’s prior convictions for crimes of dishonesty do not inspire confidence in his denial that intercourse occurred.
• The complainant has no apparent reason to seek vengeance or to make up her version of events. Although this has virtually no probative value because it engages stereotypical thinking, when combined with the complainant’s credible description of non-consensual intercourse, it is nonetheless a very small factor.
• Similarly, although on its own this also has very little probative value and can engage stereotypical thinking, I nonetheless place a small amount of reliance in not believing the accused on the fact that the complainant testified that she would not have consented to sex with a stranger in the stairwell of her apartment building, and that she would never have consented to unprotected intercourse – because, here, these statements are supported by the above (by the complainant’s recollection and description of turning her head to avoid the accused’s kisses and by her description of the non-consensual intercourse).

[76] Next, when I assess the evidence of the accused in the context of all the evidence, it leaves me with a reasonable doubt about the issue of the complainant’s subjective consent, but only up until the allegations of vaginal intercourse. The accused’s evidence does not leave me with a reasonable doubt about the allegations of vaginal intercourse. I arrive at this conclusion for the following reasons.

[77] The complainant has significant gaps in her memory about what occurred that morning, and lack of capacity to consent is not raised by the Crown.

[78] The complainant’s first memory of the accused is as they exit the elevator on the tenth floor. She has no memory of seeing the accused in the vestibule, lobby, and elevator, and no memory of what the accused said during this time. She has an incorrect recollection of when she spoke to her friend N, and the complainant admitted that she reconstructed some of her memory.

[79] The complainant has a very limited memory of what occurred in the hallway, just before she decided to enter the stairwell rather than her nearby and unlocked apartment. She remembers that, at some point, the accused had her phone, that he said he was rich, and that he offered her money for sex, but she does not remember how long they were in the hallway, or more precisely, what they talked about. As a result, it is not clear to me whether the complainant really remembers why she decided to enter the stairwell. Moreover, the complainant’s explanation that she chose the stairwell to protect the occupants of her apartment is inconsistent with her admission, on cross-examination, that, at some point, she might have been friendly and flirtatious with the accused (most probably in the hallway as per the narrative of the accused and from the earlier observations of the complainant on the surveillance video). This latter evidence is also inconsistent with the evidence of N that she heard the complainant say “help” during N’s brief telephone conversation with the accused.

[80] The above raise some concerns about the reliability of the complainant’s evidence considering that she was intoxicated to the point of having memory blackouts, that she does not remember seeing/talking to the accused prior to exiting the elevator on the tenth floor, that she has an imprecise recollection of what occurred in the hallway, and that she has an unclear or slightly varying recollection of why she entered the stairwell.

[81] The complainant said she did not consent to have sex for money, or to have sex in the stairwell, but she admitted, during her cross-examination, that she does not have a memory one way or another. She said she did not consent to oral sex; however, when asked to confirm, during her cross-examination, that she does not remember one way or another, but rather she thinks that she would not have consented, she answered “sure”. Therefore, despite what the complainant had said earlier, she admitted that she remembers receiving oral sex from the accused and that she has no memory of not consenting to this. The complainant also candidly admitted that, because of the gaps in her memory, she is not certain whether or not they had a conversation about condoms.

[82] The complainant’s issues with memory continued in the stairwell. For example, she has no recollection of context about how she ended up on the floor with her shorts removed and the accused performing cunnilingus, and she has no memory of the accused kissing her breasts (male DNA was detected on her right and left breasts).

[83] Considering the above, while I recognize that the complainant’s subjective state of mind is determinative of the issue of her consent, up until the allegations of vaginal intercourse the evidence of the accused leaves me with a reasonable doubt whether (1) the Crown has proven that the complainant has a memory of her actual state of mind, (2) the Crown has proven that the complainant was not subjectively consenting to the sexual contact, and (3) the Crown has proven that the indirect and circumstantial evidence establishes that the complainant was not subjectively consenting to engage in the sexual activities up to then (her lack of consent is the only missing element required to establish the act of sexual assault).

[84] Up until the allegations of vaginal intercourse, the facts of this case relevant to the issue of circumstantial evidence are different from the facts in R. v. Al-Rawi, 2018 NSCA 10, 44 C.R. (7th) 148; R. v. Mirzadegan, 2018 ONSC 3449; and from the facts in J.R. Here, the circumstantial evidence supporting an inference that the complainant did not subjectively consent to sex up until the allegations of vaginal intercourse is more limited (although it includes: that the complainant did not know the accused, had only just met him, was a student, wanted to go home, refused an invitation to go to the accused’s after-party, turned her head when the accused kissed her neck, the complainant’s post-event demeanour and text messages, and the fact that she said that she would not have consented), and some of this circumstantial evidence could engage stereotypical assumptions – for example, the fact that the complainant did not know the accused and had just met him briefly are impossible to assess. Moreover, although the complainant said she just wanted to go home, she has no recollection of events when she entered her apartment building – she did not see the accused and has no recollection of him until they exited the elevator on the tenth floor.

[85] When I consider the circumstantial evidence, I find the complainant’s decision to enter the stairwell (instead of her nearby apartment) more readily supports some of the accused’s version of events because of the admitted contemporaneous conversations about money for sex and the complainant’s admission that she might, at some point, have been flirting with the accused, than it might support that the complainant said “help”, did not want the accused to know where she lived, and wanted to protect the occupants of her apartment - which version is contradicted by her admission that she might have been friendly and flirtatious with the accused.

[86] As well, the reliability of N’s evidence was negatively impacted by N initially not mentioning to the police that she had heard the complainant say “help” (while N was talking to the accused - although N did also say this at the preliminary inquiry), and by N saying at the preliminary inquiry that she understood from the complainant that the accused had pushed the complainant into the stairwell, and that they had fought before he raped her. As well, as indicated above, the evidence surrounding whether the complainant said “help” is contradicted by the complainant admitting that, at some point, she might have been friendly and flirting with the accused. It is also contradicted by the fact that the complainant chose the stairwell rather that her apartment (or the elevator if she wanted to go back to the lobby); there is no evidence that she was coerced into the stairwell or that the accused threatened her. Although I am mindful of not applying a standard of perfection to the evidence and recognizing that some inconsistencies are to be expected, for those reasons, I do not accept that the complainant said “help”.

[87] Additionally, when the complainant testified, for some reason, she was reluctant to admit that she had understood that the accused was offering her money for sex, which undermines her credibility on this point. Similarly, the complainant tried to minimize the nature of her disagreement with S. This is minor and could be explained by a misunderstanding over labels (over her understanding of “boyfriend”), however, it bears on the extent of the complainant’s distress and how upset she was after seeing S earlier that morning, which limits my assessment of her demeanour later that morning.

[88] Finally, as I indicated at the outset, and subject to exceptions, the accused also testified in a somewhat reasonable manner. His narrative about wanting to attend an after-party on the eighth floor is not inconsistent with how he behaved in the vestibule, in the elevator, and with how he tried to convince the complainant to attend the party (which she corroborates). As well, his story about looking for his phone could explain why he re-entered the elevator on the eighth floor, why he followed the complainant to the tenth floor, why he had the complainant’s phone (to look for his misplaced phone using the “Find My Phone” app near the complainant’s apartment, where she would have had access to Wi-Fi – the latter was not addressed by the Crown’s evidence). It could also explain what N heard: that the accused was looking for his phone (not what N thought she heard, that he was looking for the owner of the phone that he was holding, which was the complainant standing right beside him). The accused’s story about looking for his phone also fits with his narrative that, by this time, they were both flirting, why the complainant might have loaned him her phone, which to some extent is corroborated by the complainant saying that the accused entered his Apple identification in her phone, and, that at some point she may have been friendly. Although it would have been easier for the accused to find his phone if he had attended the after-party on the eighth floor to speak to the owner of the limousine (the owner could have called the driver to ask that he look for the accused’s phone), it is undisputed that the accused was trying to convince the complainant to attend the after-party; asking her help to look for his phone fits with the accused trying to spend more time with the complainant to convince her to attend the after-party.

[89] As a result, when I consider the evidence of the accused in the context of all of the evidence, his evidence leaves me with a reasonable doubt about the complainant’s subjective lack of consent up until the allegations of vaginal intercourse. However, for reasons that follow, when I consider the evidence of the accused in the context of all of the evidence, I am not left with a reasonable doubt about whether vaginal intercourse occurred without the consent of the complainant.

[90] The accused’s evidence that he does not remember whether or not he had a condom that morning is not credible. The accused was arrested for sexual assault not that long after the events took place. The availability of a condom is not such a minor point considering the factual context of this charge. Further, and more importantly, the accused practically admitted that he would have lied about this to the complainant. Indeed, the accused indicated that he must have said that he had a condom because his answer seemed to have reassured the complainant. This suggests to me that the accused is not credible when he said that he did not remember – he likely did not have a condom and essentially admitted that he would have said anything to have sex with the complainant.

[91] However, the absence of a condom would have become apparent to the complainant at some point. The complainant was adamant that she would not have unprotected intercourse with a complete stranger. This statement is deserving of some weight because it is corroborated by her evidence that she said “stop” when the accused first attempted to penetrate her vagina with his penis, and by her description of how she reacted to his continued efforts.

[92] The complainant was rather candid when she described what she did and did not remember. What she did not remember is highlighted above. However, in contrast, the complainant remembered and described the allegations of vaginal intercourse (see para. 75 above, and the complainant’s recollection of saying “stop”, of resisting the accused, of how the accused pushed her phone and placed his hand over her mouth, of how she felt the accused over her body and felt the pressure of his penis’ against her vagina, and of how she felt being penetrated vaginally by his penis). The complainant was compelling when giving this evidence, and she withstood a rather rigorous cross-examination.

[93] As well, I did not find the accused’s evidence credible when he said that he was not aroused, and that his penis did not come close to the complainant’s vagina. These statements are contradicted by how the accused behaved with the complainant, with his descriptions of oral sex, and by the complainant’s compelling evidence that she felt his penis against her vagina, and afterwards, in her vagina.

[94] Regarding the complainant’s post-event demeanour and text messages to S, referred to above, the complainant was admittedly already upset when she arrived at her apartment early that morning. However, she appeared to have calmed down when she was in the lobby, the elevator (as per the observations from available video surveillance), and in the hallway (as per the accused’s evidence that the complainant was “cool” up until the end when she became dramatic, but was not crying). As a result, the observations about the extent of the complainant’s crying and demeanour made by her cousin, her friend N, and the complainant’s 5:00 a.m. text message to S, although ambiguous considering the complainant’s dramatic personality and poorly explained reaction to seeing S, and therefore of limited probative value, are nonetheless a more difficult fit to support the accused’s narrative that he and the complainant had a simple agreement of sex for money, and that the complainant walked away before any vaginal intercourse and was not crying. These observations of the complainant’s demeanour are even more unlikely to support the accused’s narrative when one also considers the complainant’s version of non-consensual vaginal intercourse. As a result, the facts of this case are different from those in Meikle.

[95] The accused following the complainant to her apartment after the events in the stairwell could just as well be explained by the parties arguing about the non-consensual intercourse that had just occurred then about the accused trying to convince the complainant to have intercourse, as he alleges.

[96] Finally, when I consider the totality of the evidence, I find that the Crown has proven, beyond a reasonable doubt, that the accused had vaginal intercourse with the complainant, without the complainant’s consent.

[97] I arrive at this conclusion largely because I accept, beyond a reasonable doubt, the complainant’s evidence about non-consensual vaginal intercourse. As explained above, the complainant was compelling when giving this evidence. I found her evidence credible on this point because she was able to provide details about what she remembered and provided a description of the context. The complainant described remembering that she was not subjectively consenting, described what she said and did, and what the accused said and did. Her evidence about this was not that she would not have consented, but that she did not consent. She described how the accused’s body was on top of hers and feeling his penis attempt, and then penetrate her vagina. Considering all of the evidence, I do not accept that the complainant could have misapprehended having a hand over her mouth and a penis in her vagina.

[98] Moreover, although some inconsistencies were revealed during the complainant’s cross-examination, these were on minor points and did not negatively impact my assessment of the complainant’s credibility and reliability relating to her evidence of non-consensual intercourse. Indeed, such inconsistencies are unavoidable when someone has gaps in their memory caused by alcohol consumption and has had to repeat her version of events to the authorities numerous times over a period of almost two years. The fact that the complainant does not remember seeing the accused in the vestibule, lobby, and elevator, and that she does not remember when she spoke to N, does not necessarily mean that she could not accurately remember an instance of forced intercourse. As indicated above, her description of this sexual activity contains a reasonable amount of details, and some of her earlier memories are corroborated (I will come back to this). Consequently, none of the inconsistencies in her evidence and memory gaps raise a reasonable doubt about the complainant’s recollection and description of having a penis forcefully inserted into her vagina.

[99] The DNA evidence does not rule out the possibility of unprotected vaginal intercourse considering that the complainant does not know whether the accused ejaculated.

[100] The complainant’s evidence of vaginal soreness was somewhat weak and therefore of limited corroborating value, but nonetheless, it tends to support her version of events and contradicts that of the accused (that vaginal intercourse did not occur).

[101] As well, parts of the complainant’s narrative are corroborated by the accused (that he said that he was a rich American, that he followed her, that he was in her space, that he had her phone, that he kissed her neck – not her mouth, and that he gave her oral sex), and parts are corroborated by her cousin (that she was crying very loudly and uncontrollably in her room just after she entered the apartment). The complainant does not remember giving unprotected oral sex to the accused. I conclude that this is either because of a gap in her memory caused by alcohol, or more likely because it did not happen and was said by the accused in an effort to make his narrative that vaginal intercourse did not occur more believable, while preserving the possibility of a defence of honest but mistaken belief for this act of oral sex.

[102] Finally, this has obviously been a difficult case to decide considering the conflicting narrative and rather high potential for stereotypical thinking. Although I do not believe the accused, but have a reasonable doubt about the complainant’s subjective consent up until this sexual activity, I am certain and have no reasonable doubt about the vaginal intercourse because for this sexual activity, the complainant has a memory.

[103] During my reasoning and analysis of all of the evidence, I assessed the accused contentions that the complainant’s recollection of intercourse was not reliable, considering his arguments and my earlier findings about the reliability of her memory. However, after my analysis, I realized and concluded that the earlier gaps in the complainant’s memory cannot explain away the complainant’s recollection and description of events surrounding the vaginal intercourse. Considering all the evidence, I am satisfied that any doubt about this part of the complainant’s narrative is not a reasonable doubt, but a far-fetched or a frivolous doubt, akin to requiring proof to an absolute certainty or proof beyond any doubt, which, as indicated earlier, is often impossible and not part of our law.

[104] Because the accused’s narrative is that intercourse did not occur, I need not consider the defence of honest but mistaken belief in communicated consent (it was not raised by the accused for this sexual activity which he denies occurred).

[105] Consequently, I find that the Crown has proven non-consensual intercourse beyond a reasonable doubt.

Robbery

[106] It should be clear from my earlier analysis of the accused’s explanations why he had the complainant’s bank cards that I do not believe the accused’s evidence that he did not know that he was taking the complainant’s cards. Further, his evidence on this issue, considered in the context of all of the evidence, does not leave me with a reasonable doubt that the accused knew, when he took the cards, that he was taking the complainant’s bank cards. I arrive at these conclusions because: it would have looked and felt very different (one card and $120 cash would look and feel very different from three cards and no cash); the accused said that he wanted to return the complainant’s cards, but he did not; and instead, shortly thereafter, the accused tried to use the complainant’s credit card to pay for his taxi ride home. His explanations are not credible.

[107] As well and for the same reasons, when I consider the totality of the evidence on this issue, I find that it establishes beyond a reasonable doubt that the accused took the complainant’s cards knowing (at the time that he was doing so) that he was taking her bank cards.

[108] The remaining issue is whether the theft is sufficiently “immediate” to the violence to constitute robbery. The evidence about this is mostly from the accused (the complainant does not remember for how long the accused gave her oral sex – does not think that it went on for long, but does not remember what she did next – and she does not remember giving the accused oral sex or the duration of the sexual activities). The accused said that he took the complainant’s cards while giving her oral sex, and that she thereafter gave him oral sex. The duration of these sexual activities is unknown. Considering my earlier findings, this would have been sometime before the non-consensual intercourse, and it is not clear from the evidence how much time separated the oral sex event(s) from the intercourse event.

[109] In R. v. Burden (1973), 11 C.C.C. (2d) 491 (Ont. C.A.), the Court found that a victim pursuing an accused, who had taken his wallet, and only then being struck by the accused, sufficiently connected the theft and the violence to be “immediately”, as provided at s. 343 of the Criminal Code of Canada.

[110] Considering the above, I have a reasonable doubt about this last element of the offence of robbery because the timing between the theft and the subsequent sexual assault is unknown, such that I cannot assess whether the violence is sufficiently connected to the theft to be considered to have been “immediately”. I therefore find that the Crown has not proven robbery beyond a reasonable doubt, and a conviction for the included offence of theft will be entered.

Fraud in Relation to Fares

[111] This offence is made out at paragraphs 6 to 8 of Exhibit 1 (the admissions made under s. 655 of the Criminal Code of Canada) and is not disputed by the accused.

Conclusion

[112] The following shall therefore be entered on the indictment:

1. Count No. 1: Guilty (of sexual assault).
2. Count No. 2: Not guilty of robbery, but guilty of the lesser included offence of theft under five thousand dollars (under s. 322 (1) (a) of the Criminal Code of Canada).
3. Count No. 3: Guilty (of fraud in relation to fares pursuant to s. 393 (3) of the Criminal Code of Canada).

Mr. Justice Pierre E. Roger Released: September 4, 2019