COURT FILE NO.: CR-18-45

DATE: 2019/09/30 (Orally)

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

WOPATSHU UKUMU

Defendant

Vanessa Decker, for the Crown

Cassandra DeMelo, for the Defendant

HEARD: June 17-19, and July 30-31, 2019

RESTRICTION ON PUBLICATION

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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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

JUSTICE I.F. LEACH (ORALLY)

Introduction

[1] The accused in this matter, Mr Wopatshu Ukumu, is charged with one count of sexual assault, contrary to section 271 of the Criminal Code, (“the Code”).

[2] The charge centres on events alleged to have taken place in the early morning hours of November 1, 2016, after Mr Ukumu admittedly drove the complainant and her male companion from downtown London to her residence in the east end of the city.

Procedural history and sources of evidence

[3] The somewhat unusual procedural history of this matter was addressed in my earlier decision, reported as R. v. Ukumu, 2019 ONSC 3731, dealing with issues raised by an application by Mr Ukumu to exclude certain evidence that was said to have been obtained by various violations of rights guaranteed to Mr Ukumu by the Canadian Charter of Rights and Freedoms, (“the Charter”).

[4] Without repeating that history in its entirety here, for present purposes I will simply repeat that:

a. Proceedings before me originally began as an intended “blended hearing” of the Charter issues raised by Mr Ukumu and the substantive issues raised by the charge against Mr Ukumu;

b. Part way into that ostensible “blended hearing”, it nevertheless became apparent that Mr Ukumu and/or his counsel actually had contemplated hearing and determination of the Charter issues raised by his application before his trial proceeded further, having regard to the outcome of his application;

c. To address resulting concerns that Mr Ukumu had not given informed consent to use of a truly blended hearing process, (with a correspondingly clear waiver of his section 13 Charter rights against possible self-incrimination), it was agreed that the issues raised by Mr Ukumu’s Charter application would be heard and determined by way of a voir dire conducted within the trial, as a preliminary matter, prior to continuation of the trial following delivery of my decision in relation to Mr Ukumu’s application.

[5] On June 17, 2019, I rendered my decision in relation to Mr Ukumu’s application, granting the relief requested by Mr Ukumu and excluding evidence of statements made by Mr Ukumu to members of the London Police Service.

[6] Continuation of the “trial proper” resumed immediately thereafter, with party agreement on portions of the voir dire evidence that should be incorporated into that trial. In that regard:

a. At the time of reaching their agreement in that regard, counsel unfortunately did not have immediate access to a transcript of the voir dire proceedings, and the ability to specify the voir dire evidence to be incorporated by references to page and line references of such a transcript.

b. Counsel instead agreed that testimony to be imported from the voir dire into the trial proper would be limited to certain portions of the voir dire testimony of Constable Robert Kerr and Detective Constable (“D.C.”) Jacklyn Yovicic; i.e., the portions of that testimony corresponding to certain extracts from the contemporaneous typed notes prepared by defence counsel during that testimony, set forth in a document marked as Exhibit “E” for identification”.

c. Counsel also agreed that evidence to be imported from the voir dire into the trial proper should include some (but not all) of the items that had been marked as numbered exhibits during the voir dire; i.e., photos of Mr Ukumu and his vehicle, (marked as Exhibit 1 on the voir dire); video recordings taken by city surveillance cameras in the downtown area on the morning in question, (marked as Exhibit 2 on the voir dire), and photocopies of a “SCENE” debit card and a Fanshawe student card with photograph belonging to a female student named J.K.C., (marked as Exhibit 3 on the voir dire), all of which accordingly were renumbered as exhibits in the trial proper. In particular, they were relabelled as trial Exhibits 2, 3 and 4 respectively; i.e., “behind” the written list of formal admissions made pursuant to s.655 of the Code, which had been marked as trial Exhibit 1 at the outset of the trial, prior to my embarking on what effectively became a mid-trial voir dire.

[7] The remainder of the evidence presented on the voir dire, (including but not limited to the entirety of the testimony of Constable Aarts and that of Mr Ukumu himself), accordingly was not imported into the trial proper, and I therefore have no regard to it for the purposes of making my necessary determinations as to whether Crown counsel has established the essential elements of the charged sexual assault offence beyond a reasonable doubt.

[8] In that regard, (and while it perhaps would go without saying), I emphasize that I certainly have no regard to the evidence that was excluded by my ruling on Mr Ukumu’s successful Charter application.

[9] Nor do the credibility assessments I made in relation to non-imported evidence from the voir dire and my Charter application ruling, (e.g., in relation to Mr Ukumu’s voir dire testimony, which has not been imported into the trial proper), have any continued relevance or bearing when it comes to the determinations I make in relation to the trial proper.

[10] In short, I am focused entirely and exclusively on the evidence that was imported by agreement from the voir dire into the trial proper, and the further evidence that was presented during the trial proper. To summarize, that evidence consists of the following:

a. the formal admissions made pursuant to s.655 of the Code, marked as trial Exhibit 1;

b. the specified portions of voir dire testimony from Constable Kerr and D.C. Yovicic imported into the trial proper by party agreement, described above;

c. the specific exhibits described above which were imported from the voir dire into the trial by party agreement, renumbered and marked as trial Exhibits 2, 3 and 4;

d. the trial testimony of O.G., the male companion of the complainant in the hours leading up to the alleged sexual assault;

e. the trial testimony of E.T., the complainant;

f. photographs of injuries said to have been sustained by Ms T as a result of the alleged sexual assault, marked as trial Exhibit 5 during the course of Ms T’s testimony;

g. the trial testimony of Wopatshu Ukumu, the accused – who testified in French, (his first language), with the assistance of French-English interpreters who also provided simultaneous translation for Mr Ukumu in relation to the remainder of the trial; and

h. a Google streetmap, (with certain handwritten markings added by Mr Ukumu), marked as trial Exhibit 6 during the course of Mr Ukumu’s testimony.

Charge and essential elements

[11] The sole charge against Mr Ukumu, set forth in Count 1 of the indictment, reads as follows:

WOPATSHU UKUMU STANDS CHARGED THAT he, on or about the 1st day of November in the year 2016 at the City of London in the said Region, [i.e., the Southwest Region in the Province of Ontario], did commit a sexual assault on E.T., contrary to Section 271 of the Criminal Code of Canada.

[12] Before proceeding further, I think it helpful to note and review the essential elements of the sexual assault offence with which Mr Ukumu is charged; i.e., the necessary components of the offence which must be proven by Crown counsel beyond a reasonable doubt in order to warrant a conviction of Mr Ukumu in relation to that offence.

[13] In particular, for me to find Mr Ukumu guilty of sexual assault, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:

i. that Wopatshu Ukumu intentionally applied force to E.T.;

ii. that E.T. did not consent to the force that Wopatshu Ukumu intentionally applied;

iii. that Wopatshu Ukumu knew that E.T. did not consent to the force that Wopatshu Ukumu intentionally applied; and

iv. that the force that Wopatshu Ukumu intentionally applied took place in circumstances of a sexual nature.

[14] In relation to the first essential element, (i.e., focused on whether Mr Ukumu intentionally applied force to E.T.):

a. The application of force may be direct, (by the accused using part of his or her body to apply the force), or indirect, (by the person using an object to apply the force).

b. The force applied may be violent, or even gentle, with “force” including any physical contact with another person, even a gentle touch.

c. To be an assault, however, the accused must have applied the force intentionally, meaning “on purpose”, and not by accident. An accidental touching is not an intentional application of force.

[15] In relation to the second essential element, (focused on whether E.T. did not consent to the force that Mr Ukumu may have intentionally applied:

a. Consent focuses on a complainant’s state of mind at the relevant time. In particular, consent requires the voluntary agreement of a complainant to the accused doing what he did, in the way in which he did it, and when he did it. In other words, consent requires that a complainant wanted the accused to do what he did.

b. A voluntary agreement is one made by a person who is free to agree or disagree, of his or her own free will. It involves knowledge of what is going to happen, and voluntary agreement to do it or let it be done.

c. Just because a complainant does not resist or put up a fight does not mean that the complainant consented to what an accused may have done. Consent requires knowledge on the complainant’s part of what is going to happen and a decision by the complainant, without the influence of force, threats, fear, fraud or abuse of authority, to let it occur.

[16] In relation to the third essential element, (focused on whether Mr Ukumu knew that Ms T did not consent to the force that Mr Ukumu intentionally applied):

a. This essential element requires Crown counsel to prove the accused’s knowledge, or state of mind, at the relevant time. In particular, Crown counsel must prove beyond a reasonable doubt that the accused knew that the complainant did not consent to the force that the accused intentionally applied.

b. To “know” something is to be aware of it, at the time one does it.

c. There is more than one way for Crown counsel to prove that an accused knew that a complainant did not consent to the force that the accused intentionally applied. In particular:

i. Such knowledge, (i.e., that the complainant did not consent to the accused’s intentional application of force), is proven if I am satisfied beyond a reasonable doubt that the accused was actually aware that the complainant did not consent to the force that the accused intentionally applied.

ii. An accused’s knowledge that the complainant did not consent is also proven if I am satisfied beyond a reasonable doubt that the accused was aware that there was a risk that the complainant was not consenting to the force that the accused intentionally applied, but the accused went ahead anyway, not caring whether the complainant consented or not. In other words, an accused’s knowledge that the complainant did not consent may be established if the accused was aware of the risk that the complainant did not consent, but went ahead anyway and intentionally applied force, despite the risk. In that regard, the law is clear that silence, passivity or ambiguous conduct does not amount to consent, and offers no defence. An accused is not entitled to engage in sexual touching to “test the waters”. The law requires evidence of positive consent by the complainant, by words or conduct, to ground any honest belief that the complainant effectively said “yes” through his or her words and/or actions. See R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at paragraphs 19, 47, 49 and 52.

iii. Finally, an accused’s knowledge that a complainant did not consent to the accused’s intentional application of force also is proven if I am satisfied beyond a reasonable doubt that the accused knew he or she should inquire whether the complainant consented to the force that the accused intentionally applied, but did not make the inquiry because he or she did not want to know the truth about the complainant’s consent. In other words, the requisite knowledge of the accused will be established if he or she deliberately failed to inquire about the complainant’s consent even though he or she knew that there was reason to do so.

d. To prove that an accused knew that a complainant did not consent to the accused’s intentional application of force, Crown counsel does not have to prove each basis of knowledge that I have described; i.e., actual knowledge, recklessness, and willful blindness. One such basis of establishing the requisite knowledge on the part of the accused, any one, is enough. It is sufficient if I am sure, on one basis or another, that Crown counsel has proven beyond a reasonable doubt that the accused knew that the complainant did not consent to the force that the accused intentionally applied.

[17] In relation to the fourth and final essential element of the sexual assault offence, (focused on whether Mr Ukumu intentionally applied force to E.T. in circumstances of a sexual nature):

a. A sexual assault is any intentional application of force, (e.g., any intentional physical contact with another person, even an intentional but gentle touching), which occurs in circumstances of a sexual nature so that the sexual integrity of the complainant is violated.

b. It includes any act that is meant to degrade or demean the complainant for an accused’s sexual pleasure.

c. An intentional touching takes place in circumstances of a sexual nature if I am satisfied beyond a reasonable doubt that the sexual context of the touching would be apparent to any reasonable person who saw it happen; e.g., having regard to such matters as the part or parts of the body the accused touched, the nature of the contact, any words accompanying such actions, the situation in which the assault occurred, and all other circumstances surrounding the conduct.

[18] Throughout my assessment of whether all essential elements of the sexual assault charge against Mr Ukumu have been established beyond a reasonable doubt, I have regard to all of the principles and comments I have just outlined.

General principles

[19] Before turning in more detail to the specifics of this case, I also think it helpful to outline a number of additional general principles I bear in mind throughout my approach to this matter.

[20] Many of them are similarly outlined or reflected in comments routinely provided through judicial instructions to jurors, and include the following:

• First, I have in mind, throughout my entire reasons and analysis, the presumption of innocence and the burden of proof upon the Crown. In particular, according to the constitutional guarantee in s.11(d) of the Charter, Wopatshu Ukumu is presumed to be innocent, in relation to the charge in respect of which he has entered a plea of “not guilty”, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to an alleged offence beyond a reasonable doubt. That is a heavy burden and, in relation to the essential elements of the sexual offence charge against Mr Ukumu that are not admitted, never shifts. In particular, Mr Ukumu has no obligation whatsoever to establish his innocence.

• Second, in relation to the “reasonable doubt” standard, and as per the guidance offered by the Supreme Court of Canada in authorities such as R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320:

  • I am ever mindful that a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, nor a doubt based on sympathy for, or prejudice against, any person involved in this trial. A “reasonable doubt” is, instead, a doubt that arises logically from the evidence, or the absence of evidence.

  • Moreover, it is not enough for me to believe that Wopatshu Ukumu is “probably” guilty or “likely” guilty of an offence. Proof of “probable” guilt or “likely” guilt falls short of proving guilt “beyond a reasonable doubt”, and is not proof of guilt beyond a reasonable doubt.

  • On the other hand, I also bear in mind that it is nearly impossible to prove anything to an absolute certainty, that “absolute certainty” accordingly is a standard of proof that is impossibly high, and that Crown counsel is not required to meet that standard of proof.

  • In essence, in order for me to find that Crown counsel has proven beyond a reasonable doubt that Wopatshu Ukumu is guilty of the charged offence of sexual assault, I must be sure that Mr Ukumu committed the offence. If, following careful consideration of all the evidence, (including witness testimony, exhibits and any agreed facts or admissions), there remains in my mind a reasonable doubt as to whether Mr Ukumu committed that charged offence, I must find him not guilty of that offence.

• Third, as this is a case where the accused chose to testify, such that his exculpatory testimony is pitted against the contradictory and incriminating testimony of the complainant, I am mindful of the considerations emphasized by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. In particular:

  • As emphasized in that decision, a trier presented with such conflicting testimony must not approach the matter as a simple credibility contest; e.g., as if a finding of guilty or not guilty turns a decision as to whether the complainant or the accused is more believable. Doing so would be quite wrong.

  • At all times, the proper focus must instead remain firmly fixed on whether the Crown has proven the guilt of the accused beyond a reasonable doubt, being ever mindful of the reality that reasonable doubt is something that may arise in various different ways. For example:

    • After careful consideration, if I find myself unable to decide whom to believe, in relation to whether or not the charged offence of sexual assault was committed, Crown counsel will have failed to prove the guilt of the accused beyond a reasonable doubt in relation to that offence, and the accused must be found not guilty of that offence.

    • After careful consideration, if I believe the exculpatory testimony of the accused in relation to the charged offence, Crown counsel similarly will have failed to prove the guilt of the accused in relation to the offence beyond a reasonable doubt, and the accused must be acquitted of the offence.

    • Even if I fall short of believing the accused’s exculpatory testimony in relation to the charged offence, after giving the matter careful consideration, if that testimony leaves me with a reasonable doubt as to whether the charged sexual assault offence was committed, the accused also must be found not guilty of that offence. In other words, exculpatory testimony may give rise to a reasonable doubt even if it is not positively accepted.

    • And even if I do not believe the accused’s exculpatory testimony in relation to the charged offence, and that testimony alone does not leave me with a reasonable doubt about the accused’s guilt, I may still find the accused guilty of that offence only if the rest of the evidence I do accept satisfies me that guilt in relation to that offence has been proven beyond a reasonable doubt.

• Fourth, how much or little I rely on the evidence of witnesses does not necessarily depend on the number of witnesses who testify, one way or the other. My duty is to consider all the evidence. As the trier, I may decide that the testimony of fewer witnesses – or perhaps just one witness – is more reliable than the evidence of a larger number of witnesses. In other words, my task is to consider carefully the testimony of each witness, and to decide how much or little I believe and accept of what each witness has said. I am not to decide the case simply by counting witnesses. It is the quality of evidence, rather than the quantity of evidence, that determines persuasive force and/or whether or not proof has been established beyond a reasonable doubt.

• Fifth, on a related note, and as emphasized in decisions such as R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, and R. v. Neff, [2012] O.J. No. 5618 (S.C.J.), our law generally does not require corroboration of a complainant’s evidence in order to found a conviction. Moreover, that general principle is reinforced in relation to sexual assault by s.274 of the Code, which specifically indicates that, if an accused is charged with sexual assault, no corroboration is required for a conviction. The sworn testimony of a sexual assault complainant, standing alone, may be sufficient to establish a charge beyond a reasonable doubt, provided that testimony is found to be credible and reliable. Because the standard of proof beyond a reasonable doubt is a high one, triers of fact frequently may look for corroboration where guilt or innocence hinges on the testimony of a single witness. However, while such evidence is often helpful, it is not a requirement.

• Sixth, while there is no prescribed formula or method for assessing the testimony of witnesses, I am mindful of various considerations frequently employed by triers of fact to help decide how much or how little I will believe and rely upon the testimony of any witness - bearing in mind that I am free to accept some, none or all of the testimony of any witness. In particular such triers routinely consider matters such as the following:

  • whether a witness seemed honest;

  • whether a witness had any reason to not tell the truth, or give evidence more favourable to one side or the other, such as an interest in the outcome of the case;

  • whether a witness had the opportunity and ability to make accurate and complete observations about an event or occurrence addressed in his or her testimony;

  • whether the witness seemed to have a good memory, or any reason to remember or forget certain events or details, (which in turn might depend on such things as whether the event or occurrence addressed by testimony was something unusual or routine, or not of any obvious importance at the time);

  • whether any memory difficulties seemed genuine or made up as an excuse to avoid answering questions;

  • whether the testimony given by the witness was really what he or she personally saw or heard, or an account possibly based on information or statements provided by others;

  • whether the testimony of a witness seemed reasonable and consistent as he or she gave it, and whether it was similar to or different from what other witnesses may have said about the same events;

  • whether there were any inconsistencies within the testimony of a witness, or with earlier statements or actions by the witness, and if there were, whether they related to things that were important or minor details, reflected honest mistakes or deliberate lies, had any sensible explanation, or really made the main points of his or her testimony more or less believable and reliable; and

  • the manner or demeanor of a witness while he or she was testifying – while nevertheless also bearing in mind that the existence of many variables, (such as the inherently uncommon experience of testifying, and the different and varied abilities, values and life experiences of individual witnesses), prevents demeanor from ever being the only or most important factor in deciding what testimony to accept.

[21] The general principles and considerations I have mentioned so far are applicable to all criminal cases, regardless of the nature of the particular offence or offences charged against an accused.

[22] However, our courts also have emphasized certain additional principles and considerations applicable to cases involving allegations of traumatizing offences such as sexual assault. In that regard, and as emphasized, in authorities such as R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, R. v. A.R.J.D., 2017 ABCA 237, [2017] A.J. No. 746 (C.A.), affirmed R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, and R. v. A.B.A., 2019 ONCA 124, [2019] O.J. No. 833 (C.A.):

• Our courts now reject dated stereotypical assumptions and myths of how persons react to such trauma, and instead recognize that there actually is no inviolable rule on how people who are the victims of sexual assault will behave.

• In many cases, the reality of such variable responses has shaped how our courts now address the possibility of delayed reporting of offences such as sexual abuse and sexual assault. In particular, our courts now recognize that some victims will report such an offence immediately, while other victims may delay disclosure for a substantial period of time for a variety of legitimate reasons, such as embarrassment, humiliation, lack of understanding or knowledge, a desire to avoid the destruction of domestic or personal relationships, and/or fear of reprisals from the accused. Indeed, some victims may choose to never disclose such abuse voluntarily, although it occasionally comes to light in other ways. For such reasons, a delay in disclosure of sexual misconduct, standing alone, will never give rise to an adverse interference against the credibility of a complainant.

• For similar reasons, it is an error of law to draw adverse interferences against the credibility of a sexual assault complainant by purporting to measure his or her reactions to such an alleged offence by reference to some misguided notional concept of how the victim of such an offence normally would be expected to react and behave in such circumstances. There simply are no such “norms” of reaction or behaviour that one should expect of such victims, and making express or implicit use of such supposed but non-existence benchmarks of ordinary behaviour, (e.g., by shrouding them in mistaken notions of supposed “common sense”), therefore involves fallacious reasoning. To cite but a few examples in that regard:

  • Suggestions that sexual assault complainants who do not raise an alarm, resist with forceful struggle or fight back are in fact consenting to sexual touching rely on archaic, outmoded and unreliable stereotypes. See R. v. Seaboyer, supra; and R. v. Dadson, 2018 ONSC 4823, at paragraph 11. The issue in such cases is the existence of consent, and not why the complainant did not fight back.

  • Suggestions that a victim of sexual assault should be expected to flee before, during or immediately after a sexual assault perpetuates myths and stereotypes about the nature of sexual assaults, and also ignores the law. See R. v. Ewanchuk, supra, at paragraph 95, and R. v. Dadson, supra, at paragraphs 27-29. The law of sexual assault does not impose a requirement to flee; it imposes a requirement of consent.

  • More generally, it is wrong to suppose that the thoughts and responses of sexual assault victims at or around the time of the offence will conform consistently with detailed rational analysis, carefully weighing all relevant factors that might militate in favour of one course of action or another. It is far more likely that a person in that position might have fleeting thoughts of different sorts that were not the subject of such detailed rational analysis. Exposure of rational inconsistencies through cross-examination of a complainant accordingly should not be given undue weight, although it remains a piece of the overall mosaic of the case to be considered. See R. v. Dadson, supra, at paragraph 12.

• On another note, relating to improper reliance on myths and stereotypes, our appellate courts have emphasized that there is absolutely no evidence to suggest that false allegations are more common in sexual assaults than in other offences. Indeed, given the data indicating the strong disincentives to reporting, it seems much more likely that the opposite is true. See R. v. Osolin, [1993] 4 S.C.R. No. 135, at paragraph 50.

[23] With the above principles in mind, I turn next to a consideration of the specific evidence tendered in this case.

Review of evidence

[24] The trial of this matter involved presentation of evidence that extended over the course of five days, even before one considers the further time it took to present evidence during the voir dire that was imported into the trial proper.

[25] While I have considered and have regard to all of that evidence, (as well as the exhibits that were tendered), I will not purport to reiterate or describe all of it in complete detail here. I will instead mention only those aspects of the evidence which I consider more relevant to the issues I have to decide.

[26] For organizational purposes, I will begin with an outline or summary of certain testimony provided by the various witnesses, followed by further comments about some of the considerations that went into my assessment of witness credibility and reliability, before finally turning to more specific consideration of the particular evidence relating to the essential elements of the charged offence, in order to determine an appropriate verdict.

OUTLINE OF WITNESS TESTIMONY

[27] As noted above, certain portions of the testimony provided by Constable Kerr and D.C. Yovicic, during the voir dire, were imported into the trial proper.

[28] As the substantive content of that imported testimony from the voir dire was not disputed or questioned at trial, and much of it was peripheral to the issues I need to address and decide in the present context, I do not intend to review that imported testimony at length or in detail here. For present purposes, I think it sufficient to note the following:

• Much of that imported testimony, and the exhibits it introduced, (which in turn were imported into the trial proper), related to efforts made by the police to ascertain and confirm the identity of the accused; e.g., through use of the detailed description of the alleged offender and his vehicle provided by the complainant, regard to the contemporaneous surveillance video of the relevant downtown area obtained from the city of London, searches of record databases to follow up on the alternative vehicle licence plate information provided by the complainant, and surveillance observations made of Mr Ukumu and his vehicle. The significance of that evidence becomes somewhat superfluous in light of the formal admissions made for the purposes of trial pursuant to s.655; e.g., insofar as identity of the alleged perpetrator and Mr Ukumu’s registered ownership of the relevant vehicle have been formally acknowledged.

• That imported evidence nevertheless still has relevance, in my view, insofar as it indicates and confirms that many of the numerous details provided by the complainant concerning the alleged offender and his vehicle, (e.g., in relation to the first name, skin colour, facial hair, accent, clothing and colour of jewellery worn by the alleged offender, and the licence plate, colour, trim, upholstery, dashboard and interior items such as a Kleenex box and presence of cologne), turned out to be remarkably accurate.

[29] As noted above, I received testimony at trial from Oliver G, who was the complainant’s male companion during much of what happened on the evening of October 1, 2016, and the early hours of the following morning. The evidence Mr G provided included the following:

• Mr G initially met Ms T when she attended his place of employment at a local gas station, following which they associated from time to time and became “Facebook” friends.

• After knowing each other for a few months, Mr G and Ms T made arrangements for the two of them to enjoy a social outing together, as a couple, on Halloween evening, 2016. In particular, their plans contemplated Mr G meeting at Ms T’s residence in East London, (located at a particular address specified in the evidence), after which they would proceed, in Halloween costume, to a particular licenced bar, (“The Tap House”), located just off “Richmond Row”; i.e., an area of Richmond Street in downtown London that has numerous bars and restaurants.

• When Mr G arrived at Ms T’s residence on the evening of October 31, 2016, she was the only one at home.

• Mr G had a recollection of seeing Ms T use a “water pipe” to consume some marihuana within an hour of his arrival, and that he did not share in that. However, he says that he and Ms T did both consume some whiskey, (which Mr G believed was already at the house), although Mr G said he also had a recollection of seeing Ms T drinking a “cooler” as well. Mr G was not entirely sure how much alcohol he and Ms T each consumed before leaving her home for downtown London. He variably described the quantity of alcohol each consumed in that regard as “a few drinks”, about “two to three inches”, and “about half a mickey”, by way of “full individual shot” glasses. As far as the term “mickey” is concerned, Mr G indicated his belief that a “mickey” container of alcohol has a volume of approximately 16 ounces, such that “half a mickey” would be approximately 8 ounces of alcohol. (I nevertheless think I can take judicial notice of the reality that a bottle of liquor commonly referred to in Canadian slang as a “mickey” actually has a volume of 375ml, or approximately 13 ounces.) Mr G candidly acknowledged that, although he felt the liquor was distributed between him and Ms T “fairly evenly”, it was quite possible that one had consumed more or less than the other.

• Although his recollection of precise times that evening was somewhat vague, Mr G believed that he and Ms T left her house together in a taxi, at approximately 10pm or 11pm, to proceed to the Tap House in downtown London. Both were wearing Halloween costumes associated with specified “pop culture” characters. In relation to Ms T, the clothing she wore include a black long sleeve “crop top”, black “little shorts” and a black cloak with a hood, with her winter coat worn over top. While not wearing a winter coat, Mr G was wearing a heavy sweater.

• Mr G believes the cab ride from Ms T’s residence to the Tap House lasted approximately 10 to 15 minutes. No drugs or alcohol were consumed during the ride.

• After arriving at the Tap House sometime between approximately 10:30pm and 11:00pm, Mr G and Ms T remained there for the next 2½ to three hours, without visiting any other bars downtown. During that time, the couple socialized with a few of Ms T’s friends, dancing, enjoying the music, and consuming alcohol intermittently. In that regard, Mr G recalled he and Ms T “sipping on” approximately “two to three” or “a few” beers, (from “Dixie cups” with a volume of approximately 355 millilitres each), and with neither consuming any drugs.

• Mr G believed that he and Ms T left the Tap House around 1:30am; i.e., approximately 30 minutes before the establishment’s closing time. They then walked south on Richmond Street to Dundas Street, after which they began walking east on Dundas Street, in the direction of Ms T’s home. Mr G frankly could not recall whether he and Ms T made any stops or consumed any food together along the way. He was sure they had not consumed any additional alcohol on their walk, after leaving the Tap House.

• While walking east on the north side of Dundas Street, in the vicinity of Clarence Street, Mr G says he and Ms T were stopped by the driver of a black “cab” vehicle parked nearby, who asked, (without Mr G or Ms T having signaled him), if the couple needed a “cab ride”. In his testimony, Mr G said he believed the black vehicle was “pulled over beside two other taxis”, (the particular companies of which Mr G could not remember), on the north side of Dundas Street, and was facing west. He also had a recollection of the relevant driver, (whom Mr G described as an “African gentleman”, in his thirties, with a “little bit of scruff”, wearing khaki pants and a darker shirt), standing outside of the vehicle, on its driver side.

• Mr G had certain specific memories of the brief conversation that transpired, after the driver of the black vehicle, (now agreed to have been Mr Ukumu), initially called out to him and Ms T. In particular:

  • Mr G recalled Mr Ukumu asking if the couple “needed a lift anywhere”.

  • Mr G also recalled coming to the conclusion that the driver was a “cab” of sorts, because Mr Ukumu had indicated that he was an “Uber” driver. In that regard:

    • While fairly conceding that he had no memory of Mr Ukumu giving any other indications of being a professional driver before Mr G and Ms T entered the vehicle, Mr G was quite sure that Mr Ukumu had claimed to be an Uber driver.

    • At the time, Uber was relatively new to the city of London, and Mr G had no prior experience with using the Uber service.

    • Although Mr G has used the Uber service since the events underlying this criminal proceeding, and now knows that Uber drivers and rides are arranged through use of an “app” on cellular phones, he did not know that at the time, and did not use such an “app” on the occasion in question.

  • Realizing that he and Ms T were in fact in need of a ride, Mr G responded to Mr Ukumu’s initial question about needing a lift anywhere, and the indication that Mr Ukumu was an Uber driver, by saying “If we can make it cheap, absolutely”, and Mr Ukumu responded with a similar indication of “absolutely”. Mr G and Mr Ukumu then agreed on a price of $10.00 for the offered ride.

  • As noted above, Mr G had a memory of the driver standing outside his vehicle at some point during the initial conversation about the offered ride, and/or when the cost or negotiated price of the ride was being discussed.

  • Mr G firmly denied defence counsel suggestions that he and Ms T initially declined Mr Ukumu’s offer to provide them with a ride, or agreed to the ride only after Mr Ukumu had insisted.

  • Mr G also strongly disagreed with defence counsel suggestions that Mr Ukumu had pointed in an easterly direction, asked if the couple was going that way because he was too, and offered to provide the couple with a ride for free, without the couple having to give him anything, having regard to the cold and the manner in which Mr G and Ms T were dressed.

  • Mr G similarly disagreed with defence counsel suggestions that there was no talk of paying Mr Ukumu for the offered ride until sometime after the couple had entered Mr Ukumu’s vehicle.

• Mr G recalled that, after he and Mr Ukumu had agreed on provision of the ride in exchange for $10.00, he and Ms T both then got into the rear seat of the vehicle, with Ms T sitting directly behind the driver while Mr G sat to her right, behind the vehicle’s front passenger seat. While inside the vehicle, Mr G noted what he believed to be its leather upholstery, its dark interior, and the presence of a scent or smell of some kind. He did not recall any radio, or music playing.

• The driver, Mr Ukumu, was then asked to take the couple to Ms T’s residence on the specified street in east London.

• According to Mr G, the ride from downtown London to the specified street of Ms T’s residence took approximately 10 to 15 minutes, with no drugs or alcohol being consumed en route, and no stops being made along the way.

• As for things that may have been said or done during the ride back to Ms T’s residence, Mr G had no memory one way or the other about certain details, but was quite sure about others. In particular:

  • On the whole, Mr G described conversation with the vehicle’s driver as “small talk”, “nothing substantial by any means”, and consisting primarily of “short-word answers” consistent with “very rudimentary customer service habits”.

  • When asked whether he had heard Ms T and the driver say anything to each other, Mr G said “no”, but also qualified that response by saying that, while Ms T had participated in conversation between everyone in the vehicle, it was just “small talk”, in the nature of “Hi, how are you”, and “I’m doing well, thank you”.

  • Mr G agreed with defence counsel suggestions:

    • that Mr Ukumu had said something about seeing the couple “freezing”;

    • that Mr G and/or Ms T had replied with agreement that it was cold outside;

    • that Mr Ukumu mentioned that he was from Africa; and

    • that there was talk of Mr G and/or Ms T being appreciative of the ride as they neared Ms T’s residence.

  • Mr G indicated that he could not recall one way or the other whether Ms T:

    • had thanked Mr Ukumu for the warm ride;

    • had complimented Mr Ukumu on the smell of his car;

    • had mentioned Mr Ukumu’s accent; or

    • had brought up the subject of Nelson Mandela.

  • Mr G similarly indicated that he could not recall, one way or the other, if there had been any discussion of Mr Ukumu having lived in Quebec, or of the couple being Mr Ukumu’s “last fare of the evening”.

  • Mr G nevertheless firmly disagreed with defence counsel suggestions:

    • that Mr Ukumu had spoke about it being weird in Canada that people did not speak to strangers, and that he was “just trying to help”;

    • that Ms T had said anything about that being nice, and that people like Mr Ukumu were changing the world;

    • that Ms T ever or repeatedly raised the subject of paying Mr Ukumu for the ride, (e.g., by asking if he was sure he was only offering help, and did not want money or anything for the ride), only after the vehicle was in motion;

    • that Ms T repeatedly told Mr Ukumu that he had a good or cute heart, just like his face;

    • that Ms T insisted on paying Mr Ukumu for the ride, even though Mr Ukumu did not want payment; and

    • that Mr Ukumu eventually had agreed to accept money for the ride only in response to such insistence.

  • Mr G was quite sure he and Ms T were both awake during the entire ride, and holding hands.

  • Mr G also was quite sure that, during the ride back to Ms T’s residence, she had not done or said anything to make him believe that she was flirting with Mr Ukumu. In that regard, he confirmed that he would have regarded Ms T telling Mr Ukumu that he had a “cute heart”, like his “cute face”, as flirtatious comments.

• Mr G’s memory of what occurred immediately after the vehicle arrived outside Ms T’s home was more vague and less definite. In that regard:

  • He recalled Mr Ukumu’s vehicle pulling up on the same side of the street as Ms T’s residence, (i.e., the west side), but could not recall, one way or the other, the direction in which the vehicle was facing when it came to a stop.

  • Mr G recalled “trying to figure out the situation” in terms of “who’s going to be paying for the cab”, and said he “believed” that Ms T had to “run inside” to “grab some money to go pay for said cab”, while Mr G remained “talking to the driver” for a brief period of time.

  • Mr G could not recall one way or the other whether Ms T had given Mr Ukumu her phone temporarily, as she proceeded inside to get money to pay Mr Ukumu.

  • Although his initial answers about the subject were confusing, and had to be revised, Mr G eventually confirmed that he had no memory one way or the other of Ms T having discovered, shortly after Mr Ukumu’s vehicle arrived outside her house, that she had lost her house key. Nor did Mr G have any memory one way or the other of seeing Ms T going to her grandmother’s house across the street at that point, before proceeding to her own residence. (Mr G only knew of Ms T visiting her grandmother much later that morning, to obtain a ride to a job interview, long after Mr Ukumu’s vehicle had departed, and the 911 call discussed below had been made.)

  • Mr G had a memory of Ms T giving Mr Ukumu money, and Mr Ukumu thanking her for it.

  • Mr G says he then ran inside Ms T’s residence, “at some point”, to enter the bathroom and relieve himself, while initially leaving Ms T behind and outside. Mr G had no memory of seeing Mr Ukumu’s vehicle turn around.

  • Mr G says that, “by the time he was leaving the bathroom”, a “very short” time or approximately three minutes later, there was “a knock and pounding at the door of which”, with Ms T indicating, after that “commotion”, that she had been assaulted. In that regard, I think it important to note and emphasize that Mr G’s initial testimony indicated that Ms T had been knocking or pounding at the bathroom door, rather than the door to her own house. Although Crown counsel subsequently made reference to the latter, with Mr G indicating his perfunctory agreement with that in passing, in my view Mr G’s initial response was the more accurate one; i.e., that he had heard a commotion of Ms T knocking and pounding on the washroom door as he was about to leave the washroom. In particular, there was no dispute that Ms T had located a house key to unlock and enter her residence to retrieve money for Mr Ukumu by that point, and the front door of her residence obviously was capable of being left unlocked if Mr G was able, (after Ms T had unlocked and entered the residence, before returning to the vehicle), to “run into” that residence and its washroom ahead of Ms T. Moreover, having effectively been locked out of that residence without a key just a short time before, (for the reasons outlined below), in my view, I think it unlikely that Ms T would not have taken care to prevent that from happening again when she undisputedly left the house again to return to Mr Ukumu’s vehicle. In my view, Mr G’s initial testimony about which door Ms T had “knocked and pounded” on makes sense, and is also consistent with Ms T’s evidence that she was going through her residence trying to alert and find Mr G.

  • Mr G says that, when he saw Ms T after he exited the bathroom, she was “shaking uncontrollably”, “hyperventilating”, “completely distraught” and in an “absolute disarray”. She was also indicating that she had been “assaulted”. He also recalled her using words indicating that Mr Ukumu had “touched” her, “tried to touch” her, and “tried to rape” her. He did not recall her using the words “sexual assault”.

  • Mr G responded by asking Ms T if she wanted to call the police, and Ms T said she did. However, although Ms T then placed the initial call to 911, Mr G was then asked to speak with the 911 operator.

[30] Following Mr G’s testimony, I received extended testimony from E.T., the complainant, who was in the witness box for approximately two days. The sworn evidence she provided included the following:

• Prior to the events giving rise to this criminal proceeding, Ms T had known Mr G through mutual friends, and had encountered him in passing a number of times while he was working at a gas station near to her former residence.

• Through text or Facebook messaging, Ms T and Mr G made arrangements to meet each other for a social outing, on the evening of October 31, 2016; i.e., Halloween evening. Ms T viewed the outing as a “kind of get to know you” date. In particular, the arrangements contemplated Mr G initially meeting Ms T that evening at her father’s house; i.e., at a specified street address in east London where Ms T was then residing. The couple then would leave the house and travel to the Tap House bar, located just off Richmond Row in downtown London, where Ms T had made a reservation. Ms T frankly could no longer recall the precise time of that reservation, but believes they were planning to arrive at the Tap House by 11:00pm or 11:30pm that evening. Both also made arrangements to wear Halloween costumes, of specified pop culture characters, during the outing.

• Ms T testified that she could no longer recall the precise time of Mr G’s arrival at her home on the evening in question, but thought it was approximately 9pm or 10pm.

• Ms T denied having consumed any alcohol before Mr G’s arrival. However, she says that, after his arrival at the house, she and Mr G were “smoking weed” and drinking shots of alcohol. In that regard:

  • Ms T clarified that, while she admittedly smoked “a couple of bong tokes” of marihuana, she frankly could not recall if Mr G had smoked any.

  • Ms T nevertheless was quite sure that, over the course of approximately 60 to 90 minutes, both she and Mr G each consumed a number of shots of Hennessey whiskey, from a “mickey” sized bottle that Mr G had brought to her residence.

  • Ms T admittedly was not sure about the precise number of whiskey shots she and Mr G each consumed; i.e., initially indicating that it was probably a “couple of shots” each, but then saying the number may have been “about two or three” shots each. She recalled that the relevant bottle of whiskey was full when they started pouring drinks from it, but she could not remember how much whiskey was left in the bottle when they finished. She nevertheless did recall that she and Mr G each were drinking only from two shot glasses, owned by her father, that had distinctive markings but were otherwise “regular” sized alcohol shot glasses.

• According to Ms T, the couple then proceeded by taxi directly to the Tap House, without making any stops, or consuming any further drugs or alcohol, on the way. They were both wearing Halloween costumes, with the items of Ms T’s outfit including a black long-sleeved crop top shirt, black active wear shorts and a handmade purple cape, over which she was wearing her winter coat. In that regard, Ms T acknowledged that the outside temperature was “pretty frigid”, and that she “definitely should not have worn shorts”, in retrospect.

• Ms T believes they arrived at the Tap House at approximately 11:35pm or 11:40pm, at which time they were permitted to go directly inside.

• Ms T says that she and Mr G then remained at the Tap House until shortly before “last call”; i.e., until approximately five to ten minutes before the bar closed at 2am. During their time at the Tap House, the couple danced, had a good time, and socialized with a number of Ms T’s friends who happened to be there as well. They also consumed more alcohol, with Ms T recalling that, over her time at the Tap House, she consumed approximately “three or four” beers, as well as a “couple” more standard-sized shots of alcohol; in particular, a white liquor that was either vodka or rum.

• When she and Mr G left the Tap House establishment, they proceeded to walk south on Richmond Street, without consuming any more alcohol but stopping into a familiar late-night pizza establishment at the intersection of Richmond and Dufferin streets, for approximately 15 to 20 minutes, at least, as Ms T “really wanted something to eat”. She says that, while there, she attempted to pay for something with her debit card, but that had not worked.

• After leaving the pizza establishment, Ms T says she and Mr G continued to walk south on Richmond Street to Dundas Street, where they turned and continued walking eastbound, along the north side of Dundas Street. She says that, during the walk, she and Mr G consumed no further drugs or alcohol, but were just walking and having “small talk” or “chit chat”, discussing what she considered to be a “pretty decent” evening.

• Ms T recalled that, shortly after she and Mr G passed the intersection of Dundas and Clarence streets, a driver, (since identified as Mr Ukumu), pulled up into the nearby bus lane on the north side of Dundas Street, in a “four door black car” facing west, and asked the couple, without getting out of his car, and speaking to them through the vehicle’s lowered front passenger window, if they wanted a ride home.

• Ms T candidly and proactively acknowledged that she heard “a little bit, but not fully”, what the driver of the vehicle was saying, and had to rely on Mr G to repeat and relay some of those comments for her and to her. In that regard:

  • Ms T explained that she suffers from permanent hearing issues and limitations that began when was growing up, (as there is a family history in that regard), and became worse with her attendance at several loud concerts over the years.

  • She says that, while her hearing can sometimes be what she described as “good”, it is terrible at other times – which is why she was consistently using a hearing device while testifying in court.

  • On the evening in question, she was unable to hear what the driver was saying from approximately 1 to 1.5 meters away, and was relying on Mr G to repeat and relay such information to her.

• Ms T recalled, with certainty, Mr G telling her, at the time, while she and Mr G were still standing outside the vehicle, on the sidewalk, that the driver was asking “Do you need a ride?”. Ms T also recalled Mr G indicating to her, at the time, that the driver was saying that he was either an “Uber” or a “U-Need-A cab”. In that regard, Ms T was sure that Mr G told her, at the time, that the driver had indicated an association with one of those two professional driving organizations, beginning with the letter “U”. She simply could not recall with certainty which of the two organizations Mr G had specified, in relaying the driver’s comments to her. Ms T was quite firm in recalling her understanding, at the time, that “it definitely was a ride for compensation”. However, she had not heard any discussion about price before she and Mr G got into the vehicle.

• Ms T indicated, in cross-examination, that she had no memory of hearing Mr Ukumu ask whether the couple was heading east, or of hearing Mr G indicate that they were – although she was sure that she had not done so. Nor did she remember hearing further comments attributed to Mr Ukumu by defence counsel during the couple’s first interaction with him. In that regard, Ms T confirmed that there was a period during that initial interaction, lasting up to 90 seconds, when Ms T was aware that words were being spoken but she could not make out what the words were. However, Ms T said she “definitely” disagreed with suggestions by defence counsel that Mr Ukumu had offered the couple a gratuitous ride because he was going in the same direction as they were. Again, Ms T’s firm understanding and memory was that Mr Ukumu, at the time, definitely was offering to provide a ride in exchange for compensation. That was based partly on Ms T’s initial assumptions that anyone coming to pick them up would be a cab driver rather than a random individual, but also on the driver indications Mr G was relaying to her at the time, reinforced by her firm intentions that she otherwise was “not going to get into a car with a total stranger”.

• Ms T said that, at the time, she had no personal knowledge of how Uber rides were arranged – although she subsequently has learned that one requests such a ride through use of an “app” on a cellular phone. To her knowledge, neither she nor Mr G had used such an “app” to call for an Uber driver on the morning in question.

• Although her memory on the point admittedly was not sure, Ms T believed she may have commended Mr Ukumu, just before getting into his vehicle; e.g., by telling Mr Ukumu that he was a “great human being” for noticing and helping them.

• Ms T confirmed that, when she and Mr G then entered Mr Ukumu’s vehicle, they both sat in the back seat, with Ms T positioned behind the driver, and with Mr G positioned to her right.

• Once in the vehicle, Ms T saw no type of cab driver or Uber driver identification.

• Ms T emphasized, in her testimony, that the duration of the non-stop ride home from downtown London to her father’s house was “a lot shorter” than it usually was. In particular, although she could not recall the precise route the vehicle had taken to get them home “quite fast” and “that quickly”, (although she had a recollection of looking down Dundas Street), Ms T initially indicated that the entire ride may have been as short as five minutes – although she then immediately revised her estimate to one of 10 to 15 minutes.

• Ms T had a firm recollection that she and Mr G were holding hands during that ride back to her home.

• As for conversation that took place within the vehicle during that ride back to her home:

  • Ms T indicated that she frankly was not participating very much in that conversation, or paying much attention to it, and that it was mostly between Mr G and Mr Ukumu. In that regard:

    • Ms T emphasized that she routinely suffers from motion sickness, which at the time was not helped by the alcohol she had consumed. When the vehicle was in motion, she accordingly was experiencing strong feelings of nausea, and was not really “happy” at that point.

    • For most of the ride home and definitely during its initial stages, Ms T said, she accordingly had closed her eyes, put her head back, and focused primarily on trying to calm herself and prevent herself from getting sick. In the result, for the majority of the ride, she says she was not really focused on external things, but on the mental state “inside her head”, where she was just trying to talk herself out of being sick. It was only “here and there” that she opened her eyes to focus on what was going on around her.

    • She nevertheless recalled feeling better, a “little bit” more sober, and more alert to the conversation, as the ride was coming to a stop near her home, at which point she was “very coherent”, with her eyes open, and giving more specific directions to Mr Ukumu.

  • Ms T also candidly acknowledged that, while she was sure some things had or had not been said by her during the ride home, there were other suggested aspects of the conversation in respect of which she admittedly was unsure, or had no memory one way or the other.

  • As for aspects of the conversation that she definitely remembered:

    • Ms T recalled that she had indicated her appreciation for the ride, and thanked Mr Ukumu in that regard, indicating that it was cold outside and good to be in a warm car.

    • She was also sure that, once inside the vehicle, (if not before), she had commended Mr Ukumu on being a nice individual or human being for seeing that they needed a ride and proactively stopping to pick them up, which she viewed as a kind gesture.

    • Ms T recalled she and/or Mr G asking Mr Ukumu how his night was going, and that Mr Ukumu had responded with an indication that the couple would be his “last fare” of the night.

    • She recalled being able to tell that Mr Ukumu had an accent, possibly French, and that English was not his first language.

  • As for possible aspects of the conversation, in respect of which she had no memory:

    • She had no recollection of telling Mr Ukumu that his car “smelled good”, or having commented again on how warm the car was.

    • She testified that she had no knowledge, during the ride, that Mr Ukumu was from Africa.

    • Nor could she recall having asked Mr Ukumu if he had ever lived in Quebec. She vaguely recalled a discussion of destinations, but said that had taken place between Mr Ukumu and Mr G.

    • Ms T similarly had no memory of Mr Ukumu indicating that it was considered weird in Canada to talk to strangers, or of her having said to Mr Ukumu that people like him were changing the world.

    • She had no memory one way or the other of whether she told Mr Ukumu that he had a good heart.

  • As for possible aspects of the conversation she firmly denied, and in respect of alleged statements by her that she nevertheless had a positive memory of not making:

    • When it was suggested that Mr Ukumu had said “I could tell you were freezing”, and that Ms T had replied “Yes it’s so cold out”, Ms T said that did not happen.

    • Ms T similarly denied that she had ever asked Mr Ukumu if he was sure that he was only offering to help, and did not “want money or anything”.

    • She also denied having said anything out loud concerning Mr Ukumu’s apparent accent. Nor had she mentioned Nelson Mandela.

    • She firmly rejected any suggestion that she had told Mr Ukumu that he had a “pretty face” or a “cute face”, repeating that she did not say such things, and that it simply did not happen.

    • Although Ms T recalled a further discussion, “when the ride was done”, about the cost of the ride, she adamantly denied defence counsel suggestions that it was only then that Mr Ukumu finally agreed to accept money in that regard, in response to her insistence.

• Ms T recalled that, when approaching her home, Mr Ukumu was travelling southeast on her street, and “overshot” or travelled past her father’s house on the west side of the street; something which both she and Mr G brought to Mr Ukumu’s attention. In the result, Mr Ukumu reversed his vehicle “a little bit”, and came to a stop in front of the neighbouring house immediately to the southeast of Ms T’s residence.

• Ms T said that, once Mr Ukumu’s vehicle had fully come to a stop, she wanted to enter her locked house to retrieve money to pay Mr Ukumu, as her debit card had not worked at the pizza establishment earlier that morning. In that regard, according to Ms T:

  • To provide Mr Ukumu with an assurance that she and Mr G would not run away and leave Mr Ukumu unpaid, Mr G not only remained in the vehicle, but Ms T handed Mr Ukumu her cellular phone as a form of collateral. In that regard, Ms T agreed that providing Mr Ukumu with her phone was her suggestion.

  • After exiting the vehicle, however, Ms T was then unable to locate her house key in her purse, and thought it may have been lost.

  • She accordingly decided to proceed across the street to her paternal grandmother’s home, to retrieve a spare set of keys to her house that were located there.

  • When Ms T did that and knocked on her grandmother’s door, her grandmother woke up and came to the door, let Ms T inside, and allowed Ms T to retrieve the spare set of house keys before heading back out into the street.

  • On her way back to her own residence, Ms T stopped at the vehicle again, in order to have a brief discussion with Mr Ukumu to confirm the price of the ride, and to discuss the possibility of her trying to pay him using her debit card, which she still had in her purse. (In particular, it had occurred to Ms T, while going to and from her grandmother’s home, that her debit card may not have worked at the pizza establishment, but might work with the debit machine she thought Mr Ukumu would have in his vehicle. She therefore wanted to try using her card again.) However, Ms T says that, although Mr Ukumu confirmed that the cost of the ride would be $10.00, he also indicated that his debit machine was not working. In the result, Ms T proceeded to her house to retrieve money, as originally contemplated.

  • Once inside her own residence, Ms T retrieved two five-dollar bills, and proceeded back outside to Mr Ukumu’s vehicle, where Mr G was still waiting with Mr Ukumu.

  • Ms T handed Mr Ukumu the $10.00, and saw him separate and look at the two bills before putting them into his pocket. Mr Ukumu then returned Ms T’s cellular phone.

  • Apart from some final pleasantries, (e.g., with Ms T telling Mr Ukumu to have a good night), Ms T and Mr G then parted ways with Mr Ukumu, and proceeded back into her residence.

• Ms T testified that, after she and Mr G went back into her residence, Mr G went directly into the washroom located at the back of the house, while she took some initial steps to “unwind” and “relax”. In particular, Ms T says that, after taking off her coat, purse and shoes, she proceeded briefly to the basement to smoke, before returning to the main level of the residence to check on a pet and ensure that it had food and water. In the course of doing so, she had noticed, looking out the window, that Mr Ukumu’s car was still present and idling in front of her next-door neighbour’s home, approximately 15 to 20 meters away, causing her to wonder why it was taking Mr Ukumu so long to leave.

• Ms T described how, approximately five minutes after she and Mr G had come back into her home, there was a knock on the front door. Mr G was still in the washroom at that point, and Ms T answered the door to find that it was Mr Ukumu, saying that she had forgot something in his car, (without specifying what the “something” was), and that he wanted her to return to the car to check and see whether the “something” was hers.

• In response, Ms T did not ask for specifics of what the item or items were – although she felt, in retrospect, that she should have done so. She instead put her shoes back on, and followed Mr Ukumu back to his car as he walked a few paces ahead of her.

• Ms T says that, when they approached Mr Ukumu’s vehicle, (which by that point had been turned around to face in a northwest direction), Mr Ukumu proceeded towards and opened the rear passenger door on the driver’s side and, while still holding that door open, pointed inside the rear of the vehicle to where two cards were situated on the floor, between the vehicle’s back seat and front passenger seat.

• Although Ms T was not missing any cards of her own, she wanted to see if the cards she could see on the floor of the vehicle belonged to Mr G, so she leaned into the vehicle to reach for the cards. In particular, placing her right foot on the open doorframe of the car, and her right arm on the vehicle’s rear passenger seat, she stretched and reached into the vehicle with her left arm in an effort to retrieve the two cards. At that point, when she was off balance, she felt Mr Ukumu use some unknown but solid part of his body, (such as a hip rather than an appendage), to make contact with her “hip and ass” and “nudge” or “knock” her forward into the vehicle. In the result, Ms T recalled landing inside the vehicle’s rear passenger seat area on her chest and stomach.

• Ms T described how, while still “trying to figure out what was going on”, she proceeded to “try and roll over”, (i.e., by rotating her left shoulder towards the backrest of the rear passenger seat), at which point she saw that Mr Ukumu was climbing in on top of her, after closing the vehicle door behind him and positioning his right leg initially on her left thigh and hip, before moving it to the left side of her body.

• She says that Mr Ukumu was successful in climbing on top of her, putting his arms up towards her chest and shoulder area, and putting his weight onto her thighs and vaginal area, after which he successfully, while moaning, kissed Ms T’s neck in some areas, (e.g., approximately up to the midway point on the left and right sides of her neck), but was frustrated in his attempts to kiss other areas of her neck. In that regard, Ms T explained that, when Mr Ukumu initially climbed on her, she was not lying flat on her back. She was instead “kind of leaning back” against something behind her; a “something” she later identified as the vehicle’s right rear passenger door. In that regard, she described how the initial degree of that leaning was such that her head was tilted slightly forward towards, but not all the way down, to her chest; i.e., such that her neck was in a position whereby it was not obstructed and still exposed to kissing by Mr Ukumu. In the circumstances, Ms T said that she was raising or shrugging both of her shoulders, in an upwards direction, in an effort to prevent Mr Ukumu from kissing her neck and to make him stop. At some point, she says, Mr Ukumu also reached down with his left hand to rub Ms T’s genitalia over her clothing.

• Ms T says that, while such activity was happening, she was “very frantic” and “very upset”, and repeatedly said things such as “Please, no, stop” and “I can’t do this again”. Notwithstanding such pleas from Ms T, Mr Ukumu persisted in what he was doing.

• Ms T acknowledged, in response to questions posed by defence counsel, that she had not tried to assault Ms T in response to what she was doing. In that regard, Ms T explained that, although “a thought did cross [her] mind” that she should “try and kick him” in an effort to get away, she figured that Mr Ukumu was in a position to easily overpower her, and that any “physical fight” would have been “something [she] would’ve lost”.

• At some point after engaging in such conduct, and while still facing Ms T, Mr Ukumu then leaned back and sat up, partially raising his weight off Ms T, in order to use both of his hands to start undoing his belt and the button of his pants. In that regard:

  • Ms T said she reacted by pleading “No, stop, please, no”, to which Mr Ukumu replied, “What, no sex?”, causing Ms T to say “No, no fucking sex!” However, Mr Ukumu persisted in his sexual contact.

  • At the same time, Ms T was trying to “squirm” or “squiggle” her legs out from under Mr Ukumu, and “get away” from him as best she could. In the course of doing that, Ms T said she also was using her arms in an effort to escape; e.g., by lifting herself up further, (in an effort to help get her body out from underneath Mr Ukumu), and repeatedly reaching behind the right side of her head with her right hand, in an effort to locate the interior handle of the vehicle’s right rear passenger door, and hopefully open that door to get out of the vehicle that way. Ms T also testified that, as a result of such actions, she was moving herself further “into the car”, (vis-à-vis the left rear passenger door), but that she did not have much room in which to back away, such that her head correspondingly began moving further up the interior side of the vehicle’s right rear passenger door.

  • Ms T candidly indicated that she had no clear memory of Mr Ukumu’s precise body positioning at that point, the location of his feet, or even the location of her own feet in relation to Mr Ukumu, as she was much more focused on “what was going on” in terms of Mr Ukumu obviously attempting to undo and remove his pants, and her efforts to get away.

  • However, she recalled Mr Ukumu “hovering above” her, sometimes putting his weight on her legs and sometimes not, as he tried to maintain his balance. In that regard, she believes Mr Ukumu’s right leg was still positioned on the back seat, completely to the left side of her body, between her body and the backrest of the rear seat. Although she did not see or feel Mr Ukumu’s left leg, (i.e., because it was not in immediate contact with her body), she believed it would have been positioned somewhere to the other side of her body, perhaps near the area of her right thigh; i.e., such that Mr Ukumu effectively was straddling her, with a leg to either side of Ms T, and his crotch positioned somewhere over her body.

• It was at that point, Ms T said, that the unlocked right rear passenger door of the vehicle suddenly opened behind her, and she managed to escape. In that regard:

  • Ms T candidly acknowledged and emphasized that, to date, she frankly still does not know or recall precisely how that happened, and apart from the “general movements” of her body, it remained very hard for her to describe. Nor could she recall Mr Ukumu’s precise position in relation to her body, (e.g., whether he was “a little bit farther down her legs” at that point), or whether she made contact with Mr Ukumu during that escape, as she was instead focused intensely on trying to get away.

  • Ms T nevertheless had a memory of successfully, bit by bit, squirming and pulling her legs out from under Mr Ukumu as he was sitting up to undo his belt and trousers, that the right rear door of the vehicle opened, and that she suddenly was engaged in a something of a “backflip somersault type movement” that resulted in her successfully getting out of the car through its open right rear door. She could not describe the movement precisely, although she had a memory of her legs rolling back over her head, and landing on her knees on the ground just outside the vehicle, primarily on her left knee, while her right hand was still holding onto something; something which she believed to be the opened right rear door of the vehicle.

  • When pressed for further details of how that manoeuvre was accomplished, Ms T candidly indicated that she did not really know how it was “physically possible” for her to move her legs such that they were “pretty much … going over [her] body”, with her body then essentially doing a flip backwards. She only knew that she had a memory of her legs moving in that manner. Clearly speculating somewhat, Ms T said she must have “summoned whatever energy” was in her, by way of a full “adrenaline rush” or “fight or flight” response, to get herself out of the car.

• Ms T admittedly was not sure of the passage of time between the point of her being knocked into the backseat of the vehicle and exiting the vehicle in the manner she described. In some ways, she felt at the time like the experience had gone on “forever”, and she acknowledges that she was not thinking very clearly at the time about anything but self-preservation. In retrospect, however, she thought the entire episode actually may have been “very quick”. While emphasizing that she did not have a “great estimate” of the precise duration of the incident, she thought it probably had lasted approximately two to five minutes.

• Immediately after she had managed to exit the vehicle, Ms T says she was frantic, distraught and crying but, while still on her knees, and bent over, thought to reach back into the vehicle and successfully grab the two cards on the floor of the right rear passenger seat area, where they had remained during the course of the incident. She says she did so because, in her words, the way she “saw it”, that “was the reason why he [Mr Ukumu] got me into the car”.

• After grabbing the two cards from the vehicle and standing up, Ms T moved to the back of the vehicle for 10 to 15 seconds, in an effort to focus on and remember its licence plate. The effort took longer than she would have liked, as she was crying, not wearing her corrective eyeglasses and still a bit intoxicated, such that her vision was “still a little askew” at that point, making it hard for her to focus. In the result, however, she successfully managed to note and accurately remember the entire licence plate, with the exception of certainty in relation to the last digit.

• Ms T says that, after that 10 to 15 second pause at the rear of Mr Ukumu’s vehicle, (during which she admittedly did not see where Ukumu was, or know whether he too had exited the vehicle), she ran towards her house. She testified that, at some point between her looking at the rear licence plate and making it into her house, she saw Mr Ukumu drive off quickly in his vehicle.

• Ms T says she was “pretty hysterical” at that point, trying to get Mr G’s attention as she “needed his help”. However, when she entered the house, she initially could not locate Mr G, who was still in the washroom. She says she then proceeded to the basement to find him, and when he was not there, she collapsed on the floor. Mr G nevertheless then joined her there within a matter of seconds.

• A 911 call was placed a short time later, with Mr G’s assistance. In that regard, Ms T says that, during the call, she was the one who initially spoke with the operator, but the operator ended up talking to Mr G as Ms T was “very hysterical”, crying, and repeating the licence plate information she could remember over and over again.

• When the police arrived, Ms T provided a statement that included a very detailed description of the driver and his vehicle, as outlined in the voir dire testimony that was imported into the trial. Ms T also was able to repeat such details in her trial testimony.

• Ms T also provided the police with the two identification cards she had managed to grab from the floor of Mr Ukumu’s vehicle. In that regard Ms T confirmed that, having examined those cards after her return to the house, it was clear that neither belonged to her or Mr G. As indicated on their face, (by indicated names and an identification photo), the debit card and student card both belonged to a specified female student attending Fanshawe College.

[31] I should also add that, in cross-examination, Ms T firmly disagreed with aspects of Mr Ukumu’s anticipated contrary account, put to her by defence counsel, about what had happened following her return to Mr Ukumu’s vehicle. In particular, she expressly, firmly and strongly disagreed with suggestions:

• that Mr Ukumu had returned to his driver’s seat while she entered into the rear passenger seat to examine the cards on the floor;

• that she had examined the cards while sitting in the right rear passenger seat, and indicated that they were not hers;

• that Mr Ukumu responded by relocating to the left rear passenger seat to examine the cards himself;

• that there was any further discussion between her and Mr Ukumu about such matters as her misplaced key, her still being very appreciative of the ride home, or her once again indicating that Mr Ukumu was a “good guy” with a “nice face, just like his heart”;

• that she and Mr Ukumu then voluntarily engaged in mutually agreeable kissing, (e.g., on her lips and neck), lying down or back together;

• that Mr Ukumu never touched her vaginal area;

• that Ms T was the one who tried to unfasten Mr Ukumu’s belt buckle;

• that it was Mr Ukumu who brought an end to the consensual sexual activity by saying he still had to pick up some food;

• that she had responded by saying that she too had to get inside;

• that nothing in the back seat had caused her any fear, frenzy or shock;

• that she nevertheless had then immediately made efforts to note Mr Ukumu’s licence plate number, prompting him to ask what she was doing, and her to respond by saying “You’ll see”; and

• that Mr Ukumu had driven away in a normal fashion.

[32] I also received extended testimony from the accused, Wopatshu Ukumu. The sworn evidence he provided included the following:

• Mr Ukumu provided me with information about his background, including the fact that his first European language is French, and that he originally is from the Democratic Republic of Congo, which he left in 2010. After that time, he lived in Brazil and the United States before arriving in Canada.

• Mr Ukumu testified that, although he initially lived in Quebec after that arrival, the majority of his time in this country has been spent living here in the city of London. During that time, he has made only two close friends, and has had no dating relationships since he left Quebec.

• He said that, at the time of the events underlying this criminal proceeding, he was employed at a London restaurant, and provided part time tutorial assistance to Francophone children doing their homework.

• He also testified that, by the time of his encounter with Mr G and Ms T, he had given a number of people gratuitous rides in his car. In particular, while he had done that for his two close friends many times, he also claimed to have provided such rides to people he did not know on at least two other occasions.

• According to Mr Ukumu, during the late hours of October 31, 2016, he was at his home in west London, (on a specified street between Riverside Drive and the west branch of the Thames River), when he became hungry, and decided to take his vehicle out to look for food.

• Mr Ukumu said he then “went to many places”, looking for food, and eventually found himself in downtown London, around two or three o’clock in the morning, heading east on Dundas Street, to get some food in east London.

• In particular, Mr Ukumu testified that he had been travelling north on Clarence Street, and had turned east onto Dundas Street, (as shown in the city surveillance video), when he noticed a male and female couple, (since identified as Mr G and Ms T), walking east on the north side of Dundas Street, east of the intersection. Seeing that they were not dressed very well for the cold weather, he decided to turn his car around to go west, pull up beside the couple, lower his windows, (i.e., his driver’s window and the right front passenger window, as he had a habit of lowering them at the same time), and ask the couple if they would accept a ride to take them “wherever they were going”.

• When initially testifying about his initial interaction with the couple, Mr Ukumu’s indications included the following:

  • He never exited his vehicle, and instead spoke with the couple only through the open front seat passenger window.

  • He began by asking if the couple needed help to get back home, and Mr G’s initial response was a categorical “no”, repeated four times, along with an indication they were “okay”.

  • Mr Ukumu said he insisted by asking a second time, and got a similar reaction from Mr G, although Ms T appeared to be saying “yes”.

  • Mr Ukumu said he then insisted by asking a third time, noting that they were probably cold, and emphasizing that he was just offering to help and no payment was necessary. It was only then, Mr Ukumu says, that Mr G and Ms T both confirmed their agreement, and got into the back seat of his car, with Ms T seated on the left, (behind the driver’s seat), and Mr G seated to her right.

• Later in his testimony, Mr Ukumu indicated that, when he had pulled up to speak to the couple, he also had asked if they were heading east, in which case he was happy to provide them with a ride as he was heading in the same direction. He said he also had emphasized that he was not a taxi driver, and that the couple did not have to pay him. He simply wanted to bring them home because he “could see that it was quite cold out”.

• Mr Ukumu denied having ever indicated that he was an Uber driver, or made any other reference to his being a professional driver. He also denied having ever indicated that Mr G and Ms T would be his “last fare” of the night.

• Mr Ukumu then provided a very extended and detailed account of the conversation he said took place during the ride to Ms T’s residence. I will not attempt to replicate that extended account in detail here. For present purposes, his account of that conversation included the following assertions:

  • Mr Ukumu and Ms T were said to have done almost all of the talking, with Mr G, after the exchange of initial introductions and comments about how the evening was going, “barely” speaking thereafter, and even then only to say “yes” one or twice to express agreement with things said by Ms T.

  • Ms T was said to have engaged in interactive conversation with Mr Ukumu covering a number of topics, including:

    • the selfish nature of most people in today’s society, and their reluctance to help others;

    • the fact that things were different in Mr Ukumu’s culture, where it was normal to help others;

    • where Mr Ukumu was from in Africa, and his time in Quebec before coming to London; and

    • Nelson Mandela;

  • Ms T was said to have commented repeatedly on the warmth of Mr Ukumu’s car, and how grateful she was for that. She was also said to have commented on the car’s nice smell.

  • Mr Ukumu claimed to have emphasized, many times, that it was his pleasure to provide the ride, that he was doing so out of kindness and a desire to help, and wanted nothing in return.

  • Ms T was said to have expressed, many times, her gratitude and appreciation for the ride, and her admiration for Mr Ukumu’s generosity in stopping to help and provide the couple with a ride without wanting payment.

  • Ms T was said to have said, many times, that Mr Ukumu had a good, kind, nice and/or beautiful heart, just like his nice and/or beautiful face. According to Mr Ukumu, it was Ms T’s repetition of that particular comment which made Mr Ukumu start to think Ms T was intending to go beyond the mere extension of a compliment, and caused Mr Ukumu to start questioning whether the relationship between Mr G and Ms T was that of boyfriend and girlfriend, as he initially had thought.

  • Ms T was said to have asked many times if Mr Ukumu was sure they could not pay him something for the ride, progressively insisting that he accept some form of payment.

  • Mr Ukumu claimed to have said, just as many times, until his final agreement to accept payment, that he really did not want anything in return.

• According to Mr Ukumu, throughout the ride home, Ms T and Mr G sat “quite far from one another” in the back seat, such that there “was really a space” between them. In contrast, Ms T was said to have leaned forward between the vehicle’s two front seats, at one point, to bring her face closer to that of Mr Ukumu.

• As for the events that occurred shortly after Mr Ukumu’s vehicle had arrived outside Ms T’s home, and Mr Ukumu’s agreement to “accept something” for the ride:

  • Mr Ukumu testified that Ms T started searching for something in her purse while still inside the vehicle, before exiting the vehicle completely while Mr G remained inside.

  • At that point, Mr Ukumu said, Ms T became really agitated and began repeatedly screaming things like “Fuck”, “Oh my God”, and “Where are my keys and other stuff?”

  • Mr Ukumu said he responded to his observations of that by lowering his window to tell Ms T that, although he had agreed to accept money because she had insisted on that, he really didn’t want that to happen any more because she had lost her keys and other items, such that he would just leave without Ms T having to give him anything.

  • According to Mr Ukumu, the result was a further back and forth intense conversation between himself and Ms T, during which he repeatedly indicated, (approximately four times), that he did not need or want anything from her in the circumstances, and she repeatedly insisted with mounting emphasis, (just as many times), that he had to stay and take something for the ride.

  • Mr Ukumu says that, when he finally agreed to stay and accept money for the ride, Ms T insisted, as a means of ensuring that he would not leave, that Mr Ukumu hold her cellular phone while she proceeded across the street to her grandmother’s to get another key, go to her house, and return with money. Even then, Mr Ukumu says, Ms T had to insist on that arrangement twice before he agreed to hold her phone.

  • According to Mr Ukumu, Ms T then proceeded to her grandmother’s home, and then her home, before returning to give him two five-dollar bills. During that time, Mr Ukumu says Mr G remained with him at the car, initially by staying in his rear passenger seat before then relocating to the front seat and/or standing outside, near the vehicle.

  • Mr Ukumu testified that, until Ms T gave him the two five-dollar bills, there had been no discussion whatsoever about how much money he would receive, and that he just “took what she gave” him. He also denied that he had ever made any reference to having a debit machine that was not working.

  • Mr Ukumu says that, following his acceptance of that $10.00 from Ms T, and the return of her phone, she thanked him again for being very kind, he said goodnight, and she and Mr G then walked to her house.

• As for what happened after Mr G and Ms T initially had returned to her home:

  • Mr Ukumu said he proceeded to turn his vehicle around to go northwest; i.e., to proceed back up Ms T’s street in the direction from which he came.

  • According to Mr Ukumu, as he was doing so, he was putting his seatbelt back on, (as he prefers to remove it when his vehicle is not in motion), and turning his head to look to the left, right “and almost everywhere”, when he saw two cards on the floor of his vehicle, between the rear seat and the front passenger seat.

  • Mr Ukumu testified that he did not immediately recognize that they were identification cards, but knew immediately that the cards were not his, as he keeps his vehicle “very clean”.

  • According to Mr Ukumu, when he saw the cards he was “very excited and happy”, because he recalled how agitated Ms T had been when she had “lost her things”, and that, by a “reflex” action, without stopping to examine the cards himself, and without bringing the cards with him, he “ran back” in a “hurried fashion” to Ms T’s house, where he knocked on the front door – approximately three to five minutes after Mr G and Ms T had gone inside. In that regard, Mr Ukumu emphasized that, as he was approaching Ms T’s house and knocking on the door:

    • he had no anticipation of being sexual with her in any way;

    • he had no idea who would be answering the door; and

    • he had no idea whether Ms T would return to the car alone or bring Mr G with her.

  • Mr Ukumu testified that, when Ms T answered the door, he said “You left your things in the car”, and then proceeded immediately back to his vehicle and got into its driver’s seat as it was “really cold” and he therefore “didn’t want to wait”.

  • According to Mr Ukumu, when Ms T then returned to the vehicle, while he was waiting in its driver’s seat, he told her through his open window that her “things” were in the back seat, at which point Ms T got into the vehicle using the left rear door. Moreover, Mr Ukumu says, because his vehicle was so clean, Ms T could see right away where the cards were located, and therefore moved “totally to the other side” of the back seat, (i.e., to where Mr G had been sitting), to pick up and inspect the cards. In the meantime, Mr Ukumu says, he remained in the driver’s seat, doing something with his phone.

  • Mr Ukumu testified that he then heard Ms T say “This isn’t mine”, which surprised, confused and “panicked” him, for some reason, while Ms T also was said to be “very agitated”.

  • According to Mr Ukumu, that caused him to exit the vehicle through his driver’s door, and re-enter it through the left rear passenger door, so that he could sit in the seat behind the driver’s seat and examine the cards himself, as Ms T displayed the cards by holding them out to him, repeating that they were not hers; e.g., by saying “See, it’s not me.”

  • Mr Ukumu said that, at that point, he was still demonstrating an attitude of being really surprised, which was said to have prompted further extended and affectionate comments towards Mr Ukumu from Ms T. In particular, as her comments were said to have been the final catalyst for the commencement of what Mr Ukumu alleged to be consensual sexual activity, I think it worth repeating Ms T’s alleged remarks in their entirety. In particular, Ms T is alleged to have said, at that point: “Look, it’s not, it’s not bad. In any case, I already have the key from my grandmother’s, and I’ve gone into the house, and that’s what’s really important. For the other things, it’s really not that important. Thank you so much for having accompanied us here to the house. I’m very appreciative of that. It was very – really very, very kind on your part. And honestly Patrick, do not change. Be the same person. The person that you are. I would say I could see that you have a good heart like your – just like your beautiful face.”

  • At that point, Mr Ukumu testified, he and Ms T looked at each other, their heads came towards one another to meet, and they started kissing.

• As for the alleged consensual sexual activity that occurred thereafter:

  • Mr Ukumu testified that he and Ms T initially kissed for approximately 30 seconds, while they were still sitting with a space between them, and that Ms T then moved herself closer to him on the seat, to close that space, as they continued to kiss and he moved a little more to the left.

  • At that point, Mr Ukumu said, Ms T moved herself into a different position, so that she was laying back – albeit not completely, as the car was not wide enough for that, so she rotated her shoulders to the left and leaned approximately “half way back”, at an angle Mr Ukumu then demonstrated to be approximately 33 degrees from the horizontal portion of the rear seat.

  • At the same time, Mr Ukumu says, he was looking for a “more comfortable” position to follow her, such that he was “on top of her”, but not “completely lying down on her”, as they then continued kissing with both of their heads closer to the passenger side of the vehicle.

  • In that regard, Mr Ukumu says that he then continued to kiss Ms T on the mouth, but also started kissing her on the neck, alternating back and forth between a bit of each. At the same time, he says Ms T pulled on his tongue.

  • According to Mr Ukumu, he then saw Ms T using her hand to touch his belt, but he “avoided” that by tilting his pelvis backwards, as he is a Christian, did not want Ms T touching his “private parts”, and was determined to preserve his virginity until he was married.

  • Mr Ukumu denied that he ever rubbed Ms T’s vaginal area.

  • He denied that Ms T had engaged in actions demonstrating that she was not okay with what Mr Ukumu was doing; e.g., like shrugging her shoulders to prevent Mr Ukumu from kissing her neck.

  • Mr Ukumu also denied that Ms T had ever become emotional, or said “I can’t do this”, “I can’t do this again”, or “No fucking sex”.

  • Nor, Mr Ukumu said, had he ever said “What, no sex?”

  • However, when asked in cross-examination whether he had ever asked Ms T if she was okay with any of the sexual activity in the vehicle’s backseat, Mr Ukumu acknowledged and confirmed that he “didn’t ask her anything”. He instead emphasized that she had not said anything to indicate “that she didn’t agree”.

• Mr Ukumu testified that the consensual sexual activity between him and Ms T ended, on his initiative, shortly after Ms T was touching his belt buckle. In particular:

  • Mr Ukumu said he stopped doing what had been going on, and told Ms T: “I must leave now”, and “I have to go and get something to eat.”

  • According to Mr Ukumu, Ms T responded by saying: “Yeah, me too. I must leave as well, as my boyfriend is in the house”.

  • Mr Ukumu said that he was “flatly surprised” by that comment of Ms T, internally saying “What the fuck? So what just happened here?” In particular, he wondered to himself how Ms T could kiss him right in front of her house if she had a boyfriend inside, and thought that was not normal.

  • However, Mr Ukumu testified that he responded externally with a cordial “Good night”, and that Ms T did the same, after which the two of them exited the rear of the vehicle; i.e., with him getting out through the left rear door while she got out through the right rear door.

• According to Mr Ukumu, despite that apparently cordial parting, he was surprised to see Ms T, moments later, looking at the licence plate of his car. He said that, when he asked her what she was doing, she said “You’ll see” in a “bitch” or “mean” tone.

• Mr Ukumu testified that, although he was surprised by that remark as well, and again wondered what had just happened, he decided that he did not care. He therefore got back into his car, started it, and drove away without speeding.

ASSESSMENT OF WITNESS CREDIBILITY AND RELIABILITY

[34] In my view, Constable Kerr and D.C. Yovicic each presented as credible and reliable witnesses, as far as their imported testimony from the voir dire is concerned. Each was honest, candid, forthright and fair in that regard, and the substantive content of their imported testimony was not really challenged or questioned. In the circumstances, I consider all imported voir dire testimony from the two officers to be accurate.

[35] As far as Mr G is concerned:

• He frequently spoke in a somewhat stilted and convoluted way, and required numerous reminders of the need to be more precise in his language; e.g., to avoid the use of ambiguous turns of phrase that did not make it clear whether he was agreeing or disagreeing with certain propositions, or speculating as to what may have occurred as opposed to stating a definite recollection of what had happened. In my view, many of those difficulties seemed related to apparent nervousness while testifying, (which obviously is not a normal experience for most people), and his acknowledged sleep-deprivation when giving his initial testimony, as he had been required to work late the night before.

• However, at no time during his testimony did I form the impression that Mr G was doing anything other than his best to recall events honestly, accurately and fairly.

• Moreover, although Mr G had no known associations with Mr Ukumu apart from their interactions in the early morning hours of November 1, 2016, and Mr G and Ms T had both a friendship and mutual interest in a possible romantic relationship at the time of the alleged sexual assault, there was no evidence to suggest that Mr G maintained any ongoing relationship with Ms T almost 2½ years later, or any associated reason to think that Mr G had any reason to fabricate or embellish evidence to support Ms T’s allegations, or promote the criminal conviction of someone who essentially was a complete stranger to Mr G.

• I also was impressed by Mr G’s fairness in acknowledging that his memory of the events in question was “foggy” in some respects, and by his indications of what he firmly recalled, could not recall one way or the other, or firmly disagreed with. In my view, that reinforced an impression that Mr G sincerely believed what he could firmly remember or firmly disagree with.

• In short, I found Mr G to be a credible witness.

• There nevertheless were some notable concerns, I think, about Mr G’s reliability. For example:

  • By his own admission, Mr G had consumed a significant quantity of alcohol by the time of the events at the centre of this criminal proceeding; i.e., by the time he and Ms T were interacting with Mr Ukumu. On a sobriety scale of one to 10, (with 1 being completely sober and 10 being very, very drunk), Mr G rated himself as being a “seven” by that point in the morning. Having said that, Mr G described the associated impacts of that on himself as being “more giddy” and “more bubbly”, “not necessarily staggering by any means” but with a “little swagger” in his step. He also did not feel that his level of alcohol consumption had impacted his speech or memory. In my view, Mr G’s assertions in that regard find some support in the city surveillance video, which – amongst other things – shows a couple that appears to be Mr G and Ms T walking east along the north side of Dundas Street at approximately 3:10am, approximately three minutes before their first encounter with Mr Ukumu and his vehicle, at approximately 3:13am, when they are depicted on the surveillance video initially walking over to Mr Ukumu’s vehicle, (parked in the bus lane on the north side of Dundas Street, facing west), and leaning down towards that vehicle. Unfortunately, because the relevant city surveillance camera rotates automatically, there is no uninterrupted view of the couple. They instead are shown only in surveillance video segments lasting approximately 12 seconds each, before the camera rotation causes them to pass out of view again. Contrary to the submissions of defence counsel, I frankly see little or nothing in the video depictions of Mr G and Ms T to indicate any obvious or noticeable intoxication – although I also am mindful of the reality that the short nature of the segments means that they may not be representative of how Mr G and Ms T may have been walking over more sustained periods of time.

  • There were also indications that Mr G may have had a faulty or incomplete memory in certain respects. For example:

    • Although Mr G said that he saw Ms T drink a “cooler” at her residence as he was arriving, along with her drinking of whiskey before the couple left in their cab ride for the Tap House, this was denied by Ms T, and Mr G’s testimony in that regard was somewhat confused; e.g., with his making reference to possible assumptions about what alcohol Ms T may have consumed before his arrival.

    • Mr G initially indicated that he and Ms T had been approached by and picked up by Mr Ukumu on the north side of Dundas Street, between Richmond Street and Clarence Street. However, he corrected himself in cross-examination, agreeing that the relevant location actually was one block further to the east, on the north side of Dundas Street between Clarence Street and Wellington Street, across from the public library.

    • In his testimony, Mr G had a recollection that Mr Ukumu’s vehicle was parked when Mr Ukumu called to the couple to get their attention, and disagreed with suggestions that it had pulled up to the couple while they were walking. Because the relevant surveillance camera was rotating, the surveillance video does not depict the precise moments when Mr Ukumu’s vehicle approached the couple, and therefore whether or not they were walking or had stopped when Mr Ukumu apparently called to them. It instead returns to showing the relevant location just as the couple already was walking up to Mr Ukumu’s vehicle, which had already stopped nearby. Having said that, the video surveillance shows Mr Ukumu travelling north on Clarence Street, and turning east onto Dundas Street, at 3:12:38am, less than a minute before the next revolution of the camera shows Mr Ukumu’s vehicle stopped on the north side of Dundas Street facing west, a short distance from the couple walking over to the vehicle. At the very least, Mr G must have failed to notice Mr Ukumu drive by the couple on Dundas Street, and make a U-turn on that street, before pulling over to the north side of the Street almost immediately before calling out to them. On the other hand, I see no particular reason why Mr G would have been paying attention to the movements of Mr Ukumu’s vehicle, as he and Ms T were walking along the sidewalk, until Mr Ukumu actively called out to the couple to initiate contact.

    • Mr G had a recollection of two marked taxis being parked within several feet of Mr Ukumu’s vehicle, (either in front of or behind it), when Mr Ukumu initially called out to Mr G and Ms T, (i.e., with Mr G saying the vehicles were aligned in a manner similar to that adopted by taxis waiting outside drinking establishments for patrons “after the bar crawl”). However, the city surveillance video confirms that Mr G was mistaken. While the video does show vehicles including marked taxis passing the relevant location in both directions, (while Mr Ukumu’s vehicle initially was pulled up to the couple before they got inside, and while he was then doing a three point turn on Dundas Street to reverse direction and proceed east along Dundas Street), it seems clear that no other vehicles were parked in the immediate vicinity of Mr Ukumu’s vehicle. Moreover, by the time of the first encounter between the couple and Mr Ukumu, approximately 75 minutes had passed since the normal “closing time” of London drinking establishments, such that the waiting of taxis outside such places, following the evening’s “bar crawl ”, had likely come to an end. In the circumstances, I think it likely that Mr G was simply time-shifting something he had observed earlier that morning.

    • When testifying, Mr G also had a recollection, which varied from that of Ms T and Mr Ukumu, of Mr Ukumu exiting and standing outside his vehicle, near its driver door, at some point during his initial conversation with Mr G. However, although defence counsel emphasized this as another aspect of Mr G’s testimony that was demonstrably false, I think the reliability and accuracy of Mr G’s testimony in that regard is less clear. In particular, while there is a segment of surveillance video showing that Mr Ukumu clearly remained in his vehicle as Mr G and Ms T initially were walking over towards it and leaning down towards its window, what happened immediately thereafter, before the couple entered the vehicle, is simply not captured on video because of the relevant camera’s rotation. In particular, by the time the camera once again rotates to capture what is happening at the relevant location, the couple had entered the vehicle and Mr Ukumu was engaged in a three point turn to reverse direction and proceed east along Dundas Street. In the circumstances, I think it entirely possible that, while Mr Ukumu remained in his vehicle during his initial exchanges with Mr G, he also could have exited and stood beside his vehicle at some point to make their direct conversation easier and/or to assist his passengers get into the vehicle’s back seat.

    • By way of a further and final example of Mr G possibly having a faulty or incomplete memory of events on the morning in question, he testified that he had no memory of Ms T going to her grandmother’s home, (a residence located just across the specified street from the residence where Ms T lived with her father), until sometime well after Mr Ukumu had departed the scene, and the police had attended to address the reported sexual assault. In particular:

      • Mr G had no memory of Ms T indicating that she could not locate her house key, and having visited her grandmother’s house across the street to obtain another key to her residence, after initially exiting Mr Ukumu’s vehicle on the specified street, before Ms T entered her own residence to retrieve money to pay Mr Ukumu for the ride.

      • In contrast, Ms T and Mr Ukumu were both firm in their recollection that Ms T had difficulty locating her own key to her residence, causing her to initially proceed to a house across the street before then proceeding to her house, after which she returned to Mr Ukumu’s vehicle to give Mr Ukumu $10.00 for the ride.

      • As Ms T and Mr Ukumu effectively agreed on that aspect of the morning’s events, and neither has any reason whatsoever to make up and add such a development, I am satisfied that it happened, and that Mr G simply did not notice and/or recall that it did.

• On the whole, it nevertheless seemed to me that concerns about Mr G’s reliability and accuracy were limited to matters that were largely peripheral, and/or were capable of reasonable explanation. For example, in relation to Mr G’s failure to note or remember Ms T proceeding to her grandmother’s house to retrieve a house key, before going to her own residence to retrieve money to pay Mr Ukumu:

  • First, as Mr G remained in the back seat of Mr Ukumu’s vehicle talking with Mr Ukumu, while Ms T initially exited the vehicle and did what was necessary to retrieve money to pay Mr Ukumu, and that process apparently took no more than a few minutes at most, I think it entirely possible that Mr G may simply not have been paying much attention to Ms T’s precise movements at that point, after she had left the vehicle.

  • Second, Mr Ukumu himself indicated and confirmed that, although Ms T initially “started to search for something” with certain movements while she was still in the vehicle, it was not until she had completely exited the vehicle, and Mr Ukumu was observing her through his rear view mirror, (providing an indirect indication that Ms T had moved behind the vehicle at that point), that Ms T became “really agitated” and started swearing repeatedly in relation to her inability to locate her house key. Still sitting inside the vehicle, in its right rear passenger seat and facing forward, with no suggestion of the vehicle’s rear passenger windows having been opened, I think it entirely possible and indeed likely that Mr G may not have been in a position to see or notice what Ms T was doing at that point.

  • Third, in addition to Mr Ukumu’s indication that he himself was observing Ms T through his vehicle’s rear view mirror at that point, there apparently was no dispute that Ms T’s grandmother lived almost directly across the street from Ms T’s house but slightly to the left, (looking out at the street from Ms T’s residence), and that Mr Ukumu, when approaching the location of Ms T’s house from the northwest, had “overshot” or travelled slightly past Ms T’s house on the right, before bringing his vehicle to a stop. To me, all of that clearly indicates that Ms T, travelling back and forth between the vehicle, her grandmother’s house, the vehicle, her own house and the vehicle again, after initially exiting Mr Ukumu’s vehicle, would have been travelling to the rear of Mr Ukumu’s vehicle. Once again, that would have made it unlikely that Mr G, sitting in the vehicle’s rear passenger seat, and without the benefit of a rear-view mirror like the one available to Mr Ukumu, would not have been in a position to observe Ms T’s movements at that point.

• Such peripheral and/or explicable concerns about the reliability of certain aspects of Mr G’s testimony accordingly did not make me doubt the accuracy of the more important points of his testimony; e.g., concerning Mr G’s definite memories that Mr Ukumu had held himself out to be a driver for hire, the absence of any sustained conversation or flirtation between Ms T and Mr Ukumu during the ride back to Ms T’s residence, and Ms T’s obviously alarmed, upset and distraught condition when he exited the bathroom.

• Moreover, in relation to those matters in respect of which Mr G had a more definite and certain recollection, it seems to me that there are logical reasons why such things would have stood out in his memory. For example:

  • I think it quite natural and understandable that Mr G, having travelled from Ms T’s residence to the downtown area in a professional cab, would have taken similar preliminary steps to clarify and confirm the professional nature of the ride being offered by Mr Ukumu before he and Ms T got into a vehicle with no professional markings, being driven by a complete stranger, at 3:15 in the morning. Moreover, the fact that it was Mr G’s first experience with an Uber driver, or what he understood to be an Uber driver, is also something that would have caused the ostensible arrangement to stand out in his memory. Furthermore, because Mr G had no prior familiarity with Uber, (and therefore no understanding of whether or not the cost of such a service would be comparable to that of a metered taxi), I also think there is very good reason to believe that he also would have clarified the cost of the arrangement before he and Ms Tentered Mr Ukumu’s vehicle – particularly when there also were marked taxis passing the location in each direction.

  • Although Mr G said his planned outing with Ms T was “not necessarily” intended to be “a romantic evening”, the nature of Mr G’s social outing with Ms T was clearly in the nature of a “first date”, and Mr G confirmed that, by the time of the ride back to Ms T’s residence, there had been a “romantic spark” between them. Mr G accordingly had a romantic interest in Ms T at that point that caused him to remember, (as Ms T did), that they definitely were holding hands. In that regard, Mr Ukumu himself acknowledged that, when he encountered the couple, they were acting in a manner that caused him to form the definite impression or understanding that they were boyfriend and girlfriend. In the circumstances, I think there is every reason to believe and accept that Mr G would have noted and remembered any conversation or conduct on the part of Ms T, (e.g., leaning forward to put her face close to that of Mr Ukumu), suggesting that, rather than directing her attentions towards Mr G, Ms T was instead flirting with the complete stranger whom the couple had met for the first time just minutes before. In that regard, Mr G confirmed that he would have considered remarks by Ms T about Mr Ukumu’s “good”, “cute” or “beautiful” face to have been flirtatious conduct.

  • The state of Ms T and her report of an assault, when Mr G exited the washroom, also were matters clearly out of the ordinary, and therefore also events which Mr G would be more likely to remember.

• In my view, with some relatively minor exceptions in relation to largely peripheral matters, (e.g., with respect to who brought the whiskey to Ms T’s home, the precise nature or quantities of alcohol that may have been consumed by each person at Ms T’s home, and whether Mr Ukumu got out of the vehicle when first speaking with the couple on Dundas Street), and matters in respect of which there is a logical explanation for certain discrepancies, (e.g., with Ms T perhaps being unable to physically hear and therefore remember certain comments, such as Mr G and Mr Ukumu negotiating a $10.00 price for the ride before the couple entered Mr Ukumu’s vehicle), there was a remarkable consistency between what Mr G definitely remembered, and what Ms T definitely remembered, in relation to more important matters.

• On the whole, I accordingly regard Mr G as a credible, reliable and accurate witness, in relation to the important matters that he definitely remembered.

[36] The Crown’s case obviously depended in very large measure on the testimony of the complainant, E.T., (as she was the only person present with the accused at the time of the events central to the allegation of sexual assault), and I accordingly have spent considerable time carefully reviewing and considering, in detail, possible concerns relating to her credibility, reliability and accuracy. Having done so, I nevertheless am strongly of the view that Ms T was an extraordinarily compelling and believable witness. In that regard:

• I had the opportunity to closely observe Ms T while she was testifying over the course of approximately two days at trial, and at no point did I ever form any doubt or suspicion that she was attempting to be anything but entirely honest, accurate and fair in her testimony. Amongst other considerations in that regard:

  • In my view, Ms T consistently gave her testimony in a manner that seemed entirely spontaneous and unguarded, responding to questions with answers that were precise, detailed and almost always internally consistent, even when she was asked to return to various aspects of her earlier testimony. Moreover, although Ms T apparently had described the events of that morning and alleged assault on at least four separate past occasions, (e.g., in the 911 call to police immediately after the alleged incident, in a verbal statement provided to a police officers who attended at the scene in the early morning hours of November 1, 2016, in a later video-recorded statement provided to D.C., Yovicic, and in testimony provided during the preliminary hearing conducted in relation to this matter), in my view defence counsel was unsuccessful in high-lighting any significant previous inconsistent statements.

  • Ms T herself proactively indicated, and repeatedly acknowledged, that when trying to recall all of the events that had occurred on the evening of October 31 and morning of November 1, 2016, she was quite sure that certain events had happened or not happened, but also sometimes had difficulty recalling certain details, such as precise times and the exact nature or quantities of alcohol that may have been consumed. She repeatedly indicated her willingness to be corrected in that regard, and the possibility that she may have been mistaken in certain respects, (e.g., by acknowledging that Mr Ukumu actually may have exited his vehicle at some point during his initial meeting with Mr G and Ms T), while holding fast to more central assertions and denials.

  • She did not hesitate to disclose details about her own drug use and significant alcohol consumption.

  • As noted above, demeanor is certainly not the only or most important consideration in determining whether a witness is credible and reliable. Nor, however, is it to be disregarded. In the case of Ms T:

    • Despite being firm in her answers, she also repeatedly appeared to be genuinely tearful and upset when describing and reliving aspects of the morning in question, and the sexual assault she said she had endured.

    • At other times, and particularly when reliving the moments immediately after her described escape from Mr Ukumu’s vehicle and efforts to note and remember his vehicle’s licence plate, Ms T evidenced obvious bitterness and anger; e.g., repeatedly indicating that Mr Ukumu had driven away quickly “like a little bitch” – by which, Ms T explained, she meant that he had sped off because he knew what he had done.

    • On the whole, the demeanor demonstrated by Ms T throughout the course of her testimony reinforced my impression that she was being honest and truthful.

  • Finally, while there most certainly is no onus on Mr Ukumu to establish a reason for Ms T to fabricate a false claim of sexual assault, I think the absence of any realistic motive on the part of Ms T to do so is a relevant consideration in assessing her credibility. In that regard:

    • Defence counsel advanced a theory that Ms T had willingly engaged in consensual sexual activity with Mr Ukumu in the rear seat of his vehicle, before suddenly remembering, (when Mr Ukumu indicated that he suddenly wanted to stop such activity and go get some food), that she was supposed to be on a date with Mr G, who was still inside her home and who might have seen what she was doing. Defence counsel essentially suggested it was that sudden memory or realization, on the part of Ms T, which caused an immediate change of behaviour on her part, and motivated her fabrication of a sexual assault claim, in an effort to ensure that Mr G would not think she had acted improperly by suddenly turning her romantic intentions to another male, (and a complete stranger at that), during their first date together.

    • For numerous reasons, I frankly found the theory, and supposed motivation of Ms T to fabricate her claim of a sexual assault committed by Mr Ukumu, to be fanciful and entirely unrealistic. Without limiting the generality of the foregoing:

      • First, I am again mindful of the indications from our appellate courts, including the Supreme Court of Canada, that the idea of complainants readily fabricating claims of sexual assault is largely a myth, and that available data indicates that the opposite tends to be true. Advancing a claim of sexual assault, and having to repeat and relive highly intimate and embarrassing details of such an experience, particularly in the public forum of a preliminary hearing and/or trial, is a gruelling and humiliating exercise that most persons would not readily undertake without very good reason.

      • Second, in my view, Ms T had little or no reason in the circumstances to resort to such a drastic course of action, (i.e., fabricating a claim of sexual assault against Mr Ukumu), and pursue it consistently for almost three years thereafter. There is no dispute that Ms T and Mr G, at the time of the alleged incident, had known each other only for a few months, and were on what could only be described as a “first date”. In other words, this was not a situation in which Ms T had any kind of vested, serious or long term relationship she needed or realistically would have wanted to protect by fabrication of a very serious criminal charge against a complete stranger. Nor does the defence theory explain, in any way, why Ms T would have continued to pursue her claim for justice, in relation to her sexual assault allegation, when she apparently has no ongoing romantic relationship with Mr G.

      • Third, (but on an related note), even if one accepted the defence theory to be correct, and Ms T initially planned to fabricate a claim of sexual assault against Mr Ukumu, as part of a contemplated scheme to persuade Mr G that she had done nothing improper, if Mr G had happened to look out the window to see what was going on in Mr Ukumu’s vehicle, in my view the need for pursuit of such a scheme realistically would have evaporated the moment Ms T returned to her home and found that Mr G was nowhere to be seen and apparently still in the washroom – leading to an obvious inference that he had seen nothing of what had happened outside.

    • For all such reasons, Ms T struck me as being a credible witness.

• In terms of Ms T’s reliability:

  • She obviously was present at all times during the events which are central to this criminal proceeding, and in normal circumstances therefore inherently would have been in a position to make accurate and complete observations of the alleged events underlying the alleged criminal conduct of Mr Ukumu.

  • Although she admittedly closed her eyes during portions of the ride home, little or nothing of visual importance occurred during that time, on anyone’s account. Ms T generally was in a position to see and note everything of central importance to the sexual assault charge against Mr Ukumu, except for occasions when Mr Ukumu may have been out of her sightlines; e.g., when he is said to have nudged or knocked Ms T from behind into the backseat of his vehicle, and during the course of her described escape from the vehicle; e.g., when she was rolling backwards or focused briefly on obtaining and remembering the licence plate of Mr Ukumu’s vehicle.

  • While Ms T had hearing deficits, as noted above, they obviously would not have impaired her ability to note what she said or did not say. Such hearing deficits also apparently did not prevent her from hearing and understanding what Mr Ukumu was saying to her when the two were in close proximity and facing each other. For example, despite Mr G’s absence when Mr Ukumu came to the door of Ms T’s house and told her there were items in the car she needed to retrieve, there seems to be no question that Ms T heard, understood and acted upon what Mr Ukumu was saying directly to her on that occasion, immediately before the alleged sexual assault.

  • I obviously take into account that Ms T admittedly consumed marihuana and a significant quantity of alcohol in the hours leading up to the alleged sexual assault. In that regard:

    • Even on her own account, Ms T had smoked “a couple bong tokes”, and consumed at least two or three shots of whiskey at her home, before she then consumed additional amounts of beer, and further shots of liquor, (either vodka or rum), at the Tap House.

    • In her testimony, Ms T indicated that she had consumed more alcohol that evening than she “would normally drink”, and was “a little more drunk that she usually was”. In the result, she felt she “definitely” had “staggered” walking when she and Mr Ga initially were approached by Mr Ukumu. (As noted earlier, it seemed to me that there were no visible indications of such staggered walking during the two short 12 second surveillance video segments depicting Mr G and Ms T shortly before they got into Mr Ukumu’s vehicle. However, they were very short and isolated video segments, and I will accept Ms T’s internal assessment of her ability to walk properly at that point.) I also have regard to Ms T’s own assessment at trial that, when she first got into Mr Ukumu’s car, her level of intoxication, (on a scale of one to ten, with one being sober and 10 being severely intoxicated), was “at least an eight to a nine” – although she felt that it decreased to “maybe a seven” by the time she exited the vehicle..

    • All that having been said, when it comes to an assessment of whether drug or alcohol consumption impaired Ms T’s reliability as a witness, in relation to the central events occurring at the time of the alleged sexual assault, I was struck by her emphatic assertion that she was still able to recall what she characterized as “the main parts of the events that happened that night”, and her confirmed ability to remember, with a high degree of accuracy, numerous details about the event. In particular, as noted above, (in relation to my discussion of the evidence imported into the trial proper from the voir dire), Ms T independently was able to provide police, shortly after the alleged sexual assault took place, with a very detailed description of her assailant and his vehicle that proved, through subsequent police investigation, to be accurate in almost every respect. Perhaps Ms T was not as drunk at the time as she thought she may have been, or perhaps a combination of time, consumption of food and/or adrenalin were sufficient to counteract any lingering effects of drugs or alcohol. Whatever the explanation, in my view, regardless of how impaired Ms T may have been or thought she may have been at various points leading up to the alleged sexual assault, her ability to make and remember accurate observations at the time of the assault actually and demonstrably was not impaired.

  • In my view, although Ms T occasionally and admittedly was unable to recall peripheral details, (such as precise times, quantities, distances or the particulars of the travel route Mr Ukumu may have taken on the way back to her home), she generally appeared to have a good memory in relation to most of the events she was describing. In particular, she was able to recall more traumatic and therefore memorable experiences in vivid detail, which seemed natural and understandable to me.

  • In my view, the reliability and accuracy of Ms T’s testimony was not successfully or significantly undermined in any way by cross-examination or the arguments of defence counsel. In particular, despite suggestions to the contrary by defence counsel, in my view there were no confirmed or significant unexplained inaccuracies, inconsistencies and/or implausibilities in Ms T’s testimony that undermined her credibility or reliability in any meaningful way. For example:

    • At one point during her testimony, Ms T noted that, when she and Mr G initially were approached by Mr Ukumu, she thought “it was a kind gesture from a stranger to give us a ride home”. Defence counsel seized on that remark, and Ms T’s acknowledgement that she may have expressed her appreciation for the ride while travelling back to her residence, as suggested confirmation of Mr Ukumu’s account that all concerned understood, from the outset, that the ride Mr Ukumu intended to provide would be gratuitous. However, in my view, Ms T made it quite clear, through other aspects of her testimony, and when directly confronted with defence counsel’s suggestion, that her comments in that regard were focused on her perception, at the time, that a professional driver had spotted the couple and proactively stopped to offer them his services at that time of the morning, seeing that they might have been “walking home drunk” and in need of assistance. As noted above, Ms T emphasized there was no doubt in her mind, at the time, that the ride being offered by Mr Ukumu “was definitely a ride for compensation”.

    • Defence counsel suggested that Ms T had been inconsistent, over time, when providing indications regarding her use of Uber drivers. In that regard:

      • It was emphasized that, at trial, Ms T indicated that she had not used Uber before her encounter with Mr Ukumu, but had used them once or twice since then and now understood how they worked.

      • In an earlier statement, provided by Ms T to the police who attended her home shortly after the alleged incident, Ms T had indicated that, when she had “gone with Uber before”, she had noted “they had some kind of ID”.

      • In the result, defence counsel suggested that Ms T was not only inconsistent, but deliberately misleading insofar as she was alleged to have provided her earlier statement in an effort to highlight a suggested misrepresentation by Mr Ukumu that he was an Uber driver.

      • However, Ms T explained that, in her earlier statement, she had been referring to an earlier instance where an Uber had been arranged by her friends, without her involvement, and she had simply been a passenger – at which time she had noticed that the Uber vehicle in which they were riding had “some form of sticker”. That was what she had been focused on when providing her earlier statement. In contrast, she said, her testimony at trial about not having any previous experience with using the Uber service, at the time of her encounter with Mr Ukumu, was focused on her having no knowledge or information about how one ordered an Uber ride, as she personally had never made such arrangements. It was only after her encounter with Mr Ukumu that she had personally made arrangements for Uber drivers, and had come to know that one used a cellphone “app” to request such a ride.

    • Defence counsel emphasized that, despite her acknowledgment at trial that there had been a number of comments exchanged with Mr Ukumu during the ride to Ms T’s residence, she had indicated, in the earlier statement she provided to the police officer who attended at her home shortly after the incident, that there had been absolutely “no conversation whatsoever” with the driver – although that statement also had gone on to mention that the driver had asked for directions as the ride progressed. In that regard, Ms T readily and repeatedly acknowledged in cross-examination that her earlier statement, indicating that there had been “no conversation” with the driver, was incorrect. However, she explained that, at the time of the earlier statement in question, (taken at 4:45am on November 1, 2016, approximately 60-75 minutes after Mr Ukumu’s departure), she had not yet had any time to calm down and think more about the situation. She emphasized that she was not “focused on the little details” at the time, including what conversation had occurred, but was focused instead on the larger situation and severity of the incident she was dealing with; i.e., as she put it, “the fact that [she] was nearly raped by a fake Uber driver”.

    • As a further example of suggested inconsistency, in cross-examination, it was suggested that Ms T had failed, during her previous statements before trial, to make any mention of an attempt to pay Mr Ukumu for the ride using her debit card. It also was suggested that Ms T’s inclusion at trial of that additional detail, coupled with her indication of Mr Ukumu responding that his debit machine was not working, was a deliberate fabrication, designed to provide the court with a further reason for thinking that Mr Ukumu had misrepresented himself as a professional driver for hire on the morning in question. However, in re-examination of Ms T, it was highlighted that Ms T actually had made reference, in her earlier statement provided to D.C. Yovicic, to her debit card having been declined at the pizza establishment, and not working when it was time to pay Mr Ukumu for the ride. In the result, I think it fair to say that Ms T, in her previous statements, had not provided the same level of detail she did at trial concerning her attempt to pay Mr Ukumu with her debit card, and that the testimony at trial was slightly more damning in relation to Mr Ukumu for the reason highlighted by defence counsel. However, having regard to Ms T’s earlier statement and oblique reference to wanting to use her debit card to pay Mr Ukumu, I was not persuaded that her more expansive account of such matters at trial was a belated fabrication.

    • It was suggested that Ms T’s effective indication of Mr Ukumu luring her back to his vehicle, through a ruse of her supposedly having left something there, made no sense. In that regard:

      • It was emphasized by defence counsel that Mr Ukumu could not have been certain that Ms T was going to answer his knock, (since there was no window in the front door of the house allowing Mr Ukumu to see inside), and similarly no guarantee that Ms T would have come back to Mr Ukumu’s vehicle on her own.

      • In the circumstances, any such devious plan by Mr Ukumu to lure Ms T back to his vehicle and sexually assault her there would have been easily frustrated if Mr G had answered the door, gone out to the vehicle instead of Ms T, or accompanied Ms T back to the vehicle.

      • Of course, what defence counsel says about the ways in which any such “luring plan” by Mr Ukumu could have been frustrated is correct.

      • On the other hand, I also think it fair to say that the possibility of such a devious luring plan being frustrated in its execution does not negate the possible existence of such a plan. In particular, if such a plan existed, it was one that Mr Ukumu could attempt to carry out with no downside risk.

      • For example, had Mr G answered the door rather than Ms T, had Mr G insisted on going to the car with Ms T or instead of her, the worst that would have happened, from Mr Ukumu’s perspective, would have been an inspection of the cards, followed by Mr G and/or Ms T indicating, (as Mr Ukumu would have expected in the circumstances), that the relevant cards on the floor of his vehicle did not belong to Mr G or Ms T, at which point Mr G - or Ms T in the company of Mr G - simply would have gone back into the house, without having been given any reason to suspect that Mr Ukumu had contemplated any sexual assault of Ms T.

    • In cross-examination, it apparently was suggested that Ms T’s account was unbelievable because, given the observed position of cards on the floor of the vehicle, Ms T realistically would not have leaned into the vehicle herself to grab the cards in the manner she described, instead of asking Mr Ukumu to retrieve them, or indicating to Mr Ukumu that she was going to walk around to the right rear passenger door to retrieve them. To that extent that was being suggested, I disagree. According to Ms T’s account, Mr Ukumu told Ms T he believed that she, (not Mr G), had lost something. It therefore was quite understandable that she would have followed Mr Ukumu back to the left rear passenger door, closest to the seat she had occupied. Moreover, when Mr Ukumu then directed her attention to the location of the cards, through that open left rear passenger door, he had done nothing up until that point to make Ms T suspect that he intended any wrongdoing, such that her reaching directly into the car for the cards would present any danger. In my view, a sexual assault complainant should not be disbelieved because he or she demonstrated trust in another person’s presumed honesty and decency before that trust was betrayed by an unexpected attack by that other person.

    • In cross-examination, it was suggested that Ms T had been inconsistent over time in describing how, after being knocked or nudged into the vehicle’s rear passenger seat on her chest and stomach, she came to be turned around such that she was facing Mr Ukumu. In particular, it was suggested that Ms T’s testimony at trial, of having immediately turned herself around, to “get her bearings” and see what was happening, was inconsistent with Ms T’s video recorded statement to D.C. Yovicic indicating that Mr Ukumu forced Ms T onto her back. In my view, however, the suggested inconsistency lost its contemplated impact when the recording of the relevant prior statement was played, as it depicted, along with Ms T’s words, movements whereby Ms T had partially turned around, onto her elbow and shoulder, before then saying that Mr Ukumu had forced her onto her back. In the result, I frankly think there was no inconsistency between Ms T’s prior statement and her testimony at trial. In her prior statement, she communicated that she had turned herself around enough to see what was happening when Mr Ukumu then forced her onto her back. In my view, that is not inconsistent with her trial testimony that she turned herself around to figure out what was going on.

    • In cross-examination, it was suggested that, in saying “I can’t do this” to Mr Ukumu, Ms T was expressing a realization that she was supposed to be with Mr G but was now kissing another man. However:

      • Ms T firmly denied the suggestion.

      • Moreover, as noted above, Ms T’s complete comment at the time was “I can’t do this again.” When Ms T proactively emphasized that clarification during the course of re-examination, (without it being elicited by Crown counsel), it raised an issue at trial, dealt with in Ms T’s absence, about the possible implications of s.276 of the Code, which prevents an accused from leading or adducing prior sexual activity in relation to a complainant without prior compliance with very stringent screening procedures.

      • In the result, (and for reasons outlined completely in the record), the parties agreed that there would be no further questioning about any prior sexual activity involving the complainant, but that I was entitled to take into account, as I do, that Ms T had an alternative reason for saying “I can’t do this” that was not related to any supposed concern on her part that she was supposed to be with Mr G rather than Mr Ukumu.

    • Defence counsel suggested that Ms T also should be disbelieved because her somewhat vague account of the manner in which she supposedly escaped from Mr Ukumu and his vehicle were said to defy logic, physics and “all common sense”. For several reasons, I respectfully disagree. In that regard:

      • I begin by expressing my view that someone in the situation Ms T described, with a stranger having embarked on a sexual assault, and in the process of undoing his belt and pants while hovering over her, can hardly be faulted for an inability to remember the precise positioning of arms and limbs, or precise weight distributions, at such a moment.

      • Beyond that, however, based on my objective assessment of the evidence as a whole, and what I consider to be logical inferences to be drawn from that evidence, I do not think the general movements Ms T could recall and describe were unrealistic or incredible in the circumstances. In particular:

        • It seems quite clear that the dimensions of Mr Ukumu’s vehicle were such that no one of his height or that of Ms T could lie flat in the back seat.

        • Ms T and Mr Ukumu nevertheless both described a situation wherein Mr Ukumu came to be face to face with Ms T, sitting over her legs and leaning down into and/or onto her, as both rear doors of the vehicle were closed.

        • In my view, the obvious conclusion – and one supported by the express testimony of Ms T and Mr Ukumu - is that Ms T was not lying flat on the rear passenger seat, but had the upper part of her body bent forward and upward to some degree as she was leaning back on something.

        • In that regard, Ms T described how her body was fully in the back seat of the car because her upper body was raised. In that regard, she recalled the top third to half of the back of her head being raised and leaning against something behind her, but not in such a way that her head was bent forward onto her chest. In my view, that leads to a clear and natural inference that her upper body must have been bent upward from the horizontal portion of the vehicle’s rear seat to a degree, with her neck straight, as she was leaning back on something behind her. Ms T also indicated, and I accept, that the “something” in question was the right rear passenger door of the vehicle.

        • For his part, Mr Ukumu also recalled that Ms T was not lying back on the seat and, by demonstration, indicated that her upper body was bent upwards from the horizontal portion of the vehicle’s rear seat at an approximate 33rd degree angle; an angle which would not, in my view, have required her head to tilt forward down to her chest. In my view, Mr Ukumu’s acknowledgements in that regard reinforce the indication or natural inference that Ms T must have been leaning the upper part of her body against the right rear passenger door of the vehicle, located behind her.

        • Ms T described how, in the moments before she exited the vehicle, she had been successfully squirming her legs out from under Mr Ukumu. In my view, such a process likely would have been more easily accomplished at the time, as Ms T described it, as Mr Ukumu was in the process of sitting up and raising his weight off Ms T periodically while trying to undo his belt and pants. However, by squirming, and successfully pulling her legs out from under Mr Ukumu, more and more, while both doors of the vehicle were still closed, it seems to me that, as Ms T herself described, she necessarily would have been moving her upper body and head even further back and upwards into the vehicle, thereby effectively increasing the extent and height to which she was leaning back against the vehicle’s right rear passenger.

        • In the result, when Ms T finally succeeded in her efforts to open that right rear passenger door, by reaching back for its handle with her right hand, I think it actually was gravity and physics that initiated her sudden fall and roll backwards out of the door; i.e., when the “support”, against which she increasingly had been leaning, suddenly opened and effectively “gave way”.

        • In the circumstances, I do not think it incredible that the gravitational force of such a sudden movement, (no doubt assisted by active effort from Ms T to the extent she could manage it), would have been sufficient to pull the remaining portions of her legs out from under Mr Ukumu, (to the extent he had any weight on her at all on that point), and facilitate her continued fall and roll backwards out of the vehicle while she was still holding tightly to the vehicle door handle with her right hand – generally resulting in the backward “flip” or somersault movement she generally described.

    • Although defence counsel also suggested that Ms T’s account was not plausible or believable because, as a matter of supposed “common sense”, if Ms T actually had been sexually assaulted and therefore had good reason to be afraid of Mr Ukumu, she realistically would not have paused to reach back into the vehicle still occupied by her assailant to grab the two identity cards from the vehicle’s floor. It similarly was suggested that, in the circumstances described by Ms T, she would not have paused again at the rear of Mr Ukumu’s vehicle to note and remember its licence plate, (at a time when she did not know whether Mr Ukumu also may have exited the vehicle to chase her), before running to the safety of her house and Mr G. I reject such reasoning because, in my view it inherently relies on stereotypes and myths of how one should expect a sexual assault victim to “normally” react and behave following such trauma. As our appellate courts have emphasized repeatedly, there simply are no such norms – and I for one think it entirely inappropriate to disbelieve a sexual assault complainant because his or her account includes indications that he or she may have been sufficiently brave or composed to attempt some immediate measures to identify his or her assailant. In my view, it would be particularly ironic and unjust if a sexual assault complainant was disbelieved because he or she managed to take steps that ultimately were successful in identifying his or her alleged assailant.

    • Although it was suggested by defence counsel that Mr G’s account of Ms T’s statements immediately after the alleged incident included clear indications that she was making inconsistent allegations, (e.g., insofar as Mr G reported Ms T saying that Mr Ukumu had “touched” her and “tried to touch” her), I see no necessary or inherent inconsistency in that regard. In her own detailed account of the alleged sexual assault provided at trial, for example, Ms T clearly described successful acts of touching by Mr Ukumu, (e.g., kissing certain areas of her neck and rubbing her vaginal area over her clothing), as well as acts of attempted or intended touching, (e.g., efforts to kiss other areas of Ms T’s neck and/or to expose his genitals by the undoing of his belt and trousers), that were frustrated by Ms T raising/shrugging her shoulders and flipping backwards out of the vehicle. Moreover, in describing the statements Ms T made to him immediately after he came out of the bathroom, Mr G indicated that Ms T was in a distraught state, such that she clearly was having difficulty “processing” the incident and expressing herself clearly.

    • Although Ms T admittedly used the word “rape” in her initial comments to Mr G and the 911 operator, (e.g., saying that the driver had “raped” her, and “tried to rape” her), she also explained, firmly and to my satisfaction, that whatever the full legal definition of “rape” actually may have been, (e.g., a sexual assault involving vaginal or anal penetration and intercourse), the meaning of “rape” that she personally understood and intended, at the time in question, described an “unwanted touching” or “physical altercation”, in “a sexual manner that is not consented to”. As an example, she indicated that, in her view, Mr Ukumu rubbing her clitoris, in the manner she had described, was “rape”, within her definition of the term, “cause it’s not consented to”.

  • Returning to other considerations that supported my view that Ms T was a reliable witness, while no corroboration of a sexual assault complaint is required, I think the testimony of Ms T was corroborated in significant measure and respects by her injuries that were photographed by police shortly after the incident. In that regard:

    • While defence counsel sought to minimize the significance of those photographs, (e.g., by questioning their quality and the severity of the injuries depicted), I took a different view of the matter.

    • In particular, I thought the photographs depicted with sufficient clarity, and thereby confirmed, the presence of bruising and small cuts described by Ms T in her testimony, which she attributed to the alleged sexual assault.

    • Moreover, in my view, the nature and location of those depicted injuries were remarkably consistent with the incident she described. For example:

      • Ms T had bruising on her thighs, which in my view was consistent with her account of Mr Ukumu having applied his body weight there at various points during the sexual assault.

      • Ms T had bruising and cuts on the second knuckle and base area of her right “pinky” finger. To me, such injuries seemed consistent with Ms T’s description of having used her right hand repeatedly to reach behind her head in desperate attempts to locate and operate the door handle of the vehicle’s right rear door, and of how her right hand somehow remained fixed to that handle/door as her body rolled backwards out of the vehicle.

      • Ms T also had bruising to her knees, consistent with her account of having landed on them when she rolled backwards out of the vehicle

    • I also think her description of her condition and emotional state immediately after the alleged sexual assault was buttressed by Mr G’s unchallenged account of Ms T’s completely dishevelled state of disarray following her return to the house after going back to Mr Ukumu’s car.

  • Finally, in my view, (noted earlier in relation to my assessment of Mr G’s reliability), with some relatively minor exceptions in relation to what I consider largely peripheral matters, and matters in respect of which there is a logical explanation for certain discrepancies, there also was a remarkable consistency between what Mr G definitely remembered, and what Ms T definitely remembered, in relation to more important matters. In my view, that too reinforced my impression that her account was reliable and accurate.

• For all such reasons, I accordingly regarded Ms T as a very compellable, credible and reliable witness, in relation to matters that she definitely remembered.

[37] I also obviously have spent considerable time and care considering the testimony which the accused, Mr Ukumu, chose to give at trial.

[38] In relation to my assessment of the credibility and reliability of Mr Ukumu:

• To some extent, I already have commented on that somewhat indirectly, during my comments on why I found the testimony of Mr G and Ms T, (which obviously conflicts with that of Mr Ukumu in many important respects), to be credible, reliable and to some extent corroborated.

• In assessing the credibility and reliability of Mr Ukumu, I think it worth emphasizing again my mindfulness of the presumption of innocence, and the fundamental reality that that Mr Ukumu has no obligation to prove anything whatsoever in this proceeding.

• To the extent Mr Ukumu chose to testify and present evidence, in support of his denials that certain misconduct attributed to him by Ms T ever happened, I also bear in mind the inherent difficulties of trying to establish a negative. For example, to the extent Ms T gave lengthier and more detailed accounts of how Mr Ukumu is alleged to have misbehaved, the testimony of Mr Ukumu was bound to be much shorter and to the point; i.e., in asserting that he simply never did certain things, or acted in a certain way.

• I will also say that I had no real concerns about Mr Ukumu’s reliability, insofar as it seemed to me that there was nothing to impair his ability to make accurate observations about what was said and done during the events in question. In particular, Mr Ukumu testified and I accept that he did not consume any drugs or alcohol during the evening of October 31 or morning of November 1, 2016. He also obviously was at the centre of events underlying this proceeding.

• Having said all that, in my view there were many reasons for doubting the credibility of Mr Ukumu, and for disbelieving many of the assertions he made during the course of his trial testimony. I say that for many reasons, but they include the following:

  • First, in my view, Mr Ukumu’s testimony included a number of significant assertions that were neither sensible nor believable. In that regard:

    A. I am not inclined to be cynical, and do not readily reject Mr Ukumu’s assertion that he stopped to offer a gratuitous ride to Mr G and Ms T, repeatedly emphasizing that the wanted no money in return, simply because he saw that they appeared to be cold and he wanted to help them. There are still many kind hearts and “good Samaritans” in this world, and I am also mindful of possible cultural differences in terms of people’s willingness to approach strangers. However, having said all that, it strikes me that there is good reason to seriously doubt and reject Mr Ukumu’s claim that he had no intention of charging Mr G and Ms T for a ride when he offered one. In that regard:

    • According to his own account, Mr Ukumu was at his home in west London, (on a specified street between Riverside Drive and the west branch of the river Thames), in the late hours of October 31, 2016, when he became hungry and decided to leave in his vehicle to “look for food”.

    • The automated timestamps on the city surveillance video confirm that Mr Ukumu was still driving around the streets of London at 3:14am when he stopped to offer a ride to Mr G and Ms T. According to Mr Ukumu’s account, at the time he did that, he was proceeding east along Dundas Street with a view to obtaining food somewhere in east London.

    • None of Mr Ukumu’s claims in that regard seem sensible or realistic to me. At a minimum, (i.e., assuming he left his home at 11:59pm on October 31, 2016), by the time he picked up Mr G and Ms T, he had been driving around London for no less than 3 hours and 15 minutes in an effort to satisfy the hunger that had caused him to leave home, and still had not eaten. In my view, no one who was truly hungry would do so.

    • In an effort to explain why he had been driving for so long, and why it had taken him so many hours to travel between his residence and the location where he picked up Mr G and Ms T on Dundas Street, (locations which are no more than a few kilometres apart, at a distance easily capable of being driven in less than 10 minutes at normal driving speed), Mr Ukumu claimed he had stopped at “many places”, (although he later reduced the number to three identified places), but had not found the food at any of those establishments to his liking. I did not find the explanation persuasive.

    • In contrast, I found the testimony of Mr G and Ms T, indicating that Mr Ukumu had offered a ride for compensation from the outset, to be compelling, persuasive and supported indirectly by other evidence. In particular:

      • The couple clearly had used a professional driver to travel from Ms T’s residence to downtown London, and it seems likely that they would have been inclined to do the same thing on the way home.

      • Mr G had a firm memory of Mr Ukumu indicating, at the outset, that he was an Uber driver offering a ride for hire, and that Mr Ukumu negotiated a $10.00 fee before the couple got into the vehicle. Not only was Mr G’s testimony in that regard unshaken in cross-examination, but it seemed to me that he had no reason to be mistaken or lie about such matters. Moreover, as Mr G had no prior experience with Uber, Mr Ukumu’s indication of such an association naturally would have stood out in Mr G’s memory.

      • Although Ms T physically was incapable of hearing Mr Ukumu’s direct comments during his initial approach to the couple, before they got into Mr Ukumu’s vehicle, she had a clear recollection of Mr G telling her, at the time, that the driver was indicating that he worked with “Uber” or “U-Need-A” cab; i.e., one of two professional driving services here in London beginning with a “U”. I frankly can think of no reason why Mr G would have made such an indication to Ms T at the time, unless he had been prompted to do so by things Mr Ukumu was saying.

      • Although they differed in their account of when a $10.00 price for Mr Ukumu’s driving services was finalized, (with Mr G saying that was done at the outset while Ms T thought that had been specified only at the conclusion of the ride – an inconsistency reasonably attributable, I think, to Ms T’s acknowledged hearing deficits that prevented her from hearing all of the discussion between Mr G and Mr Ukumu before the couple got into the vehicle), both Mr G and Ms T were quite firm in their testimony that there was never any indication or understanding that Mr Ukumu was providing the ride on a gratuitous basis.

    • In my view, the testimony of Mr G and Ms T indicating that Mr Ukumu was offering rides for compensation, is supported by a number of additional considerations. In particular:

      • First, as noted above, even on his own account, Mr Ukumu had been driving around central London for several hours, and in my view that passage of time cannot reasonably be explained by stopping at a number of food establishments at which he bought no food. He clearly was spending the time doing something else as well.

      • Second, there is the reality that Mr Ukumu was driving around downtown London in the early morning hours after 2am; i.e., the time when London’s downtown bars stop serving alcohol, and inebriated bar patrons normally gradually begin to make their way home, frequently in need of transportation in vehicles by those who are sober.

      • Third, Mr Ukumu admitted to at least one previous occasion, in October of 2016, where he had provided a ride to a male and female couple he did not know, picking them up between 2am and 3am, (once again, at the time when London’s downtown bars would emptying), in the area of Talbot and Ann Streets; i.e., near a number of other Richmond Row bar establishments.

      • Fourth, on his own account, Mr Ukumu keeps his car very clean, (something he emphasized repeatedly in his testimony), yet there were two identification cards, having nothing to do with Mr G or Ms T, sitting in plain view on the floor of the rear seat passenger area of his vehicle. Again, those cards belonged to a female student from Fanshawe College, whom Mr Ukumu admittedly did not know. In my view, if Mr Ukumu did not deliberately place those cards there to lure Ms T into the rear seat of his vehicle, the natural inference is that Mr Ukumu had recently provided a ride to other strangers earlier that morning.

      • Fifth, in my view, Ms T’s explanation that she left Mr Ukumu her cellular phone temporarily as collateral, so that he would have some assurance that she and Mr G would not simply both run away from the vehicle without rendering expected payment for the ride, makes sense to me. It created an obvious incentive for Ms T to return with payment for the ride. Mr Ukumu’s explanation for Ms T leaving her phone, (i.e., that she made him take it as a means of encouraging him to stay and await a payment he did not really want), makes no sense to me. It created no disincentive to Mr Ukumu simply leaving the phone and driving away, or to driving away with her phone, once Mr G stepped out of the car. In that regard, Mr Ukumu himself acknowledged, in cross-examination, that he could have very easily just driven away.

    • In the result, I accept the testimony of Mr G and Ms T that the ride provided by Mr Ukumu was at all times offered, intended and understood to be a ride for compensation, rather than a gratuitous one in respect of which Mr Ukumu reluctantly accepted compensation.

    • That finding has considerable significance in this case, not only because it means Mr Ukumu repeatedly was not being honest with me about the nature of the ride he was providing to the couple, but because it also undermines the basis on which Mr Ukumu suggested Ms T was so very taken with Mr Ukumu, because of his kindness and generosity. In my view, that in turn undermines the implicit if not explicit explanation, put forward by Mr Ukumu, for Ms T’s willingness to engage in later sexual activity with Mr Ukumu despite having met him less than 30 minutes before the activity took place.

    B. A second example of testimony from Mr Ukumu that seemed unbelievable to me was his account of the conversation that was supposed to have taken place during the ride from downtown London to the residence of Ms T. In that regard:

    • As noted above, Mr Ukumu’s testimony in that regard outlined a very extended back and forth conversation, in which both he and Ms T were very actively involved, and during which Ms T supposedly made multiple statements indicating directly or indirectly that she had a very favourable disposition towards Mr Ukumu.

    • Once again, the purpose of such evidence seemed to emphasize a suggested context wherein Mr Ukumu had reason to believe that Ms T had struck up a rapid but very friendly and positive relationship with Mr Ukumu, including indications of Ms T perhaps taking a romantic or sexual interest in Mr Ukumu by way of physical attraction.

    • However, I found Mr Ukumu’s testimony in that regard very difficult to believe for numerous reasons. Without limiting the generality of the foregoing:

      • First, in my view, unless all concerned were speaking at an extremely rapid pace, (and there is no indication or evidence that was the case), the sheer volume of back and forth comments alleged by Mr Ukumu would have been very difficult to squeeze into what apparently was a relatively short ride, along a very direct route between the pickup point and Ms T’s residence, at a time of day when there was very little traffic on the streets of London. In that regard, I was noting the passage of time as Mr Ukumu gave his account of the numerous comments that supposedly were said back and forth during that ride, and even making appropriate allowances for the time associated with interruptions, (e.g., the time taken by counsel to ask questions, and the time taken to translate questions and answers from English into French and vice versa), Mr Ukumu’s account of the supposed conversation during the ride home significantly exceeded the apparent 10 to 15 minute duration of the relevant ride.

      • Second, in my view, there was something unnaturally repetitive and therefore unrealistic about the manner in which the alleged conversation unfolded according to Mr Ukumu’s account; i.e., with certain statements, helpful to Mr Ukumu’s theory of the case, supposedly being repeated over and over again. In particular, if Mr Ukumu provided an accurate description of his communications with Mr G and Ms T, then by my count, there were:

        • at least 7 instances of Ms T expressing thanks and appreciation for the ride and Mr Ukumu’s kindness in offering it;

        • at least 3 instances of Ms T being grateful for the warmth of Mr Ukumu’s car;

        • at least 8 instances of Mr Ukumu emphasizing that it was his pleasure to offer them a free ride, out of kindness, with no expectation of payment;

        • at least 9 instances of Ms T pressing Mr Ukumu to accept money for the ride, despite his reluctance; and

        • at least 3 instances of Ms T referring to Mr Ukumu’s good, cute, kind and/or beautiful heart and face.

        • In my view, normal conversation does not involve nearly so much repetition, especially over such a relatively short period of time, and it was striking that all such repetition coincidentally seemed to suggest and emphasize Ms T’s supposed rapid engagement with and positive feelings for Mr Ukumu. My resulting impression was one of deliberate exaggeration and/or fabrication, rather than accuracy.

      • Third, as noted above, Ms T suffers from permanent hearing issues and, on that particular morning, just seconds before she entered Mr Ukumu’s vehicle, she was having difficulty hearing what Mr Ukumu, a generally soft-spoken individual, (based on the manner in which he delivered his extended testimony at trial), was saying from only a meter away. In the circumstances, I think it unlikely that Ms T, immediately thereafter, would have engaged or been able to engage in a sustained and highly interactive conversation with Mr Ukumu during the ride back to her home, bearing in mind that she was seated behind Mr Ukumu, who obviously would have been speaking in the entirely opposite direction.

    C. A third significant example of Mr Ukumu’s account that seemed unbelievable to me was his explanation of why he asked Ms T to return to his vehicle, (i.e., to examine the identification cards supposedly noticed on the rear floor area of Mr Ukumu’s vehicle), instead of simply picking the cards up himself and walking them to the house. In an effort to explain his actions, Mr Ukumu emphasized that he was so excited and happy to have found something Ms T apparently had lost, given her earlier distress, that he apparently wanted to bring that to her attention as soon as possible. In my view, none of that makes sense. In particular:

    • I think any person in the position described by Mr Ukumu, having found small items in a car, thought to belong to persons who had gone inside, sensibly would have just grabbed the items and made one trip from the vehicle to the house, as that clearly would have saved time and inconvenience for all concerned. In that regard, I note that, on Mr Ukumu’s own account, a short time later he would be the one to break off sexual contact with Ms T, ostensibly because he was very concerned about the time it was taking him to pick up food.

    • Similarly, if Mr Ukumu was indeed motivated by a keen desire to make Ms T happy again, as soon as possible after the loss of certain items, it seems to me that Mr Ukumu clearly would have taken the cards to her directly and as soon as possible, rather than obliging her to make another trip out to his car in the early hours of what he himself emphasized was a really cold morning.

    • In my view, Mr Ukumu’s conduct, in leaving the cards out in his vehicle on the rear passenger floor, and requiring Ms T to come back to the vehicle to inspect and retrieve them, is far more consistent, from the standpoint of common sense inferences, with the Crown’s contention that Mr Ukumu was attempting to lure Ms T back to his vehicle.

    D. For similar reasons, I think Mr Ukumu’s account of initially returning to the driver’s seat of his vehicle, and explanation of how he then came to be sitting in the rear seat of his vehicle beside Ms T, provides a fourth significant example of why his account is implausible and unbelievable. In that regard:

    • As noted above, Mr Ukumu denied holding the left rear door of his vehicle open for Ms T, before then knocking or nudging her inside when she was reaching for the cards, and climbing into the vehicle’s rear passenger area after her.

    • He instead claimed to have returned initially to his driver’s seat, while Ms T entered the vehicle, took up Mr G’s former position, inspected the cards, and indicated the cards were not hers – which in turn supposedly prompted Mr Ukumu to exit the driver’s seat, enter the left rear passenger door, and assume Ms T’s former seat in the rear of the vehicle, so that he could inspect the cards himself.

    • I found the suggestion completely incredible. Clearly, if matters had unfolded in the manner described by Mr Ukumu, (i.e., with Ms T sitting in the right rear seat of the vehicle while he was in the driver’s seat, and indicating that the cards were not hers), the clearly natural and sensible course of action, if Mr Ukumu wanted to inspect the cards for himself, was to ask Ms T to pass them forward. In that regard, I am mindful, for example, of Mr Ukumu’s own suggestion that Ms T supposedly had leaned forward easily to speak with him, between the two front vehicle seats, during the car ride home.

    • In my view, there was absolutely no need for Mr Ukumu to be in the rear seat of his vehicle with Ms T, apart from a desire on Mr Ukumu’s part for physical contact with her.

    E. As a fifth and final example of what I considered to be significant implausible and unbelievable aspects of Mr Ukumu’s account, I point to Mr Ukumu’s account of how his interaction with Ms T supposedly ended. In that regard:

    • As noted above, according to Mr Ukumu, Ms T was willingly engaged in sexual contact such as mutual kissing and trying to undo Mr Ukumu’s belt, without any indications of hesitation or resistance, but mere seconds after mutual and polite indications that each had to end the activity and part company, Ms T supposedly became vindictive and a “bitch”, (to use Mr Ukumu’s description), noting his licence plate and threatening some form of retribution.

    • Mr Ukumu himself had no explanation whatsoever for the supposed sudden, abrupt and complete change of attitude on the part of Ms T, and I already have explained, in my earlier comments, why I reject defence counsel’s proffered theory as to why Ms T may have wanted to fabricate an allegation of sexual assault by Mr Ukumu.

    • In my view, the real reason why there is no sensible explanation for Ms T making a sudden and abrupt transformation from willing participant in sexual activity, to a vindictive complainant intent on fabricating false allegations of sexual assault, is that she was never a willing participant in such activity.

  • While I have spent considerable time on noting what I view as significant implausibilities and unbelievable aspects of Mr Ukumu’s account of events, in my view, that account also contained a number of internal inconsistencies or otherwise hard to reconcile assertions. For example:

    A. Although Mr Ukumu initially indicated that he offered to drive the couple wherever they were going, he later claimed to have asked if they were heading east, in which case he would be happy to drive them that way as he was heading in the same direction.

    B. Mr Ukumu emphasized indications that there was no apparent romantic connection between Ms T and Mr G throughout the car ride; e.g., by stressing that they sat far apart from each other throughout the ride home with a significant space between them, and by denying that the couple were holding hands or he “would have seen it”. However, Mr Ukumu also emphasized that it was Ms T’s repetition of comments to the effect that he had a nice or beautiful heart like his nice and beautiful face, part way through the ride home, that made him start to question the impression he otherwise had that the relationship between Mr G and Ms T was that of boyfriend and girlfriend.

    C. Mr Ukumu testified that Mr G seemed “drunk and tired”, and “not sober”, but also professed to have no ability to determine whether Ms T may have been drunk, (despite having had more interactions with her, and kissing her on the mouth), claiming that he did not even know “what drunk people look like”. In my view, Mr Ukumu’s assertions in that regard were not only inconsistent but unbelievable, having regard to the amount of time he has been in Canada and his acknowledged nighttime driving in and around the bar areas of downtown London.

    D. Although he repeatedly emphasized how “very clean” he kept his car, such that he immediately knew that the cards seen on the floor of his vehicle were not his, he then claimed he could not recall, one way or the other, if he had ever cleaned his car between the gratuitous ride he had provided to another male and female couple in October of 2016, and the ride he provided to Mr G and Ms T.

    E. In his description of alleged consensual activity, Mr Ukumu was careful to say that he was “over top” of Ms T while not “lying down” on or touching her, (e.g., so as not to put any pressure on her), but I frankly find the described positioning difficult to reconcile with Mr Ukumu’s acknowledgements that he was also managing to kiss Ms T’s mouth and neck for sustained periods of time as she was leaning backwards.

  • Finally, by way of a word about demeanor, in relation to Mr Ukumu:

    A. As I already have noted, demeanor of a witness is certainly not the only or most important consideration in assessing the credibility or reliability of a witness, although it remains a relevant factor.

    B. In the case of Mr Ukumu, a demeanor assessment was more difficult than usual, owing to the necessary involvement and interposition of translators.

    C. Generally, however, I think it fair to say that Mr Ukumu showed relatively little emotion during the course of his testimony, even when describing moments of alleged surprise, concern or alarm.

    D. Histrionics certainly are not necessary to present testimony in a convincing or compelling way. But Mr Ukumu’s tone generally remained remarkably consistent and “matter of fact” for the majority of his testimony, despite what he was describing.

• Having regard to the various reasons I have outlined, I regarded Mr Ukumu has a reliable but not very credible witness.

[39] With all of the above matters in mind, I turn, finally, to a consideration of the sexual assault charge against Mr Ukumu.

CONSIDERATION OF PARTICULAR CHARGES AGAINST THE ACCUSED

[40] The specifics of that charge, as set forth in the indictment, have already been noted earlier, along with the essential elements of the offence Crown Counsel must prove beyond a reasonable doubt to secure a conviction.

[41] In relation to the first essential element of the offence, which requires the Crown to prove beyond a reasonable doubt that Wopatshu Ukumu intentionally applied force to E.T.:

• Mr Ukumu himself admitted that he had kissed Ms T repeatedly on the mouth and neck, which is sufficient to establish intentional application of force in the sense required.

• However, for the reasons outlined above, in relation to my assessment of Ms T’s credibility and reliability, I believe and accept her testimony that Mr Ukumu went farther in that regard. In particular, in addition to kissing Ms T’s lips and neck, I accept and find:

  • that Mr Ukumu knocked or nudged Ms T into the rear of his vehicle by using a part of his body to push her hip and buttocks from behind;

  • that Mr Ukumu climbed on top of Ms T, periodically applying the pressure of his weight to her legs, thighs, vaginal and upper body area as he intermittently lay, sat and leaned on top of her while kissing her and attempting to undo his belt and pants; and

  • that Mr Ukumu also used his hand to rub Ms T’s vaginal area over her clothing.

• For the reasons outlined above, relating to my assessment of Mr Ukumu’s credibility, I do not believe his testimony denying such further intentional applications of force to Ms T.

• Nor did Mr Ukumu’s testimony raise what I considered to be any reasonable doubt in my mind, in relation to such further intentional applications of force to Ms T that were not admitted.

• Having regard to all the evidence I did accept, I am satisfied beyond a reasonable doubt that Mr Ukumu intentionally applied force to E.T. in the ways I have described.

[42] In relation to the second essential element of the offence, which requires the Crown to prove beyond a reasonable doubt that E.T. did not consent to the force that Wopatshu Ukumu intentionally applied:

• I have no doubt whatsoever that Ms T did not consent to the various intentional applications of force by Mr Ukumu that I described just a moment ago, in relation to my findings concerning the first essential element of the offence.

• In particular, for the reasons outlined above, explaining why I regard Ms T as a credible and reliable witness, I believe and accept her testimony that the already-noted force intentionally applied to her by Mr Ukumu, was entirely unwanted and against her will. There was no voluntary agreement on her part, before or during the application of that force, to have Mr Ukumu do what he was doing in the manner in which he was doing it.

• In addition to Ms T’s testimony of what she was thinking at the time, (which I believe and accept), I also believe and accept her testimony about her contemporaneous and overt indications of non-consent, by her express words during Mr Ukumu’s intentional applications of force, (e.g., “No”, “Stop”, “Don’t”, “I can’t do this” and “No fucking sex”), and by her various acts of demonstrated resistance in that regard, (e.g., shrugging her shoulders to prevent the kissing of her neck, and trying to squirm or wriggle out from underneath Mr Ukumu).

• For the same reasons outlined above in relation to my assessment of Mr Ukumu’s credibility, I did not believe Mr Ukumu’s testimony alleging direct or indirect indications of consent to such actions by Ms T. For example, (and without limiting the generality of the foregoing), I do not believe that she said the words he attributed to her when she and Mr Ukumu were alone together in his vehicle. Nor do I believe the actions he attributed to her during that time; e.g., the supposed voluntary movement of her head towards his, (to engage in mutual kissing), her supposed laying back, her supposed pulling of Mr Ukumu’s tongue, or her supposed efforts to touch and undo Mr Ukumu’s belt.

• Nor did any of Mr Ukumu’s testimony in that regard raise what I considered to be a reasonable doubt as to whether Ms T did not consent to Mr Ukumu’s intentional applications of force.

• The evidence at trial which I did accept established, to my satisfaction, beyond a reasonable doubt, that Ms T did not consent to such actions.

[43] In relation to the third essential element of the offence, which requires the Crown to prove beyond a reasonable doubt that Wopatshu Ukumu knew that E.T. did not consent to the force that Wopatshu Ukumu intentionally applied:

• I already have indicated my belief and acceptance of Ms T’s testimony that, at the time of Mr Ukumu’s intentional applications of force, she was giving various overt indications, by word and action, that she did not consent to what Mr Ukumu was doing.

• Moreover, I also believe and accept the testimony of Ms T concerning the actions taken by Mr Ukumu to lure and force her into the rear of his vehicle, and his speeding away from the scene after she had managed to escape from his vehicle.

• In my view, such considerations must have been obvious to Mr Ukumu, and prove beyond a reasonable doubt that Mr Ukumu had actual knowledge that Ms T did not consent to the force that Mr Ukumu intentionally applied.

• For the reasons outlined above, explaining why I do not regard Mr Ukumu as credible, I did not believe his testimony to the contrary, and it did not raise a reasonable doubt in my mind as to whether Mr Ukumu actually knew that Ms T was not consenting to his intentional applications of force.

• Moreover, even if I was somehow mistaken in that regard, and the evidence fell short of establishing Mr Ukumu’s actual knowledge of Ms T’s lack of consent beyond a reasonable doubt, in my view, even Mr Ukumu’s own account makes it clear, beyond a reasonable doubt, that he was reckless as to whether Ms T was consenting to such activity. Without limiting the generality of the foregoing, even on Mr Ukumu’s own account:

  • Ms T was a complete stranger to Mr Ukumu until he met her earlier that morning, approximately 30 minutes before his intentional applications of force.

  • When he met her, Ms T was in the company of Mr G, and Mr Ukumu himself had formed the impression that they were a couple.

  • During the ride to Ms T’s home, she may have been friendly, and have thanked a service provider for doing a job and/or doing it well, as countless customers do every day without indicating any romantic interest or desire to engage in sexual touching. However, none of the words attributed to Ms T by Mr Ukumu, before his intentional applications of force, included any indication, in my view, that she would be consenting to Mr Ukumu’s intentional applications of force. I think it was entirely unreasonable and inappropriate for Mr Ukumu to have construed any such niceties or expressions of gratitude or kindness, even repeated ones, as an indication that Ms T would be consenting to his intentional applications of force, without his having asked appropriate questions in that regard and received appropriate answers.

  • By Mr Ukumu’s own admission, he nevertheless asked Ms T no questions whatsoever in that regard, but simply embarked on his intentional applications of force.

• In the circumstances, I think it clear beyond a reasonable doubt that Mr Ukumu had actual knowledge, and failing that knowledge based on recklessness, that Ms T was not consenting to his intentional applications of force.

[44] Finally, in relation to the fourth essential element of the offence, which requires the Crown to prove beyond a reasonable doubt that the force Wopatshu Ukumu intentionally applied took place in circumstances of a sexual nature:

• As noted above, Mr Ukumu’s intentional applications of force included forcing Ms T into the rear seat of his car to then climb on top of her, and thereafter sit, lie and lean over her legs, thighs and upper body while, amongst other things, kissing her neck, moaning, and using his hand to rub her vagina over her clothing, while she was struggling, by word and action, to resist and escape.

• For the reasons outlined above, I believe and accept Ms T’s testimony in that regard, and think it clear beyond a reasonable doubt that any reasonable person, observing such conduct, would think it readily apparent that the touching was taking place in circumstances of a sexual nature.

• Certainly, the conduct of Mr Ukumu in that regard involved demeaning and degradation of Ms T for Mr Ukumu’s sexual pleasure.

• To the extent Mr Ukumu’s testimony suggested the contrary, I did not believe him, for the reasons outlined above. Nor did his testimony raise any reasonable doubt in my mind, in that regard.

• In my view, the trial evidence I did accept established the fourth and final essential element of the offence beyond a reasonable doubt.

[45] All four essential elements of the charged sexual assault offence having been proved beyond a reasonable doubt, there will be a finding of guilt in relation to Count 1, the sole count of the indictment.

Conclusion – Formal delivery of verdicts

[46] At this point, I will ask the accused, Wopatshu Ukumu, to please stand.

[47] Mr Ukumu, for the reasons I have outlined, I find you guilty as charged in relation to the single count of the indictment, (i.e., Count #1), accusing you of sexual assault, contrary to s.271 of the Code.

[48] Please be seated while I endorse the indictment accordingly.

“Justice I.F. Leach”

Justice I.F. Leach

Released: September 30, 2019

(Orally)

COURT FILE NO.: CR-18-45

DATE: 2019/09/30

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

WOPATSHU UKUMU

Respondent

REASONS FOR JUDGMENT

Justice I.F. Leach

Released: September 30, 2019 (Orally)