COURT FILE NO.: CR-18-30000217-0000
DATE: 20191011
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JAWID ALISALEH
Accused
Scott Rogers, for the Crown
Taro Inoue, for the Accused
HEARD: June 17, 18, 19, 20, 21 and September 12, 2019
b. Davies J.
PUBLICATION RESTRICTIONS NOTICE
A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the Complainant shall not be published in any document, broadcast or transmission.
REASONS FOR judgment
A. Overview
[1] Mr. Alisaleh and M.N. met in early March 2017 through a mutual friend. M.N. was a college student at the time. She testified that she went to Mr. Alisaleh’s apartment after class on March 8, 2017. She and Mr. Alisaleh smoked a bit of marijuana and engaged in consensual sexual activity for about an hour, including kissing, touching and vaginal intercourse. M.N. testified that she withdrew her consent when the sex became rough. She was crying and told Mr. Alisaleh to stop. He did not stop. According to M.N., Mr. Alisaleh told her to let him “finish” and then tried to penetrate her anally. She pushed him off her and got dressed.
[2] M.N. asked Mr. Alisaleh to drive her home. Mr. Alisaleh refused. He also refused to pay for a taxi so M.N. called a friend to pick her up. Eventually, her friend’s mother, A.P., came to get her. When A.P. arrived, M.N. was locked out of Mr. Alisaleh’s apartment without her boots, jacket or knapsack.
[3] M.N. called the police to help her retrieve her belongings. After receiving information from M.N. about the alleged assault, the police took her to the hospital where a sexual assault examination was performed. The police also searched Mr. Alisaleh’s apartment. They found M.N.’s boots, jacket and backpack. They also found a used condom on his bedroom floor.
[4] Mr. Alisaleh is charged with sexual assault. The burden is on the Crown to prove beyond a reasonable doubt that Mr. Alisaleh intentionally touched M.N. in a sexual manner without her consent and that Mr. Alisaleh knew she was not consenting. The defence did not call any evidence but did acknowledge that Mr. Alisaleh touched M.N. in a sexual manner on March 8, 2017. The issue is whether she consented, which turns on my assessment of M.N.’s credibility and the reliability of her evidence.
[5] The Crown argued that I should accept M.N.’s evidence and find that Mr. Alisaleh did not stop touching her when she withdrew her consent. The Crown argued that M.N., although perhaps mistaken about some details, was consistent in her evidence on the issue of consent. In addition, the Crown argued that M.N. did not exaggerate her evidence and admitted when she was not sure about something, both of which should support her credibility.
[6] In the alternative, the Crown argued that M.N.’s consent was vitiated by fraud. M.N. testified she would not have had sex with Mr. Alisaleh without a condom. The Crown argued that the forensic testing proves that the condom was removed before Mr. Alisaleh ejaculated. The Crown argued that the removal of the condom amounts to dishonesty on Mr. Alisaleh’s part and created a risk of bodily harm to M.N. As a result, the consent given by M.N. was vitiated by fraud; R. v. Hutchison, 2014 SCC 19.
[7] The defence argued that M.N. is neither credible nor reliable. The defence articulated a number of specific reasons why I should reject M.N.’s evidence or, in the alternative, be left with a reasonable doubt about whether she withdrew her consent.
[8] On the issue of whether M.N.’s consent was vitiated by fraud, the defence argued that there is no evidence that M.N. told Mr. Alisaleh that her consent was predicated on the use of a condom and there is no evidence that Mr. Alisaleh deceived M.N. in any way in relation to the use of a condom.
[9] For the reasons that follow, I accept M.N.’s evidence that Mr. Alisaleh continued to touch her in a sexual manner after she told him to stop and I find that the Crown has proven beyond a reasonable doubt that Mr. Alisaleh sexually assaulted M.N. As a result, I do not have to consider the issue of whether her consent was vitiated by fraud.
B. Preliminary Issue: Assessing the credibility and reliability of M.N.’s evidence
[10] There are several tools that can be useful in assessing the credibility and reliability of a witness’ evidence.
[11] First, inconsistencies between what M.N. said at trial and what she said on other occasions about the same thing may suggest that she is not credible or reliable. Of course, inconsistences will vary in terms of their importance. Some inconsistencies are minor or relate to peripheral details. Others are more substantial or relate to a central issue at trial and are, therefore, more significant. Any explanation given for an inconsistency must also be considered.
[12] Second, corroboration is helpful when assessing the credibility and reliability of a witness. Corroboration is not required for a conviction for sexual assault; Criminal Code, s. 274. Nonetheless, to the extent that M.N.’s evidence is corroborated, that would tend to bolster her credibility and reliability.
[13] Third, if M.N. had a motive to lie or fabricate evidence about the alleged sexual assault, that could undermine her credibility or the reliability of her evidence.
[14] Fourth, if M.N. has been untruthful in the past, that will be relevant. Again, lies told in the past will be more or less important depending on the nature of the lie, the context in which it was told and any explanation given for the lie.
[15] Finally, the plausibility or implausibility of M.N.’s testimony, having regard to human experience and common sense, may be a relevant factor when assessing credibility and reliability: R. v. Williams, 2010 ONSC 184 at para. 58. I can also consider whether her narrative is coherent and fits with other proven facts. I must, of course, be careful not to import unfair or impermissible myths or stereotypes into my view of common sense or coherence to either bolster or undermine M.N.’s credibility: R. v. Cepic, 2019 ONCA 541 at para. 14.
[16] By way of example only, I heard evidence that after the alleged sexual assault, M.N. asked Mr. Alisaleh to drive her home. The fact that M.N. was prepared to get into a car with Mr. Alisaleh after the alleged sexual assault does not undermine her testimony on the issue of consent. Reliance upon stereotypical views about how a complainant will or should behave in the aftermath of an alleged assault is an error of law. There is no one way a victim of a sexual assault will react. While some complainants would not get into a car with their alleged assailants, it is not implausible that M.N. would ask Mr. Alisaleh to drive her home even if he had just sexually assaulted her. M.N. took a taxi to Mr. Alisaleh’s apartment. She did not know exactly where she was and she wanted to go home. In those circumstances, her request for a ride home is not inherently inconsistent with her evidence that she was sexually assaulted. To be clear, defence counsel did not suggest that M.N.’s request for a drive home undermines her credibility on the issue of consent. This is simply a case specific example to demonstrate the point that stereotypes have no place one way or the other in the difficult task of assessing credibility and reliability; R. v. A.B.A., 2019 ONCA 124 at para. 12.
[17] The defence did articulate four specific reasons why I should reject M.N.’s evidence that she withdrew her consent or be left with a reasonable doubt by her evidence:
a. She lied to her mother about where she was on March 8, 2017 and what she was doing;
b. Her testimony about the sexual activity she engaged in with Mr. Alisaleh was contradicted by the biologist from the Centre for Forensic Sciences (CFS);
c. She did not disclose the sexual assault until the second call to the police and had a motive to make up a story at that point in time; and
d. Her evidence about what happened after the alleged assault is internally inconsistent.
[18] I agree with some of the submissions made by the defence. However, the frailties with the complainant’s evidence relate to peripheral issues or have been adequately explained. As a result, the frailties with M.N.’s evidence are not sufficient for me to reject her evidence entirely. Viewed individually or collectively, they also do not leave me with a reasonable doubt on the central issue in this case, namely whether M.N. told Mr. Alisaleh to stop and he did not listen to her.
i. M.N. lied to her mother about where she was and who she was with on March 8, 2017
[19] M.N. admitted in her testimony that she lied to her mother about where she was on March 8, 2017 and who she was with. M.N. testified that she did not want her mother to find out that she was at Mr. Alisaleh’s apartment or that she was having sex with Mr. Alisaleh.
[20] M.N.’s mother, C.N., also testified and confirmed that her daughter lied to her that day. C.N. testified that M.N. told her that she was going to a friend’s house to help her with a school assignment. M.N. told her that she would get a drive home from her friend when they were finished.
[21] While there is no doubt that M.N. lied to her mother on the night of the alleged sexual assault, that lie does not undermine her credibility in relation to the events that took place in the apartment in the circumstances of this case.
[22] There are any number of reasons why children, even adult children, lie to their parents about where they are and what they are doing. In this case, M.N. was living with her mother at the time of the alleged assault. C.N. testified that she was very protective of M.N. She testified that M.N. had a mild learning disability and she worried that M.N. did not have the life skills to avoid compromising situations. C.N. also testified that M.N. had just turned 21, and she had not been allowed to date before she turned 21. Finally, C.N. testified that she did not know that M.N. was sexually active at the time of the alleged assault. This may explain why M.N. lied to her mother about where she was, what she was doing and who she was with on the evening of March 8, 2017. In that context, M.N.’s lie to her mother does not detract from the overall credibility of the testimony M.N. gave under oath.
ii. Inconsistencies between M.N.’s evidence and the forensic evidence.
[23] M.N. testified that she and Mr. Alisaleh engaged in consensual vaginal intercourse, but she told Mr. Alisaleh to stop when it became rougher. M.N. testified that each time she told Mr. Alisaleh to stop, he told her to “let him finish”. M.N. testified that after she told Mr. Alisaleh to stop, he tried to penetrate her anally. She was crying and said “no.” He tried a second time and she pushed him off her.
[24] She testified that Mr. Alisaleh did not ejaculated before or after she told him to stop. She testified that he was upset when she pushed him off; she thought he was upset because she had not let him “finish.”
[25] Defence counsel argued that M.N.’s testimony that Mr. Alisaleh did not ejaculate was contradicted by the evidence of Allison Morris, a forensic biologist from the CFS. Crown counsel agreed. However, the Crown argued that M.N. was simply mistaken about whether Mr. Alisaleh ejaculated, and this mistake should not undermine M.N.’s credibility more broadly.
[26] When a witness was wrong or mistaken about one issue that will often undermine their reliability on other issues, particularly when the witness was confident that their erroneous view is correct. The argument is that a witness who is mistaken about one issue may well be mistaken about other issues. That argument can be very persuasive. However, its strength depends on the nature of the evidence in question.
[27] Three swabs were taken from M.N. at the hospital on the night of the alleged assault: an external genitalia swab, a vaginal swab and an anal swab. The swabs were tested at the CFS. Ms. Morris was qualified as an expert in bodily fluid identification and DNA analysis and interpretation, including the deposition, transfer and persistence of body fluids and DNA. Two DNA profiles were extracted from the swab; one male and one female. A DNA comparison was done to determine whether Mr. Alisaleh could be excluded as the source of the male DNA. Given that there is no dispute that Mr. Alisaleh and M.N. had sexual intercourse that day, there is no need to review that evidence here.
[28] Ms. Morris testified that DNA results suggest there was semen on each of the three swabs taken at the hospital from M.N. She testified there was a significant amount of male DNA on each swab, but the amount was particularly large on the rectal swab.
[29] The CFS has done two research studies in which they measured the amount of DNA on vaginal swabs taken hours and days after the participating women had engaged in consensual intercourse involving internal ejaculation. Ms. Morris compared the amount of male DNA observed on the swabs in this case to the results of those studies. Ms. Morris testified that the amount of DNA seen on the swabs from M.N. was consistent with the swabs collected from the subjects of their study up to 24 hours after intercourse with internal ejaculation. Ms. Morris, therefore, opined that the male semen found on M.N. was deposited in her vagina and around her anus within approximately 24 hours of the samples being collected.
[30] Crown and defence counsel both argued that it could be inferred from the presence of a large amount of semen on the swabs taken from M.N., particularly when compared to the results of CFS studies, that Mr. Alisaleh had ejaculated during the sexual intercourse with M.N. contrary to her testimony.
[31] I do not to accept Ms. Morris’s evidence about the significance of the amount of male DNA found on the swabs taken from M.N. I was not presented with enough information about the internal CFS studies to be able to assess whether the scientific basis for the conclusions she drew is reliable. For example, I do not know whether the research Ms. Morris described has been subject to peer review or replication. I do not know whether any error rate has been calculated. I do not know whether a control group was used so the results could be compared to cases in which people had sex without a condom and without full internal ejaculation.
[32] I am particularly concerned about the very small sample size of the CFS studies. In cross‑examination, Ms. Morris testified that the CFS studies each involved only six people for a total sample size of 12. No evidence was called on whether valid scientific conclusions can be drawn from a 12-person sample. Given all my concerns about the reliability of the underlying science, I do not accept Ms. Morris’s evidence on this issue and I cannot make a positive finding that Mr. Alisaleh ejaculated fully during sexual intercourse with M.N.
[33] Although the forensic evidence does not prove that M.N. was wrong, I accept that she may be mistaken about whether Mr. Alisaleh ejaculated. I also acknowledge that she was firm in her testimony that he did not. As a result, I must be careful not to quickly accept her evidence on other issues about which she might also be mistaken. However, whether she told Mr. Alisaleh to stop during sexual intercourse is not, in my view, an issue about which she is likely to be mistaken. Whether a man ejaculated during sexual intercourse is a subject about which a woman could more likely, and more understandable, be mistaken. As a result, the fact she may be mistake on that one issue does not call into question the reliability of her evidence on the issues of consent.
iii. Delayed disclosure of the alleged sexual assault
[34] As previously stated, Mr. Alisaleh refused to drive M.N. home or pay for a taxi for her to get home. As a result, she called her friend for help. She did not tell her friend about the alleged sexual assault.
[35] Her friend’s mother, A.P., came to pick her up a short time later. M.J.P. was with A.P. at the time. M.N. was outside Mr. Alisaleh’s apartment when A.P. and M.J.P. arrived. Her belongings were still in his apartment. They continued to try to get Mr. Alisaleh to open the door to his apartment. M.N. did not tell A.P. or M.J.P. about the alleged assault either.
[36] Eventually, M.N. called 911. During the first call, M.N. told the 911 operator that her belongings were in Mr. Alisaleh’s apartment and he would not let her in to retrieve them. M.N. did not tell the 911 operator anything about the alleged sexual assault during the first call. The 911 operator told M.N. an officer would come to the building to assist her.
[37] M.N. called 911 again approximately half an hour later. She testified that the reason she called a second time was that she wanted to get her belongings back from Mr. Alisaleh. M.N. started the second call by saying she had already called 911 but the police had not arrived. The 911 operator told M.N. that no officer was available at that time. The operator explained that, because there was no “life and death emergency”, she would have to wait. It was at that point that M.N. disclosed to the police that Mr. Alisaleh sexually assaulted her.
[38] M.N. also told the 911 operator that the sexual assault happened just 10 minutes before the call, which was not true. In cross-examination, M.N. agreed that her first call to the police was approximately 2 hours after the alleged sexual assault. She also agreed that she thought the police would come quickly if she said that the alleged sexual assault just happened. The police arrived three minutes after the second 911 call.
[39] Assessing the significance of the timing of M.N.’s initial disclosure about the alleged sexual assault is a nuanced issue. Standing alone, the fact that M.N. did not report an alleged sexual assault at the first opportunity – to her friend or to A.P or to the police – should not give rise to an adverse inference against her credibility. There are many reasons why a complainant might delay making a report. There is no infallible rule about how a complainant will respond to the trauma of a sexual assault: some complain immediately, some wait to report the assault and some never disclose it to anyone; R. v. D.D., 2000 SCC 43 at paras. 63 - 65.
[40] This does not mean that a delay in the reporting of an alleged sexual assault or the circumstances in which the report is first made are irrelevant. They remain factors that can be considered, if relevant in the factual mosaic of a case. Any explanation given for the delay should be considered. The important point is that the significance of the complainant’s failure to make a timely complaint must not be the based on stereotypical assumptions about how someone will react to a sexual assault.
[41] The defence theory is that M.N. fabricated the allegation of sexual assault so that the police would respond faster. That suggestion was put to M.N. and she denied it. However, she did agree that she told the officer on the phone that the sexual assault just happened to make it seem more urgent.
[42] I am not troubled by the fact that M.N. did not immediately tell her friend or her friend’s mother or the police about the sexual assault. The decision whether to report a sexual assault to the police is an inherently difficult decision. It would be entirely reasonable for any victim of a sexual assault to want to reflect on what happened before deciding whether to make a report to the police. This is particularly true of M.N. Without intending any disrespect, M.N. was a very unsophisticated witness who displayed a significant naivety throughout her evidence. Her mother also testified that she lacked the skills and understanding to avoid compromising situations. Although M.N. was 21 years old, her mother was over protective and M.N. was only allowed to start dating a few months before the alleged assault. In those circumstances, it is understandable that M.N. did not immediately report the alleged assault to her friends or to the police.
[43] Nonetheless, I am concerned with M.N.’s evidence that she misled the police into thinking that the alleged assault had occurred just before her second call in order to make them respond more quickly. This, however, is not enough for me to reject her testimony about what happened between her and Mr. Alisaleh or to raise a reasonable doubt about the fact that he did not stop touching her in a sexual manner when she told him to. By the time M.N. called the police for a second time, she had been locked out of Mr. Alisaleh’s apartment for more than an hour. All their efforts to retrieve her things had been unsuccessful and the police had not responded to her first call. She testified she was scared and panicking. She was in a vulnerable position. In this context, it is understandable that she might exaggerate the urgency of the situation to get the help she needed. The fact that she misled the police on the timing of the assault does not significantly undermine her credibility on the issue of consent.
iv. M.N.’s conduct after the alleged assault is not inconsistent
[44] M.N. testified that she was in Mr. Alisaleh’s apartment for approximately 30 minutes before she called her friend to ask for a ride. During that time, she did not argue with Mr. Alisaleh about the alleged sexual assault. She explained that she just wanted to “get away from him as quickly as possible.” She did not ask Mr. Alisaleh for his address or apartment number because she just wanted to leave. So, she left his apartment to find the street address for the building to text to her friend’s mother. When she returned to Mr. Alisaleh’s apartment, his door was locked and he would not let her back in.
[45] The defence argued that her evidence about wanting to get away from Mr. Alisaleh is inconsistent with the fact that she stayed in his apartment building for more than an hour trying to get back into his apartment. I do not agree. Both can be true at the same time. She could have both wanted to get away from him as quickly as possible and also not wanted to leave without her belongings. I, therefore, take nothing from the fact that she stayed to retrieve her belongings even though she said she wanted to leave.
v. Inconsistencies about birth control
[46] M.N. gave inconsistent evidence about whether they used birth control and where it came from. Initially, M.N. testified that no birth control was used. M.N. also testified that she and Mr. Alisaleh did not have any discussion about using protection before engaging in sexual intercourse.
[47] After being shown a picture of a condom on the floor of Mr. Alisaleh’s bedroom, which was taken by the police on the night of the alleged assault, M.N. testified that Mr. Alisaleh did use a condom during intercourse. She testified that she does not remember when he put the condom on. She also does not remember when or if he took it off. She then testified that Mr. Alisaleh provided the condom that he used that day.
[48] M.N. was then shown a transcript of her testimony at the preliminary inquiry in this matter. After refreshing her memory from the transcript, M.N. testified that she brought the condom with her to Mr. Alisaleh’s apartment. She testified that she brought the condom because she knew they were going to have sex and she would not have had sex with Mr. Alisaleh if he did not use a condom.
[49] The inconsistencies in M.N.’s evidence on these issues causes me some concern. They suggest that M.N. does not have a clear memory of some details of the events of March 8, 2017. The question is whether these inconsistencies are sufficiently important to detract from the credibility and reliability of her testimony about the assault itself.
[50] I find that the details of whether a condom was used and who provided it are, in the specific context of this case, peripheral issues. M.N. was clear that she went to Mr. Alisaleh’s house for the purpose of engaging in intercourse with him. She was also clear that the sexual contact between them was initially consensual. She was also clear that she told Mr. Alisaleh to stop when the sexual intercourse became rough and he did not stop. Details about whether a condom was used and for how long and where it came from are not central to M.N.’s overall account of what happened.
vi. Demeanour of M.N. after the alleged assault
[51] I heard conflicting evidence about M.N.’s demeanour after the alleged sexual assault. M.N. testified that she was scared and panicked when she was locked out of Mr. Alisaleh’s apartment after the assault.
[52] A.P. testified that M.N. was more mellow than usual when she arrived at Mr. Alisaleh’s building. A.P. testified that M.N. was calm and collected when she opened the door to let them into the lobby. On the other hand, M.J.P. testified that M.N. appeared terrified when they arrived at Mr. Alisaleh’s building.
[53] Crown counsel urged me to accept the evidence of M.J.P. as corroboration that M.N. was scared when they arrived at Mr. Alisaleh’s building. I do not need to resolve this contradiction. Even if I were to accept that M.N. was scared by the time A.P. and M.J.P. arrived, her demeanour at that point in time does not assist me in deciding whether to accept her evidence that she withdrew her consent. If M.N. was scared, that could have been a reaction to being locked out of Mr. Alisaleh’s house for an extended period or a reaction to the alleged sexual assault or both.
[54] More importantly, I find it difficult to draw any inferences based on the demeanour of someone after an allegedly traumatic event. Everyone responds to trauma differently. In the circumstances of this case, to draw any inference about whether M.N. was sexually assaulted based on how she was (or was not) acting a short time later would be based on stereotypes about how I expect someone would react to circumstances that M.N. found herself in that night, which is not permitted. I, therefore, take nothing from the evidence I heard about her demeanour after the alleged assault.
vii. Absences of Exaggeration and Corroboration
[55] There are two important factors that I find enhance M.N.’s credibility.
[56] First, parts of M.N.’s account were corroborated by other evidence. She testified that she did not know Mr. Alisaleh’s address. She took a taxi to his apartment and Mr. Alisaleh had spoken to the taxi driver directly to give him the address. When M.N. was arranging for someone to pick her up, she left Mr. Alisaleh’s apartment to find the address for his building. She left her boots, her coat and her backpack in Mr. Alisaleh’s apartment. When she returned to get her belongings, his door was locked. She testified that she banged on his door but he would not let her in. She testified that Mr. Alisaleh turned the music up louder and louder in his apartment as she was knocking on the door.
[57] A.P. and M.J.P. corroborate her testimony about not being able to get back into Mr. Alisaleh’s apartment. When they arrived, M.N. was outside Mr. Alisaleh’s apartment. A.P. testified that M.N. did not have any shoes on and did not have her coat. A.P. and M.J.P. also confirmed that they made repeated efforts to get Mr. Alisaleh to open his door. When they banged on his door they could hear he was playing loud music in his apartment. He did not answer the door. When the police executed a warrant for Mr. Alisaleh’s apartment, they found M.N.’s shoes, jacket and backpack. All of this evidence corroborates M.N.’s testimony about how she ended up outside Mr. Alisaleh’s apartment without any of her belongings and the efforts she made to get him to open the door.
[58] Second, M.N. did not appear to exaggerate her allegations against Mr. Alisaleh. She admitted that she went to his apartment that day with the express intention of having sexual intercourse with him. She also acknowledged that they drank and smoked marijuana. She acknowledged that the sexual activity that day between them was largely consensual. She testified that she started to cry and he said, “let me finish”. She testified that after she told him to stop, he tried to penetrate her anally but he was not successful because she pushed him off. She admitted that she did not confront him or argue with him after the alleged sexual assault. She also admitted that she voluntarily left his apartment to try to determine his address.
[59] Every allegation of sexual assault is serious. Nonetheless, the allegations made by M.N. are relatively modest. She did not suggest he penetrated her or ejaculated after she told him to stop. She did not suggest that she was screaming or shouting at him to stop. She did not suggest that he was violent or threatening towards her in any way. She did not say he threw her out of his apartment. Rather, she gave a measured description of what took place between them without apparent exaggeration.
viii. Conclusion on the issue of M.N.’s credibility
[60] As set out above, I have concerns about two aspects of M.N.’s evidence: her misleading statement to the police about the timing of the assault, and her inconsistent evidence about whether a condom was used and where it came from. However, these frailties are not, individually or collectively, sufficient for me to reject her evidence about the central aspect of the assault. Nor do they raise a reasonable doubt about the veracity of her testimony that Mr. Alisaleh did not stop touching her when she told him to.
[61] In the end, I find that M.N.’s testimony that she withdrew her consent and told Mr. Alisaleh to stop was clear and consistent. Her description of the assault was understated.
[62] Most importantly, her testimony about what happened after the sexual assault was corroborated by A.P., M.J.P. and the police. There is no doubt that M.N. found herself locked out of Mr. Alisaleh’s apartment for well over an hour without her boots, jacket and backpack. This is a highly unusual circumstance, which suggests that something went very wrong between them at some point during the evening. This further supports M.N.’s evidence that although the sexual encounter started as consensual, she withdrew her consent and he did not stop.
[63] I, therefore, accept M.N.’s testimony and I find that she withdrew her consent when the sexual intercourse became rough and told Mr. Alisaleh to stop. I also accept her evidence that he did not stop. I accept her evidence that Mr. Alisaleh tried to anally penetrate her twice after she told him to stop but she was able to push him off.
C. Did M.N. withdraw her consent during the sexual activity with Mr. Alisaleh?
[64] To establish the actus reus for sexual assault, the Crown must prove beyond a reasonable doubt that M.N. did not voluntarily agree to engage in the all sexual activity in question: Criminal Code, s. 273.1. The complainant must give active, ongoing consent throughout every phase of the sexual activity: R. v. J.A., 2011 SCC 28 at para. 3. To establish the mens rea, the Crown must prove beyond a reasonable doubt that Mr. Alisaleh knew that M.N. was not consenting or that she withdrew her consent if she initially consented.
[65] Having accepted M.N.’s testimony, I find that she did not voluntarily consent to all of the sexual activity with Mr. Alisaleh on March 8, 2017. She initially consented but withdrew her consent when it started to hurt. I also find that M.N. communicated her withdrawal of consent to Mr. Alisaleh by crying and telling him to stop. From this I infer that Mr. Alisaleh knew that M.N. was no longer consenting to any sexual touching. Finally, I find that Mr. Alisaleh continued to touch M.N. in a sexual manner after he knew she was no longer consenting. He unsuccessfully tried to penetrate her anally twice after she told him to stop.
[66] Based on all these findings, I am satisfied beyond a reasonable doubt that Mr. Alisaleh sexually assaulted M.N. and there will be a finding of guilt.
B. DAVIES J.
Released: October 11, 2019
COURT FILE NO.: CR-18-30000217-0000
DATE: 20191011
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JAWID ALISALEH
Accused
REASONS FOR JUDGMENT
B. DAVIES J.
Released: October 11, 2019