COURT FILE NO.: 3-231/18

DATE: 20191213

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

OLUWASEGUN OLUFEMI AKINSANYA

Defendant

Tony Sferruzzi, for the Crown

Francesca Yaskiel and L. Akbarzad, for the Defendant

Spies J. (Orally)

HEARD: December 9-12, 2019

REASONS FOR DECISION

Introduction

[1] Oluwasegun Olufemi Akinsanya is charged with sexually assaulting H.A. on two occasions; twice on December 8th and 9th, 2016[^1] and again on January 2nd, 2017, contrary to section 271 of the Criminal Code. He re-elected trial by judge alone and pleaded not guilty to both charges.

[2] The Crown’s only witness was H.A.; the Complainant. Mr. Akinsanya elected not to testify but the Defence called one witness; Michelle Galeotalanza.

The Evidence and Preliminary Findings of Fact

[3] The Complainant is now 27-years-old. At the time of the alleged offences, she was attending the Mississauga campus of the University of Toronto (“U of T”). She met Mr. Akinsanya by random in the fall of 2016. She was walking home and came upon a man who was being belligerent to three women. While she was trying to de-escalate the situation, Mr. Akinsanya arrived with his friend Amine[^2] and he dealt with the situation successfully. Afterwards, Mr. Akinsanya shoved his card into the Complainant’s purse and either he or his friend told her that she was pretty. Mr. Akinsanya advised the Complainant to contact him but then said, as he left, “I don’t care”.

[4] The Complainant checked Mr. Akinsanya out, I presume on the Internet, and learned that he had worked with at-risk youth, which was something that she wanted to do. She also read an article about him that had been published in Toronto Life. She was interested in getting involved in the work that Mr. Akinsanya did and so she texted him the following day. In cross-examination the Complainant admitted she wanted to get to know Mr. Akinsanya – she was “passionate” about the type of work he did.

[5] The Complainant and Mr. Akinsanya got together within a week of their meeting. After that they started seeing each other regularly each week. They went to a Tiff event, which would have been in early September, and other events. They both liked to eat at a restaurant called Veggie D’Light where they would have lunch. They regularly texted and messaged each other. The Complainant sent some screenshots of some of the text messages to police in a Word document. This means that she could have edited them, although if she did it did not affect my decision in this matter. However, the Complainant agreed there were far more texts than what she produced to police.

[6] At the time, the Complainant believed that Mr. Akinsanya worked for Trillium Health Partners (“Trillium”). His office was at the corner of Bay Street and College Street, which was near her home. At some point she shadowed Mr. Akinsanya for a while to see the type of work that he did. By November 2017, following discussions with Mr. Akinsanya, the Complainant started working for him on various programs directly with youth in high schools. Although sometimes Mr. Akinsanya sent her assignments by text, she saw him at work as well. There is no dispute that Mr. Akinsanya employed the Complainant. She testified that she earned less than $1,000 by working for him.

[7] The Complainant denied ever openly dating Mr. Akinsanya. She said that the first time they met in person he did a few things that made her uncomfortable, like putting his head on her shoulder. She told him that she did not want to hurt him and that she was not interested in more than a friendship relationship. Her text to Mr. Akinsanya on October 7, 2016 stated in part: “I want to make sure that you understand that I am not interested in more than being friends with you. I made it clear that my focus is on myself right now and not dating or anything of that nature. I just want to be surrounded by good friends. If you can respect that, that’s great, if not, I understand, but I need my boundaries respected”. To this Mr. Akinsanya responded: “okay understood”.

[8] The Complainant denied ever expressly changing her view. Ms. Yaskiel challenged this however when she cross-examined the Complainant and referred to undated texts that the Complainant provided to police that appear to have been sent before October 7, 2016, based on the order in which the Complainant provided them to police. It is her position that they were flirtatious and although I agree that is the case of the texts send by Mr. Akinsanya, I would not say that is true of the Complainant’s responses. That said, as I will come to, there is evidence that the Complainant became interested in having a romantic relationship with Mr. Akinsanya by mid-December 2016, a fact which could be relevant to her credibility as a witness.

First Alleged Sexual Assault – December 10, 2016

[9] The first alleged sexual assault in fact consists of two alleged assaults, both in the early morning hours of December 10th, 2016, when the Complainant went out with Mr. Akinsanya and his friends to celebrate his birthday. The first assault is alleged to have occurred in the Wild Flower Club and the second assault, the alleged forced sexual intercourse, is alleged to have occurred after they left the club and went to Mr. Akinsanya’s friend’s condo. The evidence about these events is as follows.

At Mr. Akinsanya’s Friend’s Condo

[10] The Complainant admitted that she asked Mr. Akinsanya whether he was going to go out for his birthday, which was on December 8, 2016. He said he was, and she asked if she could join. At this point the Complainant testified that she considered Mr. Akinsanya a work friend. I find this difficult to believe since the Complainant was the one who asked to attend Mr. Akinsanya’s birthday party and on her evidence, she had only recently started working for him.

[11] Mr. Akinsanya told the Complainant that everyone was meeting at a friend’s condo on Saturday, December 9th. The Complainant traveled on her own from her apartment to Mr. Akinsanya’s friend’s condo, which was downtown. She arrived at around 9:00 p.m. She had not consumed any alcohol before then. Mr. Akinsanya was there with a group of people and she did not know any of them. They were joking and smoking marijuana.

[12] The Complainant sat on the couch with Mr. Akinsanya. She testified that she did not speak a lot to Mr. Akinsanya - she said that she and Mr. Akinsanya were not very chatty with each other. When she was asked why she went, she said it was “just like another day to me”, implying it was like a work day. For her, it was an opportunity to go out and take a break from studying. The Complainant had testified however that she had gone to a friend’s party the night before.

[13] The Complainant did not suggest that she smoked any marijuana but said that she did drink an alcoholic drink that Mr. Akinsanya gave her. She believed it was a mixed drink but did not know what it was or how much alcohol it contained. She testified that she had two drinks while she was at the condo.

[14] According to the Complainant, about an hour after arriving at the condo, the group split into two and she, Mr. Akinsanya, and one of his friends went in his friend’s car to go to a club. Given the evidence of Ms. Galeotalanza that follows, I find that either the Complainant arrived at the condo later than she believed, or they remained at the condo for longer because they did not arrive at the first bar until around midnight.

[15] The Complainant testified that when they left the condo she was “not totally sober”. She admitted, however, that she did not say that she wanted to go home and that she had no difficulty leaving the condo or getting into the car. I find it very unlikely that she would be intoxicated after two drinks, but I have no evidence as to the Complainant’s alcohol tolerance. That said, as I will come to, Ms. Galeotalanza saw her later that night and did not see any signs of intoxication.

[16] The Complainant did not mention in her evidence in chief that when they arrived at the bar, Mr. Akinsanya was not admitted because he was wearing Timberland boots that did not meet the dress code. She agreed this occurred in cross-examination. I will assume this is simply an oversight given how she was asked questions in chief. According to the Complainant, she waited in the car for a while because it was cold. Mr. Akinsanya’s friend then drove her and Mr. Akinsanya to a second club.

[17] Ms. Galeotalanza arrived at the original club where the party was to be, along with two of her friends at around 12:30 a.m. This was confirmed by her Uber receipts. I find that it was at this first club that the Complainant first met Ms. Galeotalanza. Ms. Galeotalanza did not know the nature of Mr. Akinsanya’s relationship with the Complainant.

At the Wild Flower Club

[18] Ms. Galeotalanza testified that everyone walked to the Wild Flower Club which was a short walk away, but I accept that she may not have noticed that the Complainant and Mr. Akinsanya drove. They were admitted to that club after 1:00 a.m. as it was busy.

[19] According to the Complainant, when they arrived at the club, she waited by the bar with one of Mr. Akinsanya’s friends while he talked to his other friends. She thought she might have had a drink while she was waiting for Mr. Akinsanya, but she was not 100% sure. In cross-examination she admitted that she did not buy a drink herself and Mr. Akinsanya’s friend, whom she was with, did not buy a drink for her either. When she was asked about this at the preliminary inquiry on April 4,2018, she testified that she did not think she had a drink at the bar. She was not asked if she accepted this earlier evidence as true and so at most there is an inconsistency on this point. I find it unlikely however that the Complainant had a drink at the bar given her admission that neither she nor Mr. Akinsanya’s friend bought a drink for her.

[20] At some point the Complainant texted Mr. Akinsanya “where are you lol. I don’t want to do something stupid”. It was suggested to her in cross-examination that she said this to suggest she might do something with Mr. Akinsanya’s friend and that she wanted to make him jealous. She denied this. As I do not believe that by this point the Complainant had had enough to drink that would cause her to “do something stupid”, the meaning that Ms. Yaskiel attributes to this text is certainly plausible.

[21] The Complainant must have had a drink however by the time she was standing in the area where people were playing at an air hockey table. She testified that there were two men who were being obnoxious to her by the air hockey table. One of them bumped into her and her drink fell out of her hand onto the floor, but no alcohol got on her or Mr. Akinsanya. The man apologized and brought her and Mr. Akinsanya a drink. She did not know the specific liquor other than it had coke as the mix. As Mr. Akinsanya was not there at that time, she gave his drink to someone else.

[22] After Mr. Akinsanya came back to her at the bar, the other man at the air hockey table bumped into her and dropped his drink down her back. She admitted that she was annoyed. She did not go to the bathroom to wipe the spill, but Ms. Galeotalanza came over to give her some napkins. Mr. Akinsanya put his hand on her back and according to the Complainant, he told both men to leave and they did.

[23] Ms. Galeotalanza saw one of the times someone bumped into the Complainant. I presume it was the second time when some of the Complainant’s drink spilled onto her. Ms. Galeotalanza was certain however that the drink spilled onto the Complainant’s front as she helped her pat it out with a tissue. She observed Mr. Akinsanya whisper something into the ear of the man who had bumped the Complainant and then he patted him on the shoulder and the man did the same to Mr. Akinsanya. It seemed like a friendly exchange and according to Ms. Galeotalanza, Mr. Akinsanya did not ask the men to leave.

[24] Ms. Galeotalanza testified that during a later conversation that she had with the Complainant on February 28, 2017, the Complainant told her that she was upset when the man at the Wild Flower spilled his drink on her and that Mr. Akinsanya “rescued her” and “saved her” and that this was how they first met when he had also saved her and that she was attracted to him as a result.

[25] Shortly after this incident, the Complainant testified that both she and Mr. Akinsanya went to sit on a bench that was along the right side of the club facing the center. According to the evidence of Ms. Galeotalanza, this was in a second room at the club and they all went into this room. Ms. Galeotalanza testified that this second room had a bar, a bench along a wall that could seat six to eight people, with a long table in front and room for dancing.

[26] The Complainant was sitting on Mr. Akinsanya’s left and he was in the middle talking to a person who was next to him, instead of talking to the Complainant. She did not look over to see who it was. Ms. Galeotalanza testified that she saw the Complainant and Mr. Akinsanya sitting on the bench side by side and that she and her friends remained standing in front of them. At times she had her back to Mr. Akinsanya and the Complainant and at other times she was facing them, engaged in conversation with them.

[27] The Complainant testified that while sitting on the bench and while Mr. Akinsanya was talking to this other person, out of the blue she wrapped her arms around Mr. Akinsanya to give him a hug and she pecked him, aiming for his face but missed and got his neck. She described it as a “drunken thank you” and that she missed his face because she was drunk. The Complainant denied that she did this to get Mr. Akinsanya’s attention although she admitted she did not tell him she was going to do this first. She suggested it was not that difficult to get his attention although her evidence about him talking to the person next to him suggests otherwise. The Complainant testified that as she is Persian a peck on the cheek is very normal and it was a way of saying thank you to Mr. Akinsanya for taking care of the two drunks who bumped into her. Ms. Yaskiel points out that the Complainant did not tell the police that kissing on the cheek is normal in her culture, but I have no idea what questions she was asked and do not consider this to be a material omission. Up to the point where she hugged him, Mr. Akinsanya had not hugged her save for a “greeting hug” when she first arrived at the condo. The Complainant admitted that Mr. Akinsanya did not kiss or hug her back.

[28] According to the Complainant, when she did this, and while she was still in the “hugging position” Mr. Akinsanya turned around towards her very quickly and shoved both of his hands down the back of the tights she was wearing, touching her bum and rubbing and feeling her vagina as she was sitting on the bench. At trial she could not recall if he penetrated her vagina with his fingers, but it is admitted that she told the police that while Mr. Akinsanya had his hands down the back of her pants, he also fingered her vagina. I do not find this significant as it is not that unusual for a witness’ memory to be better closer to the alleged events, although the Complainant was not asked if she accepted her earlier evidence to police as being true.

[29] The Complainant denied the suggestion on cross-examination that it would have been impossible for Mr. Akinsanya to reach as far as her vagina given the position they were both in. I will come back to this. When this occurred, the Complainant did not pull Mr. Akinsanya’s hands out or push him away or scream out to tell him to stop. She did not move. She continued to sit on the bench. No one said anything to Mr. Akinsanya or asked him what he was doing.

[30] According to the Complainant, when Mr. Akinsanya put his hands down the back of her tights he commented: “no panties eh?” The Complainant confirmed in her evidence at trial that she was not wearing any. She could not recall Mr. Akinsanya saying anything after that because she “blacked out”. She did not explain nor was she asked what she meant by “blacked out”. She could not recall Mr. Akinsanya’s hands coming out of her pants and testified that she blacked out very soon after and did not remember leaving the club.

[31] If the Complainant was referencing a lack of memory, which I presume was the case, the Complainant did have some memory by her own admission because she testified that at some point after this alleged sexual assault, she put her legs across Mr. Akinsanya’s lap and put her feet on the opposite side of him, on the bench, without her legs touching his lap. She said that she was really tired and drunk. I am not sure how she could do this without touching Mr. Akinsanya’s lap. In any event, as Ms. Yaskiel argued, this evidence suggests not only a specific memory about a relatively minor point but also a lot of control for someone who alleges she was drunk enough to the point of a black out. There was also no explanation from the Complainant as to how she could put her feet down on the bench given her evidence that there was someone sitting there.

[32] Ms. Galeotalanza testified that she noticed that the complainant was hugging one of Mr. Akinsanya’s arms and was turned towards him at one point, but she did not see her kiss him or place her legs over his lap. She did not see Mr. Akinsanya with his hands down the Complainant’s pants and never saw him change position so that he was not facing forward. She did not see the Complainant passed out or in any kind of distress.

Alcohol consumed by the Complainant

[33] The evidence is not clear as to how many alcoholic drinks the Complainant consumed. As I have already stated, she said that she had two drinks at the condo before they went to the club. I find it unlikely that she had any drinks at the club until the incident with the man bumping into her when her drink fell to the floor. That drink was replaced with a mixed drink. The Complainant testified that Mr. Akinsanya bought a bottle of rum and he poured her one straight alcohol drink and she poured another one for herself.

[34] Even if I accept that the Complainant had these drinks, that does not tell me what the amount of alcohol she consumed was nor do I have any evidence as to her tolerance to alcohol or any expert evidence on the subject.

[35] Ms. Galeotalanza testified that she spent 11 years as a bartender. She is Smart Serve certified, which means that she has some expertise in discerning if someone is intoxicated or not. She testified that when she arrived at the Wild Flower Club and by the time she left after last call at 2:00 a.m. that the Complainant appeared to be sober. When she was about to leave, the Complainant and Mr. Akinsanya were still sitting on the bench and she motioned to Mr. Akinsanya that she was leaving. He got up from the bench and thanked her for coming. The Complainant remained sitting up on the bench.

[36] The Complainant’s state of sobriety when everyone left the Club is important because there is no suggestion in the evidence that she had any further alcohol after this. As I will come to, I found Ms. Galeotalanza to be a credible witness and, on this subject, I find her evidence to be reliable. I appreciate that she was not spending all her time watching the Complainant, but she was part of a group of Mr. Akinsanya’s friends and her evidence that she stood in front of the complainant and Mr. Akinsanya with her friends while they were sitting on the bench was not challenged. If the Complainant was intoxicated to the point of blacking out as she testified to, even if that only meant having no memory, I would have expected Ms. Galeotalanza to see some evidence of intoxication. I accept Ms. Yaskiel’s submission that if the Complainant had passed out, in the sense of becoming unconscious, this would have become obvious to Ms. Galeotalanza and others in the club.

Back at Mr. Akinsanya’s friend’s condo

[37] The Complainant testified that her next memory was being in the backseat of the car; I presume Mr. Akinsanya’s friend’s car. She was seated in the middle back of the car with Mr. Akinsanya to her right. According to the Complainant, while she was in the car Mr. Akinsanya also rubbed her butt and vagina and penetrated her vagina with his fingers under her tights. She could not recall how long this lasted.

[38] The Complainant admitted that she could have sat behind the driver of the car but said that she was “blacked out”, suggesting that this was the reason why she did not do this. She added that she was not totally lucid and did not think she moved over. She only remembers pieces.

[39] The Complainant testified she did not remember the process of getting to the condo, but she knew that she ended up at the same condo as she was at before she went to the club. Her only memory was while she was in the car that the window beside Mr. Akinsanya was down and she threw up outside the car. The fact that she was able to determine that the window was down and direct her vomit out of the car seems inconsistent with someone who does not know what they are doing. Furthermore, the Complainant testified that although she vomited out of the window of a moving car, there was no vomit on her and as far as she knew none on Mr. Akinsanya. I found this evidence difficult to believe as if it occurred, I would have expected some of the Complainant’s vomit to come back into the car as she had to lean over Mr. Akinsanya’s lap, and the car was moving.

[40] The Complainant testified that she did not recall arriving at the condo although she testified that she arrived at the condo close to 3:00 a.m. and at that point she was “blacked out”. Again, her awareness of the time and where she was seems inconsistent with her evidence that she was blacked out in the sense of having no memory. The Complainant testified that her next recollection was that she was with Mr. Akinsanya in the bedroom and she was at the foot of the bed and that she stumbled face first into the edge of the bed with her head into the bed. Ms. Yaskiel submitted that this was improbable as the Complainant did not suffer any injury. However, I agree with Mr. Sferruzzi that injury would not be expected by falling onto a bed-presumably a mattress.

[41] According to the Complainant, Mr. Akinsanya propped her up on the bed with her butt in the air. Mr. Akinsanya was rubbing her bum and her vagina from the back. She said “na-haa” and testified that she also said “no” and later said “stop” multiple times. Mr. Akinsanya responded with “ah-ha” and he pulled her pants down and penetrated her vagina with his fingers.

[42] The Complainant admitted that when she was asked by police how sure she was about saying no, she told police that she would say she was “85% sure”. This is a significant inconsistency even though the Complainant was not asked if she adopted her earlier evidence. It seems to me that she emphasized at trial that she said “no” and “stop” multiple times although there is no reason why she would remember this so clearly now, three years later, when she could not be sure of this a few months after the alleged assault.

[43] The Complainant testified that while this was happening, suddenly, she felt a subtle jolt as Mr. Akinsanya penetrated her vagina with his penis. It was fairly brief. She was telling Mr. Akinsanya to stop, and he responded that it felt good. She was whimpering “stop” and “no that hurts” a few times and he eventually stopped and they both fell asleep. She did not think that Mr. Akinsanya ejaculated inside of her.

[44] When the Complainant woke up, she was still in bed with Mr. Akinsanya. The Complainant admitted that she was able to get out of bed and go to the bathroom two or three times during the night. The bathroom was by the front door into the apartment, which was up a few steps. When she did so she saw that there was still a group of people in the condo who she said were drunk and belligerent. She did not ask for their assistance. She ignored them. She had a cellphone but did not call for an Uber or ask anyone to call her. Each time she went back to the bed and slept.

[45] In cross-examination the Complainant was challenged on the fact that she went back to sleep with the man who had sexually assaulted her two or three times during the night. When it was put to her that there was no reason she would want to stay in the bed with Mr. Akinsanya, the Complainant responded that there was a reason and that she did not want it to be true and that it was a shock.

[46] The law is clear that there is no inviolable rule as to how someone who has been sexually assaulted may behave[^3]. I have, therefore, not accepted Ms. Yaskiel’s argument that the Complainant had ample opportunity to leave and that her failure to do so suggests the intercourse was consensual. That said, in cross-examination the Complainant was asked if Mr. Akinsanya was in bed and she said: “I don’t remember feeling him there” and a little later, although she admitted that she believed he was in the bed she testified that she did not remember seeing him there. The Complainant gave similar evidence about the other times she found herself in bed with Mr. Akinsanya after this alleged sexual assault. In my view, this evidence is difficult to believe. The Complainant was clearly trying to minimize the impact of her evidence that even after what is the worst of the sexual assaults she alleges, that she voluntarily returned to bed with Mr. Akinsanya.

[47] The Complainant denied that Mr. Akinsanya gave her jogging pants and a U of T shirt to sleep in. However, she testified that she left Mr. Akinsanya’s home in a shirt he gave her after she took off her bra. She disagreed that this did not make any sense. I do not accept that evidence. Given the Complainant’s evidence that she was wearing a shirt she borrowed from Mr. Akinsanya before she left, I find that she borrowed this at the time she went to bed. It makes no sense that she would sleep in her bra and then find it too uncomfortable to wear when she went home. Although this is not that important an issue, it does further undermine the Complainant’s credibility.

[48] The Complainant testified that Mr. Akinsanya woke her up around 6:00 a.m. He was standing up and telling her that they had to go. According to the Complainant Mr. Akinsanya decided they would go to his house and the Complainant admitted that she knew this is where she was going. She chose not to go home, and they left the condo early morning, she thought 6-7:00 a.m. Accordingly, by the time they left the condo, it would have been at least four to five hours since the Complainant had her last drink. Nevertheless, she did not remember leaving the condo together, taking the elevator or walking to the Uber. In cross-examination the Complainant admitted, after being taken to her police statement, that she told police one of Mr. Akinsanya’s roommates left the condo with them. She said it was the truth and that this person was Amine.

Mr. Akinsanya’s house

[49] The Complainant admitted she went to Mr. Akinsanya’s house voluntarily by Uber. When they arrived at Mr. Akinsanya’s place they went to sleep in his bed. The Complainant testified that she was in and out of sleep until about 3-4:00 p.m. when Mr. Akinsanya woke her up and told her that she needed to go. He called her an Uber.

[50] The next communication between the Complainant and Mr. Akinsanya was a message from Mr. Akinsanya the following evening when he thanked her for coming. The Complainant testified that she did not respond to that text but given I do not have all the texts that cannot be confirmed.

[51] The Complainant testified that Mr. Akinsanya was her employer, he paid her, and she continued to work for him after the incident at the club but did not believe she saw him in person at work. Her position was as a storyteller and she believed that she attended one group meeting with students in that interval as a storyteller. Mr. Akinsanya would have told her where to go by text exchange.

Meeting between the Complainant and Mr. Akinsanya at her apartment – mid to late December 2016

[52] The Complainant testified that a few weeks later; mid to late December, “we” made plans for Mr. Akinsanya to come to meet her at her home as she wanted to discuss the events that had happened at his birthday party. She did not recall whose idea it was that he would come to her home but given her stated purpose in meeting, and given the meeting was at her apartment, I find it likely that she arranged it. Although she lived with two people, they were not present. When Mr. Akinsanya came to her home it was dark outside as he came after work, just after 5:00 p.m. If the Complainant felt unsafe with Mr. Akinsanya, I agree with Ms. Yaskiel that she could have arranged to have this meeting in a public space, perhaps Veggie D’Light.

[53] The Complainant testified that she was really in shock as she had made it more than clear as to her intentions with Mr. Akinsanya. She told him that he took advantage of her and according to the Complainant he kind of scoffed at that and she felt intimidated by the exchange. Mr. Akinsanya was really defensive and told her that she “wanted it” and that it was not a big deal and that they were “both horny and they just did it”. He told her that she was acting funny and that he had protected her from the other guys who were trying to take advantage of her. At one point, the Complainant testified that she asked him what it would feel like if someone had done this to his sister and he responded that if they were acting like she did that they would have deserved it.

[54] Of some significance is the Complainant’s evidence that during this conversation with Mr. Akinsanya, he told her that they would have sex on her birthday which is January 1st. This admitted statement by Mr. Akinsanya becomes important to her evidence with respect to her visit to Mr. Akinsanya’s home on January 1, 2017.

December 30, 2016 – Event at Veggie D’Light

[55] Ms. Galeotalanza and Mr. Akinsanya planned an event, which was held in the evening at Veggie D’Light on December 30, 2016. The information that they posted on social media described it a “Catharsis” event for people who work directly with youth to deal with burn out or as one of the posts described it, to come together for an evening of “self-love, collective compassion, community connectedness and #Catharsis”. It was not only open to people that either Mr. Akinsanya or Ms. Galeotalanza worked with but was open to anyone who saw the post. It was not described as a year-end event even though it was held on December 30th, nor was there any mention of recruiting.

[56] The Complainant admitted that she saw Mr. Akinsanya again at this event that he was hosting. She testified that she “wanted things to be okay” - she did not want him to be a “rapist,” she wanted it to be “normal”.

[57] There was a debate in the evidence about what the nature of the event on December 30th was as the Complainant referred to it was work related and a year-end wrap up. I accept that is not how it was advertised in the social media, but it is possible the Complainant’s evidence is true and that this is the impression the Complainant got from her discussion about the event with Mr. Akinsanya. In any event the nature of the event is not important.

[58] About 10 people attended this event including Mr. Akinsanya of course, Ms. Galeotalanza, the Complainant, Amine, Danny,[^4] another one of Mr. Akinsanya’s roommates, and a friend of Ms. Galeotalanza’s; Jeff Pererra. Once the event ended, Ms. Galeotalanza testified that people mingled. The Complainant came over to sit next to her and they spoke for quite some time. According to Ms. Galeotalanza, the Complainant told her that she would no longer be able to continue working for Mr. Akinsanya because of a conflict with her class schedule and that she called out to Mr. Akinsanya asking if she could be his personal assistant. The Complainant denied telling Ms. Galeotalanza that she was not able to continue to work for Mr. Akinsanya because of a timetabling conflict or that she called out to him to be his personal assistant. For reasons I will come to, on this point I prefer the evidence of Ms. Galeotalanza. Ms. Galeotalanza also testified that the Complainant told her that her New Year’s resolution was to be more intimate with friends which Ms. Galeotalanza found odd. The Complainant denied that this was her New Year’s resolution. I did not find this evidence significant.

[59] At one point, Ms. Galeotalanza recalled that Mr. Akinsanya said the Complainant’s first name and apparently mispronounced it to which the Complainant became upset and said: “You don’t even know my name?” The way Ms. Galeotalanza testified that the Complainant said this, it seems that the Complainant was either surprised or hurt.

[60] There is no dispute that after this event the Complainant added Ms. Galeotalanza as a friend on Facebook and Instagram.

[61] After the event finished, they left in Ms. Galeotalanza’s car. She was driving with Mr. Akinsanya in front. The Complainant, Amine, and Danny were in the backseat of the car. When they pulled up to the Complainant’s condo, she claimed not to have her house keys. Both the Complainant and Ms. Galeotalanza testified that she offered to take her back to Veggie D’Light, but the Complainant said that the restaurant was closed. Ms. Galeotalanza testified that Mr. Akinsanya then suggested that she call her roommates and that the Complainant said they would be asleep or out. The Complainant could not remember if she called them or not. According to Ms. Galeotalanza, Mr. Akinsanya then suggested that she call the front guy. Of most significance is the fact that although the Complainant admitted she had a 24-hour concierge in her building there is no evidence that she used that service or even went into the building to see if that person could let her into her apartment. The Complainant stayed in the car and Danny and Amine then suggested that she just come back to their place which she did.

[62] The Complainant denied that the reason for this was that she was concerned something was going on between Mr. Akinsanya and Ms. Galeotalanza or that she was jealous of Ms. Galeotalanza. In re-examination she testified that she did not think that Ms. Galeotalanza was that close to Mr. Akinsanya. Even if that is true, in my view the only reason that the Complainant could have had for not at least arranging entry through her 24-hour concierge was that she wanted to go to Mr. Akinsanya’s home. In fact, the evidence is that every time she went to his home, she ended up sleeping in his bedroom and in his bed. The evidence about this incident is very strong evidence in my view that the Complainant was interested in a romantic relationship with Mr. Akinsanya, contrary to her evidence at trial. I stress that this does not mean that she wanted to have a sexual relationship with him without her consent, but this finding does undermine her evidence denying that she was interested in Mr. Akinsanya romantically and this is therefore relevant to her credibility as a witness.

[63] The Complainant confirmed the evidence of Ms. Galeotalanza that Mr. Akinsanya stayed in the car with Ms. Galeotalanza alone before he came into his home. The Complainant was hanging out with his roommates. When they went to bed, she went upstairs to Mr. Akinsanya’s room voluntarily and went into his bed. He was already in bed and she went to sleep.

[64] During the conversation that the Complainant had with Ms. Galeotalanza on February 28, 2017 that I will come to, Ms. Galeotalanza testified that the Complainant told her that she had her keys all along, that she had not lost them, and that she had just wanted to go back to Mr. Akinsanya’s house. The Complainant testified that she did not know if she told Ms. Galeotalanza that she had her keys all along but she admitted that that was in fact true.

December 31, 2016 – New Year’s Eve

[65] The Complainant admitted that she did not spend New Year’s Eve with Mr. Akinsanya. Her birthday was January 1st. The Complainant admitted that Mr. Akinsanya did not call or text her at midnight to wish her a happy birthday and she did not know where he was or what he was doing.

[66] Ms. Galeotalanza went out with Mr. Akinsanya and Amine to a house party on New Year’s Eve. Ms. Galeotalanza posted photos on Instagram which made it clear she was out with Mr. Akinsanya and Amine.

[67] During the conversation that the Complainant had with Ms. Galeotalanza on February 28, 2017 that I will come to, Ms. Galeotalanza testified that the Complainant told her that she had waited all night for Mr. Akinsanya to call her as it was her birthday and that she was really upset when she saw the photos that Ms. Galeotalanza posted on Instagram. The Complainant denied at trial that she found out from Instagram photos posted by Ms. Galeotalanza that Mr. Akinsanya had spent New Year’s Eve with Ms. Galeotalanza and testified that she did not know if she saw the pictures. She also denied telling Ms. Galeotalanza that she was devastated by this when she spoke to her in February 2017. For reasons I will come to, on this point I prefer the evidence of Ms. Galeotalanza.

Second alleged sexual assault - January 1st and 2nd, 2017

[68] The Complainant testified that she took an Uber to Mr. Akinsanya’s apartment on January 1st and arrived in the evening. She said that Mr. Akinsanya invited her to his home although she also testified that she could not remember who messaged who on January 1st. In any event, they made plans that she would go to Mr. Akinsanya’s home on the evening of January 1st. She said she did not think that she knew that she was going to sleepover, although she admitted that anytime she went to his house she ended up sleeping over.

[69] To explain this the Complainant testified that she was very isolated and traumatized “by everything”. The Complainant testified that she was really vulnerable and “out of it”. She felt like a “robot”. She had no family in Ontario although she admitted that she did have a brother in Ontario. The Complainant explained that with everything that had happened she was really lonely, and she wanted to spend more time to socialize with Amine and Danny more so than Mr. Akinsanya.

[70] The Complainant admitted that Mr. Akinsanya had not bought her a birthday cake, card or gift or provided her with dinner to celebrate her birthday. He also did not give her any alcohol. The Complainant admitted that Mr. Akinsanya did not do anything special for her birthday but testified she was not expecting him to. The Complainant testified that there was no stated purpose and that she was not “really thinking” but I note that she had already testified that when she met with Mr. Akinsanya to confront him about the alleged sexual assault on December 10th, he told her that he would have sex with her on her birthday. I find it impossible to believe that she did not remember this comment, which makes it very odd that she would voluntarily go to Mr. Akinsanya’s home. Her explanation that she did not think he was being serious when he made the comment makes no sense especially given what she alleges happened on December 10, 2016.

[71] When the Complainant arrived at Mr. Akinsanya’s home, his roommates Amine and Danny were also home. The Complainant failed to tell the police that there were also a few females in Mr. Akinsanya’s home when she arrived although I do not find that to be a significant omission particularly as I do not know what questions she was asked.

[72] According to the Complainant, most of the time she was hanging out with Danny, Amine and his friend. Although they were drinking, she did not drink or smoke anything. She did stay overnight and slept in Mr. Akinsanya’s room with him in his bed. The Complainant agreed that she went into Mr. Akinsanya’s bedroom voluntarily and that she could have slept on the couch. Again, she denied asking Mr. Akinsanya for a change of clothes to sleep in but said that her shirt was uncomfortable going home and so she put on one of his shirts to go home. She did not remember sleeping in this shirt. Again, I find this evidence makes no sense.

[73] It was put to the Complainant in cross-examination that she got up to pee. She testified she would not be surprised if she did this, but she did not remember going to the bathroom. The Complainant testified that she did not recall if Mr. Akinsanya was in bed with her the whole time. This was another example of evidence I do not accept. I found it was meant to undermine the fact that the Complainant was voluntarily sleeping in the same bed as Mr. Akinsanya. She admitted that at his home she could have called an Uber to take her home and she chose not to.

[74] The following morning, January 2nd, when she woke up, the Complainant did not remember if Mr. Akinsanya was in bed. Again, I found she was trying to downplay the fact that she had voluntarily decided to sleep in the same bed as Mr. Akinsanya. In fact, the Complainant said that she had very little interaction with Mr. Akinsanya in the morning.

[75] The Complainant testified that when she was by the front door putting on her high heeled boots in order to leave, Mr. Akinsanya quickly grabbed her by the hip and back and pushed her down further while she was bent over putting on her boots. He then shoved his finger in her anus and put it to her nose and started laughing. He pulled down the tights she was wearing enough so he could do this. It was very quick. He did not say anything. She said: “eewe”.

[76] The Complainant was wearing one of Mr. Akinsanya’s long sleeved shirts when she left and so for him to do what she alleges that he did, I find it likely that he would have had to lift up her shirt in order to get into the back of her tights and pull them down somewhat. In cross-examination the Complainant was asked what Mr. Akinsanya was holding onto when he allegedly put his finger in her anus and she was challenged on the fact that although she was taken by surprise and he had to lift her shirt and pull her pants down, she did not lose her balance. To explain this, she testified that his right hand went to her butt and with his left he was gripping her pants from the inside. However, the Complainant never told the police that Mr. Akinsanya grabbed her hip and back and pushed her down further when she was putting her boots. This was an example of the Complainant modifying her evidence to deal with a perceived problem with it.

[77] The Complainant took an Uber and went home. At this time, she testified that she wanted to stop working for Mr. Akinsanya.

January 13, 2017

[78] The Complainant admitted that Mr. Akinsanya came to her apartment again on January 13, 2017. She did not recall who invited who, which I found hard to believe. In any event, he came over late afternoon when her roommates were not home, although she testified that one of them may have dropped by briefly. This is something she did not tell police.

[79] In cross-examination, when Mr. Akinsanya told the Complainant that he was going to go home, the Complainant admitted that she decided to go with him to his house and possibly go out from there. He was going to go out with a group of people included Amine and the Complainant testified that she was invited to join them. She arrived with Mr. Akinsanya at his house at 10:39 p.m. The Complainant admitted that very soon after Mr. Akinsanya told her he was going to go out with Amine and that she was not invited to join them.

[80] The Complainant admitted that at this point she asked to speak to Mr. Akinsanya privately in “our” room. The Complainant denied that she wanted to know why she was not going to join them. She said that she was annoyed that it had been discussed at her place that she would also go and that Mr. Akinsanya then changed his mind. She admitted that later she was crying about this. An Uber then took Mr. Akinsanya, Amine and the Complainant to her apartment where she was dropped off. To this the Complainant testified that she wanted to leave anyway. She testified that she was “grossed out” with Mr. Akinsanya and that this was the tipping point of the abuse. She said that on the way back to her place, in the Uber, Mr. Akinsanya kept trying to shove his fingers in her mouth and that she smacked his fingers away. She denied that she cried all the way home to her apartment.

[81] The Complainant texted Ms. Galeotalanza at 1:40 a.m. on January 14, 2017, asking for Danny’s phone number because she had left some “stuff” at Mr. Akinsanya’s place and that she could not get in touch with him. The Complainant testified that she left her keys behind and a used menstrual pad which she had intended to take with her. At 2:09 a.m. she texted Ms. Galeotalanza again to tell her that she had “figured it out sorry about that!” Ms. Galeotalanza testified that she did not see these texts until she woke up in the morning.

[82] It is clear that the Complainant had already talked to Mr. Akinsanya about the keys as he texted her at 2:33 p.m. on January 14, 2017 asking her why she had texted Ms. Galeotalanza at 2 a.m. and asking if that made sense and why would she have Danny’s number? To this the Complainant responded: “I told you I thought I left my keys at your place but they fell under the seat of my uber driver …”.

[83] The Complainant denied that she contacted Mr. Akinsanya and Ms. Galeotalanza in order to see if he was with her and to take him away from whatever he was doing. Given her later text to Ms. Galeotalanza, it seems more likely to me that that was in fact the real reason and that like before she had her keys or at least an easier way to get into her apartment through the 24-hour concierge.

Conversation between the Complainant and Ms. Galeotalanza on February 28, 2017

[84] Ms. Galeotalanza testified about a conversation that she had with the Complainant on February 28, 2017. I do not know if they met in person or spoke on the phone, but the Complainant admitted having a conversation with Ms. Galeotalanza at the end of February 2017.

[85] I have already referred to most of the relevant parts of this conversation during my review of the evidence. Perhaps the most significant statement made by the Complainant to Ms. Galeotalanza that I have not yet set out was that she told Ms. Galeotalanza that she wanted to ruin Mr. Akinsanya’s life, his professional life, his career and his academic life. The Complainant denied saying this but as I will come to, I prefer the evidence of Ms. Galeotalanza and find that the Complainant did say this to her.

Final actions by the Complainant

[86] It was put to the Complainant that on January 23, 2017, Mr. Akinsanya texted her to please stay away from him and the people close to him. The Complainant admitted that she received such a text but said it was later than January 23rd.

[87] The Complainant admitted that she made a complaint to the Human Rights Commission about Trillium, Mr. Akinsanya’s employer. She said her purpose in doing so was to protect vulnerable people from him as he had shown himself to be an abuser. She also admitted contacting Danny and two other friends of Mr. Akinsanya although she denied it was for the purpose of telling them about the alleged sexual assaults. The Complainant denied trying to turn Ms. Galeotalanza against Mr. Akinsanya. However, the Complainant testified that she was telling her “my truth” and that her aim was to protect her as she knew Ms. Galeotalanza had a history of sexual abuse. It seems likely that she told his other friends about her allegations.

[88] Finally, the Complainant denied that she wanted to have Mr. Akinsanya’s liberty taken away by making a false complaint to police that he had sexually assaulted her. She added that she felt that she had put herself through more than Mr. Akinsanya was being put through.

Analysis

[89] The principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.)[^5]apply even though Mr. Akinsanya did not testify. In this case, I have the evidence of Ms. Galeotalanza who was called on behalf of the Defence. I can also consider the texts by Mr. Akinsanya to the Complainant and her evidence about statements she alleges Mr. Akinsanya made to her, to the extent I accept her evidence, whether or not I consider them to be inculpatory or exculpatory.

[90] The Court of Appeal in R. v. B.D[^6] concluded at para. 114 as follows:

What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt… In that event, they must acquit.

[91] For these reasons I conclude that the principles in W.(D.) apply to the evidence of Ms. Galeotalanza, the texts made by Mr. Akinsanya and his statements to the Complainant. If any of the evidence favourable to Mr. Akinsanya leaves me with a reasonable doubt, then he must be acquitted. If that evidence does not leave me with a reasonable doubt, I must still assess whether the Crown has proven Mr. Akinsanya’s guilt beyond a reasonable doubt. However, in assessing this evidence, I am entitled to consider it in the context of all the other evidence.

Credibility Assessments

[92] My first task is to assess the reliability and credibility of the evidence given by the Complainant. I have already set out some concerns I have with her evidence as I have reviewed the evidence and I have rejected some of the Defence arguments challenging her evidence.

[93] Considering first her demeanour in court, while I recognize that I should not place too much emphasis on this, I would not say this is irrelevant. In this regard, on its face, the Complainant seemed to be a credible witness although I was concerned that on the first day of her evidence, although I appreciate she was not feeling well, on a few occasions when she was asked questions in cross-examination she asked for a break before giving her answer to the question. This was not something that occurred during her evidence in chief although she did break down crying on a couple of occasions necessitating a break.

[94] I have a concern with the Complainant’s evidence that shortly after the alleged sexual assault on December 10, 2016, she “blacked out”. Neither counsel asked her what she meant by this. Ms. Yaskiel took it to mean that she passed out and became unconscious. I agree with Mr. Sferruzzi that this is not necessarily what she meant. In my view, what the Complainant was saying is that at a certain point she had no memory of what was happening. If that is the case, she would not be able to testify as to whether she was passed out and unconscious or simply had no memory. I will come back to this but I do agree with Ms. Yaskiel, that if this is the case, it is strange that the Complainant testified that she had specific recall of the alleged sexual assaults both at the Wild Flower Club and following and yet no memory of anything else such as leaving the club, getting into the car, arriving at the condo, getting to Mr. Akinsanya’s friend’s condo and into a bedroom. Ms. Yaskiel submitted that given how descriptive the Complainant’s memory was of the alleged sexual assaults it does not make sense that it would be so lacking in other respects, particularly when she specifically recalled that some of the suggestions put to her by Ms. Yaskiel as to what may have happened in terms of sexual activity did not occur. I agree. The Complainant’s memory seems to be very selective which is a cause for concern.

[95] As I have reviewed during my summary of the evidence, there were some inconsistencies in the evidence of the Complainant compared to what she told police on July 28, 2017 and her evidence at the Preliminary Inquiry. Some of those are relatively minor but others, as I have stated are more significant and do cast some doubt on the veracity of her evidence on the same point in this Court.

[96] As I will come to, I have difficulty with some of the Complainant’s evidence because it seemed that what she was describing was physically impossible. This also raises concerns about her credibility or at the very least the reliability of her evidence.

[97] The Complainant emphasized during her evidence that she had no interest in Mr. Akinsanya beyond his being her employer and a friend with similar interest in helping youth. It is her position that this never changed. The Defence argues that although that may have been the case in the weeks after she met Mr. Akinsanya, that by early December 2016, she was interested in him romantically and that she was jealous of Ms. Galeotalanza and ultimately very upset that Mr. Akinsanya did not have the same feelings towards her to the point where she decided to fabricate these allegations.

[98] For the reasons already stated, I find that a lot of the behaviour of the Complainant can only be explained by finding that the Complainant wanted to have a romantic relationship with Mr. Akinsanya. As Ms. Yaskiel submitted, her actions speak louder than words and do show that she was not being entirely honest with this Court in this regard. That of course, does mean that she consented to having sexual intercourse with him or to the other sexual acts that she alleges. It does however affect my assessment of her credibility as I find that she often tried to show in her evidence that she was not attracted to him.

[99] Ms. Galeotalanza has known Mr. Akinsanya since 2016. She has an impressive background in social work and their relationship initially was professional because of their common interest. In September 2016 their relationship changed to an intimate one until February 2018. Since then they have just been friends. Although the Complainant suggested at one point in her evidence that Ms. Galeotalanza would be a biased witness, I did not find that to be the case. She was very balanced in her evidence and I had no sense that she was biased in any way. Mr. Sferruzzi very fairly conceded that he could take no issue with her evidence.

[100] Given my concerns about the credibility of the Complainant’s evidence that I have already expressed, where it conflicts with the evidence of Ms. Galeotalanza’s, I prefer the evidence of Ms. Galeotalanza.

Motive

[101] The Defence has no onus to prove that a Complainant has a motive to fabricate her evidence. Furthermore, as stated in R. v. L.(L.)[^7], the absence of evidence of a motive to fabricate is not the same as an absence of a motive to fabricate.

[102] In this case there is strong evidence of an intention to ruin Mr. Akinsanya’s life coming from Ms. Galeotalanza. I have already set out her evidence and that I accept that the Complainant told her that she wanted to ruin Mr. Akinsanya’s life, his professional life, his career and his academic life. I accept that the Complainant could feel like this if the allegations of sexual assault are true. However, I also accept the submission of Ms. Yaskiel that the Complainant could also feel like this because, as I have found, her actions suggest that she did have romantic feelings for Mr. Akinsanya that appear not to have been reciprocated. If this was the reason she made a complaint to the Human Rights Commission about Trillium, Mr. Akinsanya’s employer, it of course undermines her evidence that she did so to ensure he did not abuse other women. Such a motive to hurt Mr. Akinsanya could also give the Complainant a reason to fabricate her allegations. This and the concerns I have about the Complainant’s evidence generally will have a substantial effect on my ability to make findings of guilt.

Findings of fact

[103] Before I can get to the questions of consent and capacity, I must first determine if the Crown has proven beyond a reasonable doubt that the alleged sexual contact occurred as alleged. That was the focus of the closing submissions of counsel.

[104] I will deal with each of the alleged assaults in turn.

Alleged sexual assault in the club on December 10, 2016

[105] Turning first to the alleged sexual assault while the Complainant was seated next to Mr. Akinsanya on the bench, at the Wild Flower Club, I am not satisfied that the Crown has proven beyond a reasonable doubt that the sexual assault occurred as alleged by the Complainant. In addition to the credibility concerns that I have expressed about the Complainant’s evidence, given her description as to how this alleged assault occurred, I find that it would have been impossible for Mr. Akinsanya to put both of his hands down the back of her pants as she alleges. In addition, I find it impossible that he could have reached down far enough to touch her vagina. The Complainant testified that she was still hugging Mr. Akinsanya when this alleged assault occurred. She was not asked if by doing so she had her arms wrapped around his. I find that more likely as he was seated but even if that is not the case, it would have been impossible, in my view, for Mr. Akinsanya to turn around to his left and contort his body in such a way that both of his hands could even get down the back of the Complainant’s pants let alone touch her vagina. I do not believe that this event occurred.

Alleged sexual assault in the condo on December 10, 2016

[106] Turning to the sexual assault described by the Complainant, namely sexual touching and sexual intercourse that she alleges occurred when they returned to Mr. Akinsanya’s friend’s condo, I find that this assault could have occurred. However, because of the concerns I have about the Complainant’s credibility in general and a possible motive to fabricate, I find that the Crown has not satisfied me beyond a reasonable doubt that it did occur or if it did, that the Complainant did not consent.

[107] Had I been satisfied beyond a reasonable doubt that the sexual activity alleged by the Complainant in fact occurred and that the Complainant did consent, it would have been necessary to consider the Complainant’s capacity to consent to the alleged sexual contact, given her evidence that she was blacked out.

[108] In that event, I would have applied the law in R. v. G.G.[^8], and considered whether the Crown had satisfied me that even if the Complainant was conscious, she did not have an operating mind capable of consenting. I say this because the evidence I have accepted from Ms. Galeotalanza makes it clear that at the very least the Complainant was not unconscious when she left the club. An operating mind is a mind that is capable of appreciating the nature and quality of the sexual activity, knowing the identity of the person wishing to engage in the sexual activity, or understanding that she could agree or decline to engage in or to continue the sexual activity. A capacity to consent to sexual activity may not amount to a very significant standard of cognitive awareness. Even if I had found that the sexual assault occurred and the Complainant consented, I do not have enough evidence to conclude beyond a reasonable doubt that the Complainant did not have an operating mind and was not capable of consenting at the time of the alleged sexual assault. She appreciated where she was, who she was with and what was happening.

[109] In my view, having found that the Crown has not satisfied me beyond a reasonable doubt that the alleged sexual assault did occur I must find Mr. Akinsanya not guilty of Count #1.

Alleged sexual assault on January 2, 2017

[110] Finally, with respect to the alleged sexual assault on January 2, 2017, I find it difficult to believe that Mr. Akinsanya could lift up the shirt the Complainant was wearing, which given it was one of his shirts likely was hanging below her waist, and shove his hands down the back of her paints and insert a finger into her rectum without her losing her balance. In any event, because of the concerns I have about the credibility of the Complainant and a possible motive to fabricate, I could not be sure that this event occurred. I, therefore, find that the Crown has not proven this alleged assault occurred beyond a reasonable doubt.

Disposition

[111] Mr. Akinsanya would you please stand.

[112] For the reasons I have given I find you not guilty of Counts #1 and #2.

Spies J.

Oral Reasons given: December 13, 2019

Written Reasons Released: January 6, 2020

COURT FILE NO.: 3-231/18

DATE: 20191213

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

OLUWASEGUN OLUFEMI AKINSANYA

REASONS FOR JUDGMENT

SPIES J.

Oral Reasons given: December 13, 2

[^1]: The actual date of the alleged sexual assault according to the evidence of the Complainant was December 10, 2019. [^2]: Amine’s last name was not in evidence. He was one of Mr. Akinsanya’s roommates. [^3]: R v. D(D), 2000 SCC 43 at para. 65 [^4]: Danny’s last name was not in evidence. [^5]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. [^6]: 2011 ONCA 51. [^7]: 2009 ONCA 413, 96 O.R. (3d) 412, at para. 44 [^8]: 2019 ONCA 493