COURT FILE NO.: CR-16-RD19615

DATE: 2020/03/04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

– and –

Hussein Ali Kelkas

Aquilas Kapend for Her Majesty the Queen

Self-represented

HEARD: January 27-February 7, 2020 (Ottawa)

reasons for decision

Pursuant to s. 486.4 of the Criminal Code there is a continuing order in place making it an offence for any person to publish information that might lead to disclosure of the identity of the complainants.

o’bonsawin J.

Background

[1] Both complainants, Ms. G and Ms. A, met Mr. Kelkas through social media. Ms. G met him in June 2014 and Ms. A met him in January 2016. Ms. G is currently 26 years old and Ms. A is 22 years old. Mr. Kelkas is 32 years old. Both complainants alleged that Mr. Kelkas sexually assaulted them. Ms. G alleges that, on one occasion, she was sexually assaulted by Mr. Kelkas when vaginal penetration occurred without her consent. Ms. A alleges that she was sexually assaulted by Mr. Kelkas on two occasions. On the first occasion, she alleges anal penetration occurred. On the second occasion, she alleges vaginal penetration occurred.

[2] Mr. Kelkas pleaded not guilty to three counts of sexual assault contrary to s. 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Code”).

[3] Prior to the commencement of trial, a s. 486.4 Order was issued regarding the non-publication of information that could lead to the disclosure of the complainants’ identity, Mr. King was appointed as s. 486.3 counsel to cross-examine the complainants, and Mr. Del Greco was appointed as amicus.

[4] In addition, Mr. Kelkas admitted

• the voluntariness of his statement to police; and
• jurisdiction and identity.

[5] There were a series of exhibits entered on the consent of both parties: the medical report regarding Ms. G, the forensic sexual assault kit regarding Ms. A, the Clinic of Forensic Science report regarding Ms. A, an email chain between Ms. G and Mr. Kelkas, Facebook correspondence between Ms. G and Mr. Kelkas, the two diagrams of Ms. G’s bedroom and upstairs of her residence, a photo of Mr. Kelkas between 2014-2015, and his criminal record.

[6] The Crown called both complainants to testify. Mr. Kelkas elected to testify.

Evidence

[7] I will summarize the evidence of the witnesses.

[8] Ms. G’s evidence is summarized as follows:

• She is currently 26 years old. She is about 5’4’’. At the time of the incident, she was a student at Algonquin College.
• In June 2014, she posted an ad for a room to rent in her townhome on Kijiji which she also shared on her Facebook public college groups. She already had other roommates.
• On June 6, 2014, Mr. Kelkas responded to her ad via email. He wrote that he was 25 years old. They exchanged phone numbers and arranged for him to visit the room. After Mr. Kelkas visited the room, he invited her out for coffee. He picked her up in his car. They subsequently met for coffee on a few occasions.
• Based on photos and comments she saw on Facebook, she thought Mr. Kelkas had a daughter. She asked him on two occasions if he had a daughter and he responded that he did not. She only found out after the incident that he had a daughter and that he was not actually 25 years old.
• The relationship progressed to the point where they would kiss and make out. Mr. Kelkas was very forward and indicated that he wanted more than making out. She told him that she wanted to be in a stable, committed relationship before she had sexual intercourse and told him on more than one occasion that she did not want to have sex with him. Since both were attracted to each other, she told Mr. Kelkas that it was not a good idea for him to rent the room.
• On June 21, 2014, she invited him into her house. Her roommates were not home at the time. They watched television on the main floor. They started kissing on the sofa. He had his hands on her legs or her face. She told him that she wanted to slow down, and he just brushed her comments aside. He asked several times to go upstairs. At first she was hesitant but then thought that it would be more private and agreed.
• When they entered her bedroom, she left the door open. Mr. Kelkas immediately closed it. She sat down on her office chair. They might have kissed briefly but no extensive making out occurred. She next recalled him getting undressed and was shocked and started to panic. When she told him she did not want to have sex, he said, “We are going to have sex.” She had never been treated with such disrespect and she did not know what to do. He told her to take off her clothes, at least her pants. She felt she had no choice and was really scared and did not know what to do. She asked him if he wanted a hand job or oral sex instead of sexual intercourse. He responded they were going to have sex and directed her onto the bed. Ms. G felt scared and intimidated. She then told him, “I don’t have any condoms, so we can’t have sex.” She was hoping this would dissuade him but he did not care. He got on top of her while she was laying on her back. She covered her pubic area with her hand, and he pushed it aside and inserted his penis inside of her. He was not wearing a condom. She told him to stop and he put his hand on her mouth and told her, “Shut up, you are talking too much.” At one point he muttered, “Just the tip.” It lasted 8-10 minutes. She could not recall if he ejaculated. He eventually stopped and then she gave him oral sex. She did not consent to having sexual intercourse or having oral sex with him.
• Afterwards, she was in shock and did not know what to do. The next day, she went to the hospital to have a sex assault kit done. She received a lot of medication because Mr. Kelkas had not used a condom.
• She sent him a message after she went to the hospital and said, “I really wanted to wait. I was not ready for that.” She saw him in person two or three times afterwards. She wanted some closure and to know why he had done that to her. She tried to cope by normalizing the situation for a period of time. She saved the text messages on her phone which was later stolen.
• Ms. G described that, at first, she was embarrassed and confused about what had happened with Mr. Kelkas. Then she was angry about it.
• There was not a particular event that led to the end of the relationship. They just stopped talking to one another. She never considered Mr. Kelkas her boyfriend.
• She was scheduled to write her national board exam to become a dental health professional on the same week the incident occurred. She was not able to write the exam because of what had occurred; she was depressed. She wrote the exam four mounts later.
• On February 2, 2015, Mr. Kelkas messaged her out of the blue. The messages are as follows:
  • HK: “Hey u hope ur doing ok”
  • Ms. G: “what’s it to you”
  • HK: “Nothing your right sorry I messaged u”
  • Ms. G: “good”
  • HK: “ok”
• A lot of traumatic things happened in her life after the incident with Mr. Kelkas. She went to therapy. Initially, she was not ready to go through with charges against Mr. Kelkas since she was not ready to deal with that at that time. In October 2015, she reported the incident to police.

[9] Ms. A’s evidence is summarized as follows:

• She is currently 22 years old. She is 5’ tall and weighs 88 pounds. At the time of the incidents, she weighed about 84 pounds.
• She met Mr. Kelkas in early January 2016 when she was 18 years old. Although she could not recall his exact age at the time, she recalls he was under 27 years old. He first contacted her via Facebook Messenger. They corresponded back and forth about their plans for the day. He also asked her if she was a virgin and she replied that she was. She thought that was an odd question. After approximately three days, he asked her for her number and then to see her. He picked her up from her parents’ house and they went for a coffee. She thought this was a date, but she considered him an acquaintance because she did not know much about him.
• When they first met, he never mentioned that he had a daughter. Based on his Facebook posts, she asked him about her. He said that she was his niece and that he would adopt her if he could. After the first or second meeting, she confronted him about this and he admitted to having a daughter. He told her how hard it was being a single dad. She also confronted him about not being the age he told her. He said that he would make it up to her. She felt bad for him and decided to give him a chance.
• During their conversations, she made it clear that her virginity was important to her and that she planned to save it for marriage.
• A few weeks later, he asked to see her again. He had been in a fight with his parents. She hoped that she could meet with him and calm him down. They drove to Mooney’s Bay after sundown and parked in the parking lot. There was a family car parked there.
• Once their conversation slowed down, things got physical. He kissed her and touched her upper body. This was consensual. He then went over to her side of the passenger seat and they barely fit in there at all. He slipped her pants down, opened his pants, positioned her on her stomach on the passenger seat which was reclined down, and she told him, “No, I don’t want to have any sex, vaginal or anal.” He brushed off her words. He inserted approximately 1 cm of his penis inside of her anus. He tried for around 5-10 minutes and then he gave up. She tried to fight him off without success. He then got off of her and went back to the driver’s seat. She pulled her pants up. She was in shock and confused. She was certain she was disrespected but was not sure if she was “attacked, raped or what you call this.” He drove her home.
• The next day she felt very weird but also sorry for him because he kept bringing up that he was a single dad. She thought maybe he had made a mistake and they continued to talk for a few days after that.
• On January 30, 2016, he told her that he would bring her on a real date, and she got dressed up. He then told her that he was on a break for the tattoo he was getting and that he could pick her up quick so they could talk but then he had to go finish his tattoo. She changed into a track suit.
• He drove to a storage centre area. There was no one around. They had a conversation for about 20-30 minutes. He told her to take her boots off and get into the back seat. She went there on her own but was worried that something would happen. At first, he performed oral sex on her while she was on her back. Initially, it was consensual, but then she changed her mind and told him “Ok, that is enough.” At one point, she performed oral sex on him because she was afraid of what he would do. She felt intimidated by him. He told her to lay down. He kept saying, “Just the tip; just the tip.” She blocked her genital area with her left hand and her right hand was near the seat. She told him that she did not want to have sex with him. He got angry, lifted his hands up to her head level and told her to remove her hands or he would smack her. He just kept saying, “Just the tip.” She removed her hand. His hands pressed firmly against hers on the seat. She knew no matter what she said it would not change his mind. He penetrated her vaginally without a condom. She remembered being in pain and telling him to stop but he did not. He never asked her if he could have vaginal or anal sex with her. The penetration lasted about 10 minutes. He removed his penis from her vagina and ejaculated on her stomach. He threw her shirt that was on the floor to her and told her to wipe herself, which she did. He then drove her home and she kept telling him, “You stole my virginity, I can’t believe you did that.” He told her in a very loud voice to stop saying that. When she arrived home, she threw her clothes into the wash. She ran to her room, hid under a blanket, and cried. She felt confused and had severe stomach cramps. He texted her and she texted him back. She told him she was in a bit of pain. In fact, she was in a lot of pain for the next two to three days.
• Afterwards, she felt that she had to talk to him in order to understand what had happened. Since he had taken her virginity, she had to make it work with him. Because of her beliefs, she thought she would have to end up with the first person she had sex with.
• Afterwards, she tried to text him and received no response. She could no longer reach him on Facebook because his account was no longer there. She was angry. A few more days went by. While sitting in her living room with her parents, she broke down and told them what had happened. She then went to the hospital with her mother on February 5 or 6, 2016, to get a rape kit done. She provided her bra and tank top to the police officer.
• On one occasion, Mr. Kelkas drove around in front of her parents’ house and the police were called.
• She messaged him and told him, “you raped me you piece of shit”. He responded, “sorry”.

[10] Mr. Kelkas’ evidence is summarized as follows:

• He is currently 32 years old. He between 6’1 and 6’2. He has an eight-year-old daughter. He is a certified mechanic.
• In June 2014, he was 27 years old. He weighed probably 230-240 pounds. He responded to Ms. G’s Facebook room advertisement. He went to see her place a week later over the weekend. The room was too small for him and was not what he was looking for. They emailed each other back and forth. They had similar interests. He asked her out for a coffee, and they went out. He picked her up and dropped her off. Afterwards, they started to hang out more. The second time he went over to her house, they watched a movie and her roommates were there. Nothing happened sexually between them.
• He told her that he had a daughter. He lied to her about his age.
• There was an obvious attraction between the two of them. Two or three weeks later, they hung out and kissed. He thought they were “kind of together.”
• During the course of their relationship, they “threw out comments about sex.” She made it clear that she would not have sex unless it was with a condom and that she did not want to have sex unless she was in a relationship. He respected her wishes. On the date of the incident, he brought her to Loblaws, gave her $20, and she went in to buy the condoms because he was too embarrassed to do so. When they arrived at her house, they did not sit on the couch. They went directly up to her bedroom. She closed the door and turned off the lights. It was pitch black and she refused to turn on the light or open the blinds. They lay on her bed, talked, then started making out. She took off his clothes, he gave her oral sex, and then she gave him oral sex. Then she put condom on him from the box she had picked up. He was very turned off by the whole situation. The sex lasted 5-10 minutes. He pretended to ejaculate because he was not into it. He then got dressed, gave her a hug, kissed her, and left. He could not explain why he was turned off. He only reached out to her on February 2, 2015. Afterwards, he never contacted or saw her again.
• For his specific reasons, he was no longer on Facebook afterwards. He also changed his phone number.
• In January 2016, he was 28 years old. He was competing in bodybuilding and weighed around 270 pounds. He contacted Ms. A through Facebook. They had mutual friends. He found her attractive and messaged her. A few days later she replied back. They chatted and agreed to meet for coffee. He picked her up at her parents’ house. They then went for a walk. They ended up by making out that night. He lied about his age and about having a daughter to Ms. A. He told her she was his niece.
• At that time, Ms. A was not 84 pounds; she “had to be over 100 pounds at the time.”
• The second time he saw her, it was between 6:00-6:30, after work. He picked her up at her parents’ house. She wanted to go out, but he was not in the mood because he had worked a long shift. They went to Mooney’s Bay and talked in his car. They started kissing while he was in the driver’s seat. He got out of the car and went around to the passenger side. He reclined the seat back and he sat in the seat. He could not move and was jammed in the seat between the centre console and the other side. She was in front of him at the time. She sat on his lap; they started kissing and making out. She took off her shirt first then sat back on his lap. They kept kissing and then she ended up taking her pants off. At that time, she said that she did not want to have sex “right now”. She turned around in the car. He pulled his pants down, and she grabbed his penis and tried to put it inside of her anus. When she grabbed his penis, she was so far back in the seat he could not physically reach her. It was clearly not going to go in. She said that “it [would] not fit.” She sat back on his lap and they continued sitting in that position until a family walked to their van. She did not want the family to see them, so she reclined back and put her head down on his chest. That killed the whole mood. She got dressed, he put his pants back on, and they held hands the whole way until he dropped her off.
• The next incident took place when he had an eight-hour tattoo appointment. She wanted to go out and do something fancy. He was going to see her depending on how he felt after the session. By the time he was done, it was between 6:30 and 7:00. He was in a lot of pain. He was not dressed for the occasion so he told her to dress “comfy” because they were not going to go anywhere specific. They ended up in a parking lot. It was Sunday and all the businesses were closed. They started making out. One thing led to another and they moved to the back seat. He told her to remove her boots because he did not want snow and salt on his seats. He got out and pulled the seats all the way forward and went into the passenger side. They started making out and kissing. He then took her shirt off. They kept kissing. She took off his shirt, he took her pants off, and he gave her oral sex. He pulled his pants down and she gave him oral sex. At that time, they were both naked in the back of his car. He then got on top of her. They were just kissing and then he put his penis inside of her. She specifically said, “Be gentle, please.” He told her, one time, “Just the tip.” He then sat back on the seat. She was on top of his lap and they did “doggy” afterwards. She gave him oral sex again. She ended up back on her back and he ejaculated on her stomach. He did not have any Kleenex and she said that she would use her shirt to wipe off his semen. She then put her shirt back on. He asked her if she was ok. She responded that she was sore. He told her if she needed anything to let him know. He dropped her off at her parents’ house. He asked her if she was ok, and she said she was fine, just a little sore.
• After Ms. A. told him that she did not want to have sex in the car, he did not question her about what she was willing and not willing to do sexually. He should have had that conversation with her.
• His Facebook and social media accounts were deactivated while he was seeing Ms. A. More specifically, they were deactivated “way before then”, probably after the Mooney’s Bay incident. In addition, he could not answer his phone because it was broken.
• A day or two afterwards, at probably 8:30, his phone was on top of his tool box at work. A socket slipped out of his hands and smashed the screen of his phone. He did not memorize Ms. A’s phone number. He would message her when he got home. At 2:30-3:00, his boss answered the business phone and told him that someone was looking for him. A person was yelling and screaming at him, saying that he, Mr. Kelkas, had raped his daughter. At the time, he did not know it was Ms. A’s father. The man hung up. His boss told the man to stop calling, and said, “This is a place of business, not Hussein’s hotline.” When he arrived home, his mother asked him what was going on; people were calling him saying he did something to Ms. A. He then went to his laptop and reactivated his Facebook account. He messaged her, “What are you saying? You said I raped you”. She responded: “now you are replying. You can deal with the cops now”. Her father threatened him and his family, saying, “If I catch you, I will kill you.”
• He went to her parents’ house because he was on his breaking point. Her father was outside with two cousins. He had a sword and threatened to kill Mr. Kelkas. Her father said “You took advantage of her”. Mr. Kelkas told her father that was not what had happened. Neighbours came out and tried to calm her father down. He put his sword back inside of the house. Mr. Kelkas was able to explain what had happened to her father. The latter then offered Mr. Kelkas a coffee and apologized to him. The police were called. When they arrived, Mr. Kelkas told them about what had happened and they asked him to leave.
• When he was questioned by police about the incident with Ms. G, he was not truthful when he told the officer that he did not have a Facebook account six months earlier.
• He has a criminal record for two crimes of dishonesty.

[11] There were eleven exhibits filed during the trial. The medical reports regarding Ms. G and Ms. A did not provide any useful information.

Position of the Parties

[12] The parties agree that the main issue in this matter is credibility.

[13] The Defence argues that the complainants were not credible witnesses and that their evidence should not be believed. Their evidence was not reliable. They were inconsistent in their evidence and contradicted themselves and other evidence. On the other hand, Mr. Kelkas’ evidence was credible and reliable.

[14] The Crown argues that Mr. Kelkas was not a credible and reliable witness. Mr. Kelkas’ evidence had a litany of issues. On the other hand, the complainants were forthright and honest in their evidence.

Analysis

[15] I will start with a review of the applicable case law in this matter and general principles. During this trial, there were contradictory versions of events given by the complainants and Mr. Kelkas. Consequently, I must evaluate the evidence according to the instructions at para. 28 of R. v W.(D.), [1991] 9 S.C.R. 521:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[16] The Court can accept all, part, or none of a witness’ evidence. Inconsistencies do not automatically lead the Court to dismiss a witness’ evidence. Even if there are inconsistencies in the evidence, the Court can accept the witness’ evidence beyond a reasonable doubt.

[17] The accused does not have the burden of showing that the complainant had a motive to fabricate evidence (see: R. v. L.(L.), 2009 ONCA 413, 96 O.R. (3d) 412, at paras. 48 and 53).

[18] In the Court of Appeal’s decision in R. v. M. (A.W.) (1993), 1993 CanLII 17022 (ON CA), 21 C.R. (4th) 106 (Ont. C.A.), one of the grounds of appeal related to whether the trial judge failed to appreciate that he did not have an obligation to make a choice between believing the complainant or the appellant. The Court of Appeal concluded as follows:

Although a lack of motive to lay a false charge or give false evidence is a proper matter to be considered in determining the credibility of a person making the charge or giving the evidence, there is no burden on an accused to prove a motive or an explanation for a complainant making such a charge or giving such evidence. The reasons of the trial judge indicate that he was placing the burden on the appellant to prove that the complainant was attempting to falsely convict him, or in the words used in Nimchuk, supra, at p. 210, “framing him”. He erred in so doing (para. 28). [Emphasis added.]

[19] In R. v. M.(J.) (26 February 2018), Cornwall, 3911-998-16-C1018, (Ont. C.J.), Kinsella J. found that a criminal trial is not a credibility contest between the accused and the complainant (para. 24).

[20] The case law confirms that while demeanor is a relevant factor in a credibility assessment, demeanor alone is an unreliable predictor of the accuracy of the evidence provided by a witness (R. v. Rhayel, 2015 ONCA 377, 334 O.A.C. 181, paras. 85 and 89). Furthermore, demeanor alone is insufficient to convict when there are significant inconsistencies and conflicting evidence in the matter (Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66).

[21] In R. v. Roy, 2017 ONCA 30, at para. 23, the Court of Appeal for Ontario found that it is clear “that a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is a sufficient basis for rejecting an accused’s evidence: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66; J.J.R.D., at para. 53”.

[22] In R. v. Barton, 2019 SCC 33, the Supreme Court recently provided helpful guidance to trial judges regarding sexual assault matters. The court outlined the law of consent:

• consent is the conscious agreement of the complainant to engage in every sexual act in a particular encounter that must be freely given;
• consent must exist at the time the sexual activity in question occurs and it can be revoked at any time;
• consent is not considered in the abstract. It must be linked to the sexual activity in question, which encompasses the specific physical sex act, the sexual nature of the activity, and the identity of the partner, though it does not include conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases;
• for purposes of the actus reus, consent means that the complainant in her mind wanted the sexual touching to take place; consequently, the focus is placed on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant;
• if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent;
• the complainant does not have to express her lack of consent, or revocation of consent, for the actus reus to be established;
• for purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent, consent means that the complainant had affirmatively communicated by words or conduct her agreement to engage in the sexual activity with the accused;
• the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed the complainant effectively said “yes” through her words and/or actions (paras. 88-90).

[23] Furthermore, the Supreme Court reviewed the issue of stereotypical assumptions of how persons react to acts of sexual abuse in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 63 and 65, Major J. stated as follows:

The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-9; R. v. T.E.M. (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.).

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

Assessment of the Evidence

[24] In its submissions, the Crown argued that the rule in Browne v. Dunn (1983), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K. H.L.) was breached. As a general rule, where a party seeks to impeach the credibility of a witness by independent or extrinsic evidence, the witness should be provided notice of that intention, ordinarily through cross-examination on the relevant point. The rule accords with fairness to the witness and in turn to the parties. On important evidentiary points, it is unsatisfactory to be left with an absence of an explanation by a witness as to subject matter first raised after the witness has completed his or her testimony. The rule of Browne v. Dunn, as it has come to be known, reflects a confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues (R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 76).

[25] This rule is rooted in the following considerations of fairness: fairness to the witness whose credibility is attacked, fairness to the party whose witness is impeached, and fairness to the trier of fact (Quansah, para. 77).

[26] In addition to considerations of fairness, the rule exists to afford the witness the opportunity to respond during cross-examination, ensures the orderly presentation of evidence, avoids scheduling problems associated with re-attendance, and lessens the risk that the trier of fact, especially a jury, may assign greater emphasis to evidence adduced later in trial proceedings than is or may be warranted (Quansah, para. 78).

[27] The rule in Browne v. Dunn is not a fixed rule. The extent of its application lies within the discretion of the trial judge and depends on the circumstances of each case. The cross-examination should confront the witness with matters of substance on which the party seeks to impeach the witness’ credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness’ story is not accepted (Quansah, para. 80-81).

[28] The Crown submits that the following is a breach of the rule in Browne v. Dunn and that I should put little to no weight on it:

• Mr. Kelkas testified that during the incident of anal intercourse with Ms. A, she did not want to have sex and that was fine by him; he pulled his pants down and she physically pulled his penis and tried to insert it inside of her anus;
• Mr. Kelkas further testified that during the second incident where they had vaginal intercourse, he got on top of her and they kissed. He put his penis inside of her vagina and she specifically said, “Be gentle.” He later added on cross-examination that he told her, “Just the tip”, in response to her request that he “be gentle.”

[29] The Crown chose not to recall Ms. A.

[30] The Defence argues that Ms. A’s version of events was put to her repeatedly during cross-examination. She testified that Mr. Kelkas pinned her down and forced his penis insider of her vagina. She attempted to block her vagina with her hand, and he threatened violence and told her to remove her hand. Had Ms. A been specifically asked about the two issues raised by the Crown, Ms. A’s responses would have been the same.

[31] I agree with the Defence that had Ms. A been specifically asked about the two issues raised by the Crown, her responses would likely have been the same. However, the Crown chose not to recall Ms. A therefore it is impossible to know for sure. Consequently, I do not find that there was a breach of the rule in Browne v. Dunn that leads me to put little to no weight on this evidence. I will review the evidence holistically.

[32] I turn to assess the witnesses’ evidence starting with Ms. G’s evidence. I find she gave her evidence in a forthright manner. She did not overstate the violence that she suffered at the hands of Mr. Kelkas or exaggerate the sexual assault. When testifying about the sexual assault itself, Ms. G often looked down.

[33] The Defence argues that there are issues of reliability and credibility with Ms. G’s evidence. For example,

• It was unclear whether she wanted to go upstairs to have more privacy;
• It was unclear whether she wanted to have sex with the accused or merely expressed it had to be with a condom;
• She was not upset when Mr. Kelkas ghosted her but was frustrated with his lies about his age and his daughter;
• She continued to see Mr. Kelkas and speak to him after the incident to obtain closure; and
• She did not explain what attempts she made or conversations that were had pertaining to closure.

[34] During cross-examination, Ms. G agreed that she continued to see Mr. Kelkas after the sexual assault. I find that Ms. G was not evasive during cross-examination and she was unshaken on the key elements of her evidence. Her evidence was clear that she agreed to go upstairs to her bedroom for privacy. When she was cross-examined about her willingness to have sex with Mr. Kelkas with a condom, the Defence referred her to her interview with police. The transcript on this line of questioning is unclear; it cannot be concluded that it supports the assertion Ms. G was willing to have sex with a condom. Her evidence at trial was that she was unwilling to have sex at all with Mr. Kelkas and the reason she asked him if he had a condom was to deter him from following though on his stated intention to have sex with her.

[35] Ms. G testified she felt violated and attended the hospital the day after the incident to conduct a rape kit and receive medications because Mr. Kelkas had not used a condom. The medical evidence provided regarding Ms. G does not provide much information other than to confirm that she attended the hospital.

[36] The submission by Defence that Ms. G continued to see and speak to Mr. Kelkas after the incident leads to an inference that she is less worthy of belief because of her behaviour after the incidents with him. Such an inference is clearly inappropriate. It would be a stereotypical assumption to find that she would not have spoken or seen Mr. Kelkas if he had actually sexually assaulted her. This line of reasoning is totally unacceptable. Victims of sexual assault react differently, as the Supreme Court of Canada held in D.D. Consequently, I do not put any weight on the fact that Ms. G continued to see him after the incident in question.

[37] Ms. G’s version of events was somewhat corroborated by other evidence. The initial email exchange between her and Mr. Kelkas corroborates her evidence of their early messaging regarding the room for rent. The Facebook message of February 2, 2015, corroborates her evidence that Mr. Kelkas contacted her after the incident between them.

[38] Overall, I find that the core of Ms. G’s evidence was unaffected in cross-examination and if there were any inconsistencies, they are not relevant to the core issues in this matter. I find that she provided sufficient details as to how the sexual assault took place. I accept Ms. G’s evidence and find it credible and reliable.

[39] I turn to Ms. A’s evidence. I find she gave her evidence in a forthright manner. She did not exaggerate the sexual assaults, even repeating on quite a few occasions that Mr. Kelkas was not able to fully penetrate her anus with his penis. When testifying about the sexual assaults, Ms. A cried and was visibly upset.

[40] The Defence submits that Ms. A failed to provide sufficient details about the sexual assaults; she often responded it was a “blur.” Ms. A was uncertain about when she learned Mr. Kelkas had a daughter and she was inconsistent about when she learned of his age. The Defence argues that, at times, Ms. A testified that she did as Mr. Kelkas told her because she felt sorry for him and at other times because she was intimidated by him. In addition, she only attended the hospital after she disclosed the sexual assault to her parents, three days after the second alleged sexual assault. Lastly, Ms. A had a motive to fabricate because if she lost her virginity to Mr. Kelkas, there would be issues with her family. Mr. Kelkas also ignored Ms. A after the second incident and she was angry.

[41] I disagree with the Defence and find that Ms. A provided sufficient detail about the two sexual assaults. She was able to describe the areas where they occurred, details of what occurred on both occasions in the car, and how Mr. Kelkas attempted to put his penis inside of her anus on more than one occasion. She also described that about 1 cm of his penis went inside of her anus and that he put his penis inside of her vagina during the second incident. A complainant need not recall every minute detail of a sexual assault that, in itself, is a very traumatic event.

[42] The medical report shows that Ms. A attended the hospital after she disclosed the sexual assault to her parents. Again, it is important to stress that not all victims of sexual assaults react the same way afterwards. She provided her bra and tank top to police for testing. It corroborates that she wiped off Mr. Kelkas’ semen from her stomach with her tank top. This was conceded by Mr. Kelkas.

[43] While it may be true that Ms. A described that she acted in certain ways because she felt sorry for Mr. Kelkas and at other times because she was intimidated by him, I do not find this evidence to be inconsistent or incongruous.

[44] With regards to Ms. A’s evidence about Mr. Kelkas lying about his age and his daughter, my review of the evidence leads me to conclude that there were not inconsistencies in her evidence on these issues. The fact remains that he lied about both of these issues to her.

[45] Furthermore, there was no evidence provided by the Defence or even questions posed during the cross-examination of Ms. A respecting her family’s reaction to the assault, their religious beliefs, or about her virginity and the possibility of Ms. A no longer wishing to remain a virgin. This is not a relevant consideration in this matter.

[46] Lastly, Ms. A testified that she was confused about the first time Mr. Kelkas sexually assaulted her and then she was confused and angry after she was sexually assaulted a second time. Based on the overall evidence in this trial, I do not find that this leads to a finding that she had reason to fabricate that Mr. Kelkas sexually assaulted her.

[47] Overall, I find that the core of Ms. A’s evidence was unaffected in cross-examination and the inconsistencies raised by the Defence are not relevant to the core issues in this matter. I find that she provided sufficient details as to how the sexual assaults took place. I accept Ms. A’s evidence and find that her evidence is a credible and reliable.

[48] I turn to Mr. Kelkas’ evidence, beginning with Ms. G. Mr. Kelkas and Ms. G both testified that they had discussions about having sex prior to the day in question. However, they were far apart about what they said. Mr. Kelkas testified that Ms. G agreed to have sexual intercourse if Mr. Kelkas wore a condom. Ms. G testified that she did not want to have sexual intercourse with him unless they were in a committed relationship. The evidence was clear that they were not in a committed relationship. Mr. Kelkas’ version of events regarding the beginning of each incident is similar to Ms. G’s. They ended up in her room and they kissed. However, from there, their versions of events diverge drastically. Mr. Kelkas testified Ms. G shut the door and turned off the lights. He said it was “pitch black in there, could not see a thing, she refused to open the lights or blinds.” Notwithstanding that it was pitch black, Ms. G was able to get the box of condoms, open it, take a condom out, unwrap it, and put it on Mr. Kelkas’ penis. I find it very difficult to believe that Ms. G would be able to do this in a room that Mr. Kelkas described as pitch black where he could not see a thing. He also testified that, for an unknown reason, when it was time to have sexual intercourse with Ms. G, a woman who he found attractive and who he brought to the store to buy condoms, he was “turned off by the whole situation, the sex lasted 5-10 minutes. I pretended to come because I was not into it.” He then got dressed, gave her a hug and kiss, and left. Mr. Kelkas was vigorously cross-examined about being “turned off” and it was clear that he was very flustered by this line of questioning. He simply could not explain why he was so “turned off” by Ms. G when it came time to have sexual intercourse. His evidence on this issue is incredible.

[49] With regards to the first incident with Ms. A, he testified that he joined her on the passenger seat of his car, and they made out. When he was reclined on the seat all the way back, Ms. A pulled his penis out of his pants and tried to insert it inside of her anus. During cross-examination, he testified that he was so far back in the seat that he could not reach Ms. A who was sitting in front of him. He was driving a standard size sedan. It seems improbable that he was reclined so far back that he could not reach her even if she was sitting on top of him.

[50] During cross-examination, Mr. Kelkas agreed that, while in the car, Ms. A told him that she did not want to have sexual intercourse. However, afterwards, he pulled his pants down, she took out his penis and tried to insert it inside her anus. Mr. Kelkas agreed that he did not feel the need to discuss whether she wanted to have sexual intercourse even after she told him she did not wish to do so in the car. He also agreed he should have had a conversation with Ms. A about what she was willing and unwilling to do sexually.

[51] As for the second incident with Ms. A, Mr. Kelkas testified that they went out and he parked in a parking lot. They were alone. One thing led to another and they moved to the back seat. He told her to take her boots off, they went to the back seat and gave each other oral sex. Up to this point, his evidence is similar to that of Ms. A’s evidence. His evidence was that when he put his penis inside of her vagina, Ms. A told him to “be gentle, please.” It is only during cross-examination that he agreed that he told Ms. A, “Just the tip.”

[52] Mr. Kelkas was also questioned about his size and his weight. Mr. Kelkas is tall and in good physical shape. When he met Ms. G, he weighed between 230-240 pounds. When he met Ms. A, he was competing in bodybuilding and weighed 270 pounds. When he was cross-examined about the fact that Ms. A was 5’ tall and weighed only 84 lbs at the time of the incidents, he was adamant that she weighed over 100 pounds.

[53] Mr. Kelkas also testified that after the incidents with Ms. G and Ms. A, he removed all of his social media and even changed his phone number.

[54] Mr. Kelkas does not have a good track record when it comes to lying. He agreed that he lied to both Ms. G and Ms. A about his age and to Ms. A about having a daughter. He also agreed during cross-examination that the two charges on his criminal record were charges of dishonesty. In addition, during cross examination, Mr. Kelkas agreed that he lied to the police officer during his police interview in June 2016. He told the police officer that he no longer had a Facebook account for the six months prior to his interview when, in fact, he had used his Facebook account to contact Ms. A during that time. At one point, Mr. Kelkas became very agitated with this line of questioning and asked to stop to speak to amicus, which was not permitted.

[55] The Defence argues that Mr. Kelkas’ was unshaken in cross-examination. As I have just described, I disagree. Mr. Kelkas was cross-examined about the contradictions and inconsistencies between the evidence provided in his police statement and the evidence presented during the trial. As noted above, I have rejected much of his evidence about what happened between him and the complainants.

[56] I find that, overall, Mr. Kelkas’ evidence about what occurred between him and both complainants is incredible. He tried to explain things away and contradicted himself on quite a few occasions. I therefore cannot rely on his evidence.

[57] In addition, during the trial, the Crown made an application to adduce similar fact evidence with respect to the counts that Mr. Kelkas was charged with. I granted the similar fact application and permitted the Crown to provide similar fact evidence since the test in R v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, had been met. More specifically, I found that Mr. Kelkas lied about his age, the existence of his daughter, and he used the words, “Just the tip” during encounters with both complainants.

[58] Ms. G testified that Mr. Kelkas lied about two issues: his age and having a daughter. She also testified that he told her, “Just the tip”, when he was sexually assaulting her and she asked him to stop. As I noted above, Ms. A also testified that Mr. Kelkas lied about his age and having a daughter and told her, “Just the tip”, when he was sexually assaulting her. These two complainants did not know each other and there was no evidence that they colluded together. It is highly improbable that two complainants who did not know each other would invent the use of the unique phrase, “Just the tip”, in the hope that it would corroborate their version of events.

[59] At times, the Defence suggested that since the complainants both consented to some sexual touching and in Ms. A’s case to oral sex just before the sexual intercourse, they consented to the sexual intercourse with Mr. Kelkas. Based on the evidence, Mr. Kelkas knew that both complainants did not want to have sexual intercourse with him. They said it before and during the sexual intercourse. Mr. Kelkas also agreed during cross-examination that he knew that Ms. A did not want to have sexual intercourse on the first occasion and the he should have questioned her about it. It is important to remind all that a person can revoke her/his consent to sexual activity at any time. In this case, both the evidence of both Ms. G and Ms. A supports they did not consent to having sexual intercourse, either vaginally or anally, with Mr. Kelkas.

[60] The Supreme Court began its decision in Barton with a powerful statement that is worth repeating:

We live in a time where myths, stereotypes, and sexual violence against women — particularly Indigenous women and sex workers — are tragically common. Our society has yet to come to grips with just how deep-rooted these issues truly are and just how devastating their consequences can be. Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society. While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can — and must — do better. (para. 1)

[61] With regards to all three counts of sexual assault (s. 271 of the Code), the elements of the offence are as follows:

• sexual assault is a general intent offence, thus proving a sexual intent is not required;
• sexual assault is an assault which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated;
• an assault includes the intentional application of force to a person, directly or indirectly; and
• the absence of consent is a required element.

[62] There is sufficient evidence in support of these offences. Ms. G and Ms. A described the sexual assaults on them by Mr. Kelkas. The sexual assaults consisted of Mr. Kelkas penetrating Ms. G’s vagina with his penis and on the first occasion, Mr. Kelkas penetrating Ms. A’s anus with his penis and on the second occasion, and Mr. Kelkas penetrating Ms. A’s vagina on the third occasion.

[63] Both Ms. G and Ms. A were clear in their testimony that these acts were unwanted by them and they did not consent. Consequently, the absence of consent has been established by the Crown.

[64] All of the acts are sexual in nature. Both complainants and Mr. Kelkas testified that there was sexual intercourse: Mr. Kelkas inserted his penis in the complainants’ vaginas and Ms. A’s anus.

[65] Both complainants testified about how they felt intimidated and scared when Mr. Kelkas sexually assaulted them. Mr. Kelkas was aggressive and threatening during the sexual assaults. He put his hand over Ms. G’s mouth and told her to shut up and that she was talking too much. When she tried to block his passage into her vagina, he forcefully pushed her hand aside. When Ms. A told Mr. Kelkas that she did not want to have sex with him, he got angry, lifted his hands up to her head, and told her to remove her hands or he would smack her. They both described that, afterwards, they were confused and angry. The sexual integrity of both complainants was clearly violated by Mr. Kelkas.

[66] I now turn to the three steps in W.(D.). First, based on my findings above, I do not believe Mr. Kelkas’ evidence about what occurred between him and Ms. G regarding the sexual intercourse with Ms. G, nor do I believe his evidence about what occurred between him and Ms. A regarding the two occasions of sexual intercourse. Second, based on my findings above, I do not believe Mr. Kelkas’ testimony and I am not left in reasonable doubt by it. Third, based on my findings above, although Mr. Kelkas’ evidence does not raise a reasonable doubt, on the basis of the evidence that I accept, I am convinced beyond a reasonable of Mr. Kelkas’ guilt with regards to Counts #1, 2 and 3. I do not accept Mr. Kelkas’ evidence about what occurred between him the complainants. I find the evidence of both Ms. G and Ms. A credible and reliable.

[67] Overall, based on all of the evidence as a whole, I am convinced beyond a reasonable doubt that Mr. Kelkas is guilty on all counts.

Conclusion

[68] Based on my findings regarding the overall evidence with regard to Count #1, 2 and 3 as per s. 271 (sexual assault) of the Code, I find the Crown has proved beyond a reasonable doubt that Mr. Kelkas intentionally applied force to Ms. G and Ms. A, they did not consent to the force that he applied, he knew that Ms. G and Ms. A did not consent to the force that he applied, and that the force that Mr. Kelkas applied took place in circumstances of a sexual nature. Consequently, I find Mr. Kelkas guilty of the three charges as per s. 271 of the Code.

Justice M. O’Bonsawin

Released March 4, 2020

COURT FILE NO.: CR-16-RD19615

DATE: 2020/03/04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

– and –

Hussein Ali Kelkas

reasons for decision

O’Bonsawin J.

Released: March 4, 2020