Court File and Parties

COURT FILE NO.: CR-18-10000591-0000 DATE: 20200422 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – HASSAN MOHAMED

Counsel: Mr. David Smith, for the Crown Mr. Benjamin Goldman, for Mr. Mohamed

HEARD: February 11, 12, 13 and 14, 2020

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way, pursuant to s. 486.4(1) of the Criminal Code of Canada.

Justice J. Copeland

REASONS FOR JUDGMENT

Introduction

[1] Hassan Mohamed is charged with four counts arising out of the same incident as follows: one count each of assault, choking with intent to commit an indictable offence, sexual assault, and unlawful confinement, contrary to ss. 266, 246(1), 271, and 279(2) of the Criminal Code.

[2] The basic allegations are as follows. The complainant was at a small party on the evening of August 22 into 23, 2017, where she and others were drinking. The complainant testified that she drank about 9 shots of liquor at the party, in mixed drinks. She testified that she recalls until about 1:30 or 2:00 a.m. (i.e., in the early morning hours of August 23), but from that point onward was at least blacked out (and given the passage of time, one would expect at some point asleep). Approximately 13 hours later, she came to consciousness. At that time, she was in a strange apartment, not the one where the party was, on a bed, in her bra and underwear, and a man was straddling her and choking her. The complainant testified that she was not sure how long the choking lasted, but she thought between 10 and 40 minutes, with the assailant at times using one hand, and at times using both hands. During this time, the complainant tried to fight off the assailant, and scratched at his face and neck. After the assault, she saw scratches on the assailant. The first three counts all relate to the same conduct, the choking.

[3] After the choking ended, the complainant went to leave the bedroom. She testified that, at that point, the assailant told her not to leave, stepped between her and the bedroom door, and said something to the effect that, she can’t leave yet, and she needed to calm down. I will not at this point get into the details of the rest of her time at the apartment.

[4] The central issue at trial was identification. There was a secondary issue about some of the elements of the sexual assault and unlawful confinement counts, in the event that I found that defendant’s identity as the perpetrator was proven beyond a reasonable doubt.

[5] Throughout my reasons, except where I specify otherwise, I will refer to the events alleged to constitute all four counts as “the assault”, since they all arise out of one event. I do so for purposes of readability, since, for the purpose of considering the central issue of identification, distinguishing between the counts is not necessary.

[6] The Prosecution’s case is based on primarily two bodies of evidence. This first is identification evidence from the complainant. As I will explain, there are very significant weaknesses in this evidence.

[7] The second body of evidence relied on by the Prosecution is samples taken from the complainant during a sexual assault examination approximately 24 hours (or perhaps a bit more) after the alleged assault. Two samples are of particular importance. Samples taken from under the complainant’s fingernails, and from the area of a bite mark by her right eye “match” the defendant’s DNA profile (I use the word “match” advisedly. I understand that the evidence is in fact evidence about probabilities. However, ultimately, in light of the defence evidence, the fact that it is the defendant’s DNA is not contested). The location of the defendant’s DNA as shown by these samples is consistent with the complainant’s description of the attack, and thus, is circumstantial evidence of identification.

[8] In addition, the Crown filed photos of injuries to the complainant. The photos clearly show redness around the complainant’s right eye, and a bite mark beside her right eye. Beyond that they may show some minor scratches or redness on her neck and arms, but this is not very clear.

[9] However, the defendant and two other people in attendance at the party testified, and gave evidence about an event at the party that would explain the finding of the defendant’s DNA in those locations. In very brief summary, the evidence from the defence witnesses involved an altercation where the complainant, who was very intoxicated, became angry and aggressive when she could not find her cell phone, and accused people at the party of taking it, used a racist epithet, and then lunged at the defendant. They fell to the ground. She scratched at his face and neck. He tried to push her off, and bit her face, and then the two other witnesses pulled them apart. Because the complainant was blacked out from approximately 2:00 a.m. onward, she has no memory and is unable to confirm or deny the account from the defence witnesses.

[10] In addition, a transcript of the evidence from the preliminary inquiry of a friend of the complainant who was at the party was admitted for the truth of its contents (on consent of both parties). The friend left the party before the complainant, but she testified to the complainant being intoxicated, and confirmed evidence about the complainant yelling and swearing at her and being rude to her when she (the friend) wanted to leave the party, before she left.

[11] The Crown argues that although there are some flaws in the complainant’s identification evidence, they are answered by the DNA evidence. The Crown argues that the court should find that the defence witnesses are not credible, and that their evidence is the product of collusion. I should add that Crown counsel quite fairly said that he does not take the position that the defence was concocted to respond to the disclosure (see for example: R. v. Peavoy; R. v. Johnson-Lee, 2018 ONCA 1012 at para. 58; R. v. John, 2016 ONCA 615 at paras. 60-61).

[12] The defence position is that the complainant’s identification evidence is unreliable because she picked out two different people in the photo line-up, because she testified that at the time that she viewed the line-up she did not have an image of the assailant in her mind, and because at trial she said she was not sure that the defendant was the assailant. In addition, the defence argues that the DNA findings are explained by the evidence of the defendant, and the other two defence witnesses from the party who testified. The defence argues that their evidence is credible, and should be believed, but in any event, that it should leave the court with a reasonable doubt.

[13] For reasons I will explain, I find that there are significant problems with the reliability of the complainant’s identification evidence identifying the defendant as the perpetrator of the assault.

[14] By contrast, the DNA evidence, is, on its face, very compelling circumstantial evidence. The DNA evidence is circumstantial evidence that the Appellant is the perpetrator. Absent some other explanation for how the defendant’s DNA ended up in the samples taken from under the complainant’s finger nails, and from the area of the bite mark near her right eye, it would be difficult to see how guilt would not be the only reasonable inference.

[15] However, the defence did present evidence. And in my view the defence evidence is sufficiently compelling that in the context of the evidence as a whole, it leaves me with a reasonable doubt. Indeed, I come very close to saying that I believe the defence evidence on the first branch of W.(D.), but not quite. I am left with a reasonable doubt under the second and third branches of the analysis in W.(D.).

Applicable Law

[16] The starting point in a criminal trial is that the defendant is presumed innocent. The Crown bears the burden to prove the charges beyond a reasonable doubt. The reasonable doubt standard applies to the assessment of credibility of evidence. Thus, the court must not approach the assessment of credibility as a contest of whose evidence the court believes more. To do so would be inconsistent with the Crown’s burden to prove the charges beyond a reasonable doubt.

[17] Rather, the court should follow the approach set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. If the court believes the defendant’s evidence, he must be found not guilty. If the court does not believe the defendant’s evidence, but it leaves the court with a reasonable doubt, he must be found not guilty. Finally, even if the defendant’s evidence does not leave the court with a reasonable doubt, the court may only find the defendant guilty if the court is persuaded that the Crown’s case proves the charges beyond a reasonable doubt. The principles in W.(D.) extend to other defence evidence beyond a defendant’s evidence.

[18] In assessing the evidence, the court should consider all of the evidence together, rather than assessing individual pieces of evidence in isolation. This proposition is important to bear in mind in engaging in the W.(D.) analysis. A trier of fact, in considering whether it believes the defence evidence, or is left in a reasonable doubt by the defence evidence, must not make that assessment by looking at the defence evidence in isolation. Rather, the assessment must be made by considering the defence evidence in the context of the whole of the evidence at trial. Although in my analysis I will refer to specific pieces of evidence and comment on them, I bear in mind to consider the evidence as a whole, and its cumulative effect.

[19] Pursuant to s. 274 of the Criminal Code, corroboration is not required in order to find an allegation of sexual assault proven beyond a reasonable doubt. The complainant’s evidence alone can be the basis to find an allegation of sexual assault (or another offence) proven, if found to be sufficiently credible and reliable to meet the reasonable doubt standard of proof. In that respect, sexual assault is like any other offence, in that corroboration is not required, but the presence or absence of corroborating evidence is a factor that a court may (but is not required to) consider in assessing the facts it finds and whether the charges are proven beyond a reasonable doubt.

[20] I structure my analysis as follows. I first consider the complainant’s identification evidence. I then consider the DNA evidence and the defence evidence. As I have noted above, I consider the evidence as a whole, but in order to structure the analysis, it is necessary to discuss portions of the evidence separately.

The Complainant’s identification evidence

[21] In this portion of the analysis, I focus on the complainant’s evidence identifying the defendant as the assailant. However, some context regarding her evidence about the allegations and events afterwards is necessary, as it is relevant to her opportunity to observe the assailant and her ability to recall details of events. I will return in my later in my assessment of the evidence to the complainant’s evidence about the attack and the events in the apartment after the attack.

[22] The complainant testified that she met up with her friend (the one whose evidence from the preliminary inquiry was filed on consent) prior to attending a party at the home of a friend of her friend Omar. It is common ground that Omar is the defendant’s friend who testified at trial, Mohamed Ahmed. The complainant testified that she had met Omar outside the building where she lived, as the two would smoke outside there. She believed him to be a tenant in the building. She had known Omar for around two months at the time of the party.

[23] The complainant testified that Omar had invited her to a party at a friend’s home, and told her if she wanted, she could bring a friend. Before going to the party, the complainant and her friend went to the Madison Pub and shared nachos and one drink. They then went to the party.

[24] The complainant testified that the party was in an apartment in the east end near Wellesley Street. The complainant could not remember the exact address, but recalled it as being closer to Yonge Street.

[25] When they arrived at the party, they were the only women there. The complainant was not sure of the exact number of people present at the party, but said it was not more than 10 people total, including her and her friend. She said the party was casual, people were playing music and drinking. She could not recall what time they arrived.

[26] The complainant testified that she drank hard liquor, she believed whisky, at the party. She testified that she drank it in a coffee mug, mixed with apple juice, 1/4 to 1/3 full. She recalled having about three of those. In cross-examination she agreed that this was about “nine shots” of whisky. She also agreed that because she later blacked out, she was unable to say if she drank more alcohol after she blacked out. In cross-examination, the complainant agreed (after refreshing her memory from her police statement) that she drank the alcohol that she remembered drinking between about 10 p.m. and 1:20 a.m.

[27] The complainant testified that mostly everyone was talking at the party, and seemed friendly. But she remembered two specific incidents. One was that at some point she was talking to someone about their common interest in martial arts. In her trial evidence she said she thought this conversation was with the defendant. At the time, she was taking Muay Thai classes. The person she was speaking to asked her to demonstrate throwing a punch. In cross-examination, she agreed that the person was saying, in effect, “show me your moves”. So, she punched him. After doing so, she realized that he had not meant for her to punch him. Her recollection was that she punched him in the shoulder area. In cross-examination, she agreed that the punch may have been to the face, but she was not certain. She said that he seemed surprised. She said, sorry. She said that he did not seem upset, just shocked. The complainant testified that at that point in the evening she was not sober, she was intoxicated. She testified that others at the party were around when this happened. They may have laughed, but she was not sure because her recollection was foggy.

[28] The second incident she remembered was that at some point someone told her to “shut up”. She thought they meant it playfully, so she said, “you shut up” back to them. Then the person said to her to watch how she speaks. She understood this as the person saying that she had been disrespectful. The complainant believed that this event happened on the balcony, and about five people were there at the time. She said that people were smoking and talking on the balcony. She said that it felt tense after the person told her to watch how she spoke. She believed that she apologized. But she was not sure of her memory of this event. She said that at the time she was not sober, but not stumbling. In cross-examination, the complainant agreed that she could not remember the context in which the other person first said, “shut up”.

[29] The complainant also testified that she asked her friend to leave early from the party, but her friend did not want to leave. The complainant did not recall her friend leaving the party. She did not recall any disagreement with her friend at the party. She did not recall any disagreements with anyone besides the two described above.

[30] The complainant’s last memory at the party was being on the balcony eating food that her friend had ordered. She did not recall anything after that until the next day. The complainant believed her lack of memory started around 1:30 or 2:00 a.m. The complainant agreed in cross-examination that prior to the night at issue, there were two or three other occasions that she was aware of where she had blacked out from drinking alcohol. She agreed that when she blacks out from drinking alcohol, she cannot remember what happened during the blackout. Sometimes she may have bits and pieces of memory. She has had the experience of having a blackout and later being told by someone about things that happened that she does not recall.

[31] The complainant’s next memory was being at a different apartment, on a bed, being choked. She remembered coming to consciousness and being choked. She could not say if she was asleep before that or blacked out (or some combination of the two). In cross-examination, the complainant agreed that she had no memory of how she left the party, or how she got to the other apartment. She had no memory of anything between approximately 1:30 or 2:00 a.m. at the party, and then coming to in the different apartment at around 3:00 p.m. the next day (i.e. about 13 hours later).

[32] It was daylight. She was wearing her bra and underwear. She could not recall how she got undressed. A male was straddling her and choking her (as I will describe below, she made an in court identification that this male was the defendant). The male was dressed in casual clothes, like a T-shirt and jeans or sweatpants.

[33] The complainant testified that at times the assailant was choking her with both hands, at times with one hand. It was not continuous. She was struggling. The choking would start and stop. She could not say how long the choking went on for. It felt long to her. She estimated that it lasted between 10 and 40 minutes. But she was not sure. She remembered that at times she had trouble breathing, she felt panicked and very afraid. The complainant believed that she scratched the assailant during the struggle. The complainant testified that at some point during the struggle, someone else entered the room and said it was too loud, and it need to stop. She testified that the assailant said, it was fine, and to leave.

[34] Sometime after that person left the room, the struggle “de-escalated”. The complainant could not recall exactly how it stopped. After the struggle “de-escalated”, the complainant recalled that they both looked at their injuries, and the assailant had deep scratches on his neck. The assailant said that he bit her face (the complainant did not actually recall the act of being bitten). The assailant then started to show remorse, and said he had a mother and sisters, and he would be upset if someone did something like this to them.

[35] The complainant remembered asking to leave, and the assailant telling her she should not leave yet. He said something to her like, that she can’t leave yet, she needs to calm down. He stood between her and the bedroom door. He offered her a cigarette. She testified that they had a cigarette on the balcony. She could not recall if the apology was before or after the cigarette. He offered her some money for a cab, and to replace her jeans, which the zipper or button had been broken on. He gave her some sweatpants to wear. He also offered her a trip to some type of entertainment place like the zoo or a fair (she could not recall the details). He also offered to buy her new shoes. The complainant accepted $40 to replace the jeans and for a cab.

[36] In cross-examination, the complainant agreed that the assailant did not physically stop her from leaving or put his hands on her when he stood between her and the bedroom door. She could not recall how close he was to the door, but thought that he was maybe one foot from the door.

[37] The complainant said she did not make further attempts to leave because she did not want to escalate things. At one point, she and the assailant went down in the elevator to the parking garage to get her purse from a car. She could not recall details about the car. She was aware that a cab had been called for her at this point, but they missed that cab. They came back upstairs to the apartment. The assailant called her a second cab.

[38] He walked her downstairs. She could not recall if he came to the door of the cab. Once she was in the cab, she asked the driver where she was. At first the driver said he was not sure. When she asked again, he said, near Liberty Village.

[39] The complainant was not sure how long she was at the Liberty Village apartment after she regained consciousness. She testified in cross-examination that she left the Liberty Village apartment around 5:30 p.m., and she believes she had regained consciousness around 3:00 p.m. In cross-examination she testified that she did not have a great idea of the passage of time at the apartment after she regained consciousness. She testified in cross-examination that fell asleep once or twice at the apartment after she had regained consciousness. She at one point described this as taking a “nap”.

[40] The complainant also gave fairly detailed evidence in cross-examination regarding the location of the Liberty Village apartment building. She did not have the street address, but was able to describe in some detail its location in relation to BMO field and the highway (which I take to be the Gardner Expressway), from having been on the balcony. She also gave evidence regarding the building’s location in relation to a parkette or courtyard, and the internal road within the complex on the other side. However, no evidence was presented at trial of any attempt to locate the building and see if any evidence could be obtained there.

[41] The complainant testified that as she went home in the taxi, she messaged a friend (not the friend who had been at the party). The friend told her to go to the hospital, and agreed to meet her at St. Mike’s Hospital. They met there. The complainant wanted to get her eye looked at. She testified that she waited at St. Mike’s for about five hours, but then decided to go home. She went back to St. Mike’s the next day. When she explained the situation, it was suggested that she have a sexual assault examination. The sexual assault examination was done that day, and the police were contacted.

[42] The offences are alleged to have occurred on August 23, 2017. Much of the evidence about the identification process was tendered by an agreed statement of fact. The complainant was shown a photo line-up on October 19, 2017, approximately two months after the attack. [1] She was shown a photo line-up of twelve photos, one at a time, sequentially. The complainant was asked to sign and date each photo, and indicate “yes” or “no” to whether the individual in the photo was involved in the alleged assault.

[43] The complainant selected two photos from the line-up as showing the assailant: photo #2, and photo #10. Photo #10 was a photo of the defendant. Photo #2 was another man (not identified by name during the trial). I note that the defence does not allege that the man in photo #2 is an “other suspect”. Rather, the defence relies on the fact that the complainant picked out two people, when there was only one assailant as rendering her identification of the defendant worthless.

[44] In examination in chief, the complainant identified the defendant as the assailant. I will refer to this as a “dock identification”, although the defendant was sitting at counsel table next to his lawyer. The effect is the same, and it is worth very little in terms of probative value. The defendant was sitting in the courtroom in the location where one would expect a defendant to be, next to his lawyer. I find that the dock identification adds nothing to the photo line-up identification evidence.

[45] In cross-examination, the complainant agreed that she was not certain that the person she picked in photo #10 (the defendant) was the person who assaulted her, and agreed that she may have only seen that person at the party, and not seem him at the Liberty Village apartment. When asked about the photo line-up on October 19, 2017, she agreed that she had picked two different people out of the line-up as her assailant. She agreed that when she picked photo #2 (not the defendant), she meant that that person could be the person who assaulted her. She also agreed that when the picked photo #10 (the defendant), she also meant that that person could have been the person who assaulted her. She also testified that at the time she viewed the photo line-up, she did not have a clear image of the person who assaulted her in her mind.

[46] In re-examination, when asked about her answer in cross-examination that she may have only seen the person in photo #10 (the defendant) at the party, the complainant said it was unlikely, but possible. She said it had been a long time, and that she wasn’t in the clearest state of mind at the Liberty Village apartment. She was just trying to be safe and leave. She was “pretty sure”, but not certain, that the defendant was at the Liberty Village apartment.

[47] Unusually, for a case where the Crown relies in part on eyewitness identification evidence, the Crown did not lead evidence from the complainant about the description she gave to police of the assailant. Such evidence would have been admissible for two purposes both of which are relevant to the assessment of the reliability and probative value of the complainant’s eyewitness identification evidence: first, in relation to whether the defendant resembled or was different from the complainant’s initial description of the perpetrator; and second in order to assess the complainant’s ability to observe and her recollection of the perpetrator: R. v. Tat.

[48] However, in cross-examination the defence led from the complainant the description she gave to police of the assailant, which was as follows. He gave his name as “Shmoe”. He was her height or shorter (she testified that she is 5’8” tall); thicker build, but not fat; skin tone not very dark, but darker than her (based on my observations in court, and also on the photos in Exhibit #2, I note that the complainant is a very light skinned black woman); short hair or balding; she believed he had facial hair; African features; and she could not recall if he had any tattoos.

[49] As I will explain below, there was a very limited evidentiary record at trial as to whether the defendant was similar to or dissimilar to this description at the time of the alleged offences.

[50] I caution myself with respect to a number of issues in relation to the complainant’s identification evidence, well-established in the case law. Identification evidence is evidence which the courts must exercise caution in relying on. Erroneous identifications have been the cause of many wrongful convictions. Honest identification witnesses can be mistaken. A witness who feels certain of the identification he or she is making can be mistaken. The level of a witness’ certainty about an identification does not increase reliability. As a result, in assessing identification evidence, a court must go beyond considering the honesty of a witness, and must also consider all the circumstances in which the identification was made, in order to assess whether the identification evidence is sufficiently reliable to prove the charge beyond a reasonable doubt.

[51] Some of the factors a court may consider in assessing the reliability of identification evidence include: the witness’ opportunity to observe at the time of the alleged offence (duration of the observation, light conditions, whether there was a face covering, etc.); whether the witness has prior knowledge of the person being identified – although with the caveat that even a person who knows someone can make a mistake about identification; the time lapse between the event and the identification; the presence of distinctive features and the amount of detail in the description provided by the witness; the presence or absence of corroborative evidence; the possibility of contamination by improper identification procedures. This is not an exhaustive list.

[52] One positive factor in terms of reliability of the complainant’s identification evidence is that it appears that she had a fair bit of time to see her assailant at the Liberty Village apartment. She was there for in the range of two hours, on her evidence; although not awake the entire time. This is not a “fleeting glance” case. There do not appear to be issues about poor lighting or distance.

[53] However, there are a number of features about the complainant’s identification evidence that give me serious concerns about its reliability. In light of these concerns, which I will explain, I find that her identification evidence is very unreliable. I give it very minimal probative value.

[54] Crown counsel argues that the DNA evidence, in effect, cures and problems with the identification. I disagree. Crown counsel also argues that when the complainant said in cross-examination that she was not sure if the defendant was the assailant, it was just her being a fair witness. While I accept that in general, as a witness, the complainant was trying to be fair, in the context of all of the evidence relating to the identification process, her evidence that she was not sure if the defendant was her assailant was a greater issue than just her trying to be fair.

[55] The complainant’s evidence was clear that there was one assailant. Although she said that a roommate entered the room at one point and told them to keep the noise down, there was no suggestion that the roommate was involved in the assault in any way. In my view, the fact that in the October 19, 2017 photo line-up she picked out two people means she was not sure who the assailant was. If she had been certain that the defendant was her assailant, she would not have also picked someone else out.

[56] In cross-examination, the complainant testified that at the time she viewed the photo line-up, she no longer had an image of the assailant in her mind. The time between an event and a line-up is recognized in the case law a relevant factor in assessing the reliability of identification evidence. I want to be clear that I am not suggesting that any line-up conducted after a two month gap from the event is not reliable. Rather, the evidence of the complainant picking out two different people, and then testifying at trial that at the time she did the line-up she did not have an image of the assailant in her mind speaks to the unreliability of the identification from the photo line-up. On the particular facts of this case, the delay between the event and the photo line-up provides some explanation for why the complainant was not certain about the identification. I note as well that the context, which is undisputed, that the complainant had seen the defendant earlier in the evening at the party the night before the assault, creates the risk that, with the complainant being unsure as to the identify of her attacker, not having an image of his face in her mind, she picked the photo of the defendant because she had seen him at the party.

[57] Finally, I come to the complainant’s evidence in cross-examination that she was not certain that the defendant was the assailant. In the context I have just outlined, I reject Crown counsel’s submission that I should treat this just as the complainant being a fair witness. Rather, I find that the complainant is not sure if the defendant was, in fact, the assailant. This is the only reasonable reading of this evidence, where she picked two people out of the photo line-up, and also testified in cross-examination that at the time she viewed the line-up, she did not have an image in her mind of the assailant’s face. I note that it is well-established in the case law that the fact that a witness is certain about the accuracy of their identification of someone is not a factor that increases the reliability of the identification. In this case, where the witness says she is not certain, in my view I should take that lack of certainty at face value.

[58] Before leaving the issue of the complainant’s identification evidence, I want to comment briefly on the issue of evidence of the complainant’s description of the assailant, and whether it was similar or dissimilar to the defendant’s appearance at the time. As I have noted above, the evidence on this issue was unsatisfactory.

[59] The description that the complainant gave of her assailant was reasonably detailed. Where the evidence at trial was unsatisfactory was on the issue of whether or not the defendant resembled the description in August 2017. Mainly there is just a lack of evidence (i.e., neither the Crown nor the defence explored in their examinations the defendant’s appearance in August 2017). But to some extent, it appears there are differences between the defendant and the complainant’s description of the assailant.

[60] In terms of lack of evidence, there was no evidence about whether the defendant had facial hair or not in August 2017. There was no direct evidence of the defendant’s height. The closest there was, was evidence from the defendant that Skinny was “a bit taller than him”, and Skinny was 6’ or 6’1”. I note that I did not get a good sense of the defendant’s height in the courtroom during the trial, so I am not relying on any observation of my own in relation to his height. This brings me to differences. The defendant’s evidence that Skinny was 6’ or 6’1” and a bit taller than the defendant suggests that the defendant is appreciably taller than the height that the complainant provided for the height of her assailant (5’8” or shorter).

[61] Further, the complainant’s description of the skin colour of her assailant was that his skin tone was not very dark, but darker than her. As I have noted above, the complainant is a very light skinned black woman. Based on my observations in court, along the spectrum of brown and black skin colours, the defendant is a relatively dark skinned man. I appreciate that this is a somewhat subjective description (both on my part and on the complainant’s), but it is a factor that I take into account, particularly because in my observation, the photo of the defendant in the photo line-up (photo #10), because of the lighting, makes him appear lighter skinned in the photo than he does in person.

[62] I do not give these factors about lack of evidence of similarity between the complainant’s description of the assailant, and the defendant, and differences between the complainant’s description of the assailant and the defendant, a significant amount of weight, but I do give them some weight. Where the Crown seeks to rely on a complainant’s eyewitness identification of the defendant as the assailant, it is the Crown’s burden to show that the identification is reliable. Given the gaps in the evidence on this issue, I am not satisfied that the defendant’s appearance at the time of the alleged offences was similar to the description of the assailant provided by the complainant to police. Indeed, as I have noted, there appear to be some differences.

[63] Thus, I find that the identification by the complainant of the defendant as the assailant is very unreliable evidence, and of very low probative value. Standing alone, in my view, it certainly would not support a conviction. And I find that it adds very little, if anything, to the DNA evidence, given the problems I have outlined above, and the fact that the complainant had seen the defendant at the party on the evening prior to the assault, and could just be recognizing his face from that.

The DNA Evidence and the Defence evidence

(i) The DNA evidence

[64] On consent, I qualified Alison Morris from the CFS to give evidence on body fluid identification, and DNA analysis and interpretation, including deposit, transfer, and persistence of bodily fluids and DNA. Ms Morris is a Forensic Scientist in the Biology Section at CFS. The three reports from CFS were tendered as exhibits, on consent, and Ms Morris explained her findings.

[65] There were two agreed statements of fact in relation to the collection, timing of collection, and continuity of the samples taken from the complainant’s body that were the subject of the DNA analysis.

[66] I will focus in particular on the findings regarding the samples taken from under the complainant’s finger nails, and from the area of a bite mark near her right eye. Ms Morris also gave evidence about samples taken from other locations on the complainant’s body or clothing; however, her evidence about those samples was such that they could be explained by more than one explanation, including the possibility of the substance found coming from the complaint.

[67] Ms Morris testified that based on STR DNA testing, comparing the probability that the samples taken from under the right hand fingernails of the complainant were from someone other than the defendant, selected at random, to the probability that the samples came from the defendant, it was greater than 1 trillion times more likely that the source was the defendant. Ms Morris described this as an “extremely strong” likelihood ration. That is, it is very likely that the DNA under the complainant’s right fingernails is the defendant’s.

[68] Ms Morris testified that based on DNA testing, comparing the probability that the samples taken from under the left hand fingernails of the complainant being from someone other than the defendant, selected at random, to the probability that the samples came from the defendant, it was 1 in 2,500 times more likely that the source was the defendant. That is, it is likely that the DNA under the complainant’s left fingernails is the defendant’s (but not as likely as the findings regarding the right hand).

[69] Ms Morris also testified that because the samples were taken at least 24 hours after the time of the alleged assault, there is a strong likelihood that the samples under the fingernails came from a fluid, as opposed to something drier, like skin. This is because a skin sample would only be likely to persist under the complainant’s finger nails for up to 12 hours, whereas a liquid sample would likely still persist after 24 hours. Ms Morris could not give an opinion as to what type of fluid the sample came from, but blood would be one example – for example if the complainant scratched the person and drew blood.

[70] Regarding the sample from the complainant’s right cheek, where there was a bite mark, Ms Morris testified that comparing the probability that the DNA found there was from someone other than the defendant, selected at random, to the probability that the sample was from the defendant, it was 1 in 1,660 times more likely that the source was the defendant. She could not say if this profile more likely came from bodily fluid versus skin. She testified that if someone bit someone on the cheek, saliva would likely be deposited.

[71] The samples from under the complainant’s right cheek and left hand were tested using Y chromosome DNA. This type of DNA testing is less discerning or discriminating than regular DNA testing (the type used on the right hand finger nail samples), so the probability numbers it yields are not nearly as high for the other type of DNA testing. This happens because all males in a family line will have the same Y chromosome DNA.

[72] I will state what is probably obvious, the DNA findings are consistent with the complainant’s description of the assault. Absent some other explanation for the defendant’s DNA being under her fingernails, and on her skin in the area of the bite mark by her right eye, the DNA findings are extremely probative circumstantial evidence identifying the defendant as the assailant.

[73] This brings me to the defence evidence. I make some preliminary observations about each witness’ evidence as I summarize it, and then consider it as a whole, with the rest of the evidence.

(ii) Defendant’s evidence

[74] The defendant testified that he attended a party at the apartment of “Hayden” in mid-late August 2017, and the complainant also attended the party (the defendant did not know Hayden’s last name, but it is not in dispute that it was Hayden Hume, who testified for the defence). The defendant was not certain of Mr. Hume’s address, but believed it near Wellesley and either Parliament or Sherbourne.

[75] The defendant testified that he had been to Mr. Hume’s apartment maybe five times prior to that night. He had met Mr. Hume through his friend Ahmed (Mohamed Ahmed, who testified for the defence. The defendant testified that Ahmed also goes by Omar). The defendant had known Mr. Ahmed since they were teenagers, and they were friends.

[76] In 2017, the defendant worked at a restaurant near Jane and Lawrence. He lived at an address on Robinson Avenue, in the east end of Toronto.

[77] When the defendant was not working, once or twice a month, he would see Mr. Ahmed. They would hang out, play video games, drink, and smoke marijuana. Sometimes they did this at Mr. Hume’s apartment. The five prior visits that the defendant had to Mr. Hume’s apartment were events like that. It was usually the same crowd, Mr. Ahmed, Mr. Hume, the defendant, and two other friends, “Jay” and “Skinny” (the latter two were both nicknames). The defendant never went to Mr. Hume’s apartment without Mr. Ahmed.

[78] On the day at issue, the defendant went over to Mr. Hume’s apartment sometime between 3:00 and 6:00 p.m. He was not sure of the exact time When he got there Mr. Ahmed and Mr. Hume were there. The defendant believed that Skinny was also there. At some point Jay was there was well. They were playing videogames, either 2K basketball or FIFA. The defendant brought a bottle of liquor when he came over. He believed that it was a 40 ounce bottle of Crown Royal. He could not recall if the others were drinking some other kind of alcohol when he arrived. Once he got there, everyone was drinking. They also smoked marijuana, but no other drugs were consumed.

[79] At some point, Mr. Ahmed said some women were coming over. The defendant thought that this was a couple of hours after he arrived, but he was not sure. It was probably another hour after Mr. Ahmed said that the women were coming over that they arrived. The defendant had never met either woman before (there is no dispute that one was the complainant, and the other was her friend whose evidence from the preliminary inquiry was admitted at trial on consent). The defendant thought that he had drunk two or three shots of alcohol between when he arrived and when the women arrived, but he was not sure. He was not feeling intoxicated. In cross-examination, the defendant said he thought it was four to five hours between when he arrived and when the women arrived.

[80] The defendant testified that he was sharing the bottle of alcohol he had brought. The alcohol was in the kitchen, and people could serve themselves. He was drinking Crown Royal. He was not watching how much others were drinking.

[81] When the women arrived, the group stopped playing video games, and the type of music playing was changed from hip hop to dance music. Everyone was talking and having a good time. In cross-examination, the defendant agreed that everyone continued drinking after the women arrived. People also smoked marijuana both before and after the women arrived. He agreed that he was high when the women arrived, and probably others at the party were too.

[82] At one point, while he was talking to the complainant, he offered her a cigarette, which they had to go to the balcony to smoke. Mr. Ahmed and Skinny were talking. As the defendant and the complainant passed by them, he heard the complainant tell them to “shut up”, for no apparent reason as far as the defendant could tell. He said to her, that’s unnecessary, no-one was talking to you, it’s rude. He could not recall what Mr. Ahmed and Skinny had been talking about when that happened. The complainant apologized after that. The defendant testified that that event changed the atmosphere a bit, but not really, and it calmed down and went back to normal.

[83] In cross-examination, Crown counsel suggested to the defendant that maybe Skinny or Mr. Ahmed said something to the complainant when she told them to shut up that caused her to say that. The defendant responded that he was right next to the complainant, so he would have heard if they had said something first, like telling her to shut up. I pause to note that I find this explanation reasonable and believable.

[84] The defendant was aware that the complainant was drinking alcohol, but not paying attention to how much she drank. He said everyone was drinking. At some point, someone ordered a bottle of vodka from a dial-a-bottle service.

[85] The defendant also testified that there was a time during the party when the complainant was talking about martial arts or a course she was taking. He could not recall the details about the course. The group of people were standing around, and the complainant was talking about martial arts, and a few of them were saying, let’s see it. The complainant demonstrated on Skinny. She took him to the floor and showed them she could strike. The defendant could not describe in detail the move she did, but he believed it was a trip. The defendant testified that Skinny took this as a joke, and did not take offence. The defendant had not expected the complainant to do what she did when they asked her to show her moves, but he thought it was funny. He said that incident did not change the atmosphere at the party.

[86] He also recalled that the complainant and her friend got into an argument at some point. He heard some yelling, but he testified that he could not really remember what it was about. His impression was that the friend wanted to leave, and that the complainant wanted to stay. But he could not specifically recall what was said. The friend left after that. Mr. Ahmed walked her out, and came back soon after.

[87] The defendant testified that an hour or two after the friend left, the complainant lost her cell phone. His guess was that this was between 4:00 and 6:00 a.m. The complainant was yelling about losing her phone. She said something like, “somebody stole my fucking phone”. Mr. Hume helped her to look for it. They could not find it. As that was going on, the complainant said, “You niggers stole my phone”.

[88] Crown counsel suggested to the defendant in cross-examination that maybe the complainant was using the “N-word” when she could not find her phone in a way that was not meant to be insulting, as is sometimes done in comedy or in hip hop. The defendant explained clearly why he did not think that this was the case. In particular, he testified that given the context of what he said she said, “you niggers stole my phone”, he took it as meant to be insulting. Also, when Crown counsel suggested to him that she used the “N-word” in the singular, and not the plural, the defendant replied, “it sounded plural to me”. I found the defendant’s evidence on this issue to be consistent, and carefully explained.

[89] The defendant testified that he got a little agitated when the complainant said this, and said, “nobody stole your phone, bitch”. She then spat in the defendant’s face. She hit him. He slapped her. She lunged at him. He moved backwards, and slipped on something, and fell to the floor. The complainant got on top of him, and was scratching him on his face and neck. He described her position as her legs being on his legs, her chest being on his chest (i.e., as I understood it, she was lying on top of him). In cross-examination he agreed that she was lying on top of him. He was trying to push her off. She would not let go. He hit her. She was reaching for his eyes. He bit her on the face. In cross-examination, the defendant was unable to recall if he slapped the complainant or punched her after she spat on him. He said it happened so fast, and was more out of reaction.

[90] It was less than one minute that she was on top of him. Then Mr. Ahmed got her off of him.

[91] After Mr. Ahmed pulled the complainant off of the defendant, she went to the balcony. The defendant went to the washroom. He saw scratches on his face and neck. There were also scratches on his hands. The scratches were deep enough to draw blood. He washed his face. He smoked a cigarette in the hall by the washroom.

[92] He then apologized to Mr. Hume, Mr. Ahmed, and the complainant. He testified that he apologized because he felt that he had participated in something he should not have done. Then he left the party, about 10 to 15 minutes after the end of the altercation. The complainant was still at the party when he left. His car was parked nearby. He drove to a McDonald’s on the Danforth, and then home to Robinson Avenue. When he got home, he ate the McDonald’s food, and went to sleep, and slept until the afternoon.

[93] In cross-examination the defendant was asked about the fact that he drove home, despite having consumed alcohol and marijuana. He responded that the marijuana had worn off by then, and the altercation had sobered him up.

[94] The defendant testified that he did not have any further contact with the complainant. He did not go to Liberty Village that evening or in the next 24 hours. He testified that he does not have an apartment in Liberty Village.

[95] The defendant testified that he has never gone by the nickname Shmoe, and that he did not tell the complainant that his nickname was Shmoe.

[96] The defendant was at some point contacted by police, I gather months after the alleged offences. He surrendered himself to police with the assistance of legal counsel on November 9, 2017.

[97] In cross-examination, the defendant testified that he had not been to Mr. Hume’s apartment after the incident. He agreed that Mr. Ahmed was still his friend. But he said he sees him less often now, because the he (the defendant) got married, and Mr. Ahmed moved out west.

[98] In cross-examination, the defendant agreed that he had discussed the incident with Mr. Ahmed after the fact, and described it as probably more just Mr. Ahmed “poking fun at” him. He agreed that at some point after he was charged, he told Mr. Ahmed he might need him to come and testify. He also asked Mr. Ahmed to contact Mr. Hume at some point about testifying. He testified that he did not know how to get hold of either Skinny or Jay.

[99] Overall, I found the defendant to be very consistent in his evidence.

[100] Although I do not put significant weight on demeanour, I note that in terms of the substance of his evidence, the defendant appeared careful in his evidence about saying what he remembered, and when he did not remember something, saying so.

(iii) The Evidence of Mohamed Ahmed

[101] Mohamed Ahmed is a friend of the defendant’s. However, he moved to Alberta sometime in late 2017, so they do not see each other frequently now. But both Mr. Ahmed and the defendant testified that they had been friends for many years.

[102] Mr. Ahmed testified that in the summer of 2017, he would see the defendant from time to time to play basketball, videogames, or go to the gym sometimes. They would play videogames at various friends’ homes, including Hayden Hume’s home. They would play videogames, listen to music, and drink. Others would also smoke marijuana, but Mr. Ahmed testified that he does not smoke marijuana.

[103] Mr. Ahmed testified about the evening that the complainant and her friend came to Mr. Hume’s apartment. Mr. Ahmed arrived at 3:00 or 4:00 p.m. Skinny was already there, as well as Mr. Hume. They played videogames, including FIFA, and had a few drinks. At some point the defendant called Mr. Ahmed, and asked where he was. Mr. Ahmed told him he was at Mr. Hume’s apartment. The defendant came over, arriving at 5:00 or 6:00 p.m. The defendant brought a bottle of liquor with him. Mr. Ahmed thought it was Crown Royal. Everyone was drinking it.

[104] Mr. Ahmed knew the complainant because the complainant lived in his sister’s building. They had met smoking outside the building. They had exchanged phone numbers. He had been out with her previous to the evening at issue, for drinks and food.

[105] On the evening at issue, the complainant called Mr. Ahmed and asked what he was doing. He said he was having drinks with a few friends. The complainant asked if she could come over. Mr. Ahmed asked Mr. Hume if that was OK, and then he told the complainant she could come over. The complainant and her friend came over at some point.

[106] Once the women arrived, the people present were the two women, Mr. Hume, Mr. Ahmed, the defendant, and Skinny. People were hanging out. Music was playing. And some people were playing video games. Mr. Ahmed was drinking. He saw others drinking. People were drinking vodka and also Crown Royal. At some point Jay arrived, but Mr. Ahmed did not specify when.

[107] At some point, the complainant and Skinny were play wrestling. They had had a few drinks. Mr. Ahmed told them to stop it. He did not want it to escalate. He could not remember how it started. He just remembered the complainant saying something like, “do you want to see my moves?”, and Skinny grabbing on and saying, “no”. Mr. Ahmed said that lasted about five minutes. He said they seemed okay after, and did not seem angry. In cross-examination, he agreed that it was just playfighting. He agreed that it was fair to say that at some point Skinny appeared to have had enough, and maybe the complainant did not read the signal right.

[108] Mr. Ahmed also recalled that sometime after that, the complainant and her friend had an argument. The friend wanted to go home because she had to work the next day. The complainant was a bit drunk, and wanted her friend to stay. The complainant started swearing at her friend, and appeared angry. Mr. Ahmed testified that he told the complainant to be nice to her friend, but that this did not seem to help. The friend ended up leaving. He walked the friend down to the lobby to get an Uber, and then went back upstairs. Mr. Ahmed did not know what time the friend left, but said it was after midnight.

[109] After that Skinny and Jay left. Still at the party were Mr. Hume, the defendant, the complainant, and Mr. Ahmed.

[110] Mr. Ahmed was on the balcony smoking a cigarette when he heard a commotion in the living room. When he heard the commotion, he came inside. He saw the defendant and the complainant on the ground. He did not see how it started. The defendant was lying on the floor, and the complainant was on top of him, sitting. They were fighting. She had her hands on his face. He did not recall what her hands were doing. He recalled the defendant yelling, “get her off me”. In cross-examination he said what the defendant said was, “get this bitch off me”. Mr. Ahmed picked up the complainant. Mr. Hume picked up the defendant.

[111] In cross-examination, Mr. Ahmed agreed that he did not at any point assist the complainant with finding a lost phone. But he heard the complainant say something about a lost phone.

[112] Mr. Ahmed testified that when he got the complainant up, he saw some kind of mark on her face. He was not sure on which side. He stayed with the complainant, and asked her what happened. He did not see what the defendant and Mr. Hume did after he picked up the complainant. He saw that the defendant had scratches on his face, and some blood, and on his face and neck. He remembered that the defendant went into the washroom. The defendant was in the washroom for five to ten minutes.

[113] When the defendant came out of the washroom, he had a bunch of scratches on him, but the blood was gone. The defendant then apologized to Mr. Hume about what happened. Mr. Ahmed saw the defendant have some interaction with the complainant. The defendant left three or four minutes after he came out of the washroom. The defendant left alone.

[114] The complainant was still at the apartment, as was Mr. Hume. Mr. Ahmed testified that he, Mr. Hume, and the complainant had more drinks, and then he fell asleep on the couch. He was not sure what time he fell asleep. When he woke up the sun was up. Mr. Hume was still in the apartment, but the complainant was not.

[115] Mr. Ahmed testified that in the summer of 2017, the defendant lived near Danforth and Pharmacy. He was not aware of the defendant having access to any other apartment, or to any apartment in Liberty Village. In the summer of 2017, Mr. Ahmed lived at his mother’s home near Adelaide and Berkley.

[116] Mr. Ahmed testified that at times he has heard the defendant called by the nickname “FB” for “Fat Boy”. But he has never heard anyone refer to the defendant as “Shmoe”.

[117] In cross-examination, Mr. Ahmed said that he had contact with the complainant after the party – they spoke (he was not asked when that contact was). He said the complainant did not say anything to him about having gone to the police.

[118] In cross-examination Mr. Ahmed agreed that at some point he was aware that the defendant was charged with sexual assault for something relating to the complainant. He did not know the exact charges, but he knew it related to the complainant. He did not recall when he learned of the defendant being charged.

[119] In cross-examination Mr. Ahmed said that at some point the defendant had called him and said he (Mr. Ahmed) would have to come to court. Mr. Ahmed asked why. The defendant said he could not discuss it with Mr. Ahmed, and Mr. Ahmed would have to talk to his lawyer. He said this was about one year ago.

[120] There were minor differences between the evidence of the defendant and Mr. Ahmed on issues such as who brought what alcohol when. I do not see these differences as significant in terms of credibility.

[121] A somewhat more significant difference is that in describing the position of the complainant when both of them were on the floor, the defendant said she was lying on him. Mr. Ahmed testified that she was straddling him. I weigh this factor in my credibility assessment. It is one of the factors that leads me not to go so far as to believe the defence evidence under the first branch of W.(D.). But it is not so significant that it leads me to reject the defence evidence as incapable of raising a reasonable doubt. It is important to recall that all of the witnesses were testifying about an event that happened over two years ago, that happened quickly, and when all of the witnesses had been consuming alcohol.

[122] In cross-examination, Mr. Ahmed agreed that he had no recollection of assisting the complainant in looking for her lost phone. In my view, this is not surprising, given Mr. Ahmed’s evidence that he was out on the balcony and came in when he heard a commotion. Based on the other witnesses’ evidence, the looking for the phone happened prior to the altercation. I do not find that this tells against Mr. Ahmed’s credibility.

[123] I found that Mr. Ahmed was a little bit inconsistent about when the defendant told him about the charges. He initially seemed to say that he learned about the charges a few months after the party. But then he later said he first heard about the charges a year ago (which would be about one year later). I weigh this in my assessment of Mr. Ahmed’s credibility. However, Mr. Ahmed also said that when the defendant told him about the charges, the defendant said he could not discuss the substance with him, and that Mr. Ahmed should speak to the defendant’s lawyer. I find this aspect of Mr. Ahmed’s evidence credible, as many defence lawyer’s would advise their client’s not to discuss evidence with potential witnesses.

[124] Overall, I found Mr. Ahmed to be consistent in his evidence, and consistent with the other defence witnesses. However, I do also consider in assessing his evidence that he is a longtime friend of the defendant. I note as well that Mr. Ahmed seemed not to have as good a recollection of events as either the defendant or Mr. Hume.

(iv) The Evidence of Hayden Hume

[125] Hayden Hume was the occupant of the apartment where the party took place on the evening of August 22, 2017. He had met the defendant in early 2016 or late 2015, through his friend Mr. Ahmed. Mr. Hume testified that he had seen the defendant “a handful” of times, probably nine or ten times, and always through Mr. Ahmed. Mr. Hume and the defendant were friendly, but not close friends. Mr. Hume was friends with Mr. Ahmed. In the summer of 2017, Mr. Hume had seen the defendant maybe five times. The previous meetings were like that night, in that they involved the defendant coming over to Mr. Hume’s place and drinking, playing video games, listening to music, and smoking marijuana.

[126] Mr. Hume knew the defendant as “FB”. He was not aware of any other nicknames for the defendant, and never heard anyone call him “Shmoe”. At the time of the trial, it had been over two years since he had seen the defendant. At the time of the trial, it had been about eight months since he had seen Mr. Ahmed, since Mr. Ahmed now lives in Alberta.

[127] Mr. Hume testified that the last time he hung out with the defendant was “when the fight happened” at his apartment, in late July or early August 2017. This was at his apartment on Wellesley Street, where he still lives.

[128] Mr. Hume testified that that day, Skinny came over in the early afternoon. Mr. Hume was not working that day. Mr. Ahmed came over within probably one hour of when Skinny arrived. Another friend, Jahmal also came over. Jahmal is also nicknamed Jay. Mr. Ahmed asked if FB (the defendant) could come over. Mr. Hume said, yes.

[129] The defendant arrived with a bottle of alcohol. Mr. Hume testified that he also had alcohol at the apartment. Mr. Hume believed that the bottle the defendant brought was Crown Royal. The men played videogames, drank, and listened to music. Mr. Hume testified that they lost money to Mr. Ahmed in FIFA. They were drinking Crown Royal and apple juice.

[130] At some point Mr. Ahmed got a call from a couple of women, who asked what he was doing. Mr. Ahmed asked Mr. Hume if the women could come over, and he said, fine.

[131] Mr. Hume testified that he thought the women arrived after the LCBO closed, and it was probably 10:30 or 11:00 p.m. (the LCBO closes at 10:00). They were low on alcohol, so they called for delivery of a bottle of vodka.

[132] Mr. Hume testified that he had met the complainant before, but not her friend. When the women arrived, they joined in, playing music and dancing. He thinks they may have also played some videogames. He saw both women drink alcohol, but he could not say how much.

[133] Mr. Hume testified that at one point he saw a bit of horseplay between Skinny and the complainant. Mr. Hume does Mixed Martial Arts. There was some discussion about martial arts among the group. The complainant said she was taking classes or something. She and Skinny got into saying, show me what you can do. The complainant and Skinny got into a bit of horseplay for a few minutes. Everyone laughed. And they all went back to drinking. They both seemed in a good mood, and the atmosphere did not change. He did not recall anyone telling them to stop.

[134] In cross-examination, Mr. Hume that everyone was present for this horseplay incident. Skinny said something to the complainant like, “show me what you can do”. Mr. Hume perceived it as fun and not a serious incident. Mr. Hume said the incident lasted for roughly a minute, but he was not sure of the exact time. He could not say who did what first. The complainant and Skinny were “just grappling, wrestling”, and he did not think there were a series of moves. They ended up on the ground at some point. He could not say how they ended up on the ground, if someone “pulled guard” (meaning lay down), or if someone did a “leg sweep” (i.e., a trip).

[135] At some point the complainant was swearing at her friend, telling her to, “fuck herself”. After that the friend decided to leave. She said good-bye. Mr. Ahmed escorted her downstairs, and came back after five or ten minutes. In cross-examination, Mr. Hume testified that this argument happened after the horseplay with Skinny. He also agreed that he could not hear all of the argument between the complainant and her friend, because he was on the other side of the room. He agreed that he could not say what, if anything, the friend may have said to set off the complainant. He agreed that because of this he could not say if the complainant swearing was justified for some reason, or was an over-reaction.

[136] Mr. Hume testified that he thought it was late, between 2:00 a.m. and 4:00 a.m. when the friend left. He said that things changed after the friend left, noting, “nothing good ever happens after 2:00 a.m.”

[137] Mr. Hume testified that the complainant started accusing people of having taken her cell phone. Around this time Skinny and Jahmal left the party. At that point, it was Mr. Hume, the complainant, the defendant, and Mr. Ahmed who were still there. Mr. Hume went to look for the phone in the kitchen and in his other living room (the apartment has two living rooms).

[138] Mr. Hume testified that he returned to the living room where the others were, and he heard the complainant calling names at the others. Mr. Hume testified that he heard the complainant calling a lot of names. She called him a “nigger”, and she said “a lot of kind of awful things” to everyone. In cross-examination, Mr. Hume agreed that at that point, he did not hear the defendant call the complainant a “bitch”.

[139] As Mr. Hume came around the corner back to the living room, he saw that the complainant and the defendant were standing close to each other, and appeared confrontational. They were standing very close to each other. Both were using vulgar language, back and forth. The complainant spat in the defendant’s face, called him a “nigger”, and they both swung at each other. The defendant then fell on the ground, and the complainant jumped on top of him. She was straddling him, sitting up. She was clawing at the defendant. The defendant was underneath her. Mr. Hume could not really see what each of them was doing, because they were so close to each other, and it was “frantic”. He saw the defendant pushing away, kind of flailing. His hands were near the complainant’s face. Her hands were near his neck. But they were so close together that he could not see much of what each was doing.

[140] At that point Mr. Ahmed came in from the balcony. Mr. Ahmed pulled the complainant off of the defendant. Mr. Hume picked the defendant up. Mr. Hume estimated that the whole altercation was roughly one minute long. But he was clear that he could not give a precise estimate of the time, because he was “frazzled”, and also because he had been drinking.

[141] Mr. Hume saw scratches on the defendant’s face, and he was bleeding a bit on his neck. Mr. Hume testified that the defendant then went to the bathroom. Mr. Hume testified that the complainant was still in a kind of drunken rage at that point. He saw that her face was very red, and there was a bite mark on her cheek, and the start of a bruise on her eye.

[142] Mr. Hume said everyone was pretty distraught at that point. Mr. Ahmed was with the complainant, talking to her. The complainant was still frantic and yelling. The defendant returned from the bathroom. It looked to Mr. Hume like the defendant was trying to make an apology to the complainant. Mr. Hume testified that, “she wasn’t having any of it”, and was saying things like, “fuck you guys”. At that point, the defendant left, and said sorry to Mr. Hume as he was leaving.

[143] Mr. Hume testified that he assumed the defendant went home. He had never been to the defendant’s home, and did not know where he lived. Mr. Hume testified that it was probably 3:30 or 4:00 a.m. when the defendant left.

[144] Mr. Hume testified that after the altercation, he found the complainant’s phone in his other living room, on the floor, next to the couch. When he gave the complainant her phone, it seemed to “click with her” that no-one took her phone. She calmed down. Mr. Hume gave her a cloth to wash her face. Mr. Hume testified that Mr. Ahmed looked tired and went to sleep in the other living room.

[145] In cross-examination, Mr. Hume agreed that he did not ask the complainant to leave at that point. It was suggested to him that he did not have a conversation with her about what it was about. Mr. Hume responded that he knew what it was about; it was about the phone. He went and looked for the phone and found it. It was suggested in cross-examination that if it was about the phone, her reaction was an over-reaction. Mr. Hume agreed that it was an over-reaction. But he said that he thought it was to do with intoxication, not thinking things over, and the earlier argument with the complainant’s friend. He said that for the most-part it was a great evening, but that it took a turn for the worse.

[146] Mr. Hume testified that the complainant stayed for another one to one and half hours. They did a bit of cocaine (which was his). He walked her downstairs to get a cab. He gave her some money for a cab, and saw her leave in the cab. The sun was coming up at the time she left. He estimated that it was 6:00 or 6:30 a.m. He then went to sleep.

[147] Mr. Hume testified that the only time he saw the defendant after that night (prior to the trial) was one time he bumped into him while getting coffee downtown in late August or early September 2017. The defendant was never again at his apartment after that night.

[148] Mr. Hume testified that he never discussed that evening with the defendant. In cross-examination, Crown counsel asked Mr. Hume when he found out that the defendant had been charged. Mr. Hume said that he was notified by Mr. Ahmed that a lawyer might contact him about coming to testify. That happened a few weeks prior to the trial. Prior to that, Mr. Hume was not aware of the charges.

[149] Overall, I found Mr. Hume to be a believable witness. He was consistent in his evidence. There were minor inconsistencies between his evidence and that of the other defence witnesses on issues such as who brought what alcohol, which I do not consider important in terms of credibility. He was forthright when he did not remember something. For example, he said he did not remember the name of either of the two women who came over that evening. I give some weight to the inconsistency with the defendant’s evidence in relation to the position of the complainant straddling the defendant when they were on the ground. But it is in the context of an event that happened over two years ago, happened quickly, and when everyone had been consuming alcohol.

[150] In addition, I found that Mr. Hume was very fair in how he characterized events when Crown counsel cross-examined him with questions that opened the door to vilifying the complainant or exaggerating events. For example, Mr. Hume very fairly characterized the event of the complainant showing her martial arts moves as just “horseplay”, and said it was nothing more than joking around. When asked about whether the complainant over-reacted to her phone being lost, Mr. Hume agreed that yes, it was an over-reaction, but he chalked it up to too much alcohol and not thinking things over.

(v) The Evidence of the complainant’s friend

[151] As noted above, the evidence given at the preliminary inquiry by the complainant’s friend who also came to the party was tendered at trial on consent for the truth of its contents. I do not list the friend by name, as I expect her name could have some likelihood to identify the complainant to at least some members of the public.

[152] It is clear that the friend and the complainant were close friends in the summer of 2017, going out together, and sleeping over at each other’s homes on a regular basis.

[153] The friend described the nature of the party in similar terms to the complainant and the defence witnesses, and said there were five people there in addition to her and the complainant. The friend left the party before the complainant. The precise time she left was not clear from her evidence, but she testified that she believed she arrived home before 2:00 a.m. The friend was no longer present at the party when the altercation between the defendant and the complainant which the defence witnesses testified about is said to have happened. However, the friend provided some evidence which circumstantially supports the defence case to a limited degree.

[154] The complainant had testified that she wanted to leave the party earlier, and her friend wanted to stay, so she agreed to stay. The friend contradicts this evidence. The friend testified that she wanted to leave, but that the complainant did not. The friend testified that when she raised the issue of leaving with the complainant, the complainant said no, and was yelling at her, being rude to her, and swearing. The friend described the complainant’s tone as “aggressive”. She said she had never seen the complainant like that before. The friend then left the party. The friend also corroborated that the complainant “drank enough to be drunk”. The friend also testified that she was not concerned about leaving the complainant alone at the party, because everyone was being very nice.

[155] I note that the complainant’s friend did not give any evidence about the event of the martial arts horseplay between the complainant and one of the men at the party. But given that the complainant herself testified about this event (although slightly differently than the defence witnesses), in my view the fact that the friend did not testify about this incident is not significant in terms of assessing the credibility of the defence evidence.

Analysis of the evidence as a whole

[156] Overall, I find the defence evidence sufficiently credible that taken in the context of the evidence as a whole, and in particular the DNA findings, it leaves me with a reasonable doubt.

[157] The three defence witnesses were all generally consistent in their evidence, and for the most part consistent with each other on the main parts of their evidence. To the extent that there were inconsistencies between the defence witnesses, in my view they are the types of inconsistencies that one may expect from honest witnesses seeing events from a different perspective, particularly over two years after the events, and when everyone had been consuming alcohol.

[158] I note that in large measure, the defence evidence was consistent with the complainant’s evidence about events at the party prior to the point when she blacked out. From the point where the complainant testified that she blacked out, because of the blackout, she is unable to shed any light on what happened during that time.

[159] The only significant area where the defence evidence contradicts the complainant’s evidence about the events at the party is that the complainant did not recall getting into a fight with her friend at the party, and it was the complainant’s recollection that it was she who wanted to leave earlier, not her friend. In light of the fact that the friend would seem to have no apparent motive to lie about wanting to leave and the complainant getting into a fight with her and screaming at her, I believe the friend’s evidence on this issue. It has some relevance, in my view, as it speaks to how intoxicated the complainant was, and that in her intoxication she lashed out in anger at her friend (although not physically at that point).

[160] Crown counsel argues that the defence witnesses colluded in their evidence. However, I do not find that the evidence at trial supports that submission. Crown counsel cross-examined both Mr. Ahmed and Mr. Hume about the extent to which they did or did not discuss the evidence or event with the defendant prior to testifying. Mr. Ahmed was somewhat inconsistent in his answers about when he learned that the defendant had been charged. This causes me some concern. However, Mr. Ahmed also said that the defendant told him that he needed to speak to the defendant’s lawyer, and that he (the defendant) could not discuss the substance of the event with Mr. Ahmed. This strikes me as believable, because it is the type of thing many defence lawyers will advise a client about contacting potential witnesses.

[161] Further, I find that there is no factual support for the submission that Mr. Hume colluded in his evidence. Mr. Hume testified that he only heard about the charges a few weeks prior to trial, when Mr. Ahmed told him that a lawyer for the defendant might contact him about coming to testify at trial. Mr. Hume testified that he never discussed that evening with the defendant, and had only seen him once in passing in late August or early September 2017 after that night (I note that it is clear from the chronology before the court that this was before the defendant was charged).

[162] If the witnesses were intentionally colluding, I find it unusual that Mr. Ahmed’s evidence would involve him missing the beginning of the physical altercation between the complainant and the defendant. Mr. Ahmed’s evidence was that he missed the beginning because he was out on the balcony, and that he came inside when he heard shouting. One would expect that if witnesses were colluding to give evidence supportive of the defendant, Mr. Ahmed would not give evidence which involves him missing the start of the altercation.

[163] I accept that in the case of Mr. Ahmed, it is fair to be concerned that he may have a motive to give evidence favourable to the defendant, since they are longtime friends. I do not make a finding that Mr. Ahmed in fact did this, but it is a matter that I weigh in assessing his credibility. However, I do not realistically see a motive for Mr. Hume to give evidence favourable to the defendant. Mr. Hume is more of an acquaintance of the defendant than a friend. On the record before me, I do not accept that he came to court at risk of perjury or obstruction of justice charges in order to give untrue evidence favourable to the defendant.

[164] I note as well that Mr. Ahmed’s memory seemed not to be as good as Mr. Hume’s.

[165] There were minor inconsistencies between the defence witnesses about who brought what type of alcohol, and about their descriptions some events, such as the martial arts horseplay event, and to some extent the altercation between the defendant and the complainant at the party. For the most-part, these struck me as the types of inconsistencies one sees as between honest witnesses who are testifying about an event that happened over two years ago, and who each saw it from a slightly different perspective, and particularly where they were all consuming alcohol, as in this case.

[166] The most significant inconsistency related to the position of the complainant on the defendant when she lunged at him and he fell to the floor. As noted above, the defendant testified that she was lying on him. Mr. Ahmed and Mr. Hume testified that she was straddling him, that is, in more of a sitting position. I accept that this is a difference. It is one factor that leads me not to go so far as to believe the defence evidence under the first branch of W.(D.). But I do not want to overstate the significance of this inconsistency. These witnesses were testifying about an event that happened over two years ago, that happened quickly, and when they all had been consuming alcohol.

[167] Crown counsel also suggested that the defence witnesses were, in effect, seeking to paint the complainant in a bad light with their evidence. I do not accept this argument. The defence witnesses testified to their version of events, but they did not appear to me to exaggerate events or try to cast the complainant in a bad light. For example, when the defendant testified about the martial arts event between the complainant and Skinny, he said he thought it was funny, and that it did not change the atmosphere at the party. In cross-examination he agreed that no-one took the incident as the complainant being aggressive. Similarly, Mr. Hume said it was just horseplay. And when Mr. Hume was asked about the altercation between the complainant and the defendant, he, quite fairly, chalked it up to too much alcohol, too late in the night.

[168] It is fair to say that based on the defence evidence, the complainant’s reaction to losing her phone seems to be very strong. However, taken in context, I do not find that this is a reason to reject the defence evidence. On her own evidence, the complainant was very drunk, so drunk that at some point she blacked out. Her level of intoxication was corroborated by her friend, who would have no reason to give evidence favourable to the defence. The fight that the friend testified to, where the friend wanted to leave the party, but the complainant did not, and the friend testified that the complainant yelled at her, and was rude and swearing, is some evidence that the complainant was quick to react in anger that evening when she was so intoxicated (although not physically at that point). In my view, an explanation of the reasons for the complainant’s conduct was fairly put by Mr. Hume – too much alcohol and not thinking.

[169] On the whole, I find that the defence witnesses were reasonably credible, though not without flaws.

[170] I note that I find that the photos of the complainant’s injuries tendered in evidence do no assist me significantly, as they are consistent with both theories of the case. They clearly show some redness around the complainant’s right eye, and a clearly discernable bite mark. But beyond that, they do not show much in the way of injuries, and what minor scratches or redness they do show is equally consistent with both theories of the case.

[171] Crown counsel makes the point, and I asked this question in submissions, that the defence evidence about the altercation between the defendant and the complainant at the party seems “convenient”, in light of the DNA findings and the complainant’s evidence about coming to consciousness the next day while being assaulted. In effect, Crown counsel is saying that it seems very unlikely that the complainant and the defendant would have the altercation at the party described by the defence witnesses, and then the next day, the complainant would come to consciousness while being assaulted by someone else. There is some force to this argument. It could be “convenient” and the defence contrived. On the other hand, it could be very bad luck for the defendant. In the context of the evidence as a whole, I do not find that the possibility that the complainant was attacked by someone else is so improbable or coincidental that it leads me to entirely reject what I find to be reasonably credible evidence from the defence witnesses.

[172] Although the primary defence argument was that the defence evidence was credible and the complainant’s identification evidence was unreliable, the defence also argued that there were a number of factors about the complainant’s evidence that could lead the court to have concerns about whether the offences she alleged about the assault at the Liberty Village apartment had even happened. Although I accept that there were some unusual features of the complainant’s narrative of events at the Liberty Village apartment, particularly after the alleged assault, I tend not to disbelieve her evidence that she was assaulted by someone.

[173] Another possibility is that neither of the possibilities I set out in the preceding two paragraphs is true (either that it was someone else who attacked the complainant, or that the complainant fabricated the assault in its entirety), but that the Crown has simply failed to meet the burden of proof.

[174] Although establishing the truth of what happened is certainly a central goal of our criminal justice system, the reality is that the Crown’s burden of proof beyond a reasonable doubt does not always give a trier of fact that satisfaction. The question I must ask myself is whether the evidence led at trial, considered as a whole, proves the allegations beyond a reasonable doubt. I find that it does not.

[175] The evidence leaves me with some unanswered questions. But the defence does not have a burden to answer every question raised by the evidence.

[176] I return to the burden of proof. The reasonable doubt standard is a higher standard of proof than the civil standard of proof on a balance of probabilities. The reasonable doubt standard is a heavy burden. It is not sufficient to believe that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, as that would set an impossibly high standard. A reasonable doubt is a doubt based on reason and common sense, based on the evidence, or lack of evidence, in the record before the court: R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39.

[177] On the whole, I found the defence witnesses to be reasonably credible. But because of the unanswered questions, I do not go quite so far as to believe their evidence. Considering the evidence as a whole, I find that I am left with a reasonable doubt about whether the defendant committed the offences charged. I am left with a reasonable doubt under the second and third branches of the analysis in W.(D.).

[178] I should add, I do not engage in a s. 34 analysis regarding the defence evidence that the defendant hit the complainant during the altercation where she lunged at him at the party. I think that it is likely, based on the defendant’s evidence, that he was within the scope of lawful self-defence. But I do not have to consider this issue as it is clear that the offences charged relate only to events at the Liberty Village apartment when the complainant came to with the assailant straddling her and choking her. Crown counsel did not suggest that it would be open to the court to find the defendant guilty of an assault from events at the party.

Legal issues regarding elements of some of the offences charged

[179] Although the primary issue at trial was identity, the defence also took issue with whether, if identity was proven beyond a reasonable doubt, all of the elements of two of the four offences charged were proven beyond a reasonable doubt. In light of my conclusion that I have a reasonable doubt about whether Mr. Mohamed is the perpetrator of the alleged offences, it is not, strictly speaking, necessary for me to address these issues. However, for sake of completeness, I will do so.

[180] The defence did not take issue that if identity was proven, the elements for counts #1 and #2, assault and choking with intent to commit and indictable offence, would be proven beyond a reasonable doubt.

[181] In relation count #3, sexual assault, the defence argues that even if identity was proven beyond a reasonable doubt, considering all of the circumstances, the assault described by the complainant was not proven beyond a reasonable doubt to be an assault in circumstances of a sexual nature as required by R. v. Chase, [1987] 2 S.C.R. 293.

[182] I disagree with the defence on this issue. Had I found that identity was proven, I would have found that the circumstances of the assault were sexual such that they constituted a sexual assault. The circumstances were that the complainant woke up in a bed in a strange apartment, wearing only her bra and underwear, with the assailant straddling her, and choking her with his hands. Although the complainant agreed in cross-examination that she told the police that she was not sure if the assault was sexual in nature, and was still not sure when she testified if it was, this issue was not pursued in any detail in cross-examination. In my view, the complainant’s responses to the few questions asked on this issue can equally be understood as her not knowing whether, as a matter of law, it constituted a sexual assault. Many lay-people would not know this. Further, she was never asked, either by the Crown or by the defence, whether she felt (subjectively) that the nature of the assault affected her sexual dignity or integrity. This is a gap in the evidence. But, in any event, her subjective view is only part of the Chase analysis.

[183] In my view, objectively viewed, a reasonable person would view such an assault as affecting the sexual integrity of the victim. Taking into consideration all of the circumstances, there can be no doubt that the assault took place in circumstances of a sexual nature – strangling a woman clad only in her bra and underwear, while straddling her, in a bed, is an assault in circumstances of a sexual nature.

[184] With respect to count #4, the unlawful confinement charge, my conclusion is different.

[185] I accept that as a matter of law, as Crown counsel argued, physical contact with the body of the person confined is not a required element of the offence of unlawful confinement. A conviction for unlawful confinement requires a finding that for any significant period of time, the complainant was physically restrained contrary to their wishes so that they could not move about from place to place, and a finding that the accused intended to confine the complainant: R. v. K.M., 2016 ONCA 347 at para. 18; R. v. Gratton (1985), 18 C.C.C. (3d) 462 at pp. 473-75 (ONCA). “Physical restraint” in this context refers to the preventing of the complainant from leaving a place. It does not require touching of the complainant by the perpetrator (although in many cases there will be physical touching). For example, locking someone in a room to prevent them from leaving could constitute a forcible confinement, event if the perpetrator does not physically touch the complainant.

[186] The primary evidence that the Crown relied on to prove the forcible confinement count was the complainant’s evidence that after the assault, she went to leave the bedroom, and the assailant stood between her and the door, and said that she can’t leave yet, and she needs to calm down. In cross-examination, the complainant agreed that the assailant did not physically restrain her from leaving, and she could not recall for sure how close to the door he was.

[187] I accept that this evidence must be viewed in its total context. According to the complainant, she had just been violently assaulted. But there is also the context that what was said was that she can’t leave yet, and she needed to calm down. The assailant did not restrain her by touching her, but he did stand between her and the bedroom door. I note as well the later events, and him calling her a taxi (twice, because they missed the first one), and giving her money to leave.

[188] I accept that on the complainant’s evidence, she felt that she was being prevented from leaving. But in considering the whole context, and in particular considering the issues with the complainant’s memory, I am not persuaded beyond a reasonable doubt that the assailant had the intention of confining the complainant.

[189] My conclusion in this respect turns in part on the fact that the complainant was unsure about a number of details in relation to the forcible confinement allegation, and the sequence of events in the apartment. Her narrative of events is too uncertain for me to be persuaded beyond a reasonable doubt of the assailant’s intent. In some cases, the act alleged to constitute confinement will be clear enough that the intention can be inferred from the act alone. I find that in this case, it is not. In my view, had I found that the Crown proved identity beyond a reasonable doubt, the evidence in this case is not sufficient to prove the forcible confinement count.

Conclusion

[190] For these reasons, I am not persuaded beyond a reasonable doubt of the defendant’s guilt. I find the defendant not guilty of all four counts.

[191] In light of the restricted court operations during the pandemic, these reasons are official with the electronic signature below. I will take steps to have the Indictment endorsed.

[192] I thank both counsel for their assistance and professionalism throughout the trial.

Justice J. Copeland

Released: April 22, 2020

COURT FILE NO.: CR-18-10000591-0000 DATE: 20200422 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – HASSAN MOHAMED

REASONS FOR JUDGMENT

Justice J. Copeland

Released: April 22, 2020

[1] There was no evidence led as to why the police included the defendant’s photo in the line-up. Nor was there any other evidence that would explain why the police settled on the defendant as a suspect. I could speculate based on the date of the first CFS report on the DNA samples taken from the complainant. But given the lack of evidentiary foundation, I do not do so. I am not suggesting that the Crown ought to have led evidence explaining why the police considered the defendant as a suspect; rather, I am just explaining that I do not have any evidence on this point. Had such evidence been led, it would only have been admissible as investigative narrative.