ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANDRE AZONWANNA

Ms. B. McCallum, for the Crown

Mr. A. Marchetti, for Mr. Azonwanna

HEARD: Dec 2-6, 9 and 10, 2019, January 17, and February 10, 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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.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] Andre Azonwanna is charged with one count of sexual assault, and one count of making child pornography. In summary form, the allegations are that on the evening of November 26, 2016, he picked up the complainant, who he had met several weeks earlier, at the Eaton Centre because she had asked for a drive home. They drove around. It is alleged that he stopped the car in two different locations and sexually assaulted the complainant, including vaginal intercourse, and fellatio. It is also alleged that he made a short video on his phone of the complainant performing fellatio on him, which constitutes the making child pornography count, because the complainant was 17 years old at the time.

[2] The primary evidence in support of the Crown’s case is the evidence of the complainant, evidence from the nurse who conducted a sexual assault kit examination in relation to injuries observed on the complainant, and evidence from two officers who dealt with the complainant on the night of the alleged offences about her demeanour.

[3] The defendant testified and denied the offences. With respect to the sexual assault count, he described the nature of the sexual contact differently than the complainant, and testified that it was consensual. I note that at the time of the alleged offences, the complainant was 17 years old, and the defendant was 20. Thus, the complainant was old enough to consent to sexual contact. The only issue on the sexual assault count is whether the Crown has proven non-consent beyond a reasonable doubt.

[4] For sake of clarity, I note that there is no issue in relation to identity. No issue is raised in relation to a defence of honest but mistaken belief in consent. And it is not in dispute that the complainant had the capacity to consent to sexual contact that evening.

[5] With respect to the making child pornography count, the defendant admitted in his evidence that he made a video of the complainant performing fellatio on him. The only issue is whether the Crown has proven beyond a reasonable doubt that he knew that the complainant was under 18 years old, that is, a defence of mistake of age. The defendant testified that he believed she was over 18 years old, and there was other evidence on this issue, which I will address.

[6] In light of these issues, the case turns primarily on two issues: first, my assessment of the credibility of the evidence of the complainant and the defendant, in the context of all of the evidence, and in accordance with the burden on the Crown to prove the charges beyond a reasonable doubt; second, for the defence of mistake of age on the making child pornography count, in addition to credibility, I must consider the “all reasonable steps” requirement in s. 163.1(5) of the Criminal Code, as judicially interpreted.

[7] The position of the Crown is that the complainant was a credible witness, and that the defendant was not. Crown counsel submits that the complainant’s narrative of events makes sense and is believable, and the defendant’s is not. Without summarizing all of the submissions made by Crown counsel, she submits that two aspects of the evidence support the complainant’s credibility: (i) the observations of injuries by the nurse who performed the sexual assault kit examination; and (ii) the evidence about the complainant’s emotional state when she arrived home.

[8] With respect to the making child pornography count, Crown counsel argues that the defendant’s evidence about mistake of age is not credible. Crown counsel further argues that even if the defendant’s evidence is accepted as credible or leaves the court with a reasonable doubt, he did not take all reasonable steps in the circumstances to ascertain the complainant’s age. The Crown argues that considering the evidence as a whole, both charges are proven beyond a reasonable doubt.

[9] The position of the defence is that the complainant was not a credible or reliable witness, and that the defendant was a credible witness. The defence argues that the court should accept the defendant’s evidence, or at least be left in a reasonable doubt by it, in the context of the evidence as a whole. In relation to the injuries documented by the sexual assault kit nurse, the defence argues that the nature of the injuries is not such as to clearly support the complainant’s credibility, and that some of the injuries may have been caused by the complainant self-harming once she got home. In relation to the complainant’s emotional state when she got home, the defence argues that the complainant was acting impulsively, in part due to consumption of drugs, and that her emotional state was due to her boyfriend accusing her of cheating on him. The defence argues that the complainant’s own evidence about her boyfriend accusing her of cheating on him and her then telling him that the defendant sexually assaulted her is evidence of a motive to fabricate on the part of the complainant.

[10] With respect to the making child pornography count, the defence argues that the defendant’s evidence in relation to mistake of age is credible, and that he took all reasonable steps in the circumstances to ascertain the complainant’s age.

[11] Before turning to the applicable law, and my assessment of the evidence, I note one procedural aspect of this trial. The trial in this matter took place beginning on December 2, 2019. However, on the agreement of both counsel, evidence that was heard in February and March 2019 in a previous trial that ended in a mistrial was applied on the Charter application and the trial (to the extent it was admissible in light of my later ruling on the Charter and voluntariness issues). Counsel also agreed that previous rulings would apply. The trial held in February and March 2019 had ended in a mistrial when Mr. Azonwanna’s previous counsel advised the court that he had an ethical issue that prevented him from continuing to act. I permitted previous counsel to withdraw. After hearing submissions, I declared a mistrial, in light of scheduling issues resulting from the time (quite understandably) needed for new counsel to get up to speed and conduct the trial. However, ultimately, arrangements were made for the new trial to proceed before me. It was in this context that counsel agreed for the earlier evidence to apply to this trial.

[12] I note as well that at the outset of the previous trial, the parties agreed to proceed with a blended trial and voir dire of the Charter and voluntariness issues regarding the defendant’s statement to police, so that to the extent the evidence was relevant, and subject to my ultimate ruling on the statement, admissible, it could be applied on the trial.[^1] This agreement was reiterated when the trial commenced in December 2019.

[13] I structure my reasons as follows. I outline the applicable law in relation to the burden of proof, credibility, and the law in relation to sexual assault (and evidentiary issues related to sexual assault) relevant to this case. I then summarize the evidence as it relates to both counts. I then consider my analysis of the evidence and findings on the sexual assault count. I then summarize the applicable law in relation to mistake of age and the all reasonable steps requirement in relation to the child pornography count. I then explain my analysis and findings on the making child pornography count.

Applicable law in relation to the burden of proof, credibility and reliability, and sexual assault

(i) The Presumption of innocence, the burden of proof, and credibility and reliability assessment

[14] 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.

[15] 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, 1991 CanLII 93. 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.

[16] If, after considering the whole of the evidence, the court is not sure who to believe, this can also give rise to a reasonable doubt: R. v. S. (J.H.), [2008] 2 S.C.R. 152, 2008 SCC 30, at paras. 10-12.

[17] 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.

[18] The court can accept some, none or all of any witness’ testimony. For example, if some parts of the testimony of a defendant are disbelieved, other parts of his testimony may still be believed or raise a reasonable doubt: R. v. S. (J.H.) at para. 11.

[19] It is open to a trial judge to reject a defendant’s evidence as not credible and not raising a reasonable doubt based on a considered and reasoned acceptance beyond a reasonable doubt of conflicting credible evidence. Such an analysis is as much an explanation for the rejection of a defendant’s evidence as is a rejection based on a problem identified with the way a defendant testified or the substance of a defendant’s evidence, provided that the trial judge’s reasoning process is clear, the trial judge’s analysis of why they believed the complainant’s evidence is reasoned and considered, and the reasons are clear that the trial judge has applied the reasonable doubt standard to the assessment of credibility, and has not engaged in a credibility contest R. v. J.J.R.D., 2006 CanLII 40088 at paras. 35-39, 44-47, 53 (ONCA); R. v. Slatter, 2019 ONCA 807 at paras. 83-84, 89; R. v. R.D., 2016 ONCA 574 at paras. 13-22.

[20] 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 proven, if found to be sufficiently credible and reliable to meet the reasonable doubt standard of proof. In this 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.

[21] 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, 1997 CanLII 319 at para. 39.

[22] Assessing credibility and reliability of evidence requires that a trial judge consider the evidence as a whole, and consider a number of aspects of the evidence. In assessing the credibility and reliability of witnesses, I consider a number of factors, including, but not limited to, the logic and consistency of a witness’ version of events, whether a witness’ evidence is internally and externally consistent, whether the evidence of a witness is consistent or inconsistent with objective evidence (such as, in this case, the evidence of the sexual assault examination, or the evidence about the complainant’s past misrepresentation of her age on a sex-work website), the consistency or lack of consistency of each witness’ evidence in cross-examination, the witnesses’ ability to recall events, and the demeanour of the witnesses (without overweighting demeanour as a factor).

(ii) The Actus reus of sexual assault – proof of non-consent

[23] The actus reus of sexual assault is the application of physical force, in other words, touching, without consent, in circumstances of a sexual nature.

[24] As I have noted above, the only aspect of the actus reus that is in dispute in this case is whether the Crown has proven non-consent beyond a reasonable doubt. There is no dispute that there was sexual contact between the complainant and the defendant.

[25] The law is clear that when considering the actus reus of non-consent, it is determined by reference to the complainant’s subjective state of mind at the time the sexual touching occurred: R. v. Barton, 2019 SCC 33 at paras. 87-89; R. v. Ewanchuk, [1999] 1 S.C.R. 330, 1999 CanLII 711 at paras. 23-31.

[26] Consent means the voluntary agreement of a person to engage in the sexual activity in question. A voluntary agreement is one made by a person, who is free to agree or disagree, of their own free will.

[27] Consent applies to each sexual act. Just because a person consents to some sexual acts, it does not mean their consent is presumed for any other sexual acts, or that they are more likely to have consented to other sexual acts. Consent must be ongoing, in the sense that it must exist at the time the sexual act takes place, and it can be revoked at any time. A person is not entitled to continue with a sexual act with another person when there was consent at the outset, but at some point, the initial consent was withdrawn or not extended.

[28] Just because a person does not resist or put up a fight does not mean that they consented to the sexual touching. Consent requires a voluntary decision by a person to engage in sexual contact, without the influence of force, threats, fear, fraud or abuse of authority.

[29] Although the issue of non-consent is determined entirely based on the complainant’s subjective state of mind, in determining whether non-consent has been proven beyond a reasonable doubt, a trier of fact must assess the credibility of the complainant’s evidence that they did not consent, in the context of the evidence as a whole. The complainant’s evidence is the only source of direct evidence of their state of mind. But it is open to a defendant argue that the complainant’s words and actions, before and during the incident, raise a reasonable doubt about whether the complainant did subjectively want the sexual touching to take place. That is, a defendant’s evidence about the events that happened, if believed or raising a reasonable doubt in the context of all of the evidence, can be considered as circumstantial evidence probative of the complainant’s subjective state of mind: Ewanchuk at paras. 29-30. But the defendant’s belief about whether the complainant was consenting is not relevant to this element of the offence.

[30] Having reviewed these general principles, I note that in this case, the outcome does not turn on any fine legal points about the definition of consent. The complainant and the defendant gave very different versions of events on the night of the alleged offences. If the complainant’s version of events is believed, in the context of the evidence as a whole, and on the reasonable doubt standard, what she described constitutes a sexual assault (more than one). If the defendant’s evidence is believed, or if it leaves the court with a reasonable doubt about his version of events, in the context of the evidence as a whole, he must be found not guilty. Both counsel approached the case on that footing in submissions (with respect to the sexual assault count).

(iii) Instructions in relation to evidence of prior sexual activity of the complainant

[31] In this case there are a number of self-instructions I give myself in relation to evidence about the prior sexual history of the complaint, in particular, evidence which relates to the fact that she had worked as a sex worker[^2]. I gave oral reasons for my ruling regarding evidence of prior sexual conduct on December 5, 2019, which I will not repeat here.

[32] However, I will outline the areas of evidence that I ruled admissible. I note that the application to adduce evidence of prior sexual conduct was put forward both by the Crown and by the defence, and I conducted a hearing jointly on the two applications. The Crown application was governed by the common law as set out in Barton (at para. 80) and R. v. Seaboyer, [1991] 2 S.C.R. 577, 1991 CanLII 76. The defence application was governed by the provisions in the Criminal Code.

[33] The three areas of evidence of prior sexual activity that I permitted to be adduced at trial, and the limited uses of that evidence, are as follows:

(i) The Crown was permitted to lead evidence of the complainant’s relationship with Fero (the man who had been her pimp and had been arrested not long before the date of the alleged offences) for the purpose of establishing the basis for the complainant’s fear of pimps, as it related to her anticipated evidence that the defendant told her he was a pimp. This evidence is relevant to the issue of the element of sexual assault of non-consent, and the issue of whether consent was or was not freely given, or was vitiated by fear. As a matter of full answer and defence, the defence was permitted to cross-examine the complainant on her relationship with Fero as it related to her asserted fear of pimps. Neither party was permitted get into the details of sexual activity with Fero, although I ruled that if there were specific sexual acts which were part of the basis of her fear, questions may be asked about that in general terms (in the event, this did not happen during the trial).

(ii) The defence was permitted to lead evidence, both through questioning the complainant, and if the defendant testified, in relation to representations by the complainant about her age in her advertising of her work as a sex worker. This evidence is relevant to the defence of mistake of age on the making child pornography count. And since the defence was permitted to explore this area, I ruled that if the Crown chose, it could explore the area in examination in chief with the complainant (and, of course, in cross-examination of the defendant, in the event he testified).

(iii) I ruled that the defence could cross-examine the complainant about a conversation with her boyfriend (not Fero – a different person) that she testified to at the preliminary inquiry, where her boyfriend questioned her about being with a sex work client, and blamed her for continuing to engage in sex work, and she said to him that she was not going to see any more clients (I note that in the event, the defence did not pursue this particular aspect of the third category). In addition, I ruled that the defendant, if he testified, could give evidence about the area he testified to on the s. 276 voir dire that that on the day he and the complainant had sexual contact, the complainant told him she did not want her boyfriend to find out if they had sexual contact, and made the defendant promise not to tell him. This evidence is relevant to a possible motive to fabricate on the part of the complainant. And since the defence is permitted to explore this area, if the Crown chooses, it may explore it in examination in chief with the complainant. I note that the topics I have outlined under point (iii) are a mix of things that s. 276 screening would apply to, and things that it would not apply to. Because of the inter-related way some evidence came out at the preliminary inquiry (which was part of the basis for the s. 276 application), these issues were addressed as part of the s. 276 application. Ultimately at trial, the evidence in relation the complainant being concerned about her boyfriend finding out if she had sex with the defendant, and her boyfriend’s reaction, came out in evidence as distinct from any prior sexual conduct.

[34] Having ruled that these categories of evidence were admissible, by analogy to s. 278.96 of the Criminal Code, I instruct myself to consider the evidence adduced pursuant to s. 276(2) only for the limited purposes set out in my ruling. Further, I instruct myself not to use the evidence for either of the prohibited inferences. I do not use the evidence to support any inference that by reason of the sexual nature of the prior sexual activity, it is more likely that the complainant consented to the sexual activity that forms the subject-matter of the charge. I do not use the evidence to support any inference that by reason of the sexual nature of the prior sexual activity, the complainant is less worthy of belief.

[35] In addition, as I indicated I would in my ruling of December 5, 2019, I instruct myself, by analogy with Barton at paras. 200-203, that I should be cautious not to draw stereotypical or adverse inferences against the complainant on the basis that she has at times worked as a sex worker. In particular, I note that people who do, or have in the past, engaged in sex work are entitled to the same protections the criminal justice system promises other Canadians; they are deserving of respect, humanity, and dignity; they are not sexual objects for male gratification; like anyone else, they are entitled to make the free choice to give or not give consent to sexual activity, and are not “available for the taking”; they do not assume the risk of any harm that befalls them because they engage in a dangerous form of work; and they are not less credible than other people.

The Evidence

The Crown case

(i) The Evidence of the complainant

[36] Prior to the complainant giving evidence, I ruled that her police interview could be admitted as part of her examination in chief pursuant to s. 715.1 of the Criminal Code (provided she adopted its contents when she testified, which she ultimately did). Thus, much, but not all, of her examination in chief was based on the videotaped interview conducted in the early morning hours the same night as the alleged offences. I make this clear because the police statement was admissible as her evidence in examination in chief (i.e., it is not a prior consistent statement in the ordinary sense). For sake of clarity, I have tried to refer to portions from the police statement as coming from the statement, and portions given at trial as her testimony. In either case, it forms part of her trial evidence in examination in chief.

The Complainant’s background

[37] The complainant was 20 years old when she testified at trial, and 17 at the time of the alleged offences. She was in many ways a vulnerable person. She has a grade 9 education. She had involvement with children’s aid services. She testified that she had anxiety (but there was not a lot of detail about this). She made reference to having had a brain injury (but again, there was not a lot of detail about this). At the time of the alleged offences, she supported herself with money from children’s aid, disability income, and to some extent, sex work.

[38] At the time of the alleged offences, she lived alone. At the time of the trial, she was married to the man who had been her boyfriend at the time of the alleged offences, and they had a young child together.

[39] In cross-examination, the complainant testified that she is diagnosed with dissociative personality disorder, and PTSD. She testified that she has issues with blackouts, sadness, and anger, especially during stressful events, and she can lose track of time. She testified that these issues were not as bad in November 2016, because she was using drugs (i.e., self-medicating). She said it was not as bad when she used drugs.

[40] In cross-examination, the complainant testified that in November 2016, she was taking Prozac, and Xanax. These were prescribed for PTSD, anxiety, and depression. The Xanax was also prescribed because she had previously been using Xanax obtained on the street, and it had been found to have fentanyl in it. She was also prescribed Suboxone as part of the same harm reduction program.

[41] She testified that when she was using street Xanax, she was using 4 “bars” a day. She testified that by November 2016, she was probably using 1 bar a day of Xanax. She also smoked marijuana at that time. She testified that the marijuana she smoked did not impair her. She also testified in cross-examination that in November 2016 she drank alcohol, and had been drinking a lot for five years. She would drink every day, usually in the morning.

Meeting the defendant and events prior to the evening of November 26, 2016

[42] The complainant told police in her statement that she met the defendant a couple of weeks prior to November 26, 2016, at the Eaton Centre. He approached her and asked her for her phone number, and she gave it to him. When asked during the police interview why she gave him her phone number, the complainant said that sometimes guys come up to her and ask her for her number, so she gives it to them, but usually she ignores them once she gives her number.

[43] In her testimony, she could not recall how long the conversation with the defendant at the initial meeting was. She said, maybe 10 minutes, but she did not want to guess. She could not recall if the defendant asked her any questions besides for her number in the initial meeting. She could not recall him asking about her age.

[44] In her statement to police, the complainant said that when she first met the defendant, he seemed like a nice guy, but that she did not want to be with him because she had a boyfriend. In cross-examination, she testified that she would never have considered a relationship with the defendant because he is black, and that is not her preference. She said she told the police in the interview that she was not interested in a relationship with the defendant because she had a boyfriend, because she did not want the police to think she was racist. She agreed that she had made a legal promise to tell the truth at the start of the police interview, but that what she told them about that was “a mistake”.

[45] The complainant said in the police statement that the defendant contacted her for a couple of weeks, trying to call her. In her trial evidence she said that often she would not answer his calls. She said she did not answer his calls because she felt uncomfortable and did not want “to be with” the defendant. She said she was trying to leave the sex trade, and she was with her boyfriend and did not want to be with anyone else. They also texted.

[46] In her statement to police the complainant said that she and the defendant planned to meet a week prior to November 26, but she “ditched him” and did not meet up with him that time. The defendant was “really pissed” that she ditched him. But he kept calling her. The complainant initially said in her police statement that she did not see the defendant any time between the date they first met, and November 26, 2016. But later in the statement she talked about a time where the defendant came to meet her at Downsview Station, and she hid in the bathroom. She said in the police statement that this made her anxious (although I note that it was clear from the cross-examination that she had told him where she was and that she wanted to meet with him). This portion of the statement was a little unclear, but I take it to refer to the same event when the complainant said she had planned to meet the defendant, but then “ditched” him.

[47] The complainant said in the police statement that between the date she first met the defendant, and November 26, 2016, there was an occasion where she spoke to the defendant on the phone when she was high on ecstasy/MDMA. She told police that she called him, “and ended up telling him everything because I was on ecstasy”. She told police she was “really high” during that call. In her police statement, the complainant said that during this telephone conversation when she was “high on molly’s”, she told the defendant she was 17 years old. During the portion of the police interview where she said this, one of the officers asked if the defendant ever talked about the video for the production company and disclosing that she was 17. The complainant responded, “No, I just say I’m 18.”

[48] In her testimony, when asked about the phone conversation when she on MDMA, the complainant said she recalled it “a little bit”. She could not recall if she called the defendant or he called her. She was asked what she meant in her police statement when she said that she told the defendant “life stuff”. She said that she told him about Fero (her former pimp), and about the fact that at the time of the call she was at a “sugar daddy’s” house. She told the defendant that she was not comfortable being there (she explained in her trial evidence that the reason she was not comfortable was because she wanted to leave the sex trade, she did not like doing overnights, and the sugar daddy made her feel uncomfortable. It was not clear from her evidence if she told the defendant these details of why she was uncomfortable).

[49] She testified that in that call, she told the defendant about Fero. The defendant had told her that he “worked girls”, and this is why she told him about Fero. She told him Fero was her boyfriend. She said that the defendant knew that Fero was her pimp, because she told him that Fero worked girls. She testified that she told the defendant that she did not want another pimp because she was “getting out of the game”. She testified that the defendant made it seem like he knew Fero. But she also said that she “presumed” that the defendant knew Fero, because “because he said that he like knew him, that he’d heard of him”. She testified that as a result of believing that the defendant knew Fero, she wanted to see him to get information about Fero (Fero had recently been arrested). She wanted to see Fero and she missed Fero. She was upset that the police had arrested Fero.

[50] The complainant was asked at trial if she told the defendant she was afraid of pimps. She said, yes, that she told him that her relationship with Fero was complicated. She testified that Fero used to beat her, but her answer was unclear as to whether she told the defendant this. She said the defendant said that he treated the girls who worked for him well, and they split the money 50/50.

[51] When she testified at trial, the complainant could not recall if she told the defendant (during the MDMA phone conversation) about any issues she had with Fero. She could not remember any other conversation with the defendant about Fero.

[52] The complainant testified that MDMA (ecstasy) makes her talkative about life, and open, very hyper. She said it makes her feel like telling everyone about yourself and your life.

[53] The complainant told police that the defendant told her that he was in school at York University for business. The complainant testified that the defendant told her that he “works girls” sometimes (i.e., pimping), but that he said to her that he was not trying to work her, but was just trying to be with her. In her testimony she said that the defendant told her that he “worked girls”. He told her that all the girls who worked for him worked voluntarily.

[54] In cross-examination, the complainant testified that she and the defendant talked about Fero during the phone call when she was high on MDMA. She said she thought the defendant knew Fero. She said he told her during the call when she was high on MDMA that he knew Fero. She testified that she wanted to meet with the defendant because she thought he might be able to give her information about Fero (who had been arrested).

[55] In cross-examination, the complainant said that during the phone call when she was on MDMA, she told the defendant about Fero. She testified that during that phone conversation, the defendant told her that he knew Fero, and that he (the defendant), “worked girls”. She said she told the defendant that Fero “worked her” and was her boyfriend. She was asked in cross-examination whether she told the defendant that Fero would be violent with her. She said she thought she told the defendant a bit about that, but she did not remember, and she did not want to speculate.

[56] In cross-examination, the complainant explained a portion of her statement to police, that during the telephone call with the defendant when she was high on MDMA, when she was at the home of the sex work client she referred to as the Sugar Daddy, she told the defendant that she was not feeling comfortable there. She testified that he told her that she should just leave (earlier than she had planned to), and take the Sugar Daddy’s money.

[57] In cross-examination the complainant was asked if MDMA was the only drug she had taken when she had the phone conversation with the defendant from the Sugar Daddy’s place. She said, yes, unless it was laced with something. And she said she had probably taken her Xanax that day in the morning, but not that night. She may have skipped her Prozac. She said she probably also drank alcohol, but then said she did not drink that much because it ruins the MDMA. She agreed that she was high when she had the telephone conversation with the defendant when she had taken MDMA.

[58] The complainant testified that she arranged for the defendant to meet her at Downsview Station, but then she got scared and anxious, and hid from the defendant. Near the end of the cross-examination, it was suggested to her that the plan to meet at Downsview station never really happened. She denied this suggestion. She was then asked if the plan to meet at Downsview Station happened before or after the phone conversation with the defendant when she was high on MDMA. She said she did not want to “assume”, but that the was pretty sure it was after that phone conversation.

[59] In cross-examination, the complainant was asked why, if she thought she could get information from the defendant about Fero, and wanted information about Fero, she then did not follow through on the plan she said existed to meet the defendant at Downsview Station. She said she did want to get information about Fero, but then she got a bad feeling and she hid in the bathroom. She agreed that it was her evidence that she had wanted to meet the defendant and told him to meet her at Downsview Station. She agreed that in her police statement she had said she ditched on this meeting because it seemed creepy. She was asked in cross-examination why it would be creepy for the defendant to show up at Downsview Station when she had wanted him to show up so she could ask about Fero. She responded that she had a bad feeling. She again denied the suggestion that the plan about meeting at Downsview Station never happened.

Evening of November 26, 2016

[60] The complainant said in her police statement that on November 26, 2016, she needed a lift home from the Eaton Centre. Her boyfriend was away. The defendant had been calling her. She did not answer about three times, but then she picked up. This was about an hour before he picked her up. He offered to give her a lift home. He texted her when he arrived. During the police interview she checked the time of that text, and it was 7:42 p.m., and she said he arrived around 7:50 or 8-ish. She met him outside the Eaton Centre near the Canadian Tire. She said in the police statement that she specifically told him that she would not have sex with him, and he said, oh yeah, don’t worry.

[61] In her trial testimony, the complainant said she accepted a drive from the defendant because she needed to get home, and she did not feel comfortable taking the TTC at that time. He offered her a ride. He said she did not have to do anything. In retrospect, she said she was being naïve, and in a really bad place. She also said that because of her disability, it causes her not to really see what she is getting herself into.

[62] The defendant came to the Eaton Centre to pick her up. She got into the front passenger seat. He was driving. In her trial evidence, she said that when she got into the car, the defendant told her she looked like a model, really pretty. She said, thank you. He started driving. At some point she told him it was not the right direction. She was confused as to where they were going.

[63] She said in her police statement that they drove for about 20 minutes. The defendant drove her to a school that was somewhere on the way to her home. She was not sure exactly where this location was, but said it was in a residential neighbourhood. He parked the car and asked her to come into the back of the car. She asked why. She had wine with her, and the defendant suggested they could drink it, but they did not end up drinking it. He was saying that he wanted to make a video of her. She got into the back seat. He was asking her why she was sitting so far from him. She said she told him that it was because she was trying not to have sex with him. He asked her to come and sit on his lap. Then he took out his penis. She said she told him, you do your own thing, I’m not trying to do anything with you. She said she did not want to, and that she had a boyfriend. She told police that he told her to suck his dick. She said she ended up doing it a little bit, because she felt pressured, because she felt he would not drive her home if she did not. She said the oral sex lasted “maybe two minutes”. He said, that he did not care, and she had to do it.

[64] The complainant said in her police statement that defendant told her to take off her clothes so they could have sex. She told him she did not want to. He said she had to have sex. At some point, he said something to her to the effect that she had to do this, or else she was betraying him. She told police that at that point, “I just let him like – I was a little bit high so then I just like – didn’t care.” She told police that during the intercourse, she told the defendant that she was not comfortable with this, and said no, because she was “with my guy” (which I take to be a reference to her boyfriend).

[65] In her trial testimony, the complainant said she was telling the defendant she did not want to do it, but he said, I don’t really care, just do it. When asked about her statement to police, that she said the defendant said that she had to do this or she was betraying him, she said this was like the kind of thing Fero would say to her, for example if she did not want to go with a specific client. She said she felt anxious (with the defendant), and when she feels anxious, she doesn’t know what to do, and she just complies because she does not want to get hurt. She said she felt obligated to have sex with the defendant, because he was making it seem like he would not take her home if she did not do so.

[66] She told police that a condom was not used for the oral sex, but that the defendant put on a condom for the intercourse. During the intercourse, the defendant had his pants off, and she had all of her clothes off.

[67] After the sexual contact at the first location, the defendant said he would take her home. But then as they were driving, he said he wanted to have sex again. He said he wanted to record her and make her a porn star. She told him that she did not want to do that.

[68] The complainant said in her police statement that after that the defendant drove the car to another location close to her house, Centennial College. They stayed in the front seat. The defendant was kissing her neck and grabbed her breast. She told him that she was not interested. Then he took out his penis. He told her she had to suck his dick, and to look at the camera. He then told her that she had to suck his dick while he video recorded it, and he could send it to porn production, and they could make money. She told him no, she did not to be recorded. He said he would record her anyways. She performed oral sex on him, and he recorded it on his phone. The flash on his phone was on when he was filming.

[69] He then wanted to have sex again. At one point he was choking her a little bit, and she told him to stop and pushed his hand away. The complainant told police she felt “obligated” to take off her clothes and to have sex. When asked what she meant by this, she said, “Like I was a little bit high but I felt kind of like – like not wanting to do it like kind of like – guilty…. Like I was just worried about the fact that like I have to do it or else he was gonna not like – let me go home.” In her trial evidence she said she did not feel guilty, but that she felt anxious.

[70] She told police that a condom was not used for the oral sex, but that the defendant put on a condom for the intercourse.

[71] After they had sex, the defendant told her that now he was her boyfriend, and she was his girlfriend, and she had to see him again. He said he would make her a big porn star. He said he would send the videos to the porn industry to distribute is they could split the money 50/50. She said she was clothed during the oral sex, but not during the intercourse.

[72] In her trial evidence the complainant said that she repeatedly said no to the defendant (in relation to sex), or would just be quiet. She said she never said yes, or encouraged the sexual activity.

[73] After that, the defendant drove the complainant to her home and dropped her off.

[74] In cross-examination, the complainant testified that when she got the defendant to drop her off, she told him the address of the house beside her house. However, she agreed that earlier she had given him her address and he had put it into the GPS on his phone.

[75] During the police interview, the complainant was asked if the defendant ever threatened her. She said there were not threats, as such, but he said things to her like that she was wasting his time, and that if she wanted him to drop her home, she had to do these things. She also said she felt he was “game playing”, like Fero (the man who had been her pimp and had been recently arrested). She felt that the defendant was being like Fero she felt the defendant was “fibbing” about wanting to be with her. She felt that the defendant’s comments about helping her make money was the kind of stuff that can lead to prostitution. She felt that these things about the defendant reminded her of Fero. She also testified that at one point in the car the defendant took her cell phone and put it on the other side of the car where she could not reach it.

[76] In cross-examination, the complainant was asked about her evidence at trial that during the alleged offences (i.e., the time in the car), the defendant said to her that if she did not do what he said he would not take her home, and that she had not at the preliminary inquiry that he had actually said this (as opposed to her feeling that). She was shown a portion of her evidence from the preliminary inquiry where she was asked if the defendant actually said that he would not take her home if she did not have sex. Her evidence from the preliminary inquiry was that she felt that he would not take her home if she did not have sex, but that she could not remember if he actually said that.

[77] In response to this, in cross-examination, the complainant said she had not mentioned earlier that the defendant said that he would not take her home because she has had memory “gains” as time goes by. She said she remembered better as time goes by, because things in her memory were suppressed. She said her trauma therapy helped her remember events and deal with it. She said her memories were suppressed at the time of the preliminary inquiry.

[78] In cross-examination, the complainant was asked whether the defendant said any threatening words to her. She said his tone was threatening. When she was pressed on whether he actually used any threatening words, she said she could not remember, and she did not want to say yes or no, and did not want to speculate. She was then shown a portion of her preliminary inquiry evidence, where she said there was no physical threat by the defendant, but that she felt something bad could happen. She agreed that she had given that evidence. But she said that (at the time of the trial), she did not want to say yes or no to whether the defendant made threats to her, because she did not know for sure.

[79] In cross-examination, the complainant denied the suggestion that the sexual contact with the defendant was consensual. She denied that what she was concerned about was that her boyfriend would find out. She denied the suggestion that she was saying that the sex with the defendant was non-consensual because she did not want her boyfriend (now husband) to be mad at her, or to feel that she cheated on him. She denied that she told her boyfriend that sex with the defendant was non-consensual, because when she first told him about what happened with the defendant, her boyfriend accused her of cheating on him. She denied the suggestion that she was suicidal because she felt her relationship with her boyfriend (now husband) would be destroyed, and she told him and the police that the sex was non-consensual so she would not have to take responsibility for what happened (I will not summarize in detail the Brown v. Dunn portion of the cross-examination).

[80] The complainant was asked during the police statement about several references she had made to being “high” during the events. She said she had taken Prozac and drank a quarter of a bottle of wine in the morning before she saw the defendant. She also said she took Xanax after when she got home. She said she also smoked marijuana after she took the Xanax.

[81] In cross-examination, the complainant was asked about her consumption of drugs or alcohol that day and evening. She testified that in the morning she usually took Xanax and drank alcohol. She said she most likely smoked weed in the morning, but she mainly smoked weed at night. She denied that she smoked marijuana in the defendant’s car. She denied that she offered the defendant wine in his car, but said she had wine with her in the car. She could not recall if she drank any of her wine in the car. She also took Prozac that day in the morning. She denied that taking Xanax, alcohol, Prozac, and marijuana affects here memory. She said it just makes her more drowsy.

Events after the complainant arrived home

[82] In the police statement, the complainant said that once she was home, she took Xanax, and then called kids help phone. She said she called kids help phone “because then I told my boyfriend and then my boyfriend was just like got pissed off. And I’m like really it wasn’t my fault this time. So like – so then I call kids help phone and go get – because like I was screaming and like a little bit suicidal about it by then so they – but I got over the suicide and just waited actually.”

[83] Later in the statement she provided the following description of the call to her boyfriend: “I called my boyfriend. I ended up telling him – and then he’s thought it was like all my fault and shit. But then I mentioned there was – I was – it was not my fault, and he’s like okay okay I understand a little more. . . . Cuz he’s like, that man’s a creep.”[^3] She also said that she was concerned that the video the defendant made could leak, and that was why she told her boyfriend about what happened: “Like the only reason why I told him is because the fact that – I knew if the videos got leaked he’s gonna see them, right, so I was like he’s gonna see the video, I might as well tell him before he sees the video then.”

[84] In her trial testimony she said that she called her boyfriend (now husband) and called the kids help phone. She could not remember in which order she made the calls. She said she called the kids help line because she felt suicidal, and she did not know what to do, and did not have anyone to talk to

[85] As a result of her call to kids help phone, an ambulance was dispatched to the complainant’s home. Police also attended. The complainant testified that she was then taken to hospital.

[86] At the time of the trial, the complainant was married to the boyfriend she had called on the night of the alleged offences, and they had a young child together.

[87] At the time the complainant gave the video statement in the early morning hours, she was asked by police if she had consumed any drugs or alcohol. She told police she had, but said it was not enough to impair her. She said she had taken Xanax for anxiety four hours ago. She said she takes Prozac (it was not entirely clear if she was saying she had taken it that night, but I understood that to be the case from the context). She said she drank alcohol in the morning (i.e., the morning of November 26, 2016). She said she had consumed marijuana yesterday (which I understood to mean November 26, 2016), but said she was no longer feeling its effects.

[88] The complainant agreed in cross-examination (based on her history of being a victim of sex trafficking, and other events), that for most of her life she had had bad relationships with men. She was asked in cross-examination if around November 2016 her relationship with her boyfriend (now husband) was her only good relationship with a man. She did not entirely agree, saying that she also had a good relationship with her father-in-law. At the time of the trial, she and her husband lived with her husband’s family, and the family helped take care of their daughter. She agreed she would be hurt if anything happened to her relationship with her husband. She said it would be hard for her, but that if something happened to her relationship with her husband, she would focus on her daughter.

[89] She testified that in 2016, her boyfriend (now husband), helped her when she was still with Fero, her pimp. Her boyfriend would take her to the hospital when she was sick, or when Fero beat her. Her boyfriend always respected her, and made her feel safe. When Fero was arrested, she became homeless. Her boyfriend let her move in with him (but she was living on her own at the time of the alleged offences).

[90] In cross-examination, the complainant testified that she was trying to leave the sex trade in the fall of 2016. Her boyfriend wanted her to leave the sex trade, and had given her $200 to “leave the game”. But she still wanted to see the client she referred to as “Sugar Daddy”.

[91] In cross-examination, the complainant was asked if she was high when she gave the video interview to the police on the night of the alleged offence. She said she took her medication, but she was not impaired enough not to know what was happening. She said she had taken Prozac and Xanax.

[92] In cross-examination, the complainant denied that she took an excessive amount of Xanax that night to try and kill herself. She said she did not take an excessive amount, because she called Kids Help Phone. She was then shown a portion of her evidence at the preliminary inquiry, where she had testified that she called her boyfriend when she got home, after she called Kids Help Phone, and that she told her boyfriend what had happened with the defendant, and then afterwards she took “an excessive amount of pills”.

[93] In response to being shown this previous testimony, the complainant said that she did not remember taking an excessive amount of pills. She said, “you would have to check my drug screen” (I note that there was no drug screen put in evidence at trial). She said she wanted to kill herself, but she did not remember taking an excessive amount of pills. She said if she had taken an excessive amount of pills, then she would have been nodding off in the police interview video. She testified that she did not think she looked like she was high on the video. She agreed that she had done her best to tell the truth at the preliminary inquiry, but she said that defence counsel at the preliminary inquiry (not defence counsel at trial) was confusing and was frustrating to her. She also reiterated that counsel would have to check her tox screen.

[94] When asked again whether or not it was true that she took an excessive amount of pills after she spoke to her boyfriend that night, the complainant said she could not remember. She said she did not want to say yes or no. She said, if she said it back then (i.e., at the preliminary inquiry), then it was probably true. But that she did not remember taking and excessive amount of drugs.

[95] She was then shown a portion of the preliminary inquiry transcript where she said that she had called Kids Help Line because she was trying to kill herself, and that she took an excessive amount of Xanax and drank alcohol to try to kill herself. In response to being shown that prior evidence, the complainant said it was possible that that happened, but she did not know. She said that is why she would like to see her medical report (i.e., toxicology). When asked if she was telling the truth when she testified at the preliminary inquiry that she tried to kill herself with Xanax and alcohol, she responded that she was most likely telling the truth, but that she would have to see her test results. She said she remembered taking one Xanax.

[96] She agreed that in her police statement she had told the police that she took one Xanax earlier in the evening. She acknowledged in cross-examination that she had said different things about what drugs/alcohol she had consumed prior to the police statement in her police statement, at the preliminary inquiry, and in her trial evidence. She explained that the defence lawyer at the preliminary inquiry was confusing. She testified (at trial) that she had consumed alcohol that morning, and took her Xanax later, but denied that she was trying to kill herself that night. She said she called Kids Help Line because she felt suicidal, but denied that she tried to kill herself.

[97] She was asked in cross-examination if she took 3, 3 mg pills of Xanax and then tried to cut herself that night. She responded that she did try to cut herself, but she said it was in the morning that she had taken 3 Xanax.

[98] She was then shown a portion of her evidence from the preliminary inquiry where she had testified that she took 3, 3 mg pills of Xanax that night, and that her usual does was one or half a pill, and that she then also tried to cut herself on one wrist with a knife or scissors. In response to being shown that evidence from the preliminary inquiry, she said she did not remember giving that evidence because it was stressful. She also said she usually takes 3, 3 mg pills in the morning. She said that at night she usually takes half or one pill.

[99] The complainant denied in cross-examination that she took an excessive amount of Xanax that night in an attempt to kill herself. She denied that she was high when she gave the police statement. She said she also remembered going outside and smoking weed.

[100] Towards the end of the cross-examination, the complainant agreed that when she called her boyfriend that night, she told him what had happened with the defendant. She could not recall if she called her boyfriend or the kids help line first. Her boyfriend’s reaction to telling her about what happened with the defendant was that he thought she was cheating on him. But she then explained that she did not want to be with the defendant, and that she had said no numerous times. She denied that she was suicidal because her boyfriend did not believe her. She said her boyfriend did believe her.

Representations by the complainant about her age

[101] In examination in chief, the complainant was shown two online ads in the name of a persona she used for sex work. She agreed that these ads were from 2016, when she was 17 years old. She agreed that the ads represented her age as being 18 years. She said that Fero had wanted her to post those ads. She said the ads were posted online before she met the defendant, in September 2016 (I note that there was no suggestion that they were removed prior to the events at issue in this trial). The complainant also identified that one of the ads had a disclaimer on it that the website was only for people 18 years of age or older. The complainant said she never discussed these ads with the defendant.

[102] In cross-examination, the complainant agreed that she posted the two online ads, but said Fero had encouraged her to do so. She said they were posted in September 2016. She agreed that she listed her age as 18 years in the ads. She agreed that Fero “trained” her to say she was 18. Fero told her to lie about her age because he did not want to be arrested, because it was illegal to do sex work under age 18. She testified that Fero got her a fake ID at some point to show to clients, but she said she never used it after Fero was arrested.

[103] In cross-examination, the complainant testified that she had two different personas for her sex work (in the fall of 2016). One was named “Jennifer” and was 20 years old. The other (in the ads marked as exhibits) was named “Malissa” and was 18 years old. She agreed that when she would post ads as Jennifer, she would say she was 20 years old. She said the Jennifer persona was posted on Backpage and on another website. She said Malissa was the main persona she used for sex work. She testified that she lied about her age when she was working with Fero. She denied that she lied about her age after Fero was arrested.

[104] In cross-examination, the complainant denied that she told the defendant she was 20 years old. She testified that she did not lie about her age after Fero was arrested. She said the Sugar Daddy knew she was under 18. She said she just told everyone ger real age, and she said she looked pretty young at that time.

(ii) The Evidence of Hun Sook Park, the nurse who did the sexual assault examination

[105] Hun Sook Park is a nurse with the Scarborough Health Network. She has training as a sexual assault nurse examiner. When she testified, she could not recall exactly when she did the training, five or six years previously. But she testified that in November 2016 she was properly trained to do a sexual assault evaluation kit examination.

[106] Ms Park conducted a sexual assault examination on the complainant in the early morning hours of November 27, 2016 (the same night as the alleged offences). Ms Park testified that by the time of the trial, she had some memory of the examination, but not all of the details, and the had to rely on the notes she made at the time of the examination.

[107] She did not have any independent recollection of the complainant’s injuries, but they were documented in the notes she made that night. The parties agreed that the contents of the nursing notes were admissible pursuant to the principles in Ares v. Venner. The notes from the examination were marked as an exhibit, and Ms Park explained their contents.

[108] I should add that I do not find Ms Park’s lack of recollection of this particular examination to be a significant factor in assessing the credibility and reliability of her evidence. It is common for medical professionals to rely on their notes to recall the details of examinations conducted years earlier. The defence did not cross-examine Ms Park.

[109] Ms Park explained that her practice in documenting injuries during a sexual assault examination is to ask to see each part of the patient’s body (i.e., visually observe), and to ask them if there is any pain or tenderness. She does this starting at the patient’s head, and then downwards to their shoulders and so on. She does not usually touch the front of a patient’s body. If a patient says they have tenderness at a specific location, Ms Park would touch the area and then document it.

[110] In referring to the documentation of injuries, I note that the nursing notes are numbered as follows: the first 5 pages are numbered “page X of 5”; the following 6 pages are numbered “page X of 6”; followed by two pages of consent forms. The injuries are documented in the set of pages numbered “page X of 6”.

[111] On the right side of the complainant’s neck, Ms Park noted “just tender”. At the rear top of the right shoulder, she noted “tender to touch”. Ms Park testified that based on her practice, these notations are based on what the complainant told her during the examination.

[112] On the left side of the complainant’s neck, Ms Park noted “0.5 cm” twice, and “slight bruise”. Ms Park testified that she observed two marks there where she noted them. They were slight bruises. Ms Park testified that for her, the notation “slight bruise” means that the area is light pink.

[113] At the top of the right shoulder (in the same location where she had noted “tender to touch”), Ms Park had noted “red/bruise”. She testified that this meant that there was redness or a bruise in that area. She testified that when you see a bruise in its early stages, it appears red or pink. She had noted there that the redness was 1 cm in size.

[114] Ms Park had noted “few small bruises” on the left hand. She was asked at trial what colour, if any, was there. She said because she had not noted the colour, she was not sure.

[115] Ms Park had noted “4 scratches on R hand” (i.e., right hand). Ms Park testified that she could not provide any more description of that now, and only could go by what was in the notes.

(iii) The Evidence of Detective Shona Patterson

[116] Detective Patterson (and many of the other officers) testified primarily in relation to the Charter and voluntariness voir dire about the defendant’s statement to police. I do not summarize their evidence relating to the defendant’s statement here, as I ultimately excluded the statement.

[117] In addition, Detective Patterson gave evidence about the complainant’s demeanour on the night of the alleged offence, when she gave her statement to police. Detective Patterson was one of the officers involved in taking the videotaped statement. Detective Patterson made no notes about the complainant’s demeanour.

[118] Detective Patterson testified that the complainant tended to mumble her words while giving her statement, and the officers taking the statement had to repeatedly ask her to keep her voice up. The statement was taken in a soft interview room. The complainant was in a lounge chair, and curled up under a blanket.

[119] Detective Patterson testified that the complainant told the police she had taken anxiety medication (this is hearsay from the officer, but was asked as context for the officer’s observations). Detective Patterson was asked about her observations about how the medication affected the complainant. She testified that she had nothing to compare it to. The complainant was able to answer all the questions the police asked, but she spoke more slowly than most people. Detective Patterson also noted that the interview was conducted after the sexual assault examination had been completed, at around 5:00 a.m.

[120] Detective Patterson testified that when the police drove the complainant home after the interview, the complainant showed them the location of the second place the defendant stopped the car, a parking lot at a Centennial College location.

(iv) The Evidence of Sergeant Jesse Weeks

[121] Sgt. Weeks was on patrol in uniform on the evening of November 26, 2016. He heard a radio call about a sexual assault. In response, he attended at an address of the complainant, and spoke to the complaint. There was already an ambulance at the home when he arrived, and while he was speaking to the complainant two other officers arrived.

[122] Sgt. Weeks described the complainant’s demeanour when he spoke to her that evening as withdrawn, but cooperative. She seemed a little upset. He did not observe any indicia of impairment. She was able to answer questions, and told him a little of what she said had happened. He testified that she was fully conscious, aware, and alert.

[123] Sgt. Weeks testified that he did not take a detailed statement from her, because he felt that could be done later. His priority was finding out if there was a suspect to follow up on, or if there was a scene and evidence that needed to be preserved.

[124] After he spoke to the complainant, she was taken by ambulance to the hospital with the other officers.

[125] Based on some information provided by the complainant, Sgt. Weeks attended at the parking lot at Centennial College on the south side of Mortimer Avenue. He found a used condom and wrapper on the ground in an empty visitor’s parking spot, and a car beside it. Photos of where he found the condom and wrapper were made exhibits.

[126] It was agreed as an admission pursuant to s. 655 of the Criminal Code that the defendant’s DNA could not be excluded from a DNA sample recovered from the condom, and the probability that a randomly selected person unrelated to the defendant would coincidentally share the same STR DNA profile is estimated to be one in greater than one trillion.

The Defence Case

[127] The defence case consisted of the evidence of the defendant, supported by some documentary evidence.

The Defendant’s background

[128] The defendant was 20 years old at the time of the alleged offences, and 24 years old at the time he testified at trial. He grew up in the Jane and Finch neighbourhood of Toronto, and still lived there at the time of the trial. At the time of the alleged offences, he had completed high school. He had started university studies in the United States, but after half a semester he found he could not handle the workload. He had then taken time off an focussed on his training (he is a high level track and field athlete, and competes for Canada’s national team). At the time of the alleged offences he was focussed on his athletic training. At the time of the trial, he was enrolled in an undergraduate program at university. The defendant testified that he has a learning disability. No detail was provided about the nature of the learning disability, and it was not the subject of cross-examination.

[129] In cross-examination, the defendant agreed that track and field is very important to him. He disagreed it was the main focus of his life, because school was also a priority. But he agreed that track and field was a main focus for him. He agreed that he had been involved in track and field from a young age, and he had worked very hard to get where he was today. He agreed that he had had many successes in track, that he was the fourth fastest man in Canada. Crown counsel cross-examined about whether women are impressed by his track career. The defendant testified that it was not something he usually tells women. In his experience, women are more impressed by money and cars. But he agreed that when he had told women about his track career they were usually impressed.

[130] The defendant denied in cross-examination that he told the complainant that he was enrolled in business classes at York University. He testified that he was never enrolled at York, and he never told the complainant that he was. However, his athletic training takes place at York University.

Meeting the Complainant, and events prior to November 26, 2016 (including representations by the complainant about her age)

[131] The defendant testified that he first met the complainant in November 2016 at the Eaton Centre. He was there with a friend. They were walking around the mall trying to meet “girls”[^4]. If they saw a group of women, and found someone attractive, they would go together and try and start a conversation with them. They would also approach women individually. His recollection was that he spoke to fewer than six women that day at the Eaton Centre. The complainant was one of them.

[132] He testified that he saw the complainant, and thought she was “really cute”. He approached her, she acknowledged him, and they had a conversation. At the time, his friend was talking to another woman (not immediately nearby). The defendant testified that he spoke to the complainant for probably 10 minutes. He was looking back to see if his friend was still talking to the other woman.

[133] During the conversation, he asked the complainant her name, how old she was, and where she was going. The complainant said she was going to meet someone, who was waiting for her outside. She said she was 20 years old. The defendant could not remember all the details of the conversation, but he said they had “a pretty decent” conversation. He asked her for her phone number, and she gave it to him. The defendant testified that there was no discussion in this conversation about what she did for a living.

[134] The defendant testified that he believed the complainant when she said she was 20 years old. He thought she looked older, and testified that he was surprised when she said she was 20. He thought she looked older than him, and that she looked around 24 years old (he was 20 at the time).

[135] The complainant left, and the defendant rejoined his friend, and they continued speaking to other women.

[136] The defendant testified that when he met the complainant, he thought she was cute, and was attracted to her. He thought the feeling was mutual. He was not at that point thinking of pursuing a relationship, just about getting phone numbers of women.

[137] The defendant agreed in cross-examination that he grew up in Toronto. He was asked if he knew Toronto well. He testified that he did not know streets downtown well to drive them. He agreed that he had been to the Eaton Centre many times, and knew the inside of the mall well. It was suggested to him that the Eaton Centre was a place where young people like to hang out. He disagreed, in the sense that he said all types of people hang out at the Eaton Centre, including business people. He testified that in his experience, Yorkdale is more of a place for young people than the Eaton Centre. He agreed that on the day he met the complainant, the reason he and his friend went to the Eaton Centre was to pick up girls. He agreed that he had gone there before to pick up girls. He denied that he had ever approached a girl he knew to be under age at the Eaton Centre. He said maybe at Yorkdale, when he was 17 or 18, he may have approached girls under 18.

[138] In cross-examination, the defendant testified that he could not recall if there was a large women’s clothing store beside where he met the complainant. He was asked about his memory of meeting the complainant. He said that his memory was good enough to point out certain details, but, for example, he could not remember what the complainant was wearing the day he met her. He agreed that he had a detailed memory that the complainant looked at him, of what she said to him, and how their conversation went. He testified that he remembered the complainant looking at him from 15 or 20 metres away (before they spoke). He took the look as possibly an indication that she was “into him”. He had some conversation with her, but she said she had to go somewhere. He denied she was rushing.

[139] The defendant was then shown a portion of his evidence from the s. 276 hearing (from February 2019). In that extract, it had been suggested to him that the complainant was rushing. At the 276 hearing he did not accept that suggestion. Rather, he said “she seemed to be going somewhere, but she wasn’t rushing as fast as a normal person would”. She was “kind of walking a little bit fast but not as quickly”; “she was walking”. In response to being shown this prior evidence, the defendant testified that that he had said in the 276 hearing that the complainant wasn’t rushing to leave the conversation, she was just going somewhere, and the conversation wasn’t rushed. I pause to note that having reviewed the extract of evidence put to the defendant, I find that it is not inconsistent with his trial evidence.

[140] In cross-examination, the defendant agreed that in the conversation when he first met the complainant, he asked her name, he told her she was good looking, and agreed with the suggestion that he was trying to flirt with her. He agreed with the suggestion that he asked her age, and she said she was 20. He testified that he thought the complainant looked 24.

[141] In cross-examination the defendant was asked about an answer he had given in examination in chief that he was surprised when the complainant said she was 20 (because he thought she looked older). He said, in a way, in the sense that sometimes you get an idea in your head of someone’s age, and then they tell you something different. He also said “surprised” may have been too strong a word.

[142] Crown counsel then cross-examined him on an extract of his evidence from the s. 276 hearing where he said he was not surprised when the complainant told him she was 20. He responded that he had just testified that “surprised” was not the right word (see para. 141 above).

[143] The defendant was cross-examined about how by looking at a person he can tell their age. He said just by looking at them, but that he is not an expert who can tell exact age by looking at someone. When he said the complainant looked like she was 24, he meant that she looked about the mid-range of her 20s. He said he could not explain what about the complainant’s look made him think she was 24

[144] The defendant was cross-examined about what his impression was of the complainant’s personality from the first meeting. He said she was cute. He said he did not really notice anything about her personality. He said she seemed like a “chill” person and an open person. Crown counsel repeatedly asked if he thought the complainant seemed confident. The defendant said he did not know how to answer that, he did not know.

[145] In cross-examination the defendant testified (as he had in examination in chief) that the first meeting at the Eaton Centre was the only time he and the complainant discussed her age. He also said that on a later occasion she told him when she first started working (doing sex work).

[146] The defendant agreed in cross-examination that he never tried to find out what high school the complainant had gone to, or whether they liked the same TV shows.

[147] The defendant testified that he spoke on the phone with the complainant one or two days after meeting her. It was a very brief conversation. He called her. He could not remember the details of the conversation, just that it was small talk, and lasted 15 minutes or so.

[148] The defendant testified that they had a longer telephone conversation after that. He believed this conversation was the day after the first telephone conversation. He called the complainant. During the conversation, she told him that she was at the home of a guy who was paying her for sex. The complainant told the defendant that the man had his kids at his home for the night, which she told the defendant she thought was weird. She would from time to time tell the defendant that the man was coming into the room, and say she would call him back (and did call him back). At one point, the complainant told the defendant she was having sex with the man while she was on the phone. The complainant also told the defendant she wanted to leave the home of the man. The defendant told her to leave and come and hang out with him. She said she could not leave because the man had already paid her half the money (for the night).

[149] During the phone conversations that night, the complainant told the defendant she had taken MDMA (“molly”). He asked her how it made her feel, because he had never tried it. She said it makes you feel really good, but did not go into detail.

[150] The defendant testified that during the phone conversations that night, the complainant told him that she did sex work for a living, and said she had a pimp. She said she lived alone. She talked about two men, but did not use names. She said one of them was facing charges for beating up her friend. About the other man, she said sometimes she sees him, but not all the time. The defendant said he was listening, but he really did not care who the two men were. The defendant also testified that in general in their conversations after the time they first met, the complainant talked about two men. She mentioned Fero by name, but did not mention the name of her boyfriend. But referred to her “boyfriend”.

[151] The defendant testified that the phone conversations with the complainant that night lasted in total probably about 45 minutes.

[152] The defendant testified that during the phone conversations that night, he did not tell the complainant a lot about himself, because she was talking more than him. He told her more about himself in another call a couple of days later.

[153] The defendant was cross-examined about the telephone conversation with the complainant when she said she was on MDMA. He said she told him she had taken MDMA. He could not recall if she told him she had taken anything else. He agreed that during this conversation, the complainant told him that she took drugs. She told him that she took “molly”. He said at the time he did not know that “molly” was MDMA. He agreed that he was curious about molly, and wanted to know more about it. He agreed that the complainant was talkative in this phone call, except when the guy (the Sugar Daddy) was in the room.

[154] He agreed in cross-examination that at time the conversation was confusing, particularly when the complainant talked about Fero and her boyfriend. He said he could not tell the difference between the two men, but that it may have been clear to the complainant. He denied the suggestion that the complainant’s words were muddled or that her speech was slurred. He said he had no trouble understanding her words, but he had trouble understanding the story she was telling (i.e., the content). He agreed that at times she went off on different topics that did not make sense, particularly when speaking about Fero and the other guy.

[155] The defendant agreed in cross-examination that the complainant thought he knew Fero. But he said he told her that he did not know him. He testified that he could not say whether the complainant understood when he said he did not know Fero.

[156] In cross-examination, the defendant was asked if in the MDMA conversation it seemed like the complainant was “over-sharing”. He said no, that every girl is different. He agreed that at the time of the MDMA conversation he did not know the complainant very well. He did not know her last name, or where she went to school. But he denied that she was “over-sharing”. He said, every girl is different.

[157] In cross-examination he was asked if someone telling him they had been trafficked and pimped from the age of 16 was personal, or unusual to him. The defendant testified that he had heard worse situations than that in talking to women about their pasts. He was asked if he understood that the complainant had been in uncomfortable sexual situations before. He said he knew that she had an uncomfortable situation with her ex-boyfriend where he would not give her her money. He said she did not go into detail about the fact she had been pimped since she was 16. The defendant testified that the conversation that night was not all about the complainant’s past. They also had general conversation, about what they liked to do for fun, and places they liked to go. He testified that he could not remember what the complainant said she liked to do for fun. He was then questioned about why he remembered that the complainant said she had been pimped from age 16. He said that stood out.

[158] The defendant was asked in cross-examination about evidence he had given in examination in chief that he understood that the complainant had been engaged in sex work for four or five years. He said that the complainant did not say that. Rather, he did a rough estimate based on the fact that she had told him she was 20 on the day they met, and then later she told him she had been involved in sex work since she was 16.

[159] The defendant maintained in cross-examination that the complainant told him that Fero was violent with another girl, and never told him that Fero was violent with her. He agreed that, for this reason, he did not leave the MDMA phone conversation with the understanding that the complainant had been violently beaten in the past. He said the complainant said she had problems with Fero, but did not go into detail.

[160] He was then shown an extract of his evidence from the 276 hearing, where he had agreed that based on the MDMA telephone conversation he knew the complainant had been violently abused by her pimp. In response to seeing this evidence, the defendant said he thought that the question at the 276 hearing was about the other girl, and that Crown counsel had moved very fast with her questions during the 276 hearing. He said it was his first time being cross-examined.

[161] In cross-examination, the defendant denied that he knew the complainant was afraid of pimps. He testified that he thought maybe she just found it more attractive to be with a pimp. He also said it was almost like she could not be without him (Fero).

[162] The defendant denied in cross-examination that during the MDMA call he pretended to be a pimp, but said that that happened in a later phone call (their fourth call). He said he did not pretend to be a pimp, but that the complainant asked him if he was a pimp. He testified that it caught him off guard. He said, yeah, because some girls find it more attractive, like if you have a car or have money. He agreed that his purpose in telling this lie to the complainant was to keep her interested in him. He agreed that he was not actually a pimp, and he pretended to be a pimp. He said he said yes when she asked him if he was a pimp. He said he laughed when he said it. But he did not prolong the discussion. He said the complainant said Fero had been doing it for a long time, and then changed the subject of the conversation.

[163] The defendant testified that the third phone conversation was probably two days after the MDMA call (he was not sure). He called the complainant. In that call she mentioned the name of her pimp (Fero). She told the defendant more detail about how long she had been doing sex work. She talked about other girls that Fero pimped. She spent a lot of time talking about one particular girl that Fero pimped and got pregnant. He testified that it was almost as if the complainant was a little jealous of the other girls, but not really. She told the defendant about Fero being violent to this other girl, and beating her for the littlest things.

[164] The defendant testified that in this conversation, the complainant did not say anything about Fero being violent with her. She said that she wanted to be with Fero, but that because of the charges against him she could not be. She told the defendant she had worked for Fero since she was 16, and she used to give him all her money. From the conversation, the defendant understood that she had been doing sex work for four or five years, but he said the complainant did not give an exact number. She said she was in and out of sex work, and that she started when she was 16 years old.

[165] In this conversation, the complainant asked general questions about the defendant, including how old he was, and where he lived. He told her he was 20 years old, and that he lived at Jane and Finch. She asked him if he was a pimp. The defendant testified that he said yes, because he did not want the complainant to lose interest in him, because she seemed like she was more into those type of guys. He said that over the years, in the past, when he had told girls that he did not have a car, they lost interest. He testified that he was not, in fact, a pimp, and never has been (and he also did not have any connections to the pornography industry). He said he had no interest in something like that, because of his athletic career, and he felt he would have the opportunity through his athletics to become famous and make money.

[166] He said they also discussed what he liked to do, like go to the movies. He said they talked about the potential of having sex, but that the complainant was focussed on her ex-boyfriend or pimp. The defendant testified that the complainant told him in the phone conversation that she would not have sex with him, because she had a boyfriend. He said this did not bother him, both because there are other women in the world, and also because she might change her mind, because he had known some women in the past to cheat on a boyfriend. He was interested in a “friends with benefits” relationship with the complainant.

[167] In one of the phone conversations with the complainant, when she told him about her work, he asked some questions about how it worked, and she told him that she posted ads online, including on Backpage. Subsequent to that, he went online and searched using her cell phone number. He found the ad included in Exhibit #10 for “Malissa”, which says she is 18 years old. That ad includes the complainant’s cell phone number, and the pictures on the third page are of the complainant.

[168] The defendant was asked in examination in chief what he thought about the fact that the ad said she was 18 years old, and that the complainant had told him she was 20, according to his evidence. He testified that he didn’t think anything. He said he knows from movies that older women sometimes say they are younger to make themselves attractive to more people, and gave the example of someone who is 30 saying they are 21. He also testified that he understood why she would use a different name in the sex work ad.

[169] The defendant was asked in examination in chief if he ever had a conversation with the complainant about meeting at Downsview Station. He said that in one phone conversation, when he was at home, the complainant asked him to meet her at Downsview Station. She said she was at Downsview Station, and she was going somewhere. He could not recall where. He was not sure exactly when this call was, but it was not immediately before the night of the alleged offences. He testified that he did not go to Downsview Station.

[170] The defendant testified that there were other telephone conversations between him and the complainant, but they were short. He also said there were missed calls, either when he called her and she did not answer, or when she called him, and he was at practice. He could not remember the details of all of the conversations, but that they were like conversations he would have with any other woman.

[171] The defendant denied that the complainant ever told him she was 17 years old. He denied that he ever said to the complainant that he wanted to be her pimp or get her into the pornography industry.

[172] In cross-examination, the defendant agreed that he has a diverse group of friends, not just his track and field friends. He agreed that his friends varied in age – some the same age as him, some older, some younger. He agreed that he occasionally went to bars, and that he went to clubs with dancing, including clubs where people are asked for identification on entering.

[173] In cross-examination, the defendant agreed that he had experienced older women trying to be younger (i.e., lying about their age). He was asked if he had ever experienced younger women trying to be older. He said in high school some girls would joke about it and say they were older, but he did not think it was ever very serious. He agreed that he had been to bars and clubs where people are asked for identification. But he denied he had ever seen a young woman use a fake identification to get into a bar or club.

[174] In cross-examination, the defendant agreed that in all of the conversations with the complainant they were never speaking with him as a potential sex work client. Rather it was it was friendly conversation.

[175] The defendant agreed in cross-examination that in November 2016 he knew what Backpage was, and had been on Backpage. He denied that he knew at that time that underage girls were on Backpage. In re-examination, he testified that he had never tried to post an ad on Backpage or Kingdom 99, and he did not know anything about the process to do so.

[176] The defendant agreed in cross-examination that he knew that the name “Malissa” on the sex work ad he found online for the complainant was not her real name. He said he never asked the complainant about it

[177] The defendant agreed in cross-examination that when he was 20 years old (i.e., in November 2016), he was not new to the internet. He had used Facebook, YouTube, and other websites. He agreed that at that time he had viewed pornography online. He denied that he had ever been on a pornography website that you had to be 18 or over to go one it. He testified that the only time he saw a website say you had to be 18 or over to go on it was when he looked up the complainant’s phone number on Backpage. He was then asked if he was saying that when he was 20, he had never had the experience of being on a web page where he had to pretend to be older. He said maybe for videogames, that some videogames say you have to be 17 or 18 years old. He agreed that for those types of websites, all he had to do to access them was to say he was older. He agreed that it was no problem to do this, and was easy (for the websites where he had done it – he said he did not know about for Backpage). He was somewhat evasive when pushed on whether, as a result of his own experience with lying about his age on videogame websites, he knew that people can lie about their ages online. But he said that he did not want to agree for all websites that it is easy to lie about age, because some websites require identification to get on them. It was suggested to him that the websites he went on to search the complainant’s sex work did not require a user to input identification (but only to click on a box saying you were 18 or over). He said he did not know.

[178] The defendant was asked in cross-examination if anything about the complainant seemed immature in their phone conversations. He said at some points she seemed immature, but he could not recall the details. But he said a lot of people have immature moments, including himself.

Evening of November 26, 2016

[179] The defendant testified that he and the complainant had a phone conversation on November 26, and decided to meet. He said it was a short conversation. He was at home relaxing. She told him she was at the Eaton Centre. He asked where she was going. She said she was going home, but not doing anything at the moment. They ended up meeting later that evening.

[180] He testified that he wanted to meet with her to hang out. He thought that meeting in person he was more likely to build up the complainant being attracted to him. He said meeting in person is a “different vibe” to talking on the phone. He did not know if it would lead to anything sexual that night, but he thought meeting in person was a way to move the relationship towards having sex. The defendant was not particularly eloquent in expressing this portion of his evidence. But on the whole, his evidence was that he wanted to hang out with the complainant. Maybe they would have sex that night, maybe they wouldn’t. It would not bother him if they did not have sex that night. But he thought that at least if they hung out, it would get him one step closer to having sex with her on a future meeting.

[181] The defendant testified that he was using his sister’s car (he had just lost his own car as a result of an accident).

[182] He picked the complainant up at Yonge and Dundas, in front of the H & M store. There was a lot of traffic, and they were stuck in it. The street they were on did not allow turns for some time, so they kept going straight.

[183] When the complainant got into the car, she showed him that she had in her bag a bottle of wine, pills she said were Xanax, weed, and some other pills that she did not say what they were. She offered him a Xanax. He said no because he was driving. She offered him some wine. He said no, because he doesn’t really like wine.

[184] They kept driving. He said to the complainant that they could not just keep driving, because they were burning gas. He testified that the driving was kind of a blur, because he did not know downtown well. They did not have a destination. They were just driving and talking.

[185] The defendant testified that they came to a high school, and saw the open parking lot from the main road. He turned in and parked. They sat and talked. He said the complainant started ranting about her ex-boyfriend Fero. The defendant could not remember the details of what she said, but the complainant talked about Fero and another girl. At one point a friend called the defendant, and he was on his phone. The defendant testified that his friend asked if he wanted to go out and party. He said it was around 8:00 p.m. when he spoke to his friend. The complainant was on her phone was well for a time. He and the complainant kept talking. The defendant testified that there was no sexual contact at the high school parking lot.

[186] In cross-examination, the defendant testified that they were stopped at the high school (the first stop) for 15 to 20 minutes. He testified that he could not recall the exact time he picked up the complainant, or how much time in total they spent together that day. He said he could not remember this because he did not have his cell phone (it had been seized by police).

[187] The defendant testified in cross-examination that at the first stop they talked. He also said he was one the phone with his friend at one point during the first stop. He testified that he did not notice any signs that the complainant was intoxicated or had slurred speech at any point. He was asked if he thought there was any possibility that she was high in his car. He said he did not know, because some people can hide if they are high or drunk, unless the person is so intoxicated that they can’t walk.

[188] The defendant testified that at some point he asked the complainant if she wanted to go home, because he had other plans later that night. She gave him her address, he put it in his phone GPS, and they drove close to where she lived. During the drive, the complainant seemed like she did not want to go home. They got close to her home, near a cross-walk. She said she did not want to go home yet. He said, ok, they could chill for a bit. They drove for a bit. He said he did not want to keep wasting gas. The complainant said, ok, let’s go somewhere. They drove for 5 or ten minutes, and then the complainant pointed out a place they could stop.

[189] The defendant testified that he pulled in to the parking lot and parked. There were two other cars parked there. The defendant said there may have been a person in one of the cars. He did not know where the place was that the parking lot was related to. He and the complainant talked in the car. He said he could not recall the details of the conversation, but it was general every day conversation.

[190] At some point the conversation turned to sex. The complainant said she was concerned about her boyfriend or ex-boyfriend finding out if they had sex. The defendant told her that he did not know him. She did not say the boyfriend’s name; she just said, “he will find out”. The defendant testified that he was not really concerned with who the person was, because he did not know him. He told the complainant the boyfriend would not find out. The complainant then said to the defendant that he had to promise her he would not tell her boyfriend. He said, OK. He said the complainant did a “pinky promise” with him, and was laughing about it at the same time. He took that as kind of a joke. He said at that point things got more relaxed, and the vibe changed. When their hands were touching for the pinky promise, the defendant drew the complainant closer to him, and they began to kiss.

[191] The defendant testified that they were kissing, and touching each other. He pulled down his pants. The complainant performed fellatio on him. There was no conversation at that point. He then took out his phone. She told him she did not want him to record her, because she was worried her boyfriend would see the video. She did not use a specific name, but said, “I don’t want him to see it”. The defendant said to the complainant not to worry, that he would not show the video to anyone. She said, “are you sure you’re not going to show him?”. She then said, OK. The defendant turned on his phone, and the flash was on, but he was not yet recording. The complainant continued to perform fellatio on him. After 10 or 20 seconds, he pressed record. The phone stopped recording quickly, because he did not have enough memory. As a result, the video was very short, six seconds. He tried to record more, but the phone would not let him. Then he put the phone down.

[192] The defendant testified that he recorded the complainant performing oral sex on him because he thought it was kind of sexy. It was something he used to do with his ex-girlfriend. He testified that he had no intention to sell the video as pornography. He said he had no interest in that. Given his athletic career, he would not put his body in a public video because he would not get sponsorships. The defendant denied that he ever told the complainant he would sell the video as pornography, or split the profits with her 50/50.

[193] The defendant testified that the complainant performed oral sex on him for about five more minutes. He then took out a condom, and put it on. The complainant took off her pants. She told him to get on top of her. He said he would rather she get on top of him. They then had intercourse, in the driver’s seat. He said after about 10 minutes, they went into the back of the car because there was more space. They climbed into the back without opening the car doors. They continued the intercourse in the back seat for about another 10 minutes. He had an orgasm. They both got back into the front of the car. He threw the condom outside, because he did not want to leave it in his sister’s car. They both got dressed. They were talking. Everything seemed normal. The complainant was talkative and did not seem upset.

[194] In cross-examination, the defendant agreed that he knew the complainant had been pimped from a young age. He agreed that he knew she had a boyfriend and was hesitant about cheating on him. He denied that he knew she was afraid of pimps. He agreed that they then had a conversation where he promised not to tell her boyfriend (if they had sex). And she made him pinky promise. He was asked if he thought the pinky promise was immature on the part of the complainant. He said, lots of women are different, there is no rule book about how to have sex. He said he had experienced older women do childish things before. After the pinky promise, the vibe changed. He pulled the complainant towards him and they started kissing.

[195] The defendant denied in cross-examination that he was ever aggressive with the complainant. He denied that he choked her at any point.

[196] The defendant testified in cross-examination that after the sex, he never said anything to the complainant that could have made her think he would tell Fero about it.

[197] The defendant agreed in cross-examination that he took a video on his phone of the complainant giving him oral sex. He said it was a short video. He said there was only one video, and denied that there was more than one. He agreed that this was not his first time making a sex tape, and that he had done so with an ex-girlfriend.

[198] The defendant denied in cross-examination that he did not warn the complainant before he started recording. He said he took the phone out, and if you turn the camera on, the light comes on automatically, but he did not start recording before he asked her. He also denied that he played the video back in the car.

[199] In cross-examination, the defendant denied that anything rough happened. He denied that the complainant ever said, stop. He thought she enjoyed the sex, because she was moaning.

[200] They then drove out of the parking lot and to the complainant’s home. They sat and talked in the car for about 10 minutes. The defendant testified that he could not remember the details of the conversation, but that the complainant said something about having to meet with assistance, someone who was supposed to give her money, from the government. She said she had to meet with someone the following day for that. She asked if she could smoke in the car. He said ok, if she rolled down the windows. Then the complainant left. She walked behind the defendant’s car, and across the street. He did not see which house she went into because of parked cars.

[201] The defendant testified that he then drove home.

[202] The defendant denied that he ever threatened the complainant in order to get her to have sex with him. He never told her he would not drive her home if she did not have sex with him.

Events after November 26, 2016, until arrest of defendant

[203] The defendant testified that the next day he received a text from the complainant. As I will explain, this was in fact sent by a police officer posing as the complainant.

[204] He said the text said something like, “you said if I had sex with out, you would drive me to the Eaton Centre today.” The defendant testified that he replied, “no, I didn’t say that”. Some time prior to the trial, the defendant found out that that text was sent by a police officer, not by the complainant.

[205] Crown counsel began her cross-examination with questions about whether the defendant is kind to women (no objection was taken to these questions, although to my mind, they tend to be character-related). He responded that all people have occasions where they may be disrespectful, no-one is perfect, but in his view he for the most part was kind to women. He was asked if he had ever been disrespectful to the complainant, and he said no.

[206] Crown counsel returned, to this topic. She asked the defendant if he respected the complainant. He said that he did. She suggested that he only wanted to have sex with her. He agreed with this suggestion, and said he had said so from the start of his evidence. He denied that he was willing to say anything to her to get her to have sex with him. He agreed that he was willing to say he was a pimp to have sex with her. He was asked if other than having sex with the complainant, he had no other interest in her. He said, only “friends with benefits”.

[207] Crown counsel then showed the defendant the texts sent to the defendant by an officer pretending to be the complainant and the defendant’s texts in response (sent the day after the alleged offences – and marked as Exhibit #13). In summary form, in that text conversation, the officer pretending to be the complainant repeatedly asks the defendant for a drive, saying he had agreed to take her to drop off resumes. In the texts, the defendant denies that he had agreed to this. He suggests more than once that she take the train, or ask her boyfriend. The officer pretending to be the complainant then sends several texts where he says things like: “Fuck you the. Don’t ever call me”; “I see how you are. Fuck you don’t come back to me for anything”. At the end of this, the defendant responds by text: “Lol I didn’t promise you nothing. I just fucked you that’s all”. Crown counsel then suggested that these last texts by the defendant were an example of him not respecting the complainant. He disagreed. He said that in the texts, the complainant (really an officer, but the defendant did not know that at the time), disrespected him in the texts, and he responded back. He testified, “If you want me to be respectful of someone, I think I deserve respect back.”

[208] I pause to note now that I do not find that this area of cross-examination reflects badly on the defendant’s credibility. The language used in the texts by the officer pretending to be the complainant was aggressive and offensive. The officer used this language, including profanity, before any profanity had been used by the defendant. Up to that point in the texts, the defendant had simply refused the requests for a ride. I am not suggesting that the texts sent by the officer went beyond what may be a permitted investigative technique (although I do question the utility of the aggressive profanity as an investigative technique). But the fact that the defendant replied in the way he did to the language he was faced with in the text, in my view does not reflect adversely on his credibility.

[209] After that, the defendant left for his athletics training camp in Florida. As was covered in the statement voir dire, the defendant was arrested at the airport a couple of weeks later when he arrived back in Canada from his training camp.

Analysis and findings on the sexual assault count

[210] Against this summary of the evidence, I will address my assessment of the evidence, and in particular my assessment of the credibility of the evidence of the complainant and the defendant, including assessing it in relation to the rest of the evidence at trial. I will say at the outset that, in general, both of them were reasonably good witnesses. Both of them were, for the most part, consistent in their evidence. However, they both also had areas of their evidence that raised concerns for me with respect to the credibility of their evidence. Thus, what I outline below are some areas of the evidence of each of them that raise concerns for me. I also address some of the arguments put forward by counsel that I do not accept in relation to credibility. I note now, that while I find that each of the areas that I address for both the complainant and defendant which cause me some concern with respect to credibility are of some significance, I find none of them to be overwhelming factors.

(i) Assessment of the defendant’s evidence

[211] I begin with the defendant. He was generally consistent in his evidence (with some exceptions I address below). I found him to frank about the nature of his interest in the complainant being primarily sexual, and also about his curiosity about the fact that she worked as a sex worker. I also find that, in general, he had a good recollection about their phone conversations between the date that they met, and the date of the alleged offences. And where he did not remember details, in my view he was candid about his lack of memory.

[212] I also find that that the defendant was consistent in particular regarding the events at each of the two places where they stopped in the car on the night of November 26, 2016, and was consistent regarding the nature of the sexual contact between himself and the complainant, despite pointed cross-examination about the events. For example, Crown counsel in her cross-examination asked a series of questions where she attempted to suggest that his version of events was illogical. In some of these questions, Crown counsel skipped steps from the defendant’s narrative as he had given it in examination in chief.[^5] In response to this line of questioning, the defendant explained what portions of events were being left of the questions being put to him by Crown counsel, and was consistent in his explanation of events. I also am of the view that, in general, there is nothing inherently implausible about the defendant’s evidence.

[213] However, there are areas of the defendant’s evidence that cause me some concerns regarding his credibility.

[214] I have concerns about the defendant’s evidence that when the complainant asked if he was a pimp, he said that he was. His explanation for doing so was that he was caught off guard, and that he said, yes, in order to keep the complainant interested in him, thinking it was like some “girls” finding men more attractive if they have a car or money. As a matter of experience and common sense, I have some difficulty with this explanation. On the other hand, the defendant is a young man, and relatively unsophisticated. It could be that this is just an example of his immaturity. In any event, if causes me concern in relation to the defendant’s credibility.

[215] I also have concerns in relation to the defendant’s evidence with respect to whether he knew that the complainant’s pimp, Fero, had been violent towards her. I find that his evidence on the trial proper on this issue was inconsistent with his evidence on the s. 276 hearing, which he was cross-examined about at trial. In particular, I do not accept the defendant’s evidence that he thought the questions about violence by the pimp during the s. 276 hearing related to another girl, and not the complainant. The questions at the s. 276 hearing on this issue were clear and contained no mention of a girl other than the complainant. The defendant agreed at the s. 276 hearing that he knew from the MDMA telephone conversation that the complainant had been violently abused by her pimp. The defendant’s evidence at trial that he understood the complainant to be talking about another girl when she talked about Fero being violent was inconsistent with his evidence at the s. 276 hearing.

[216] At times, I found that the defendant was somewhat evasive when he was cross-examined about the issue of whether people sometimes lie about their age on the internet. I found that during the initial portions of the cross-examination on the subject of his own experience using websites and the that possibility people could lie about their age and say they were 18 years old when they were not, the defendant was somewhat evasive. That said, he did ultimately agree that he had, when he was younger, used videogames where one had to say they were a certain age to play, where he lied about his age. And the defendant seemed to me to be candid about his own experience with women in some cases lying about their age. He gave the example of a woman who is 30 lying about being 21, and the example of girls when he was in high school saying they were older, although he said in the latter example it was more of a joke.

[217] Further, I disagree with Crown counsel’s submission that the defendant was evasive in relation to her line of questioning suggesting that the Eaton Centre was a place where young people hang out. In my view his responses simply stated the obvious, that people of all ages attend at the Eaton Centre, not specifically young people. I also have no difficulty accepting the defendant’s evidence that although he has been to clubs or bars that require identification to prove age, he has never seen a young woman use a fake identification. He was not denying that this could happen. Rather, he was denying (in response to the specific question he was asked), that he had ever seen it happen himself. I accept that some people will have had the experience of having seen someone use a fake identification, and some not. There is nothing incredible about the defendant’s answer to that question.

[218] Taking all of the points in relation to the cross-examination on issues related to people lying about their ages either on the internet or in person, although I found some evasiveness on this issue, and I give it some weight, because there were aspects the defendant’s evidence on this area that I found to be fair and frank, I do not give this factor a lot of weight as a concern in relation to credibility.

[219] I do not intend to serially address every argument made by Crown counsel about why, in her submission, the defendant was not a credible witness; however, I will outline some of the submissions that I do not accept.

[220] Crown counsel argued that the complainant’s injuries as document by the nurse who did the sexual assault kit, and the complainant’s emotional state that night when she got home should cause me concern regarding the defendant’s credibility. I accept, as a matter of law, that I must assess these factors as relevant to the defendant’s credibility, since the W.D. assessment of the defendant’s credibility must be done in the context of the evidence as a whole. In other words, the complainant’s evidence, or other evidence, can be factors that could lead me to reject the defendant’s credibility. In order not to repeat the analysis, I address the issues relating to the complainant’s injuries, and her emotional state below where I consider the complainant’s evidence (at paras. 240-244, and 254-256 below). But I want to make clear that I have also weighed that evidence in assessing the defendant’s evidence. However, considering all of the evidence, the defendant’s evidence leaves me with a reasonable doubt.

[221] I do not accept Crown counsel’s argument that the defendant’s inability to articulate what about the complainant’s appearance made him think she looked 24 when he first met her should tell against his credibility. The Court of Appeal recognized in R. v. K.S., 2019 ONCA 474, the difficulty of articulating what features of a person are the basis for a witness’ opinion that the person appears to be a particular age (at paras. 8-11).

[222] I disagree with Crown counsel’s submission that the defendant was inconsistent between his trial evidence, and the s. 276 hearing evidence regarding whether the complainant was rushing when he first met her at the Eaton Centre (see summary of evidence above at paras. 138-139). In my view the defendant did not actually agree during the s. 276 hearing that the complainant was rushing. The answers from the s. 276 hearing on this issue are simply not pinned down enough to create an inconsistency with the trial evidence.

[223] As I have outlined above, I did not find the defendant to be evasive in his answers to Crown counsel’s suggestions that the Eaton Centre is a place where young people like to hang out. His answers recognized the obvious, that people of all ages attend at the Eaton Centre.

[224] As I have explained above at paras. 203-208, I do not find that the defendant’s responses to the texts from the officer pretending to be the complainant tell against his credibility.

[225] One final issue that I wish to address is the defendant’s general reaction to what the complainant told him about her history of being trafficked, and her various vulnerabilities. First, I am not persuaded that the vulnerabilities I outlined above in terms of mental health issues (apart from drinking/drug use), would have been apparent to the defendant (and Crown counsel did not argue that they would have been). In her trial testimony the complainant presented, despite the various issues she lives with, as articulate, and thoughtful. Even in the police interview video, although as I explain below, it appears to me that she may be high on drugs, she is a reasonably articulate person.

[226] Second, to a mature adult, I think there is little question that the information that (based on his own evidence) the defendant had about the complainant’s history of being a victim of sex trafficking (my words, not his), and at the time he met her still being a sex worker, would give one pause about her being someone in a very vulnerable situation. I expect there are 20 year old males who would also recognize this. But not all of them. Because of the defendant’s young age, and his relative lack of sophistication, I do not find that it tells against his credibility that his reaction to hearing about the complainant’s involvement in sex work from a young age, and her being a sex worker at the time he met her was curiosity, rather than concern.

(ii) Assessment of the complainant’s evidence

[227] Similarly to my finding about the defendant, I find that the complainant was generally consistent in her evidence (with some exceptions I will address below). She was reasonably articulate and thoughtful in giving her evidence. And as with the defendant’s version of events, there is nothing inherently implausible about the complainant’s evidence. Like the defendant, the complainant was also consistent in her evidence describing the sexual contact between herself and the defendant on the evening at issue.

[228] However, as with the defendant, there were areas of the complainant’s evidence that give me concerns about the credibility and reliability of her evidence.

[229] Before addressing specific issues, I will start with some general comments in relation to how I treat the evidence relating to the complainant’s drug and alcohol use, and evidence in relation to mental health issues (the latter was quite limited, apart from the issue of suicidality the night of the alleged offences).

[230] Crown counsel argued that evidence of the complainant’s drug use and mental health issues did not have probative value in relation to her reliability or credibility as a witness, and to use the evidence at trial relating to the complainant’s drug use and mental health in relation to credibility or reliability would be to fall into the error of relying on rape myths.

[231] I partially agree with Crown counsel, but not entirely. I agree that in the circumstances of this case (and probably in many cases), the evidence about the complainant’s general drug use, i.e., at times other than during events linked to the charges, is not particularly probative of the issues in this case. Similarly, I agree that in the circumstances of this case, evidence about the complainant’s mental health issues in general, other than that directly linked to events at issue in this trial, has little if any probative value in relation to credibility and reliability. I would add that there was, in any event very little evidence led at trial in relation to issues relating to the complainant’s mental health, other than her actions on the night of the alleged offences, once she returned home.

[232] However, where I disagree with Crown counsel is with her submission that none of the evidence of drug use or touching on mental health issues has any probative value on the issues in this trial. In particular, I find that evidence touching on drug or alcohol use or mental health issues that is directly linked to the events at issue in this trial has probative value in relation to reliability and credibility of the complainant’s evidence. There are three areas in particular where I find that it has probative value.

[233] The first is the complainant’s evidence that she told the defendant during the phone call when she was high on MDMA that she was 17 years old. The defendant denies that she told him that. In my view, the evidence that she was high on MDMA when she says she told him this is relevant to the reliability of her evidence about that event. I will discuss this further in a moment. I, of course, have to consider the full evidence on this issue, including her assertion that MDMA does not affect her memory. But I am not obliged to accept her word on this issue.

[234] Second, in my view the evidence relating to the complainant’s consumption of alcohol and drugs on the day and night of the alleged offences is relevant evidence that I may consider in relation to the reliability of her evidence, including at the time she gave her statement to police.

[235] Third, and probably it is better not to describe this as a “mental health” issue, because it is the inconsistencies that concern me, in my view the evidence relating to the complainant’s drug taking, call to her boyfriend, call to the suicide helpline, and alleged inconsistencies about her recounting of those events, are also events I can consider in relation to the reliability and credibility of her evidence.

[236] Crown counsel argued that the complainant’s emotional state when she arrived home (i.e., being upset and suicidal) is corroborative of her evidence of having been sexually assaulted. The defence argues that her emotional state is not corroborative of having been sexually assaulted, and that when viewed in the context of her evidence about her boyfriend getting mad at her on the phone when she told him about having sex with the defendant, her emotional state and the conversation with her boyfriend is evidence of a motive to fabricate the sexual assault allegation.

[237] I accept that as a matter of law, a complainant’s emotional state soon after the time of an alleged offence is a factor that, depending on the whole of the evidence, may be supportive of the complainant’s credibility as circumstantial evidence: R. v. J.A.A., 2010 ONCA 491 at paras. 17-18, reversed on other grounds, [2011] 1 S.C.R. 628, 2011 SCC 17; R. v. Varcoe, 2007 ONCA 194 at para. 33; R. v. Nwoko, 2019 ONSC 2430 at para. 30. Such evidence must be considered in the context of the whole of the evidence in order to assess whether it supports the inference the Crown asks the court to draw.

[238] It is also well-established that evidence of a motive to fabricate on the part of a witness is a factor that may be considered in assessing the credibility of the particular witness. This issue also must be considered in the context of the evidence as a whole: R. v. Bartholomew, 2019 ONCA 377 at paras. 19-25; R. v. Batte, 2000 CanLII 5751 at paras. 120 (ONCA); R. v. Esquivel-Benitez, 2020 ONCA 160 at paras. 8-15; R. v. Torres-Angulo, 2020 ONSC 1247 at para. 3.

[239] In this case, I do not find that the complainant’s emotional state when she arrived home is corroborative of her evidence regarding the alleged sexual assault; rather, I find that in the full context, it raises concerns for me about her having a motive to fabricate.

[240] I find that the complainant appeared to have difficulty remember the sequence of events once she got home. As I outline below at paras. 245-250, she was inconsistent as between the trial and the preliminary inquiry about what drugs she consumed when she got home, and in particular, whether she consumed and excessive amount of Xanax.

[241] Most importantly, in terms of a motive to fabricate, the complainant’s own evidence provides a basis for a motive to fabricate that is not speculative. The complainant testified (both in her statement to police and at trial), that when she called her boyfriend and told him what happened with the defendant, her boyfriend was angry and accused her of cheating on him (some of the language she used to describe this was that he was “pissed off”, and said it was “all [her] fault”). She further testified that once she explained what happened, he was not mad at her.

[242] One possible understanding of this evidence is that the boyfriend misunderstood the complainant, and she initially told him she was sexually assaulted. But another plausible interpretation of this evidence is that she told her boyfriend she had had sex with the defendant, he got angry and accused her of cheating, and then she told him she had been sexually assaulted. In particular in light of my concerns about the complainant’s difficulty recalling the sequence of events once she got home, and her inconsistencies about what drugs she did or did not take when she got home, I find that the defence argument of a motive to fabricate is a factor that causes me concern in relation to the credibility of the complainant’s evidence. In light of the uncontroverted evidence that the man who was her boyfriend in November 2016 is now her husband, there is nothing in the evidence which would suggest that this possible motive to fabricate is spent or has abated by the passage of time since November 2016.

[243] Crown counsel argued that the defence theory of a motive to fabricate based on the complainant’s boyfriend being mad at her for having had sex with the defendant does not make logical sense, because if that was the concern, the complainant could simply not have told the boyfriend about the sex with the defendant. I do not accept this argument, because in my view it is contrary to the complainant’s own evidence. She repeatedly said that her boyfriend initially got mad at her and accused her of cheating when she told him what happened with the defendant. I find that it is clear from the complainant’s evidence that she told her boyfriend about something happening with the defendant, and that what she told the boyfriend made him, at least initially, get angry and think she cheated on him, and say that to her. Further, the complainant also told police that she told the boyfriend because she was concerned that the video would “leak”.

[244] I want to be clear that I am not making a positive finding that the complainant fabricated the sexual assault allegation. But there is enough factual foundation to support the defence theory of a motive to fabricate based on her boyfriend being angry that she had cheated on him to make this a factor that weighs in my having a reasonable doubt on the credibility issues in this case related to proof of non-consent.

[245] I also have concerns about the reliability of the complainant’s evidence because I find that she appears to be high on some sort of intoxicant in the police interview video. As I have noted above, the complainant was inconsistent in her evidence as between the trial and the preliminary inquiry about what drugs she had or had not consumed prior to giving the statement, in particular about whether she had taken an excessive amount of Xanax, as she testified at the preliminary inquiry. When the complainant was cross-examined at trial about the inconsistencies in her evidence as between the preliminary inquiry and the trial about what drugs she took, in particular once she got home, she gave the explanation that she was confused by the defence lawyer at trial. I have reviewed the portion of the preliminary inquiry evidence which was put to her in cross-examination on this issue. In my view it was not confusing, and I do not accept this explanation.

[246] Based on the complainant’s inconsistency about what drugs she took that night, and her appearance on the police interview video, I have concerns that she was high on some type of intoxicant when she gave the police statement.

[247] I have reviewed the complainant’s videotaped interview with police, taken the night (early morning) of the alleged offences. I compare the complainant’s demeanour in that video to her demeanour when she testified in at trial. I note that because at trial she testified from the CCTV room, my opportunities to observe both the police video interview and her trial evidence were similar in that both were by video. This is, admittedly, a somewhat subjective exercise. But assessing whether a person appears to be intoxicated by a substance is a subject on which lay witnesses may give opinion evidence, and similarly, it is a subject on which I as a trial judge must assess the evidence available in the record. I consider as well as part of this assessment my finding that the complainant’s trial evidence was inconsistent with her evidence at the preliminary inquiry about what drugs and the quantity she consumed when she got home.

[248] I find that the complainant’s demeanour on the police interview video is very different than she appeared in court. Although she is coherent in her speech on the police interview video, her tone of voice and affect appear quite different than she did in court. I find that she appears on the police interview video to be intoxicated by something. I do not want to overstate this finding. As I have noted, her speech is coherent, but it was very different than her manner in court. It is a factor that I consider in my credibility assessment.

[249] I have considered Cst. Weeks’ evidence that the complainant did not appear intoxicated to him. I do not find Cst. Weeks’ evidence to be reliable as to her state when she gave the police statement. It does not appear to me that Cst. Weeks dealt with the complainant for very long. I have had the opportunity to review her lengthy police interview. I note as well that Detective Patterson’s evidence was much more equivocal than Cst. Weeks’ evidence in relation to the demeanour of the complainant that evening.

[250] My concern about the complainant appearing to be high on something during the police statement is that it raises further concerns about the reliability of her initial reporting of the allegations to police.

[251] The complainant’s evidence in relation to whether the defendant said to her in the car that if she did not have sex with him, he would not take her home raises concerns for me with respect to the reliability of her evidence. My concerns arise out of inconsistencies in her evidence on this issue, and also from her assertion that the reason for the inconsistencies is that her memories were suppressed, and she has gained new memories over time.

[252] At the preliminary inquiry, the complainant had testified that she felt that the defendant would not take her home if she did not have sex with him. But she clearly testified at the preliminary inquiry that she could not remember if he actually said this to her. However, at trial she testified that the defendant said to her in the car that if she did not have sex with him, he would not take her home. When cross-examined about the inconsistency at trial, she said that her memory about this had been suppressed, and she had gained memory through therapy. I am concerned about the reliability of her evidence on this issue.

[253] I do not accept as reliable the complainant’s evidence that she told the defendant during the MDMA call that she was 17 years old. Her evidence was that she was high on MDMA. She agreed in cross-examination that she had probably also consumed alcohol. In the circumstances, I find her evidence about the contents of this telephone conversation is not reliable. I acknowledge that she testified that MDMA does not affect her memory. I am not prepared to accept as reliable her self-report about the effect of the drug on her. A report of someone who has consumed drugs or alcohol about their own state of sobriety is notoriously unreliable. Further, as I have noted, she agreed in cross-examination that she had probably also consumed alcohol.

[254] As I have noted above, Crown counsel argued that the injuries observed by the sexual assault kit nurse on the complainant’s body are corroborative of the complainant’s evidence (again, I note that I am aware corroboration is not required). In my view, in general the injuries are too minor and too indistinct to be corroborative of the complainant’s credibility. The sexual assault kit nurse testified about two types of injuries to the complainant: (i) very minor bruising (pink or red) on her neck, shoulders, and left hand (this is my descriptor, based on the nurse’s evidence) and including tenderness reported on her neck; and (ii) four scratches on her right hand.

[255] With respect to the bruising and tenderness, in my view, the nature of the bruising (pink or red, from .5 cm to 1.0 cm, and light, and limited) is not particularly corroborative of the complainant’s evidence. With respect to the scratches on the complainant’s right hand, the complainant agreed in cross-examination that she self-harmed herself that night by cutting her wrist. Although she was not asked which wrist, in my view, the self-harm cutting is the most probable explanation for these scratches.

[256] In sum, the evidence of the sexual assault kit nurse, in my view, is not particularly corroborative of the complainant’s evidence. It is a neutral factor.

[257] I find that the complainant’s evidence about the supposed attendance of the defendant at Downsview Station where she hid from him did not make sense, and gives me concerns about the reliability of her evidence. She testified that she had asked him to come there and meet her, but then, she said she thought it was creepy and she hid from him. It is difficult to understand what she thought was creepy, if the defendant had attended in response to a request from her. In any event, I do not accept her evidence that the defendant attended at Downsview Station on this occasion. Rather, I accept the defendant’s evidence that the complainant asked him to attend there, but he did not go.

(iii) Conclusion on sexual assault count

[258] Cases like this one, which pit one witness’ word against another are difficult for a judge or a jury to assess. I have only the evidence I see and hear in the courtroom to consider in deciding if the Crown has met its burden. There are many factors I consider in making that assessment, including the logic and consistency of the two versions of events, whether the evidence of a witness is consistent or inconsistent with objective evidence, the consistency or lack of consistency of each witness’ evidence in cross-examination, the demeanour of the witnesses (without overweighting that factor), any evidence that tends to corroborate either version of events (but recognizing that corroboration of a complainant’s evidence is not required), and other factors I have discussed already.

[259] Assessing credibility is difficult, and there is no technological or other fix to make sure that judges always get it right. This is one of the reasons that the Crown bears the burden to prove criminal charges, and bears that burden on the reasonable doubt standard. In a criminal case, my assessment is not based on who is more believable, but is always guided by the burden on the Crown to prove its case beyond a reasonable doubt.

[260] Having considered the evidence of the complainant and the defendant in the context of the evidence as a whole, I am left with a reasonable doubt about his version of events. I am not sure who to believe. As a factual matter, this means that I find that the Crown has not proven beyond a reasonable doubt that the sexual contact was non-consensual.

[261] I want to be clear that in coming to the conclusion that I do not know who to believe, I am not finding that the complaint lied. I am not finding that the complainant was a bad witness. Rather, both the complainant and the defendant gave evidence which could be true. Both of them were relatively consistent in their evidence, but equally, both of them had some areas of their evidence that gave me concern with respect to their credibility. I have considered both of their evidence in the context of the evidence as a whole, including the evidence which the Crown argues corroborates the complainant’s evidence. I am left with a reasonable doubt on the sexual assault count. The effect of the reasonable doubt standard is that if I have a reasonable doubt on issues of credibility, the defendant gets the benefit of that doubt.

[262] I should be clear that my finding is not a positive finding that the complainant did consent. Rather, it is a finding that considering all of the evidence, the Crown has failed to prove non-consent beyond a reasonable doubt.

The Making child pornography count

[263] As I noted at the outset, the only element of this count which is in dispute is the defendant’s knowledge that the complainant was under 18 years old. He admitted that he made a short video of her performing fellatio on him. I will review the applicable law in relation to mistake of age and child pornography offences, and then outline my analysis of the evidence and findings.

(i) Applicable law re mistake of age defence

[264] The child pornography provisions of the Criminal Code, including s. 163.1(5), which deals with the defence of mistake of age, are drafted to apply to many situations. They apply to different types of media (photographic, film, video, etc.). They apply to images of people actually under the age of 18 years, but also to people actually over the age of 18 years, but depicted as being under 18 years. And they also apply to images of people actually engaging in explicit sexual activity, but also to people not actually engaged in explicit sexual activity, but depicted as being so engaged.

[265] This case involves video, of a person (the complainant) who was actually under 18 years of age, and actually engaged in explicit sexual activity (fellatio). Thus, the relevant portions of s. 163.1(5) of the Criminal Code provide as follows:

It is not a defence to a charge under subsection (2) in respect of a visual representation that the accused believed that a person shown in the representation that is alleged to constitute child pornography was . . . eighteen years of age or more unless the accused took all reasonable steps to ascertain the age of that person . . .

[266] This section, and analogous provisions relating to sexual offences against children, have been interpreted by the Supreme Court and the Ontario Court of Appeal in R. v. George, [2017] 1 S.C.R. 1021, 2017 SCC 38; R. v. Duran, 2013 ONCA 343; and R. v. Morrison, 2019 SCC 15 (I acknowledge that the provision at issue in Morrison did not require “all” reasonable steps. But the discussion of the nature of the contextual inquiry is still of assistance in the context of this case).

[267] According to these decisions, the following approach applies to the assessment of a defence of mistake of age under the child pornography provisions. If there is an air of reality to a defendant’s assertion of mistake of age, then the Crown bears the burden to prove beyond a reasonable doubt, either that the defendant did not honestly believe that person depicted in the image was at least 18 years old, or that he did not take “all reasonable steps” to determine the person’s age.

[268] The assessment of whether or not there is a reasonable doubt in respect of the objective portion of the defence (“all reasonable steps”) is a highly contextual, fact-specific exercise. I reproduce, without citations, the guidance from the Supreme Court in R. v. George, as it highlights how contextual this type of analysis is:

In some cases, it may be reasonable to ask a partner’s age. It would be an error, however, to insist that a reasonable person would ask a partner’s age in every case [citations omitted]. Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’s age in every case, given the commonly recognized motivation for young people to misrepresent their age [citations omitted]. Such narrow approaches would contradict the open-ended language of the reasonable steps provision. That said, at least one general rule may be recognized: the more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them. This follows inevitably from the phrasing of the provision (“all reasonable steps”) and reflects the jurisprudence [citations omitted].

[269] The analysis of a mistake of age defence in this context requires two steps. First, does the trier of fact believe or have a reasonable doubt about a defendant’s evidence that they believed that the person in the image was 18 years old or older? Second, even if the court accepts or has a reasonable doubt about a defendant’s evidence, is the court persuaded beyond a reasonable doubt, in the context of all of the evidence, that the defendant failed to take “all reasonable steps”? In engaging in the second analysis, although it is always a fact-specific exercise, in general, the more reasonable a defendant’s perception of the person’s age, the fewer steps will reasonably be required of them. I note as well that the law is clear that the reasonable steps must precede the conduct alleged to constitute the offence (in this case, the making of the video): George at paras. 20-21.

[270] In considering both branches of the analysis, some of the factors a court may consider include: the steps taken by a defendant, including a defendant’s observations of the person’s appearance and behaviour; any evidence of representations that the person made about themselves, including about their age; what active steps a defendant took or did not take to inform themself about the person’s age (however, reasonable steps are not required to be active. Passive steps such as observation may be considered in the contextual inquiry); the age differential between a defendant and the person depicted is; the physical appearance, behaviour and activities of the person in the image; any information corroborating a defendant’s belief about the person’s age. This list is not exhaustive. In some cases, a defendant’s visual observation of a person may be enough to constitute reasonable steps: Duran at para. 52-54; Morrison at paras. 105-113. In each case it is a fact-specific, contextual assessment of both branches of the analysis, and whether what the defendant knew and observed about the person were all the reasonable steps a person needed to take, or whether a reasonable person ought to have made further inquiries.

[271] However, a defendant cannot rely on the activity at issue in the offence (here the making of the video) as a reasonable step: George at para. 18.

[272] I note as well that there can be overlap on the factual evidence considered on the two branches of the analysis, because as a practical matter, on the first branch of the analysis a court is more likely to believe or be left in a reasonable doubt by a defendant’s assertion that he believed the person to be 18 years old or older, if in the context of all of the evidence that assertion appears reasonable. That is, the reasonableness (or not) of a defendant’s asserted belief is relevant to the assessment of their credibility.

[273] I am satisfied that there is an air of reality to the defendant’s mistake of age defence in this case. Thus, the Crown bears the burden to prove beyond a reasonable doubt, either that the defendant did not honestly believe that the complainant was at least 18 years old, or that he did not take “all reasonable steps” to determine her age.

[274] I will outline my analysis of this issue, first considering the credibility of the defendant’s evidence in relation to mistake of age, and second looking at the all reasonable steps requirement.

(ii) Credibility of the defendant’s evidence in relation to mistake of age

[275] Similarly to the sexual assault count, I am left with a reasonable doubt in relation to the defendant’s evidence that he believed the complainant was 18 years or older (specifically that she was 20, as he testified she told him). I come to this conclusion based on considering the evidence as a whole, including the analysis I have outlined above in relation to the sexual assault count. But I will focus here specifically on the evidence in relation to the complainant’s age, representations about her age, and corroborating evidence.

[276] Recall that in relation to the first meeting at the Eaton Centre, the defendant testified that he asked the complainant’s age, and that the complainant told him she was 20. The complainant, in her evidence, denied that there was any discussion of her age at the first meeting at the Eaton Centre. The complainant also testified that during the MDMA phone call she told the defendant she was 17 years old. The defendant denied that this happened. In addition, there was the evidence in relation to the complainant’s sex work ad that the defendant saw online after meeting her and prior to the sexual contact when the video was made, and the complainant’s own evidence that she would misrepresent her age in her sex work.

[277] On the credibility issue of whether or not the complainant told the defendant she was 20 years old when they first met, I am left with a reasonable doubt by the defendant’s evidence. In my view, there is nothing inherently unbelievable about his evidence. Nor is there anything inherently unbelievable about the complainant’s evidence that she did not say this at the first meeting. I come close to believing the defendant’s evidence on this particular factual issue. But given some of my concerns about his credibility on other issues expressed above, my conclusion is that I am left in a reasonable doubt by his evidence that he believed the complainant was 20.

[278] Further, there is evidence which corroborates the defendant’s evidence, based in the complainant’s prior occasions of lying about her age, either saying she was 18 or 20. I refer to the sex work ad that was filed as an exhibit at trial, for the persona “Malissa” which listed the age of 18 years. The defendant testified that he did the search and found this ad between the time he met the complainant, and the time of the sexual contact. The complainant agreed in her evidence that this was one of her ads. In addition, the complainant agreed in cross-examination that she had two persona’s she used for sex work, “Malissa” who she represented as 18 (the ad filed at trial), and “Jennifer” who she represented as 20. This provides some corroboration for the defendant’s evidence that the complainant told him she was 20 when they first met.

[279] I reject the Crown’s argument that I should not rely on this evidence as corroborative of the defendant’s evidence because the complainant testified that she only lied about her age when engaging in sex work, and the evidence is that the defendant was never in a client relationship with the complainant. The reason I reject this is because the defendant’s evidence is that the complainant told him she was 20 in their very first, brief meeting, at the Eaton Centre. The evidence of both the defendant and the complainant was that this meeting was very brief, essentially an introduction and her giving him her phone number. In these circumstances, when they first met, I find that the complainant would not yet have come to any conclusion about what kind of relationship she might or might not have with the defendant. I also have some concerns about the reliability of the complainant’s evidence that she limited misrepresenting her age to the sex work context. Thus, I find that the evidence that the complainant had a history of misrepresenting her age at either 18 or 20 is corroborative of the defendant’s evidence.

[280] As I have explained above, I find that the complainant’s evidence that she told the defendant she was 17 years old during the MDMA phone call is not reliable. I have considered the complainant’s evidence that MDMA does not affect her memory. I am not satisfied that her self-report of how MDMA affects her memory is reliable.

[281] I also reject Crown counsel’s argument that the defendant’s evidence that he believed the complainant’s representation that she was 20 is not credible because he testified that when he saw her, he thought she looked 24. With respect, this argument treats estimating age as if it is an exact science. If the defendant had testified that she looked 40 years old, and then said he believed a representation from her that she was 20, the Crown argument would be more viable, given that in the normal course, 40 year olds tend to look markedly different than 20 year olds. The same cannot be said of 24 year olds and 20 year olds. At best, any statement from a witness or defendant about how old a particular person looked is an estimate. In my view, 20 and 24 are close enough in age and appearance (i.e., early to mid-20s), that I do not find that the defendant’s evidence that he thought the complainant looked 24 to detract from his evidence that she told him she was 20.

[282] As I have noted above, the law is clear that the reasonableness of a defendant’s assertion that he believed the person in the image to be 18 years old or older is relevant to the assessment of the credibility of his asserted belief. I will not go into the analysis of this aspect in detail here, because in my view it largely tracks the all reasonable steps that I engage in below. But for clarity, in this case, I find that in all the circumstances, it was not unreasonable for the defendant to believe that the complainant was 18 years old or older.

[283] For these reasons, I am left with a reasonable doubt by the defendant’s evidence that he believed the complainant was 20 years old.

(iii) Did the Defendant take all reasonable steps in the circumstances to ascertain the complainant’s age?

[284] I turn then to the issue of whether the defendant took all reasonable steps in the context to determine the complainant’s age. I focus on the contextual analysis from the case law I have outlined above, in particular at paras. 265-272. I reiterate that it is the Crown’s burden to prove beyond a reasonable doubt that the defendant did not take all reasonable steps in the circumstances to ascertain the complainant’s age. I find that I am left with a reasonable doubt on this issue. The following are the primary reasons I am left with a reasonable doubt on this issue.

[285] As I have explained above, I am left with a reasonable doubt by the defendant’s evidence that the complainant told him she was 20 when they first met. Thus, he took the step of asking her age, and received a response that she was 20. Further, as I have explained, I find that the complainant’s evidence that she told him she was 17 during the MDMA phone call is not reliable.

[286] The defendant took the further step of searching on the internet for the complainant’s sex work advertising. I acknowledge that based on his own evidence, he was not specifically looking for her age when he did that search. Rather, he was just curious about her sex work. But George is clear that both active and passive steps are relevant to assessing the reasonable steps requirement. What he found from that search was a representation by the complainant that she was 18 years old.

[287] I have considered the Crown’s arguments about the reliability of the representation in that ad that the complainant was 18, including that the age was different than the 20 years that she told him, that it included a false name, and that the internet is not necessarily a reliable place to go for information, and people can lie about their ages. I do not find the argument about the false name particularly probative. It is commonplace for sex workers to use false names to protect their privacy. Crown counsel’s argument in relation to the age in the ad being different from the age the defendant says the complainant told him does have some probative value, as does the argument that the internet is not necessarily a reliable source for information and people can lie about their ages. I have considered these factors, as part of the overall contextual analysis of all reasonable steps. But on balance, considering all of the factors I outline in the section, I am still left with a reasonable doubt about whether the defendant took all reasonable steps to ascertain the complainant’s age.

[288] The defendant’s evidence of his own observations about the complainant’s age is also relevant

[289] One aspect of the analysis of all reasonable steps is consideration of the complainant’s apparent age in November 2016, as well as the court’s assessment of whether the defendant’s assertions about his observations of her apparent age were reasonable. I make a few observations about the law in this regard, as well as the nature of and reliability of the evidence before me on this issue.

[290] First, the law is clear that a person’s apparent age is a topic on which a witness can give lay opinion evidence: R. v. K.S., 2019 ONCA 474 at para. 9. Thus, the evidence from both the complainant and the defendant in relation to their opinions about how old the complainant looked in November 2016 is admissible evidence. I will comment in a moment about weight. In addition, in regard the defendant’s evidence about how old he thought the complainant looked, subject to my assessment of the credibility of his evidence, that evidence is also admissible as going to his state of mind/belief about her age. His state of mind and belief is one factor in the assessment of mistake of age.

[291] The law is also clear that as a trial judge, I am entitled make my own assessment of how old the complainant looked in November 2016, to the extent there is evidence before the court which is probative of that issue: R. v. K.S. at paras. 3-11; see also George at paras. 21-22. In this case there is evidence before the court which allows me to engage in that assessment. The most probative evidence is the police interview video with the complainant that was taken the same night as the alleged offences. It is contemporaneous with the alleged offences. It is lengthy. It provided me with a significant opportunity to view the complainant’s appearance at that time (see K.S. in particular at paras. 6, 10, 11). In addition, I was able to observe the complainant when she testified in December 2019. This is less probative evidence in relation to the complainant’s appearance in November 2016, because it is three years later. But in my view, it has some probative value, to the extent, as I will explain, the complainant did not look particularly younger than her stated age when she testified.

[292] I note that I also have some concerns about the reliability of the complainant’s own opinion about how old she looked in November 2016. This is not due to anything specific about the complainant, but rather caution in accepting any person’s opinion about their own appearance in terms of age as reliable. In my view, it is difficult for anyone to provide an opinion about how others see them. In any event, given the first-hand evidence of the police interview video that I am able to review myself, I do not place significant weight in terms of objectively assessing how old the complainant looked in 2016 on either the evidence of the complainant or the defendant, because I am able to make my own assessment using the police interview video (and to a lesser extent the complainant’s appearance in court three years later).

[293] Finally, I note that in addition to giving her own opinion about how old she looked in November 2016 (which is admissible as lay opinion), the complainant also gave evidence that her sex work clients thought she looked 17 years old. Although there was no objection (and in fairness, I do not believe the Crown was seeking to elicit it), this evidence is hearsay and I place no reliance on it.

[294] I have reviewed the videotaped statement from the complainant which was admitted as part of her evidence pursuant to s. 715.1 of the Criminal Code. This video was made the same night as the alleged offences, and thus is very probative of her appearance at that time. The video is slightly out of focus, but I find that it still provides a reasonable opportunity to observe her appearance at the time of the alleged offences. In my view, she does not look particularly young. She looks in the range of her actual age. But since her actual age was 17 years old, and she was past puberty, just from looking at hear (and also listening to her speech and manner), one could reasonably draw the conclusion that she was anywhere between 16 and 25 years old. I am not suggesting that no steps were required from the defendant to ascertain her age (indeed, as a matter of law all reasonable steps in the circumstances were required). But as I have outlined in this portion of my reasons, he did take various steps to ascertain her age.

[295] I accept that neither I, as a trial judge, nor any other person, can precisely gauge a person’s age (here, the complainant), just by looking at them. But my assessment of the complainant’s appearance in November 2016 is relevant to my assessment of whether the defendant took all reasonable steps, and whether a reasonable 20 year old in the same circumstances would have inquired more: K.S. at paras. 8-11.

[296] In light of my own observations of the complainant’s appearance in November 2016, based on the police video interview, I find that it was reasonable for the defendant to accept and believe the representation that he says she made to him that she was 20 years old. As I have noted above, making an assessment of someone’s apparent age is always an estimate. Considering someone like the complainant, who was 17 years old at the relevant time, thus past puberty, and considering my own observations of her, in my view it was not unreasonable for the defendant to believe she was over 18 years old. Because any assessment of age is always an estimate, when considering someone who is past puberty, and looks like an adult, in my view it would not be unreasonable, in the circumstances of this case, for the defendant to believe the complainant was up to in her early-mid 20s. My assessment of the reasonableness of the defendant’s belief would be very different if the complainant were pre-pubescent or obviously in the midst of puberty.

[297] Relatedly, I do not find that the defendant’s evidence that the complainant made him “pinky promise” not to tell her boyfriend if they had sex is a factor that makes his evidence about believing her to be 20 years old unreasonable or shows he failed to take all reasonable steps. People – young and old – sometimes do silly things like this as a joke. Indeed, the defendant testified that he took it as a joke.

[298] The case law also recognizes that whether or not the complainant and the defendant are close in age is a relevant factor in considering whether all reasonable steps were taken in all of the circumstances. I have not found much explanation for why this factor is relevant. In my view, its relevance lies in the recognition that if the activity is between two relatively young people who are close in age, what is reasonable in terms of steps to be taken to ascertain age may not be as onerous as what will reasonably be required where the defendant is an older person who is making a decision to engage in the conduct at issue (whether sexual contact, in some offences, or as in this case, making sexual images), with someone who is obviously in a much younger age range than a defendant. Without making moral judgments about the propriety of people of different ages engaging in sexual contact, if both are of consenting age, engaging in sexual contact (or making sexual videos), in my view the relevance of closeness in age to the all reasonable steps recognizes that unreasonable burdens in terms of verifying age should not be placed on young people who are relatively close in age engaging in sexual activity.

[299] In this case, at the relevant time, the complainant was 17 years old, and the defendant was 20 years old. As I have noted above, the complainant was old enough as a matter of law to consent to sexual contact with the defendant, but not to being videotaped during that sexual contact. In my view, they were close enough in age that this is a factor that I must consider which speaks to all reasonable steps in this context as not being as onerous as if the defendant was 40 years old.

[300] Further, on the defendant’s evidence (which, as I have outlined above, leaves me with a reasonable doubt in terms of credibility), the complainant had told him during the MDMA phone conversations that she lived alone. Living on one’s own is not conclusive about whether a person is 18 years of age or older. But it is a factor, taken in the context of all of the circumstances which also can be considered in the reasonable steps analysis. In my view, this factor is supportive of the reasonableness of the defendant’s belief that the complainant was 18 years of age or older, and relevant to the steps he could reasonably be required to take to ascertain her age.

[301] In all of the circumstances, I find that there were a number of both active and passive steps taken by the defendant to ascertain the complainant’s age (prior to the time of the sexual contact and making of the video at issue). I am not satisfied beyond a reasonable doubt that the defendant failed to take all reasonable steps in all the circumstances to ascertain the complainant’s age.

Conclusion

[302] For these reasons, I am not satisfied that the Crown has proven either count beyond a reasonable doubt. I find Mr. Azonwanna not guilty of both counts.

[303] 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

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

Justice J. Copeland

Released: April 15, 2020

COURT FILE NO.: CR-17-10000820-0000

DATE: 20200415

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANDRE AZONWANNA

REASONS FOR JUDGMENT

Justice J. Copeland

Released: April 15, 2020

[^1]: Ultimately, I gave brief oral reasons excluding the statement from evidence on December 5, 2019, with written reasons to follow. At the time of preparation of these reasons for judgment, the written reasons in relation to the defendant’s statement are still pending.

[^2]: I use the word “sex worker” advisedly. As I outline in more detail in the review of the evidence, the complainant’s evidence was that she had been the victim of sex trafficking from the age of 15 years (not involving the defendant). Both in terms of the circumstances she described about her history, and in terms of her age of being too young to legally be involved in sex work, she is best described as a victim. However, her evidence was that by November 2016, she no longer was working for a pimp (primarily because he had been arrested), and continued to work as a sex worker on her own. She was still a victim, in the sense that our law does not recognize the ability of someone under 18 years old to legally engage in sex work. But by November 2016, she was not being trafficked, in the sense that she did not have a pimp or anyone directing her work.

[^3]: I note that the transcript of this portion of the statement was not entirely accurate, and contained an “inaudible” notation. This quotation is based on my review of the DVD of the statement.

[^4]: The defendant repeatedly used the word “girls” in his evidence. I did not take this to refer to age, or to the people he met being young. I just took it to be the language sometimes used by young men (and young women) to describe young women. I prefer to use the word “women”, when referring to adult women. However, in places in these reasons I use the word “girls” either where it is appropriate (such as when the defendant was giving evidence about something when he was younger), or to represent certain aspects of the evidence.

[^5]: I am not suggesting that there was anything improper about Crown counsel’s cross-examination.