Court File and Parties

Court File No.: CJ 9483 Date: 2020/04/14 Superior Court of Justice - Ontario

Re: R. v. Benjamin Kowba

Before: Justice D.A. Broad

Counsel: K. Enns, Counsel for the Crown A. Andreopoulos, Counsel for the Accused

Heard: March 16, 2020

Endorsement

[1] Benjamin Kowba was found guilty by a jury of two counts of sexual assault – one count in respect of each of two individual complainants K.K. and S.G.

[2] The parties acknowledged that the evidence led by the Crown at trial alleged distinct instances of sexual touching of each complainant, two in the case of K.K. and three in the case of S.G. The indictment was not specific respecting Mr. Kowba’s conduct relating to the two counts. The parties are agreed that there exists ambiguity on the factual basis of the jury’s verdict on each count. It is therefore necessary to hold a bifurcated sentencing hearing – the first segment to determine what facts from the evidence have been proven beyond a reasonable doubt, and the second to determine the appropriate sentence, based upon the found facts.

[3] What follows are my factual findings on the first stage of the hearing.

Guiding Principles re Factual Findings Following Jury Verdict

[4] As noted by the Supreme Court of Canada in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at para. 15, “the appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction.”

[5] At para. 16 Chief Justice McLachlin, writing for the court, made the following observations with respect to the task of the sentencing judge:

This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

[6] Chief Justice McLachlin, at paras. 17 and 18, went on to identify two principles which govern a sentencing judge in endeavoring to make the factual determinations necessary for an appropriate sentence as follows:

1. The sentencing judge’s determination must be bound by the express and implied factual implications of the jury’s verdict. Accordingly, the sentencing judge is required to accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty and must not accept as fact any evidence consistent only with a verdict rejected by the jury;
2. When the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury but should come to his or her own independent determination of the relevant facts. In doing this, the sentencing judge may find any other relevant fact that was disclosed by evidence at the trial to be proven. To rely upon an aggravating fact the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt. To rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities. The sentencing judge should find only those facts necessary to permit the proper sentence to be imposed. The judge must therefore first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

[7] In the recent case of R. v. J.P., 2019 ONSC 6298 (S.C.J.), B.A. Allen, J. usefully summarized at para. 10 the considerations which may assist the sentencing judge in arriving at factual findings:

(a) The sentencing judge must not attempt to reconstruct the jury's logical reasoning which recognizes that jurors arrive at a unanimous verdict for different reasons and on different theories of the case. (b) It is speculative and artificial to attribute a single set of factual findings to the jury unless it is clear that the jury must have unanimously found those facts. (c) Where any ambiguity on this exists the trial judge should consider the evidence and arrive at his or her own findings of fact consistent with the evidence and the jury's findings. (d) The jury must be given the benefit of the doubt regarding the basis on which an accused was convicted by the jury. (e) For the purpose of sentencing, in cases involving significant credibility and reliability issues, it is open to the sentencing judge to find the minimum consistent facts consistent with the jury verdict. (f) The offender is not entitled to the most lenient interpretation of the jury's verdict.

Evidence re Allegations of Sexual Touching

(a) Complainant K.K.

[8] The allegations of sexual assault against Mr. Kowba in respect of the complainant K.K. which formed the subject of count one in the indictment comprised two distinct instances of physical touching which occurred in the early hours of July 23, 2017. On that date K.K., along with her partner A.B. and several other members of the local rugby club, were sleeping overnight at the apartment occupied by Mr. Kowba and his partner A.W. following a party. The evidence of the two instances of alleged sexual assault by Mr. Kowba on K.K. may be summarized as follows:

1. K.K. testified that, as she was sitting on Mr. Kowba’s leg on a chair on the balcony of the apartment conversing with another male sitting on the other chair, she felt Mr. Kowba’s left hand on her lower back and felt that it “grazed” along the top of her underwear. The “graze” was in one motion and it happened a second time shortly thereafter in a very similar way; and
2. K.K. testified that she later lay down to sleep on the living room floor of the apartment. Mr. Kowba lay down between K.K. and another male. There was no further conversation between K.K. and Mr. Kowba and she fell asleep. K.K. testified that her next memory was early in the morning when she felt a sensation in the location of her vagina. She was not clear on what she was feeling until she felt Mr. Kowba place his hand on her head, at which point she could feel his fingers inside of her vagina. She stated that she was in a fetal position facing away from Mr. Kowba and he had accessed her vagina from the rear. His body was positioned behind her. She was wearing “really baggy” pants and had the attached suspenders pulled off her shoulders. The baggy pants were pulled down below her buttocks. Her underpants were pulled to the side. K.K. stated that she felt paralyzed, and a second later, Mr. Kowba tried to insert his penis in her. K.K. was unable to say how long Mr. Kowba’s fingers were inside her. She said it was a matter of seconds from the point that she became aware of what was happening. K.K. stated that she was in shock and froze when she realized what was happening. She said “what the hell” at which point Mr. Kowba brought her hips towards his and removed his fingers from her vagina almost simultaneously. She stated that he tried to mount her and felt his erect penis on her backside one time and then a second time within seconds. K.K. got up and left the living room, entered the adjacent bedroom and woke A.B., telling her that they had to leave. A.B. testified that K.K. appeared extremely panicked and scared and told her that they “had to get out of there.” They immediately left the apartment together.

Mr. Kowba testified that K.K. came inside from the balcony, took down her suspenders on her pants and laid down on the floor beside him, placing her head on his extended right arm. Her buttocks were against his crotch area and they were in a spooning position and both started “dry humping” for a couple of minutes. Mr. Kowba stated that he then began massaging K.K.’s lower back and slid his hands into her pants. He stated she began moaning in a way that indicated pleasure. He asked her if she liked it and she kept moaning. He acknowledged that at no time did she say “yes.” He stated that he had one finger inside her vagina and she opened her legs so that he could put in a second and then a third finger. He stated that this lasted 5 to 10 minutes and K.K. got “really wet” and he said that he thought she “finished.” He then stated that he attempted to mount her to “get some pleasure for myself.” At that point she said “Kowba stop” and he got off her. She rose and left the room.

Mr. Kowba denied that K.K. was sleeping during the time that he digitally penetrated her.

(b) Complainant S.G.

[9] The allegations of sexual assault against Mr. Kowba in respect of the complainant S.G. which formed the subject of count two in the indictment, comprised three distinct instances of physical touching which occurred in the early morning hours of August 31, 2016. S.G. returned with Mr. Kowba and his partner A.W. to their apartment with the intention of sleeping over after socializing at a nightclub with a number of members of the rugby club. The evidence of the three instances of alleged sexual assault by Mr. Kowba on S.G. may be summarized as follows:

1. S.G. testified that, upon approaching the apartment A.W. reached the door first and unlocked it. S.G. was just behind A.W. and Mr. Kowba was to S.G.’s right. As she was entering the apartment, S.G. felt Mr. Kowba put his hand up the skirt of her dress and “grabbing” her right buttock. S.G. stated that she was not in a position to see Mr. Kowba when she felt his hand on her buttock. She stated that his hand came in contact with the skin of her buttock and she felt his hand there for “at least ten seconds.”
2. S.G. testified that, in the early morning, as she was lying flat on her back on the living room couch with a blanket around her waist, she felt the sensation of someone kissing her left arm and caressing her left breast. She said she was jolted awake and saw Mr. Kowba. She stated that the kisses started on her shoulder and moved down to the middle of her upper arm and that Mr. Kowba had his full hand on her left breast, squeezing it. S.G. told Mr. Kowba to stop and to go away. Mr. Kowba responded, “I’m drunk, sorry, I don’t know what I’m doing.” S.G. pulled the blanket up over her face. She stated that she heard Mr. Kowba crawling away, pulling himself along the floor away from the couch. He had been using crutches around the time of the incident. S.G. testified that she thought that Mr. Kowba had left the room but moments later she felt him starting to kiss her arm again and reaching across her arm and grabbing her left breast over the blanket. The kisses were in the same location as previously, starting on the shoulder and moving down her upper left arm. She stated that this arm was outside of the blanket. She pulled the blanket off her face and told him to stop. He was still situated between the couch and the coffee table. He again said that he was drunk and did know what he was doing.
3. S.G. testified that when she rotated her body and propped herself up on her left arm on the couch, she noticed that the button and zipper on her jean shorts were undone. She testified that that she had not undone her shorts prior to going to sleep. She believed that Mr. Kowba had undone the fasteners on her shorts.

S.G. testified that she immediately left the apartment in distress and drove to the residence of her friend Mathew Velariote to seek assistance from him, arriving sometime between 4:00 a.m. and 5:00 a.m.

Mr. Kowba testified that while he was in the bedroom and his partner A.W. was sleeping, he decided to go back into the living room to see if S.G. wanted to “fool around.” He entered the living room to see if S.G. was sleeping. He said that he poked her on the outside of her left arm with his left hand and then shook her shoulder. S.G. awoke abruptly and asked: “Ben what are you doing?” Mr. Kowba stated that he stammered and said: “I don’t know I am drunk.” He stated that he immediately regretted attempting to cheat on his partner and he crawled out of the room and went to the bathroom. He then returned to the living room and said to S.G. “please don’t tell A.W. about this.”

Issue

[10] For the purposes of sentencing, the defence disputes that the Crown has proven beyond a reasonable doubt the allegations of sexual touching involving firstly, digital penetration of the complainant K.K. without her consent, secondly kissing the complainant S.G. on the arm and fondling her left breast, and thirdly undoing the fasteners on S.G.’s shorts. The defence does not dispute, for the purpose of sentencing, that the allegations of sexual touching involving “grazing” K.K.’s back along the top of her underwear line and grabbing or touching S.G.’s buttock have been proven beyond a reasonable doubt.

[11] The jury found Mr. Kowba guilty of both counts of the indictment. The court is therefore called upon to determine the facts necessary for sentencing regarding the instances of alleged sexual touching disclosed by the evidence in relation to each count. Given that the defence does not dispute for the purpose of sentencing that the Crown has proven the necessary elements of the offence of sexual assault beyond a reasonable doubt in relation to one instance of sexual touching of each complainant as described above, I must make my own determination of whether the Crown has proven those necessary elements beyond a reasonable doubt in respect of the three instances of alleged sexual touching which remain in dispute.

Position of the Crown

[12] The Crown points out that Mr. Kowba admitted to digitally penetrating K.K. while laying behind her on the living room floor of the apartment. The only issue is whether K.K. consented to that touching.

[13] The Crown submits that K.K. was clear in her testimony that she did not consent to either instance of touching of her committed by Mr. Kowba, being the “grazing” of her back and upper buttocks on the balcony and the digital penetration on the floor of the apartment. The Crown argues that her evidence in relation to both instances of touching was not undermined on cross-examination and that there is no reason to disbelieve her evidence that she did not consent to the touching in respect of one instance but not the other.

[14] The Crown submits there was no evidence of animus between K.K. and Mr. Kowba and K.K. had no motive to fabricate an allegation of sexual assault against him.

[15] The Crown identifies the following factors which it says negate any suggestion that K.K. was a consenting participant in sexual activity involving digital penetration of her by Mr. Kowba:

(1) K.K. had no romantic feelings towards or history with Mr. Kowba; (2) in the situation any sexual contact between them was readily discoverable by the parties’ respective partners who were sleeping in the next room, and by other individuals who were present in the room who may or may not have been asleep; (3) K.K. immediately told her partner what had occurred. If the activity represented consensual infidelity it did not make sense for K.K. to immediately inform her partner; (4) K.K. informed Mr. Kowba’s partner A.W., with whom she was friends. If the sexual contact had been consensual, it would have made more sense to hide it from A.W. in order to preserve the friendship; (5) consensual sexual contact having taken place between K.K. and Mr. Kowba is incongruent with the text message exchange between them initiated by Mr. Kowba ten days later in which he stated that it was “shitty” of him to ask to speak with her.

[16] The Crown submits that the evidence supports the conclusion that K.K. was sleeping and woke up to the sensation of being digitally penetrated. If K.K. was asleep when Mr. Kowba digitally penetrated her, she could not have consented to that sexual touching. Mr. Kowba’s evidence that K.K. was awake when he initiated and throughout the sexual touching should be disbelieved.

[17] The Crown submits that S.G. was also unshaken on cross-examination in her description of awaking to Mr. Kowba kissing her on the arm and fondling or grabbing her left breast. Mr. Kowba admitted that he had the opportunity to commit the touching which she described and that he approached S.G. with the intention of initiating sexual contact with her. The Crown says that it defies logic to suggest that when he admittedly wanted to “fool around” with S.G. his intention was to limit it to kissing.

[18] The Crown points out that S.G. maintained that the button and zipper on her shorts were fastened when she went to sleep and submits that it is speculative to suggest that she undid the fasteners on her shorts in her sleep. The clearest inference is that Mr. Kowba undid S.G.’s shorts in furtherance of his intention, that is, to have a penetrative sexual encounter.

[19] The Crown also points out that the evidence of Matthew Velariote that S.G. arrived at his residence in the early morning hours in distress is consistent with a sexual assault having taken place.

[20] The Crown submits that there was no evidence of any motive to fabricate on the part of S.G. adduced at trial. There was no evidence of ill feeling between S.G. and Mr. Kowba and no reason for S.G. to sabotage their long-standing friendship.

[21] Moreover, the Crown notes that its application for admission of similar fact evidence across the two counts in the indictment was granted. As result, the court can take the evidence of one count in support of the other and vice versa.

[22] The Crown submits that the evidence on the two counts demonstrated a pattern of behaviour on Mr. Kowba’s part. In both cases he “tested the waters” with each complainant with less intrusive touching and then escalated the sexual touching while each complainant was sleeping in the apartment.

[23] The Crown submits that in carrying out the analysis called for in R. v. W. (D.), 1991 SCC 93, [1991] 1 S.C.R. 742 (S.C.C.) the court should disbelieve Mr. Kowba and not be left in a reasonable doubt by his evidence and should accept the evidence of each complainant that each type of non-consensual sexual touching in counts one and two of the indictment took place.

Position of the Defence

[24] The defence submits that K.K. did have a motive to fabricate an allegation that the sexual contact between her and Mr. Kowba involving digital penetration was non-consensual. She was in a committed relationship with a partner who was in the other room and wanted to protect that relationship. She was also concerned about the other persons who were in the room at the time, which would explain why she was in an emotional state when telling her partner.

[25] The defence submits that Mr. Kowba’s text message to K.K. ten days after the incident stating “hey probably pretty shitty of me to ask but can we talk sometime” was not indicative of any consciousness of guilt on his part. A.W. testified that, during a conversation with K.K. a few days after the incident, K.K. asked her to have Mr. Kowba call her. A.W. failed to relay the information to Mr. Kowba until approximately ten days later and Mr. Kowba was simply apologizing to K.K. for his delay in responding to her request, made through A.W., for him to call.

[26] The defence did not point to the existence of any internal or external inconsistencies in K.K.’s evidence.

[27] The defence argues that there were credibility and reliability problems with the evidence of S.G. which should raise a reasonable doubt. For example, the defence submitted that, although S.G. testified that she told both K.K. and A.W. that Mr. Kowba had kissed her arms, each of them denied that S.G. had told them anything about kissing. The defence says that A.W. went further, denying that S.G. mentioned anything about Mr. Kowba grabbing or caressing her breast. In addition, Mr. Velariote testified that S.G. told him that Mr. Kowba had climbed on top of her causing her to push him away, whereas S.G. denied that this had ever occurred or that she had advised Mr. Velariote of it. The defence pointed out that Mr. Velariote said nothing about S.G. having reported that Mr. Kowba kissed her arm or caressed her breast. Mr. Kowba’s evidence was that he poked S.G.’s arm and shook her shoulder to wake her up and that he did not kiss her or touch or fondle her breast.

[28] With respect to S.G.’s evidence that she found that the button and zipper on her shorts were undone after she was wakened by Mr. Kowba, the defence points to the evidence of A.W. that S.G. undid her shorts to show her “Brazilian wax” to her prior to going to sleep, thus raising reasonable doubt on whether Mr. Kowba undid the fasteners on S.G’s shorts while she was sleeping.

Analysis

[29] In reference to each of the allegations of sexual touching which are in dispute the defence position, in summary, is as follows:

(a) in respect of the complainant K.K., the defence says that the sexual touching consisting of digital penetration was consensual. It says that K.K. was awake when the touching took place and that K.K. communicated her consent to the touching by her conduct and non-verbal utterances; and (b) in respect of the complainant S.G., the alleged touching by Mr. Kowba consisting of kissing her arm and caressing her breast never took place and that the touching that did occur, namely touching her arm and shoulder in order to wake her, did not take place in circumstances of a sexual nature. The defence also says that the alleged interference with the fasteners on S.G.’s shorts never took place.

[30] The Crown led no evidence directly corroborating the allegations made by either complainant. Although other persons were present in the room when the incident involving K.K. was alleged to have occurred, there was no evidence that any of them were conscious of or witnessed it and none of them testified. No one else was present when the incident involving S.G. was alleged to have taken place.

[31] In respect of each of the disputed incidents, the findings of the facts necessary for sentencing comes down to a question of the credibility of the two complainants, and, since he testified, that of Mr. Kowba. However, it is well-established that a finding of guilt must not be based on a choice between the evidence of the accused and the Crown's evidence, as such an approach would undermine the presumption of innocence (see R. v. Vuradin, 2013 SCC 38, at para. 21).

[32] The findings of fact necessary for sentencing are to be determined based upon the application of the principles in R. v. W. (D.), 1991 SCC 93, [1991] 1 S.C.R. 742 (S.C.C.), adapted for the circumstances, as follows:

(a) if I believe Mr. Kowba’s evidence that he did not commit an offence in question, I must find that his guilt has not been proven; (b) even if I do not believe Mr. Kowba’s evidence, if it leaves me with a reasonable doubt about his guilt, or about an essential element of an offence in question, I must find that his guilt has not been proven; and (c) even if Mr. Kowba’s evidence does not leave me with a reasonable doubt of his guilt, or about an essential element of an offence in question, I may find that that offence has been proven only if the rest of the evidence that I do accept proves his guilt of it beyond a reasonable doubt.

[33] It is important to note that, in applying the first two prongs of the W.(D.) formula, Mr. Kowba’s evidence, and other evidence favourable to him, is not to be considered in isolation but rather is to be considered in the context of all of the evidence. The evidence of any witness, including Mr. Kowba, may be believable standing on its own, but when other evidence is given which is contradictory or which casts doubt on the credibility or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of Mr. Kowba may no longer raise a reasonable doubt (see R. v. Hoohing, 2007 ONCA 34 at para. 15).

[34] Moreover, as noted by Code, J. in the case of R. v. Thomas, 2012 ONSC 6653 (S.C.J.) at para. 23, W.(D.) does not describe three sequential analytical steps that a trier of fact must pass through, but rather describes three distinct findings of fact that a trier of fact can arrive at when considering all of the evidence at the end of the case. At paragraph 24, he stated as follows:

A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.

[35] The Court of Appeal has stated that “the considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of the accused’s evidence as is a rejection based on a problem identified with the way the accused testified with the substance of the accused’s evidence” (see R. v. D. (J.J.R.), 2006 ONCA 40088, 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 53).

[36] In R. v. D, 2018 ONSC 6358 (S.C.J.) Ellies, J. summarized the effect of D.(J.J.R.) as follows at para. 19:

Acceptance of a powerful Crown case that proves guilt beyond a reasonable doubt is a perfectly good reason for completely rejecting the accused's exculpatory account. What matters is that the judge or jury assess the evidence of each witness in the context of the evidence as a whole.

[37] K.J. Campbell, J. stated the principle derived from D.(J.J.R.) this way in R. v. Mirzadagan, 2018 ONSC 3449 (S.C.J.), aff’d 2019 ONCA 864, at para. 116:

The law is clear that a conviction of an accused in a sexual assault case may, in appropriate circumstances, be properly based upon an outright rejection of the testimony of the accused and a considered and reasoned acceptance of the truth of the testimony of the complainant beyond a reasonable doubt.

[38] The Ontario Court of Appeal also gave guidance on the proper approach to be taken in a case which the complainant's evidence is uncorroborated in the case of R. v. Gostick (1999), 1999 ONCA 3125, 137 C.C.C. (3d) 53 (Ont. C.A.), at para. 14, as follows:

The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation: see R. v. Morin (1988), 1988 SCC 8. This is particularly true where the Crown's case depends solely on the unsupported evidence of the complainants and where the principal issue is those witnesses' credibility and reliability. As Rowles J.A. emphasized in R. v. B. (R.W.) (1993), 40 W.A.C. 1 (B.C.C.A.), these issues are not to be determined in isolation. She said at p. 9:

Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented.

[39] In the case of Faryna v. Chorny, [1952] 2 D.L.R. 354, at 356-7 (B.C.C.A.), O’Halloran J.A. recommended an approach on how best to resolve issues of credibility involving an inquiry into the consistency or harmony of the two conflicting stories with the surrounding circumstances, as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would recognize as reasonable in that place and in those conditions.

[40] In applying the foregoing principles, I find that that Mr. Kowba’s evidence does not raise a reasonable doubt with respect to his guilt in reference to the allegations that he digitally penetrated K.K. without her consent and that he kissed S.G.’s arm and touched her breast while she was sleeping. I also find that the Crown’s evidence has proved Mr. Kowba’s guilt in respect of these instances of non-consensual sexual touching beyond a reasonable doubt. In particular I find that the Crown has proved the elements of these offences as follows:

(a) that Mr. Kowba touched K.K. and S.G. respectively in the manners described above; (b) that the touchings of K.K. and S.G. in question were intentional; (c) that these touchings took place in circumstances of a sexual nature; and (d) that these neither K.K. nor S.G. consented to these touchings.

[41] I find that the Crown has not proven Mr. Kowba’s guilt beyond a reasonable doubt in reference to the allegation that he undid the button and zipper on S.G.’s shorts.

[42] The evidence of K.K. that she awoke to find Mr. Kowba digitally penetrating her was not successfully undermined or challenged on cross-examination. There were no material internal or external inconsistencies in K.K.’s evidence with respect to her recounting of what she observed and experienced.

[43] As indicated above, the defence argues that K.K. had a motive to fabricate an allegation that she did not consent to the sexual contact between her and Mr. Kowba involving digital penetration based upon her committed relationship with her partner who was in the adjacent room and her desire to protect that relationship. She was also concerned about others who were in the room at the time and who may have observed or heard the sexual activity.

[44] It is noteworthy that, on the other side, the Crown argues that, by reason of the long-standing friendship between K.K. and Mr. Kowba, K.K. had no motive to fabricate an allegation of sexual assault against him.

[45] With reference to the importance of the presence or absence of a motive to fabricate in assessing credibility, Nordheimer, J.A., writing for the panel in R. v. Sanchez, 2017 ONCA 994 (C.A.), stated as follows at para. 25:

It is recognized that whether a person does or does not have a motive to lie is not generally a reliable basis upon which to assess credibility. Certainly the absence of any apparent motive to lie is an unreliable marker of credibility. There are simply too many reasons why a person might not tell the truth, most of which will be unknown except to the person her/himself, to use it as a foundation to enhance the witness' credibility. Consequently, it is generally an unhelpful factor in assessing credibility: R. v. L. (L.) (2009), 96 O.R. (3d) 412, 2009 ONCA 413 (Ont. C.A.), at para. 44.

[46] In the case of R. v. Bartholomew, 2019 ONCA 377 (C.A.) Trotter, J.A., writing for the panel observed, with reference to an absence of a motive to fabricate, at paras. 22-23:

However, problems occur when the evidence is unclear — where there is no apparent motive to fabricate, but the evidence falls short of actually proving absence of motive. In these circumstances, it is dangerous and impermissible to move from an apparent lack of motive to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all: see R. v. V. (J.), 2015 ONCJ 815 (Ont. C.J.), at para. 132; R. v. Sanchez, 2017 ONCA 994 (Ont. C.A.), at para. 25; L. (L.), at para. 53; R. v. T.G., 2018 ONSC 3847 (Ont. S.C.J.), at para. 30; R. v. Lynch, 2017 ONSC 1198 (Ont. S.C.J.), at paras. 11-12.

Therefore, in this context too, there is a "significant difference" between absence of proved motive and proved absence of motive: L. (L.), at para. 44, fn. 3. The reasons are clear. In R. v. B. (R.W.) (1993), 24 B.C.A.C. 1 (B.C. C.A.), Rowles J.A. explained, at para. 28: "it does not logically follow that because there is no apparent reason for a motive to lie, the witness must be telling the truth." This point was made in L. (L.), in which Simmons J.A. said, at para. 44: "the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate" (emphasis added). See also R. v. M. (O.), 2014 ONCA 503, 313 C.C.C. (3d) 5 (Ont. C.A.), at paras. 104-109; and R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397 (Ont. C.A.), at para. 93.

[47] In my view the converse is also true, namely that it does not logically follow that if a witness or complainant had a possible motive to fabricate, she must therefore be lying.

[48] In my view the alleged existence or absence of a motive to fabricate on the part of K.K. is not a reliable basis to assess her credibility.

[49] In subjecting Mr. Kowba’s story to an examination of its consistency with the probabilities that surrounded the existing conditions and its harmony with the preponderance of the probabilities which a practical and informed person would recognize as reasonable in that place and in those conditions (see Faryna v. Chorny referred to above), I am not left with a reasonable doubt that K.K. did not consent to Mr. Kowba digitally penetrating her for many of the reasons identified by the Crown, namely:

(1) K.K. had no romantic feelings towards or history with Mr. Kowba; (2) in the situation, any sexual contact between them was readily discoverable by the parties’ respective partners who were sleeping in the next room, and by other individuals who were present in the room who may or may not have been asleep; (3) K.K. immediately told her partner what had occurred. If the activity represented consensual infidelity it did not make sense for K.K. to immediately inform her partner; and (4) K.K. informed Mr. Kowba’s partner A.W. who was a friend. If the sexual contact were consensual it would have made more sense to hide it from A.W. in order to preserve the friendship.

[50] I find that the defence explanation of Mr. Kowba’s text message to K.K. saying “hey probably pretty shitty of me to ask but can we talk sometime” ten days after the incident does not make sense. I find that Mr. Kowba, by his text, was seeking to initiate a conversation with K.K. and was not seeking to apologize to her for failing to respond earlier to her request through A.W. that he call her. As post-offence conduct, Mr. Kowba’s text has probative value concerning his consciousness of guilt when considered with all of the other evidence. In sending the message, Mr. Kowba was acknowledging the incongruity of his seeking to initiate a conversation with K.K. after having sexually assaulted her. However, it is important to note that my finding of a lack of reasonable doubt does not depend on this evidence in isolation.

[51] I find that, based upon K.K.’s evidence, the Crown has proven Mr. Kowba’s guilt of digitally penetrating K.K. without her consent beyond a reasonable doubt and that Mr. Kowba’s contrary exculpatory account must necessarily be rejected.

[52] Similarly, I find that Mr. Kowba’s story with respect to his interaction with S.G. in the morning in question is inconsistent with the probabilities that surrounded the circumstances and is not in harmony with the preponderance of the probabilities which a practical and informed person would recognize as reasonable. As indicated previously, Mr. Kowba admitted that he approached S.G. while she was sleeping with the intention of initiating sexual contact with her. Within a short time after the interaction, following Mr. Kowba’s retreat to the bedroom, S.G. left the apartment without advising either Mr. Kowba or A.W. that she was doing so, and travelled by car in the early morning hours to her friend Matthew Velariote’s residence in considerable distress seeking his assistance. This reaction is manifestly out of proportion with Mr. Kowba having simply touched her arm and shoulder to awaken her.

[53] I do not find that apparent inconsistencies between what Mr. Velariote, A.W. and K.K. reported S.G. telling them and S.G.’s evidence in that respect undermine S.G.’s credibility and reliability.

[54] It is noted that A.W. was equivocal in her testimony respecting what S.G. reported to her. In her examination in chief A.W. stated she “did not recall” S.G. saying that Mr. Kowba had kissed her or touched her breast. In cross-examination A.W. stated that she “did not believe” that S.G. told her these things. On re-examination A.W. stated that she had no recollection that S.G. told her about kissing and that she did not tell her about Mr. Kowba having grabbed her breast.

[55] With respect to Mr. Velariote’s testimony, context is important. S.G. had arrived at his doorstep at 4:00 a.m. or 5:00 a.m. Mr. Velariote was awaked by the door-bell. He stated that S.G. was “obviously upset and crying.” He spent more than an hour with her before she went to bed. She eventually calmed down, but he was unable to say how long it took her to do so. Given the highly charged atmosphere that was prevailing following S.G’s arrival at Mr. Velariote’s home, it is not unexpected that there would be differences between S.G.’s recounting of the incident and what Mr. Velariote was able to recall being told by her in her distressed state. There is no basis to suggest that Mr. Velariate was concerned, as a police officer would be, to obtain a full, complete and accurate account from S.G. In the context, he was more concerned with her emotional well-being and with comforting her.

[56] Context is also important with respect to K.K.’s testimony that, in their conversations, S.G. told her nothing about Mr. Kowba having kissed her. On cross-examination K.K. testified that, in the first conversation she had with her at work, S.G. told her that “there was a touch” while she was sleeping and that she was made to feel uncomfortable, but there was “nothing about kissing.” However, she maintained that she was unable to recount the full details. She was referred to her testimony at the preliminary enquiry when she testified that S.G. did not give her specific details of where she had been touched. She testified that “there were other details, but I don’t have a recall of them.”

[57] I find that, as K.K. perceived it, S.G. was not providing her with a full recounting of what had happened to her. Although S.G. testified that she told K.K. that Mr. Kowba had grabbed her buttock, kissed her arm and caressed her left breast, the fact that K.K. was unable to recall this with specificity does not, in my view, undermine S.G.’s credibility and reliability. The specific details of what happened to S.G. may not have been as important to K.K. to understand and retain as what had happened to her.

[58] The allegation that Mr. Kowba sexually assaulted S.G. by undoing the button and zipper on her shorts, relies exclusively on circumstantial evidence. S.G. did not testify that she observed or felt Mr. Kowba undoing the fasteners. She discovered that the fasteners were undone when she propped herself up on the couch after she had been awakened by Mr. Kowba kissing and touching her. She testified that the fasteners were done up when she went to sleep. From this evidence the Crown submits that an inference should be drawn that Mr. Kowba unfastened the button and zipper in the process of kissing and touching S.G.

[59] In the case of R. v. Villaroman, 2016 SCC 33 (S.C.C.) the Supreme Court of Canada held at para. 35 that, in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts as “requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence.” The range of reasonable inferences that can be drawn from circumstantial evidence is the issue and “if there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.”

[60] At para. 37 the Court observed that, when assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt, provided they are based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[61] In my view there are two reasonable inferences which may be drawn from the evidence or lack of evidence, and which point away from guilt, namely that S.G. was mistaken on whether the button was fully fastened and the zipper fully pulled up before she went to sleep or that they S.G. undid them sometime during the night in an unconscious or semi-conscious state.

[62] In my view the Crown has not displaced these reasonable inferences and, as a result, I am left with reasonable doubt that Mr. Kowba sexually assaulted S.G. by undoing the button and zipper on her shorts.

Conclusion

[63] In accordance with the foregoing, I will consider the following incidents in sentencing on the basis that the necessary elements for a finding of guilt on a charge of sexual assault in respect of each of them have been proven by the Crown beyond a reasonable doubt:

Count 1: (a) Touching or “grazing” the complainant K.K.’s back and upper buttock; (b) Digitally penetrating the complainant K.K.;

Count 2: (a) Touching or grabbing the complainant S.G.’s buttock; (b) Kissing the complainant S.G.’s arm and touching or caressing her left breast.

D.A. Broad J. Date: April 14, 2020