COURT FILE NO.: CR-19/1-122

DATE: 20200117

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NELSON NIYONGABO

Defendant

Brigid McCallum, for the Crown

Chris Hynes, for the Defendant

HEARD: September 30, October 1, 3, 4, 7, 8, 11, November 18, 2019

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.

SPIES J.

REASONS FOR JUDGMENT

Overview

[1] The Defendant, Nelson Niyongabo, is charged with sexually assaulting S.M. on Saturday April 21, 2018 at 180 Dundas Street West (“180 Dundas”). Mr. Niyongabo re-elected trial by judge alone and pleaded not guilty to the charge.

[2] Mr. Niyongabo admits having sexual intercourse with S.M. on April 21, 2018 - his semen was found in her vagina. Accordingly, there are two main issues: 1) did S.M. consent to having sexual intercourse with Mr. Niyongabo and 2) did she have the capacity to consent.

[3] As I will come to, S.M. testified that she does not have any memory of the alleged sexual assault. Mr. Niyongabo elected not to testify. The Crown called some witnesses who interacted with S.M. and/or Mr. Niyongabo during the night and early morning hours of April 21, 2018. The Crown also introduced many videos and photos that Mr. Niyongabo admitted were authentic and accurate. The videos show where S.M., Mr. Niyongabo and others were for some of the time on April 21, 2018 and how they were behaving. The photos show the area where it is alleged S.M. was sexually assaulted – a small room; about 10 by 15 feet, with a window and a grey carpet, with access to the elevator on the P2 level (“P2 Elevator Vestibule”) of a public, multi-level parking garage that is just to the west of the commercial office building at 180 Dundas (“Parking Garage”). The Parking Garage has two levels below ground and five levels above ground.

The Evidence and Preliminary Findings of Fact

Background of S.M.

[4] At the time of the alleged offence S.M. was 37 years old. She is from Toronto but because she does not come downtown often, she testified that she is not that familiar with the downtown core. She was pretty certain that she had never been to 180 Dundas before.

[5] S.M. has experience as a bartender. She worked in the service industry in the past and continues to work managing a bar for a friend. She currently collects social assistance. However, she is unsure whether she is covered by Ontario Works or Ontario Disability Support Payments for depression and anxiety.

[6] S.M. has been diagnosed with anxiety and insomnia, and following the alleged offence, with depression. In order to address her anxiety and insomnia, S.M. was prescribed Ativan and Valium in her early twenties. Under doctor supervision, S.M. has been tapering off these drugs. At the time of the alleged sexual assault S.M. was prescribed 35 mg of Valium daily and one mg of Ativan daily for anxiety. She took these medications on April 19, 2018.

[7] A significant part of the defence theory is that S.M. was looking for cocaine at the time of the alleged sexual assault; an issue I will come to. According to S.M., she has never been addicted to illicit drugs or alcohol. She testified that her tolerance to alcohol is fairly low, but she would not let herself go “over the edge” because she is a “shitty drunk”. Because of the medication she was taking S.M. testified that she was to limit alcohol intake because she believes that alcohol enhances the effect of the drugs and vice versa. However, she testified that she had had three drinks before quickly, without it being a problem. S.M. did admit that she used cocaine but said she did so only rarely. She testified that she last consumed cocaine on either April 18^th or 19^th - she could not recollect the exact date – when she was at a party for a friend who was visiting from out of town. She was adamant that she did not use any cocaine on April 20^th or 21^st.

The Elephant and Castle

[8] S.M. testified that on Friday, April 20, 2018, she met up with a friend at his house where she had a glass of vodka and a bit of wine. She and her friend went to meet up with other people downtown, at Yonge Street and Dundas Street. S.M. hung out with these people for three to four hours. She left them at about 12:30 a.m. and walked around on her own.

[9] S.M. testified that she made plans at around 1:30 a.m. on April 21, 2018 to meet up with her boyfriend’s mother at the Elephant and Castle, at the corner of Yonge Street and Gerrard Street. It was her boyfriend’s mother’s birthday and according to S.M., she was also downtown. S.M. arrived at the Elephant and Castle alone, just after 1:30 a.m. A video from inside the bar shows that S.M. had her long hair neatly in a ponytail and she appears steady on her feet. There is no evidence to suggest that she arrived intoxicated. She put her large purse on the bar stool next to her and sat by herself on a stool at the bar. A little later she took off her coat and put it on the stool with her purse. Both a male and female server were in the bar. The evidence is clear that S.M. primarily dealt with the male server who testified at the trial; Cillian Woods.

[10] S.M. testified that she wanted to make sure the bar was going to be open so that her boyfriend’s mother had time to arrive before the bar closed. She admitted that at the preliminary hearing she testified that her boyfriend was also supposed to come but at trial she said her memory was that it was only going to be his mother. I did not find this to be a significant inconsistency. While S.M. waited at the bar, she can be seen on the video checking her phone and making a short call. S.M.’s behaviour in the bar is consistent with her evidence that she was waiting for someone.

[11] There is no dispute that S.M. ordered a double vodka cranberry for herself and wine. Mr. Woods put two wine glasses and a decanter of white wine that appears to be a half litre and the vodka drink on the bar in front of S.M. S.M. moved the wine to the side and began to drink her vodka. A little later S.M. poured some of her wine into a glass and drank some of it. Mr. Woods removed S.M.’s vodka glass at about 1:53 a.m. for reasons I will come to, and it appears that she had finished that drink. He later removed the wine before she finished it. S.M. spoke with three men seated near her and when they left at about 1:54 a.m. one of them passed the rest of his drink to S.M. and she finished it.

[12] S.M. admitted that she left the bar without paying her bill but her reason for doing so is at odds with the evidence of Mr. Woods and is an issue the Defence argues is relevant to S.M.’s credibility. According to S.M., when she arrived, she asked the male bartender; Mr. Woods, about the closing time and she was told 2:45 a.m., which meant that there was enough time for her boyfriend’s mother to come. S.M. testified that when she spoke to the bartender later, he was very rude to her and he told her that in fact that the bar was closing at 2:00 a.m. This upset S.M. because she was worried she would not be able to meet her boyfriend’s mother after telling her to come. She admitted that she got frustrated and angry at Mr. Woods and asked for the manager’s name or card and that she left without paying her bill.

[13] Mr. Woods testified that initially S.M. was polite and friendly. She seemed very fatigued, but he did not notice any signs of intoxication. After he served her drinks at about 1:44 a.m. the video shows that he put what I presume was her bar bill down on the bar and S.M. looked at it and put it back down. Just before last call, Mr. Woods returned to S.M. and told her that they were coming up to last call, which he testified would have been just before 1:45 a.m. At this point, according to Mr. Woods, S.M. told him that she did not have any money and that her boyfriend had her purse and she was waiting for him. S.M. put her coat on at 1:56 a.m. Mr. Woods testified he then took the wine out of S.M.’s reach and told her that she could have it once she paid for it. S.M. asked for the wine back and when he said no, she became very defensive and angry – her mood changed drastically. She complained about his service and that he was unprofessional. Mr. Woods told her to wait and that he would get his manager’s business card, but she left the bar before he could give it to her.

[14] Based on all of the evidence, and in particular the video, I find that while S.M. was at the Elephant and Castle, she consumed all of the double vodka, a small quantity of an unknown shot; presumably hard liquor, and a small amount of white wine. S.M. was asked by police if she consumed any wine and she said that she had not, which is clearly incorrect. When asked about this in cross-examination at trial, she said that she had clearly forgotten that and that she had had the rest of the shot the other guest gave her until she saw the video. This is a more significant inconsistency, but S.M. made no attempt to suggest she was intoxicated when she left the bar. Furthermore, as I will come to, she was in a state of extreme intoxication at the time she spoke to police.

[15] S.M. testified that the drinks she consumed at the Elephant and Castle did not cause her to be intoxicated. Mr. Woods also testified that he did not note any signs of intoxication, such as stumbling or slurring or words at the time S.M. left the bar. The Crown argues that at 1:56 a.m. when S.M. can be seen putting on her coat that she seems to have some difficulty and seems to be unbalanced on her seat, implying that she was feeling the effects of alcohol. I disagree. S.M. simply had trouble finding the sleeve of her jacket the first time she attempted to put it on. I saw no evidence to suggest she was unbalanced on the stool. Furthermore, the only issue when she left the bar was that the first door she tried to exit was locked. I accept the evidence of S.M. and Mr. Woods that although S.M. had consumed some alcohol, she was not showing any signs of intoxication when she left the Elephant and Castle.

Meeting the Defendant

[16] S.M. left the Elephant and Castle alone around 2:17 a.m. She testified that she was standing outside of the Elephant and Castle waiting for a cab to take her home. She believed she had $80 in cash. I have been unable to determine, on the evidence, whether or not this was true. The videos do show S.M. standing at the intersection of Yonge Street and Gerrard Street but then she can be seen walking south on the west side of Yonge Street, so it does not appear that she was waiting for a cab at the bar. In any event, S.M. testified that when she was one door south of the Elephant and Castle, a man came up to her and started “hitting” on her. She did not recall exactly what he said but she remembered saying: “No, I am not going to sleep with you”. The man who said this was short, between 5’7 and 5’9, black curly hair, and brown skin. He was slightly intoxicated and wearing green underwear with a white elastic band that was showing.

[17] After this comment, the man’s friend, whom S.M. described as dark skinned, taller with a slimmer build, came up and he apologized for his friend. This man was nice and well-spoken. S.M. believes that he offered to walk her to a cab stand. She emphatically denied the suggestion that she asked the men if they knew where to get drugs or that she was looking for drugs that night. She also denied the suggestion that she was the one who suggested they go to 180 Dundas.

[18] S.M. does not recall any other details about these individuals, for example: their names, age, or anything about their backgrounds. A female can be seen in the company of two males at 2:30 a.m. on a video from a camera at the Atrium at 595 Bay Street (the “Atrium”) facing west toward the intersection of Edward Street and Bay Street. I find that this female is S.M.. As for the two men walking with S.M., the video evidence is clear that this second, taller man, was Mr. Niyongabo and that he was walking with a friend. S.M.’s evidence on this point was never challenged.

The Chronology of Events Prior to the Alleged Sexual Assault

[19] S.M. testified that Mr. Niyongabo pulled out a bottle of bourbon and offered her a sip and she took one. He invited her to what she believed was his or his friend’s condo. She said that she does not know why she went with him and that it was not like her to do that. S.M. also testified that at some point she remembered Mr. Niyongabo saying that they were going to a place where there were no cameras. She admitted these two statements were inconsistent and she could not explain it. She testified that the entire night made no sense to her.

[20] Based on videos taken from cameras at the Atrium, at 168 Dundas Street West (“168 Dundas”) and 180 Dundas, from the point when S.M. can first be seen walking with Mr. Niyongabo and his friend, she walks south on Bay Street, they cross Edward Street and go past the Bus Terminal to Dundas Street West where they turn westbound. Mr. Niyongabo has a backpack and his friend is carrying a bag.

[21] S.M. testified that she was being led - she was following the Defendant. However, that is not the case. As they walk, S.M. is usually walking along with Mr. Niyongabo and his friend although at times the friend is lagging behind them or walking ahead of them. As she is walking it is clear that S.M. is talking primarily to Mr. Niyongabo. Although on a couple of occasions S.M. puts one leg over the other as she walks and is turning to talk to Mr. Niyongabo, she does not appear to be intoxicated. They can then be seen entering the Parking Garage at 2:35 a.m., through the entrance used by vehicles. They then go through a door marked “Elevator” on the parking level marked “G”.

[22] In the first five minutes of walking with the Defendant and his friend, S.M. admitted there was no impairment of her memory as she was not under the influence of alcohol or drugs. Nevertheless, she has no memory of what she and the Defendant talked about in that time frame. She denied telling the Defendant that she had broken up with her boyfriend and testified that had not occurred, but she did admit that she had had an argument with him and what she described as a “frustrating day”.

[23] S.M. testified that they went south on Yonge Street, but she does not recall how she got to the condo and she could not say what she did as she completely “blacked out”. I accept that as she was talking to Mr. Niyongabo that she may not have paid attention to where she was going. S.M. testified that she did not note anything peculiar about the building, apart from it being on a side street and that she did not realize it was a parking garage. Given there are no signs of S.M. being intoxicated as she walked, I find that she was not intoxicated at this time. There is no explanation for why she would have virtually no memory of walking to and entering the Parking Garage and realizing that she was walking into a parking garage. I find that at that time at least, she must have realized this.

[24] At 2:38 a.m. S.M., Mr. Niyongabo and his friend can be seen in the common lobby between 180 Dundas and 123 Edward Street (“Common Lobby”). The video shows Mr. Niyongabo hugging S.M. while she is leaning against the wall. She does not reciprocate the hug and gestures with her hands in the space between them. All three of them then get on the elevator of 180 Dundas.

[25] There is then a gap in the video evidence until 4:08 a.m. when Mr. Niyongabo’s friend can be seen exiting through a door that leads into the Parking Garage on the P4 level. Based on the evidence of DC Maisonneuve, which was not challenged, and I accept, if S.M., Mr. Niyongabo or his friend had been anywhere in the building at 180 Dundas or had decided to leave the building, during this time gap, they would have been seen on video. Accordingly, since there is no video of them in this time frame, and there was no suggestion that there were missing videos, I find that they must have been in the stairwell of 180 Dundas or in one of the elevator vestibules in the Parking Garage from 2:38 a.m. to 4:08 a.m.

[26] S.M. described the place where she ended up as a room with a grey carpet, a window, an elevator and no furniture. This description matches the various elevator vestibules in the Parking Garage. She did not question the situation or how peculiar it was. Again since S.M. was not intoxicated at this time, there is no reason why once she was inside the P2 Elevator Vestibule that she would not have realized she was not in someone’s condo.

[27] S.M. testified that once she got to the condo her memory loss happened pretty quickly. She recalled the Defendant’s friend appeared slightly intoxicated and that he was sitting up, drooling. He passed out about 30 minutes after they arrived. The Defendant had been drinking but seemed more coherent - he held it together quite well. S.M. had another sip of the bourbon. She recalled taking two sips the entire night.

[28] S.M. testified that she has a memory of at some point something being said about Xanax and seeing a white bar. She also recalled that one of them asked her if she did “Tina”, what she believed to be a reference to crystal meth. She recalled the Defendant trying to kiss her and she testified that she clearly remembered saying ‘no’ and that she told him that she had a boyfriend. Apart from this advance, she did not remember there being any other sexual advances or any discussion of a sexual nature and after this, her memory ends. S.M. testified that her next memory was waking up to Mr. Niyongabo on top of her having sex with her. All of this evidence suggests that S.M. has some evidence of events after they entered the Parking Garage for the first time.

[29] Coming back to the video evidence, at 4:47 a.m. the view of parking level P1 and the door to the elevator shows Mr. Niyongabo and his friend open the door marked “Elevator”, look around and then close the door. There is then another gap in the video evidence until 6:07 a.m. when Mr. Niyongabo’s friend is seen coming into the Common Lobby from the elevator. He walks around the lobby and his walking is somewhat stilted. He ultimately leaves and a male can then be seen outside 180 Dundas, whom I find is Mr. Niyongabo’s friend. This is the last time we see him on the video evidence. From the same location a few minutes later, at 6:13 a.m., Mr. Niyongabo exits the same door and looks around the Parking Garage and he then goes back into the building. I find that from this point on only Mr. Niyongabo is with S.M.

[30] At 6:14 a.m. Mr. Niyongabo can be seen exiting the door on B1 into the Parking Garage and he then returns into 180 Dundas. Two minutes later S.M. is seen exiting the door marked “Elevator” in the Parking Garage on the P5 level. She is fully clothed and has her purse. S.M. walks around in circles holding her right hand to her mouth. She kicks the door as she walks past it, stumbles back after the kick, leans against the wall, goes back to the door, lifts her leg as if to kick it open and as it starts to close back on her, she leans forward at an exaggerated angle pushing the door as she re-enters the building. This is the first time that it appears that S.M. is intoxicated. When S.M. was shown this video, she testified that she has no idea why she was walking in this area.

[31] At 6:25 a.m. S.M. can be seen stumbling out from the elevator into the Common Lobby, followed by Mr. Niyongabo. S.M. leans against a wall with her arms crossed and speaks with Mr. Niyongabo. She then moves to sit on a bench in the lobby. It appears from the video that Ms. Niyongabo is upset. S.M. is still fully dressed but her hair is out of the pony tail and her left shoe lace is undone. S.M. had no recall of this but said that having her shoelace undone was not normal for her. Mr. Niyongabo walks over and sits next to S.M. on the bench. S.M. is very animated and is talking to Mr. Niyongabo. Having reviewed this video several times, I conclude that the video shows Mr. Niyongabo leaning towards S.M., but it does not show him placing his left hand on her left elbow/forearm area, S.M. aggressively pulling her arm away from the Mr. Niyongabo's touch and Mr. Niyongabo attempting to touch S.M. again, as alleged by the Crown. It does, however, show that S.M. is upset, and she gets up and moves away from Mr. Niyongabo eventually exiting out the east exit of 168 Dundas at 6:35 a.m. Mr. Niyongabo follows behind her a few seconds later.

[32] In the video at this point, S.M. can be seen stumbling as she walks. She walks into the lane of traffic south bound on Chestnut Street, while Mr. Niyongabo walks normally on the sidewalk watching her. At times S.M. stops and turns around. S.M. is then seen walking southbound in the center of the curb lane of traffic towards Dundas Street, where there is more traffic. She is weaving across the lanes of traffic, back and forth, walks into the center of road in the fast lane and back to the slow lane with one vehicle in the fast lane going by and another behind her in the slow lane. S.M. seems totally disoriented and oblivious to the vehicles approaching behind her. As she walks S.M. is stumbling, has difficulty walking, is swaying side to side and weaving and at one point is walking leg over leg. S.M. stops twice and puts her hand to her face, and she appears to be crying. She is uncoordinated and at one point slaps a lamp post.

[33] At some points in the video, Mr. Niyongabo can be seen walking beside or slightly behind S.M.. At other points, she was behind him. He remains on the sidewalk and is looking at S.M. but does not seem concerned that she could be hurt-he makes no attempt to get her off the road. At various points, S.M. can be seen turning towards Mr. Niyongabo and they appeared to be communicating. In cross examination, S.M. admitted that she seemed to be gravitating towards him. Mr. Niyongabo then entered a convenience store and returned with a small red package, which appears to be a package of cigarettes. He handed a cigarette to S.M.

[34] At 6:54 a.m. Mr. Niyongabo can be seen entering the Parking Garage followed by S.M. through the entrance where it can be accessed by vehicles coming from the Dundas Street West sidewalk on north side of Dundas. As they enter S.M. stumbles and Mr. Niyongabo reaches back towards her. Then they both continue walking into the Parking Garage. They can then be seen on the ground level of the Parking Garage where the machines to pay for parking and the entrance into 180 Dundas are located. Mr. Niyongabo walks in through the door to the right of the pay parking machines, followed by S.M. who is several steps behind him. She kicks at the door, stumbles, and walks in. Mr. Niyongabo and S.M. can then be seen in the Common Lobby and they get on the elevator.

[35] The Crown took S.M. through the videos and she testified she did not have any recall of what she was seeing. Mr. Hynes took S.M. through the various videos from about 6:26 a.m. to 6:67 a.m., suggesting that this whole time S.M. was asking the Defendant to get drugs for her, and in particular, coke. She denied this.

Early morning on April 21, 2018 – the Alleged Sexual Assault

[36] The position of the Crown is that the sexual assault of S.M. took place on the P2 level of the Parking Garage in the P2 Elevator Vestibule at around 8 a.m.

[37] S.M. does not recall very much about the alleged sexual assault. As already stated, she testified that her memory loss occurred quickly during the earlier morning hours of April 21^st after they got to the condo. I have already set out what she does remember. When Mr. Hynes put various suggestions to S.M. suggesting that she had initiated sexual contact with the Defendant she initially laughed at the suggestions, saying they were ridiculous but as the suggestions became more specific and graphic, she became very upset.

[38] The next memory S.M. testified to is that she woke up to the Defendant on top of her and his penis in her vagina, having sex with her, with his hand over her mouth, saying “shhh, it’s okay”. S.M. testified that her memory of waking up is foggy - she could not stand up straight and was in a state she had never been in before. She felt drugged but could not say who did it. She could not think straight. She did not know if her pants were partially off, but she had a vague memory of trying to pull her pants up, but she could not say for sure.

[39] In chief she testified that she got up, screamed, went to the elevator and pushed all the buttons – a lot of buttons. Later she added that she did not remember how she was able to get up from this position. She found it confusing because for some reason she thought she was in an apartment – she added her apartment. She did not know if the Defendant’s friend was in the room. She ran downstairs and asked for help – later she added that she was running away from the Defendant the second that she got off the ground and that he was chasing her and that he said: “no, that’s my girl”. The security guard closed the door in her face. She remembers the words: “He raped me” coming out of her mouth. At this point she testified that she was pretty hysterical. S.M. testified that she spoke to a couple who were there, told them what happened and asked them for help because someone had just had sex with her without her consent. According to S.M. the male got up and chased Mr. Niyongabo out although she added she was not 100% sure what happened.

[40] In cross-examination S.M. testified that if she told the police that she was “running away” from the Defendant that that is what she believed. She said that what she told police was incorrect, that she was not capable of running away and that a better description was that she was trying to run to get away from the Defendant – she was panicked and explained this was because she could not walk straight due to the unsteadiness she was experiencing.

Marc Aber’s observations of the alleged sexual assault

[41] Marc Aber is a financial consultant. He is very familiar with 180 Dundas and testified that he had been to this address and the Parking Garage attached to this address hundreds of times while working for a client who owned the building. On April 21, 2018 he was rushing to work to meet 10 people that were assisting with a client move. He arrived at approximately 8:10 a.m. - he was 10 minutes late. He drove into the Parking Garage and parked on P2.

[42] As Mr. Aber entered the P2 Elevator Vestibule, he observed a woman (S.M.) and a man (Mr. Niyongabo) on the floor adjacent to the elevator. S.M. was lying with her legs out flat, but her torso was twisted to her left side with more of her weight on her left shoulder. Her blonde hair was over her face so he could not see her face. She was naked from the waist down. Mr. Aber described S.M. as not moving, “lifeless” and unresponsive the whole time he was there - maybe a minute, and she seemed unconscious. Mr. Aber admitted that he was more focused on the man, but he testified that if the female had moved, he would have noticed it.

[43] According to Mr. Aber, Mr. Niyongabo, was “involved with her”, between her legs; having what Mr. Aber described as some type of “intimate relationship” with her. Mr. Niyongabo was not lying on top of her, but it looked like he was touching her below the waist. Mr. Aber testified that he did not know if what was happening was consensual or not. In cross examination, Mr. Aber confirmed he was in the room long enough to observe body positioning. Although he could not see Mr. Niyongabo’s actual hands he could see that they were both between S.M.’s legs and that Mr. Niyongabo was balancing himself on his forearms. He believed that he startled Mr. Niyongabo and that he “retracted” and so possibly his hands were on her thighs and then the floor but as he did not see his hands, he could not be sure.

[44] Mr. Aber testified that he asked Mr. Niyongabo what was going on and Mr. Niyongabo said: “She came here with me” and “I’ll be done soon”. Mr. Aber firmly responded: “No, you are done now” and that he had to “stop this”. Mr. Aber did not see S.M. respond to the touching, in his presence, or the conversation he had with Mr. Niyongabo. Mr. Aber estimated that he was in the room for about one minute. According to Mr. Aber, Mr. Niyongabo seemed very calm as if nothing out of the ordinary was going on and he did not seem to be intoxicated.

[45] Mr. Aber then left and went to the security desk and spoke to the security guard, Ram (Aram Basnat). Mr. Aber testified that he asked Ram to call the police immediately and go to the P2 level. He told him that there seemed to be “some sort of assault going on” and that Ram needed to get them out of there. Later he added that he believed there was a “high probability of a crime being committed”. It took Mr. Aber less than a minute to report this incident to Ram and he believed that Ram went to investigate within a minute or two. He also believed that Ram called police as he had made it clear he should do so although he added that it took a lot to “light a fire under him”.

Evidence of Aram (Ram) Basnat

[46] Aram Basnat was a security guard working part-time at 180 Dundas. On April 21, 2018 he was working from 7 a.m. to 3 p.m. Mr. Basnat testified that he was often faced with the issue of homeless individuals sleeping and trespassing in the Parking Garage. It was his job to remove these individuals. He said that he is not afraid of these individuals, but he does not want trouble.

[47] Mr. Basnat remembered being approached by an employee from North West Management on the morning of April 21^st. I find that that person was Mr. Aber. He was told that a boy and a girl were naked on P2. Mr. Basnat did not testify that Mr. Aber asked him to call police, but he was never specifically asked if Mr. Aber did so. Mr. Basnat said that it took him two to three minutes to address the issue. He brought a cell phone with him to audio record his interaction with them – it was not his intention to video them.

[48] When he arrived at the P2 Vestibule, Mr. Basnat testified that he had in his “mindset” that they were naked. He testified that he saw the female “sleeping” which he concluded from the fact she was lying down. He could not see her entire body. She was covering her body with a blanket.[^1] The man was sitting and so he could not see his whole body, but he saw his bare feet. All that is visible on the video is a black purse. I find that it was S.M. and Mr. Niyongabo that he saw. Mr. Basnat did not want to face them and so he stood at the door and advised them that they had to leave, and he immediately closed the door. He waited outside the room for about 30 seconds. He could hear mumbling which he assumed was them speaking and talking to themselves but they were not speaking loudly, and he could not hear what they were saying.

[49] Based on the video evidence, when Mr. Basnat opened the door and said; “hello – security”, Mr. Niyongabo responded and said: "Fuck you security – mother fucker". Mr. Basnat responded by saying that they could not stay there and that they had to go. Mr. Niyongabo responded: "We're going to go" and he then said: “Can you leave, my girl she wanna - she's weren't dress you know?” At this point you can see Mr. Niyongabo standing and he appears to be fully dressed and he has his shoes on. You can see S.M.’s running shoes on the ground. Mr. Basnat repeats that they have to leave and that he is going to call the cops. He then closes the door. While the door is open, the video shows Mr. Niyongabo moving and talking but what appears to be S.M.’s shadow is not moving. Based on this evidence, and the evidence of Mr. Basnat, I find that she was completely unresponsive while he spoke to them.

[50] As for what was being said while Mr. Basnat was standing outside the closed door, I could not make out anything from the audio, but Mr. Hynes conceded that during this period a female voice, which must have been S.M. stated: “stop – what are you doing?”

[51] Mr. Basnat then proceeded to an upper level and advised another couple that they could not sleep there. Mr. Basnat visually recorded this couple on his camera. I find that the female of this couple was Charlene Richardson[^2] who S.M. later interacted with. The man was never identified. He also checked the other levels and went outside. This took two to three minutes. Mr. Basnat then returned to the P2 Vestibule and he had a discussion with S.M. and Mr. Niyongabo. More of that discussion is recorded on video and this time S.M. can be seen and heard on the video. This is the most important evidence in support of the Crown’s case given how S.M. appears and what she says and how she says it. The exchange is as follows [emphasis added]:

Mr. Basnat: Hello Security. Are you still here?

Two voices respond. S.M. says: "Shut up" mumbling "Fuck this is my apartment building if you don't respecting it, get the fuck out end of story."

Mr. Basnat again advises he is going to call the cops. Mr. Niyongabo can now be seen, and S.M. is also now on camera putting her shoes on.

S.M.: "What happened".

Mr. Niyongabo: "We didn't even do anything bad".

S.M.: "What happened? What happened?"

Mr. Basnat advises this is private property and they cannot trespass here. Mr. Basnat: "You are trespassing here"

S.M.: "I live here" She then loudly tells Mr. Niyongabo to shut up. "I live here, how is he trespassing, to me, please".

Mr. Basnat: "No, you can go out and you can talk".

S.M.: "No I am asking you, how is that trespassing,"

Mr. Basnat: "Its private property".

S.M.: "I invited him to my home".

Mr. Basnat: "It's not your home".

S.M.: "Yes it is, I live here".

Mr. Basnat: "Where do you live? Not in this building, I know, not this building".

S.M.: "What the fuck, yes it is".

Mr. Niyongabo: "lets go, lets go, come".

S.M.: "When your manager comes, I'd like to speak to them, what is your name sorry, what is your name?"

Mr. Basnat: "I don't need to tell you my name, you just go out".

S.M.: "You do legally need to tell me your name, what is your name?"

Mr. Basnat: "Okay I'll call the cops just wait". Mr. Basnat leaves.

[52] Both counsel relied upon this conversation coming to different conclusions as to its meaning. Mr. Hynes’ position in his written submissions was that the statements made by S.M. to Mr. Basnet are admissible for the limited purpose of assessing her truthfulness and credibility but for no other purpose. There would be no other purpose for considering these statements in my view. They are of assistance in considering S.M.’s capacity at the time she uttered them, in conjunction with what can be observed from the video as to how she appeared and how she was speaking.

[53] The video does not just show the Complainant claiming to be in her apartment or apartment building. The Complainant is standing with one shoe on, holding a pen, in a completely bare vestibule between a stairwell and an elevator in downtown, in a room that has four concrete walls, a window and no furniture. She asked three times what happened. I observed from the video that her speech is not normal, it is somewhat slurred and erratic, her eyes do not look normal in that she does not seem to be focusing properly and she is unsteady on her feet, not to mention her disheveled appearance.

[54] S.M. testified that she did not remember this interaction with the security guard at all but when she was shown the video, she said that she was clearly out of her mind. At the time she was living in a very large one bedroom furnished apartment in a high rise that had 44 floors.

[55] S.M. denied Mr. Hynes’ suggestion that at the end of Mr. Basnat’s video that she was kind of laughing as if she knew she was telling stories. At this point in her evidence S.M. testified that she took full responsibility for what happened in that she drank out of a stranger’s bottle. She put herself in this position and she stated that she has come to terms with that.

[56] Mr. Basnat returned to his desk and continued his normal duties. He did not think there was an emergency or that anyone was hurt because both the man and the woman had been aggressive towards him. The woman did not say the man was hurting her and so he did not call police. He watched the surveillance of the lobby and saw that the people from P2 were talking to Mr. Aber. He went to the Common Lobby. In the lobby, the female approached him aggressively and he closed the door on her. He returned to his desk and called the non-emergency police line. He reported the trespassers and was advised if they returned to call back.

Evidence found at 180 Dundas

[57] A bottle of bourbon that appears to be empty, was found in the elevator vestibule on P4. I am not able to determine from the photos what size it was. I find however that it was the bottle of bourbon that S.M. spoke of that she drank from. It would be too much of a coincidence to find otherwise.

Events following the alleged sexual assault

[58] The video evidence from the P1 level shows that at 8:28 a.m. Mr. Niyongabo opens the door and exits. S.M. does not follow him, but she can be seen in the background. Mr. Niyongabo then goes back in. 10 minutes later S.M. opens the door out to P4 and comes out into the Parking Garage holding her head. She walks in a circle, and then goes back through the door. Two minutes later S.M. opens the door out to P4 again and comes out into Parking Garage. Mr. Niyongabo follows her out and he then goes back in followed by S.M. This video evidence suggests that S.M. remained with Mr. Niyongabo for about 12 minutes before going to the Common Lobby and asking for help.

S.M. asks for help

[59] At 8:49 a.m. the video of the Common Lobby shows Ms. Richardson and the male with her and they appear to be sleeping on a bench in the lobby. S.M. and Mr. Niyongabo are speaking to one another at the elevator and door to the Parking Garage. Mr. Niyongabo walks away and fist bumps the man who is with Ms. Richardson. This suggests to me that Mr. Niyongabo knew this man and was the one who was likely familiar with 180 Dundas and corroborates S.M.’s evidence that he told her he knew of a place where there were no cameras.

[60] At 8:50 a.m. Mr. Aber can be seen entering the Common Lobby and he speaks to Mr. Niyongabo. S.M. appears unbalanced and upset in the background. He turns his attention to S.M. a minute later and he can be seen pointing towards Mr. Niyongabo who is speaking to Mr. Basnat.

[61] S.M.’s testimony was that when she got to the lobby, she asked for help. She remembered being hysterical and very confused at this point. There were two security guards and neither assisted her. S.M. testified that she recalled a security guard closing the door in her face and she remembered the words: “he raped me” coming out of her mouth. The door closing after Mr. Basnat left the lobby confirms this memory and the evidence of S.M. saying that she had been raped is confirmed by the evidence of Mr. Aber. The admissibility of this utterance is an issue I will come to. She also remembered speaking to a couple who were there; the woman’s name was Charlene. She remembered asking them for help because someone had had sex with her without her consent. She had a recollection of the male of that couple chasing the Defendant away but added that she was not 100% sure of what happened and that her memory of these events was very foggy, and she found it difficult not to rely on the video. Although it does not appear that the male chased Mr. Niyongabo, the evidence is clear that S.M. remained with Ms. Richardson.

[62] S.M. testified that her vagina was in pain and between her thighs and her hips hurt and that she felt that she had just forcibly had sex. She also had a bump on her head and something on her elbow. S.M. testified that before she met the Defendant, she had no injuries.

Mr. Aber’s interactions with S.M. and the Defendant at around 8:50 a.m.

[63] After Mr. Aber spoke to Mr. Basnat, he turned his attention to the people he was meant to meet. As he was working, he realized he forgot his cell phone. Within the hour he left to retrieve his phone from his car. As he was going through the Common Lobby to the Parking Garage, he saw S.M., the Defendant, and two other people.

[64] The video evidence shows that Mr. Aber spoke first to Mr. Niyongabo at about 8:50 a.m. S.M. appears on the video in the background and appears unbalanced and upset. Mr. Aber asked Mr. Niyongabo what he was still doing there.

[65] Mr. Aber then had a conversation with S.M. During this conversation Mr. Aber observed that she appeared to be under the influence of something - he described her as not “well balanced”. Mr. Aber testified that S.M. said to him: “Does so and so live here?” Mr. Aber could not recall the name she referred to. There was no issue with the admissibility of this statement. I consider it admissible, not for its truth, but the fact S.M. asked this question. The fact S.M. asked this question corroborates her confusion as to where she was and her false belief when she told Mr. Basnat that she was in her apartment building.

[66] Mr. Aber said S.M.’s speech was slurred and broken. Mr. Aber explained to her that no one lived in this building and that these were office towers. At first, she did not appear to understand what he had said that no one lived there. Her eyes were squinting, and she seemed very foggy and confused and appeared lethargic. As he spoke to her it seemed as if she was waking up and she was more in charge of her faculties. Mr. Aber testified that he noticed a clear change in S.M.’s disposition. Her speech became more structured as she seemed to have more comprehension of what he was saying and that she was putting the pieces together. At this point she became very agitated and “ramped up dramatically”. S.M. raised her voice and began screaming repeatedly “he raped me, he raped me”. Mr. Aber directed S.M. to the security guard who was retreating off to the side. He then watched her approach the Defendant and push him.

[67] Mr. Aber retrieved his phone and when he came back through the Common Lobby Mr. Niyongabo was still there. He spoke to him again and told him that he could not stay and had to leave. Mr. Niyongabo said he did not want to go, and Mr. Aber told him that he had to. Mr. Niyongabo replied that he did not want to fight him, and Mr. Aber told him that if he did not leave something bad would happen to him. Mr. Aber testified that he thought Mr. Basnat had called police and that police would come and “do what they had to do”. Mr. Aber added that he did not know if Mr. Niyongabo was armed or not and so it was best to have him out of the building. Mr. Aber testified that Mr. Niyongabo seemed fully sober as he spoke to him.

[68] After Mr. Aber returned from his car, he had another conversation with Mr. Niyongabo who was still in the lobby. The Defendant told him that S.M. was “with me” - he said this in a few different ways as if he was trying to rationalize what had happened. Mr. Aber told him again that he had to leave and that police had been called. The Defendant appeared “fully sober” to Mr. Aber. Mr. Aber testified that he told him he’d better leave and that police had been called - or something bad would happen. He thought that Mr. Basnat had called the police. He said this because he knew something was wrong, he did not think the Defendant should be in the building anymore, and he did not know if the Defendant posed any danger or threat. He thought it was the best thing for the building and the security for the Defendant to not be there since he did not know if the Defendant was armed or unarmed.

[69] The video evidence shows S.M. heading towards the doors of 123 Edward Street at 8:51 a.m. and returning cupping her face with both hands. She walks quickly to Mr. Niyongabo and pushes him from the rear/side which was observed by Mr. Aber. S.M. appears to upset and agitated. As she moves towards Mr. Basnat who is behind a door, the door closes on her which is in accordance with her memory of the security guard closing the door on her. S.M. can then be seen sitting next to Ms. Richardson holding her face in her hands. A minute later Ms. Richardson and the man she is with move out of view and Mr. Niyongabo and S.M. can be seen speaking to each other. S.M. walks off screen and then Mr. Aber can be seen speaking to Mr. Niyongabo.

[70] S.M. did not testify about her conversation with Mr. Aber although as I have stated she did remember shouting that she had been raped.

S.M. goes to the Bus Station

[71] After the events in the Common Lobby, S.M. testified that she wanted to get out of there and go home, but she was too unsteady on her feet. She asked Ms. Richardson to take her somewhere to sit for a minute. S.M. testified that she could not do it on her own because she was not steady on her feet, she did not feel safe, and she was scared. She was in a condition that she had never experienced in her life.

[72] Ms. Richardson took S.M. to the bus station – they arrived at the bus terminal parking lot at 8:54 a.m. There is no video showing them entering the bus terminal, but they clearly did so. Mr. Jean Louis was a security guard at the Toronto Bus Terminal who dealt with S.M. and Ms. Richardson after he received information at 10:30 a.m. that there was an issue in the women’s bathroom.

[73] Mr. Jean Louis testified that he did not know when the women went into the washroom or what they were doing in the washroom. He and a cleaner attended the women’s bathroom to address the issue. He knocked on the first door for about 10 to 15 minutes. He was knocking and yelling in an attempt to get the occupants’ attention. He did not receive any response. Eventually, he went into the bathroom and into the stalls. He discovered S.M. sitting on the toilet, fully clothed, and passed out. She was not moving and not answering him. He did not see any drugs or drug paraphernalia with her, although he did not do a search for drugs. He had to assist her out of the washroom. A red-haired woman was also in the washroom; Ms. Richardson, but she was responding to him, and said she was leaving.

[74] Mr. Jean Louis sat S.M. down outside of the woman’s washroom on a bench. He was concerned about her because she was not fully alert. He attempted to wake her up, but she would not respond to him. She did not speak to him. Her head was down, and he was not able to see her eyes. This is corroborated by video evidence from inside the building, when at 10:51 a.m. S.M. is seen being escorted out of the bathroom by Mr. Jean Louis and assisted to a seat along the wall. Ms. Richardson exited the washroom a few minutes later unassisted although she appears unsteady on her feet. She told Mr. Jean Louis that they did not need emergency and they would leave.

[75] Mr. Jean Louis had worked at the bus terminal for 10 years. In doing this job, he had become very familiar with dealing with intoxicated individuals. He would normally deal with two to three intoxicated individuals during one shift. When dealing with such individuals, he would not always involve emergency personnel. He would only do so when the individual was passed out, could not move, or when they became violent. Mr. Jean Louis saw that S.M. was not alert enough to leave. He characterized her level of intoxication at 85% and stated that 100% would be unconscious. He called 911.

[76] S.M.’s memories from the bus station are not clear at all. Her next memory from the bus station was engaging with paramedics. She refused their help because she just wanted to go home. She also testified that she was scared since she did not know where Mr. Niyongabo was.

[77] S.M. testified that she had previously stated that she did not go into the bathroom alone with Ms. Richardson but having seen the video she now had a “very small memory” of going into the bathroom or into a stall while Ms. Richardson was talking to her. She also recalled Ms. Richardson using needles, which she said is something that she would never do. In cross-examination S.M. testified that this memory might be a “flashback” with no real substance to it and that certain memories were provoked by the videos but that her memory is getting “very jumbled”.

[78] Mr. Jean Louis stood by until emergency personnel showed up at 11:48 a.m. S.M. was slumped over the entire time. He watched as firefighters and paramedics dealt with her. He could tell she could not speak clearly and that she was not okay. She was talking like someone who was intoxicated. He also observed that S.M. did not want to go with paramedics. Mr. Jean Louis told the women that they could not stay, and the women left the property together at 11:58 a.m.

[79] S.M. testified that she did not have any alcohol or drugs from the time she left 180 Dundas to the time she arrived at Mount Sinai Hospital. I am concerned about the reliability of that evidence given that she had no memory of being in the washroom with Ms. Richardson and, based on her evidence, Ms. Richardson was clearly using some sort of drug by injection. Furthermore, S.M.’s condition, as reported by Mr. Jean Louis and from what I can observe on the video after he escorted her out of the washroom, suggests her condition had deteriorated even further. In my view, it is likely that she also took whatever Ms. Richardson was taking, which would mean that S.M.’s state of intoxication and the tests done after she arrived at Mount Sinai Hospital do not accurately reflect her level of intoxication at the time of the alleged sexual assault. However, I find that this evidence is only relevant to the reliability of the statements that she made after the alleged sexual assault. The question of her state of intoxication and whether or not she was incapacitated is best determined by the evidence I have from Mr. Aber and Mr. Basnat. The toxicology report may explain some of the symptoms that can be seen when S.M. was observed or on video but is not of assistance to the issue of capacity.

S.M. goes to the Atrium and Mount Sinai Hospital

[80] S.M. testified that after her encounter with the paramedics at the bus station she asked Ms. Richardson if she could take her for a cigarette and walk with her a bit. They ended up at the Atrium at 11:59 a.m.

[81] PC Forbes was working in a uniform capacity on April 21, 2018. She responded to the 911 call placed by Mr. Jean Louis. When she attended, the paramedics were just leaving the bus terminal and they told her that the Complainant had refused medical assistance and had left in the direction of east bound on Edward Street. She was joined by another officer and they found S.M. in the lower level of the Atrium at 12:06 p.m. When she started speaking to S.M., she noticed she was crying and visibly upset. PC Forbes described S.M. as angry, she smelled of alcohol when she spoke in the officer’s direction. Her speech was not slurred. She was also shaking, pacing, and swearing to herself. She did not want to acknowledge their presence or talk to the officers. When she did respond it was with short sentences that were matter of fact and like bullet points. She did say that she had been raped and that she wanted to go home. PC Forbes convinced S.M. to go inside the Atrium. Once inside she was no longer angry but seemed defeated. In the middle of a sentence she would start to mumble, and PC Forbes had to ask her to repeat herself a couple of times.

[82] PC Forbes advised S.M. of the risks associated with not attending the hospital. S.M. eventually agreed to attend the hospital but wanted to sit first and have a diet coke. PC Forbes noticed her eyes were drifting and she took long slow blinks. Her speech was mumbled. She would trail off mid-sentence. She had difficulty formulating words. PC Forbes needed her to repeat things.

[83] S.M. recalled that while she was at the Atrium, she was approached by two officers. The female police officer attempted to convince her to go to the hospital. At first, she declined. It was only when the issue of sexually transmitted diseases was raised that she agreed to go to the hospital. However, she could not go right away. She needed to sit and have a diet coke. She was trying to wake up. She was still unsteady on her feet and she testified she was still very confused.

[84] The police officers took S.M. and Ms. Richardson to Mount Sinai Hospital. Ms. Richardson waited in the waiting room. PC Forbes remained with S.M. the entire time - from about 1:30 p.m. to 5:30 p.m. At the hospital she observed that S.M. was slumped over, dragging her feet and that it seemed like she was going to fall asleep with every sentence she spoke. PC Forbes testified that S.M.’s level of alertness did not change and that, if anything, she became more tired. She tried to hold conversation, but she would nod off. She was not responsive to questions. She was drowsy throughout. It appeared to her like she was coming off of heavy drugs or sedation.

[85] S.M. testified that when she arrived at the hospital, she felt terrified. She was still very unsteady and confused. Her memory was starting to get a little bit better in terms of forming new memories, but her past memories were not coming back.

[86] S.M. testified that one of those memories was looking down at her clothing. She realized she was dressed in a manner that she would never do herself. Her tank top was tucked into her pants and the waistband of her yoga pants was folded down and the band was right up to her waist. It was a highly unusual way for her to wear those pants. She felt she had not dressed herself like this. This evidence was corroborated by PC Forbes who watched as S.M. removed her coat and had a reaction to the way her shirt was tucked in. This evidence suggests that Mr. Niyongabo assisted S.M. in getting dressed after Mr. Basnat first found them.

[87] S.M. described her emotional and mental state at the hospital as pretty bad, foggy, very tired, groggy and confused. She was in physical pain. She had to be naked and sit through an invasive sexual assault evaluation where every inch of her body was examined. She fell asleep during the exam. It was not a comfortable exam.

[88] Michelle Bobala is the sexual assault nurse who examined S.M. She testified, not surprisingly, that she has no independent memory of evaluating S.M. She reviewed the records she prepared of her examination of S.M. and testified that she was attempting to be truthful and accurate when she created the records which were entered as an exhibit as past recollection recorded.

[89] Nurse Bobala explained that the patient is required to consent to this examination, and she testified that she would not do this exam if, for example, the patient could not keep her eyes open or she was extremely intoxicated. Mr. Hynes relies on this evidence and submits that S.M. was a voluntary participant in the sexual assault examination and that given how important S.M.'s self-assessment of her state of mind is in this case, it is important to note that Nurse Bobala believed that S.M. had the capacity to consent to the sexual assault assessment while S.M. maintained at trial that she lacked capacity, in that she said that she was not in “right mind” at the time of the examination.

[90] I do not accept that submission for two reasons. First of all, on this issue I prefer the evidence of PC Forbes. As Ms. McCallum submits, to find that Ms. Bobala's evidence of alertness is accurate ignores a substantial body of irrefutable evidence. Ms. Bobala had no memory of S.M. which severely limited her ability to extrapolate from her records. The evidence of PC Forbes is consistent with what can be observed of S.M. from the video taken by Mr. Basnat, her conversation with Mr. Aber, what can be seen on the video in the bus terminal and the evidence of S.M. herself. As I will come to, the evidence of Ms. Bobala in this regard is also at odds with the evidence of DC Maisonneuve. Secondly, for reasons I will come to with respect to my concerns about the reliability of S.M.’s evidence, I do not find that I can rely on her self-assessment of her capacity.

[91] Nurse Bobala reviewed the diagram of the injuries S.M. had that she documented. She observed several new bruises on the inside of S.M.’s upper thighs and one on each arm near the elbow in addition to three new abrasions on her right knee. Nurse Bobala also observed swelling near the injury on S.M.’s right arm. She did not observe any injury to her head. S.M. also had discoloration near her cervix but Nurse Bobala could not say if this was an injury. S.M. was given a number of medications to combat the risks associated with unprotected vaginal intercourse. These medications can have harsh effects on the patient.

[92] In cross examination, Ms. Bobala agreed that she asked the questions associated with her forms. She would have asked S.M. about medication, and drug and alcohol consumption. She recorded the patient’s answers. She stated that S.M. told her she believed she was drugged by Xanax and that she consumed alcohol on April 20^th (two drinks – vodka and wine) and April 21^st (vodka). She also believed she took sips of bourbon from the Defendant. She advised that the medications she had taken within the last day were asthma medications and Advil.

[93] Nurse Bobala’s notes state that S.M. told her: “I think I woke up to it, but I don’t know”, “when I woke up, I knew I was assaulted. I don’t remember him being on top of me or anything though, but I feel pain”. Nurse Bobala noted that S.M. was feeling pain in her vagina. She explained that it is not her job to take statements but that her notes do include what the patient says. If it is a direct quotation, she puts it in parentheses. Otherwise she paraphrases what the patient tells her. She does not check, read back, or clarify with the patient if she has accurately recorded the statement. When this statement was put to S.M., she denied saying this because this was not true. She reiterated that she knew that she woke up to being raped and “that’s why I am here”. Although I appreciate that Nurse Bobala’s notes are not infallible, I find that the statement she recorded in quotation marks was made by S.M. at the time of the examination. This is an issue that goes to the reliability of S.M.’s evidence that I will come to.

The Expert Evidence of Inger Bugyra

[94] Inger Bugyra was qualified to give expert opinion evidence as a toxicologist and in particular on the absorption, distribution and elimination of alcohol and drugs in the human body; the effects of alcohol and drugs on the human body; and the testing for the presence of those substances in the human body.

[95] S.M. provided both a urine and blood sample at Mount Sinai Hospital which were analyzed by Ms. Bugyra. Given my conclusion that it is likely S.M. took something with Ms. Richardson, I have considered this in coming to my decision.

[96] Ms. Bugyra determined that diazepam and nordiazepam were present in S.M.’s blood. This substance is associated with the prescription medication Valium. The amounts in her blood exceeded concentrations associated with a routine therapeutic administration which is up to 20 mg daily. As already stated, S.M. was prescribed 35 mg daily, so the finding is not surprising. Ms. Bugyra testified that valium is a benzodiazepine, which means it is a central nervous system depressant. The effects that occur after use may include: reduced muscle control, drowsiness, altered level of consciousness, impaired memory, confusion and dizziness.

[97] Tests also detected lorazepam with a blood concentration within a therapeutic range. This substance is associated with the prescription medication Ativan. It is also a benzodiazepine. This finding is consistent with S.M.’s prescription. Ms. Bugyra testified that the effects that occur after use of lorazepam may include reduced muscle control, drowsiness, altered level of consciousness, impaired memory, confusion and dizziness.

[98] Ms. Bugyra explained that the effects of these drugs would reduce with tolerance to the drugs. However, the effects would be increased if combined with other central nervous system depressants, like alcohol. She explained that central nervous system depressants decrease brain function, reasoning, and thinking, which causes confusion. These types of drugs also alter consciousness. They start by making someone sleepy, then asleep, and finally in a coma. She indicated that combining three central nervous depressants could have a greater sedative affect.

[99] Ethanol was found in S.M.’s urine sample and trace amounts in her blood sample. However, Ms. Bugyra could not perform a read back analysis to determine what S.M.’s blood alcohol content would have been at the time of the alleged sexual assault.

[100] Ms. Bugyra explained that alcohol is also a central nervous system depressant. It can affect gross motor skills, fine motor skills, speech, cognitive function including thinking and reasoning. It can impact an individual’s risk management and their attentiveness to their surroundings. In higher doses, alcohol can have act as anesthetic agent and the individual may feel less pain. Alcohol consumption in circumstances of bolus drinking can also cause memory loss.

[101] The samples also indicated that S.M. had consumed cocaine (in a low amount) and marijuana. However, Ms. Bugyra could not say with certainty when these substances had been consumed. In cross-examination she admitted that it was most likely consumed within the prior 24 hours. The cocaine would have had the opposite effect to the alcohol as it acted as a central nervous system stimulant. This is the one finding that could be the result of S.M. taking cocaine while in the bus terminal washroom with Ms. Richardson.

[102] S.M. testified that she does smoke marijuana but not regularly. She was shocked by the fact that marijuana was detected in her systems and testified that she had consumed marijuana three month before. She also said however that the Defendant got some gummies and she took a tiny piece.

[103] Crystal meth was part of the screening process and was not detected. Had S.M. consumed any she would have expected to find it. Xanax was also not detected.

[104] Ms. Bugyra testified that not all street and prescription drugs will be detected in blood and/or urine as they do not have the methods to do so or because they only remain in the body for a short period of time.

Analysis

Credibility and Reliability Assessments

[105] There was no issue with respect to the credibility and/or reliability of the witnesses called by the Crown raised by the Defence, or of concern to me, save for the following witnesses:

(a) Mr. Woods

[106] Mr. Woods testified that he had an accurate and detailed memory of his dealings with S.M. His evidence was not challenged by cross-examination save to confirm the drinks S.M. ordered. I found no issue with Mr. Woods’ credibility, but I have some reservations with the reliability of his evidence and in particular his recollection of events. As an example, Mr. Woods initially testified that he served S.M. four drinks; two drinks each for her and her boyfriend she was waiting for. The drinks were two vodka cranberries and two nine-ounce glasses with wine in two jugs. At the end of his examination-in-chief, after reviewing his previous statement to police and watching the video surveillance, Mr. Woods corrected himself stating that he served one vodka cranberry and two glasses of wine. He also refreshed his memory and recalled that S.M. was meeting her boyfriend and his mother. In addition, although Mr. Woods testified that he could clearly hear S.M., the video shows him repeatedly leaning in and lifting his hand to his ear when speaking to S.M.

[107] These concerns notwithstanding, I see no reason why Mr. Woods would incorrectly remember S.M. telling him that she had no money to pay her bar bill and that she told him this before she alleges he was rude and asked for the manager’s card. Although S.M. readily admitted that by walking out of the bar without paying the bill, she was being a “horrible person” and she admitted that although she was upset and frustrated, that did not excuse her behaviour, I am concerned that she was not truthful about the reason for her failure to pay her bar bill. In particular, in light of Mr. Woods evidence that I do accept, I am concerned that she manufactured a reason to walk out of the bar without paying her bill. This was a dishonest act and is relevant to her credibility.

(b) Mr. Aber and Mr. Basnet

[108] Mr. Hynes challenged the credibility and/or reliability of Mr. Aber’s evidence, relying in part on the fact that his evidence was at odds with the evidence of Mr. Basnat. It was his position that I should prefer the evidence of Mr. Basnat. He submits that Mr. Aber was not as concerned by what he saw as he suggested in his evidence because he did not tell Mr. Basnat to call police and he did not do so himself when S.M. told him that she had been raped. Mr. Hynes did not challenge Mr. Basnet’s evidence by way of cross-examination and took no issue with it.

[109] Ms. McCallum submits that Mr. Basnet is not a reliable source to undermine Mr. Aber's evidence. Mr. Aber communicates in English and must have done so with Mr. Basnet that morning. Mr. Basnet explained English was not his first language, he only knew British English, and he had some difficulty understanding and answering some questions in English in examination. At the time of the offence, he could not recount what S.M. was saying to him in the lobby because it was slang. Ms. McCallum also argues that Mr. Basnat observed S.M. three times and did not think there was anything wrong with her and yet every other person that saw S.M. observed there was something wrong with her. She submits that the witness that has difficulty with English and inaccurate observations from that morning should not be the basis to believe that Mr. Aber did not tell Mr. Basnet to call the police, and this singular dubious inconsistency should undermine the entirety of his evidence.

[110] I found Mr. Aber to be a credible and reliable witness. Although there is some merit to Ms. McCallum’s submissions, I also found Mr. Basnat generally to be a credible and reliable witness. In fact, although Mr. Basnat never volunteered that Mr. Aber asked him to call police he was never specifically asked if in fact Mr. Aber did so. Furthermore, Mr. Basnat had his own parameters for when he would call police and I find it likely that although Mr. Aber told him to, that he would make his own decision on whether or not to call police. I do find that he did not treat the incident as seriously as he should, although there is no evidence that he heard S.M. allege she had been raped. For these reasons I find that Mr. Aber did in fact ask Mr. Basnet to call police after he first came upon S.M. and Mr. Niyongabo.

[111] Furthermore, I do not fault Mr. Aber for his failure to call police, nor do I find that this undermines his evidence of what he observed. He deferred the matter to Mr. Basnat who was the security officer working in the building. He believed that Mr. Basnat had called police and that they would deal with the situation. In my view, Mr. Aber’s decision in this regard does not reflect adversely on his credibility or reliability as a witness.

[112] For these reasons, I have accepted the evidence of Mr. Aber. In fact, as I will come to, I find it to be important evidence on the issue of S.M.’s state of intoxication and her capacity.

(c) S.M.

[113] In their written submissions counsel take totally opposite views of how S.M. testified in court and why her evidence should or should not be believed. The Defence vigorously challenged both her credibility and reliability as a witness. It is Mr. Hynes’ position that S.M.'s evidence is marked with inconsistencies that cannot be characterized as trivial, minor, or isolated and is an issue that falls outside of the purview of the cases relied upon by the Crown such as R. v. L.O., 2015 ONCA 394. He argues that she gave shifting evidence on details that are highly relevant to core elements of the offence for which Mr. Niyongabo is charged: specifically, the issue of the capacity of S.M. to consent to the sexual intercourse and that her shifting narrative, her addition of detail to time periods during which she claimed to have no memories, and her flippant disregard of precision and clarity on questions of essential importance are sufficient to cast reasonable doubt on Mr. Niyongabo's guilt.

[114] Ms. McCallum on the other hand submitted that S.M. provided evidence that this Court can rely on. It is her position that S.M.’s prior consistent statement to Mr. Aber, that Mr. Niyongabo raped her provides important context for assessing her credibility; an issue I will come to. Ms. McCallum submits that the inconsistencies in her evidence must be evaluated in the context of all the evidence and that any confusions or vagueness in her memories speaks to the inability of her mind to operate at the time of the offence, which only increases the credibility and reliability of her evidence.

[115] Before dealing with the alleged inconsistencies in S.M.’s evidence, I will deal with the other submissions made by counsel.

[116] The Crown submits that while S.M.’s demeanour as a witness is not an overwhelming consideration, it is one aspect of her testimony that should be assessed as it revealed several characteristics, which Ms. McCallum submits are indicative of reliable and credible testimony. She relies on the decision of the Ontario Court of Appeal in R. v. J.A., 2010 ONCA 491, at paras. 16-18, where the Court ruled that the trial judge was correct to assess the complainant’s in-court testimony, taking into account her post-event emotional state.

[117] S.M. testified she was hysterical when she realized she had been raped and the video evidence of her reaction and the evidence of Mr. Aber bears this out. I agree with Ms. McCallum that I can consider this evidence in assessing the credibility of S.M. at trial, although I would not say it is a significant factor. As the court stated in R. v. Varcoe (2007), 2007 ONCA 194, 219 C.C.C. (3d) 397 (Ont. C.A.), at para. 33:

K.F.'s emotional upset was manifest the day following the assault; it was apparent to and noted by her family. Such evidence is admissible and may be used to support a complainant's evidence of a sexual assault. See R. v. Boss (1988), 1988 CanLII 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.). The weight to be given this properly admissible evidence was exclusively a matter for the trial judge's discretion.

[118] Mr. Hynes submits that S.M. was a volatile and argumentative witness and that on numerous occasions, she was openly hostile during cross-examination. He argues that the common thread in the video evidence and in S.M.'s affect on the stand is her quick temper and tendency towards sudden changes in demeanor. He submits that Mr. Woods noticed a sudden change when the issue of payment came up, and that S.M.'s aggressive behaviour to Mr. Basnat, who was trying to kick her out demonstrates, this same volatility. Ms. McCallum submits that S.M. was not a hostile witness but that she was distraught in the face of a very lengthy cross-examination. She argues that the strain of the cross-examination was apparent and points out that it had to be interrupted to bring in a support person because S.M. was in such distress.

[119] S.M. was very anxious when she testified over the course of three days. She gave her evidence behind a screen. I observed that she was squeezing a stress ball as she gave her evidence initially. During her cross-examination, at one point a support person was arranged to attend with her.

[120] S.M. did become quite upset about certain matters during her cross-examination, when for example it was suggested to her that at the time she was addicted to alcohol and drugs, that she was trying to trade sex for drugs, that she initiated sex with Mr. Niyongabo, that she was suicidal and that she had been disowned by her family. Mr. Hynes took a very detailed approach to his obligations under the rule from Browne and Dunn, (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), which meant that certain suggestions that S.M. appeared to find offensive were put to her more than once. Although Mr. Hynes was just doing his job, it is understandable that these types of suggestions would upset S.M.. I would generally not characterize her response as hostile in the sense of an evasive witness. In any event, I agree with Ms. McCallum that even if S.M. is quick to anger that does not make her more or less intoxicated, nor does it make her more or less likely to have consented to sex with Mr. Niyongabo.

[121] There were times when S.M. said that she did not know and did not care or that it did not matter, when she was answering questions in cross-examination. That is of concern. I do not agree with Ms. McCallum that this was always necessarily due to exhaustion. My impression was that on most of these occasions, S.M. did not consider the question relevant or she was frustrated because Mr. Hynes was pressing a point. There were other times when she simply said that she could not comment and that she was sorry. It was clear to me that S.M. had reviewed her statements to police and her preliminary inquiry evidence, which suggests that she did care about this proceeding. Nevertheless, this is a factor I will consider although I do not conclude that this attitude pervaded all of S.M.’s evidence.

[122] Mr. Hynes argues, contrary to the Crown's submissions, that S.M.'s evidence was marked with instances of exaggeration and minimization. For example, he submits she exaggerated her actions directly following Mr. Basnat's second intrusion when she stated that she had run away, and that Mr. Niyongabo chased her. He argues that it was only when confronted with the video evidence that S.M. backtracked. I will deal with this particular point when I consider the various inconsistencies alleged in the evidence of S.M. Furthermore, as Ms. McCallum submits, in certain respects S.M. did not attempt to guess or make inferences when she did not have the ability to do so. For example, when she was asked about how she knew she was drugged, she did not suggest that it was Mr. Niyongabo but only that she felt drugged because of the severity of her condition. That evidence is consistent with what can be observed on the video – S.M. was severely intoxicated by about 6:30 a.m.

[123] Turning to the alleged inconsistencies in the evidence of S.M., both counsel referred to additional caselaw in support of their respective positions on the significance of those inconsistencies.

[124] Mr. Hynes referred to R. v. M.G., 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 (ONCA) where the court held at para. 23:

Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, where on oath or not. Inconsistencies on minor matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in the cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

[125] In M.G. the complainant testified at trial that the offence did not involve intercourse, it occurred only once in a particular room, and it did not hurt. However, in her original disclosure of the abuse, she stated it was intercourse, it happened multiple times, and it hurt and made her cry. In my view, the inconsistencies in S.M.’s evidence do not rise to this level of what the court in M.G., at para. 19, characterized as “gross fabrication”.

[126] Mr. Hynes also submitted that the sheer number of inconsistencies in S.M.'s evidence is troubling and calls into question the reliability of her evidence. He referred to R. v. R.W.B., [1993] B.C.J. No. 758, a decision from the British Columbia Court of Appeal, where a series of inconsistencies in the complainant's evidence caused the court to overturn a sexual assault conviction. The court held at para. 29:

In this case there were a number of inconsistencies in the complainant's own evidence and a number of inconsistencies between the complainant's evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a doubt another the reliability of the witness' evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look at the totality of the inconsistencies in order to assess whether the witness' evidence is reliable. This is particularly so where there is no supporting evidence on the central issue, which was the case here.

[127] As Ms. McCallum submitted however, in that case what was important was not the number of inconsistencies but the fact that individually although they were minor, when combined they showed the offence could not have happened when other witnesses were not in the house. Again, that is not the case here.

[128] Ms. McCallum submits that the heart of S.M.’s evidence was she was extremely intoxicated, and she woke up to the Defendant forcing sex. She argues that this evidence was never contradicted and that the areas where she was contradicted are minor, peripheral and explained by her extreme state of intoxication. It is her position that the effect of these minor inconsistencies on her reliability or credibility is completely overpowered by the substantial body of confirmatory evidence of lack of consent and incapacity to consent. Ms. McCallum relies on R. v. Keepness, 2014 SKCA 110, at para. 46:

… The mere existence of internal inconsistencies in the testimony of a witness or inconsistencies between witnesses is not itself determinative of the credibility of the witness or the accuracy or reliability of their testimony. Much depends on the nature of the inconsistencies, their relationship to the crucial elements the prosecution has to prove and the presence or absence of confirmatory evidence of the witnesses' testimony on crucial issues.

[129] In considering the inconsistencies between S.M.’s evidence at trial and her statements to police, I have taken into account the evidence of DC Maisonneuve, the officer in charge of the investigation and what he described about S.M.’s physical and mental state when he took her statement. DC Maisonneuve met with the Complainant when she was brought to the station at 7:55 p.m. on April 21, 2018 and he took her statement. He testified that he was reluctant at first to take a statement from S.M. as she was very, very tired. However, he was afraid her memory would get worse and so he asked her to provide a statement and she agreed. He noticed that she appeared anxious, distraught and scared and that she had been crying. She was lucid but confused and panicked. He had difficulty understanding her and at points asked her to repeat herself. He noticed her eyes were closing. DC Maisonneuve conducted a second interview of the complainant on April 26^th. The purpose of the interview was to draw out some additional details. He noted that she still appeared anxious in the second interview.

[130] The inconsistencies that Mr. Hynes relies upon in particular are as follows:

a) In her first statement S.M. told DC Maisonneuve multiple times that she “ran” away from Mr. Niyongabo after the alleged sexual assault. In her evidence at trial, in chief, S.M. testified that immediately after waking up, she was running away from Mr. Niyongabo and that he was chasing her. Upon an objection from Defence counsel that Crown counsel was leading her, she stated "No, no. I'm sorry but no. I was running away. I said it before and I'll say it again, I was running away. I was running away from him when I got in the elevator. I was running away from him the second I got off the ground". The Crown did not ask S.M. to elaborate. In the course of cross-examination, however, after having viewed the video footage, S.M. changed her evidence stating: "I believe I was trying to get away from him in videos, no I wasn't capable of running". When presented with the video from 6:25 a.m. which confirms that she remained on P2 for several minutes, S.M. agreed with Mr. Hynes that she did not appear to be trying to get away from Mr. Niyongabo. When Mr. Hynes suggested she was neither running away nor trying to, she replied: "No. No idea what was going on there”. For the reasons I will come to, I agree with Mr. Hynes that this is an important inconsistency.

b) In her evidence-in-chief, S.M. stated that when she woke up on P2, Mr. Niyongabo was on top of her. As already stated, she denied making the statement to Nurse Bobala that she did not remember Mr. Niyongabo being on top of her. When cross examined about this inconsistency, S.M. stated: "I was not in my right mind, nor through the examinations, would have run home if I could have”. For the reasons I will come to, I agree with Mr. Hynes that this is an important inconsistency.

c) Despite having been asked, S.M. did not report her consumption of Valium during the sex assault examination by Nurse Bobala. The Crown submits that this is a minor inconsistency and is explained by the Complainant's state of mind during the procedure and in particular the evidence of PC Forbes and DC Maisonneuve. They both explained that S.M. was extremely lethargic and fatigued. Ms. McCallum also points out that S.M.’s reference to an asthma medication was to a drug she had not taken for years. I agree with Ms. McCallum that this inconsistency is not significant in the context of all the evidence and is explained by S.M.’s state at the time.

d) Although S.M. claimed she had been drugged with Xanax, the expert evidence showed that she did not have any Xanax in her system at the time when the blood sample was taken. Ms. McCallum submits however that this evidence is better understood as an example of where S.M. did not overstate her evidence, but where she gave evidence from what little memory she has. She never accused Mr. Niyongabo of drugging her with Xanax or Crystal Meth. There is no dispute that the Complainant was in a state of extreme intoxication and Ms. McCallum submits that although she may have been wrong about the source, it does not change the state she was in. Although there is no explanation for why S.M. would believe that she was drugged by Xanax, I agree with Ms. McCallum that in all of the circumstances, this is not a significant issue.

e) S.M. denied taking cocaine within the two days before the alleged sexual assault, stating that she had consumed it on the 18^th or the 19^th of April. Mr. Hynes argues that her evidence was contradicted by the expert evidence of Ms. Bugyra, who testified that the cocaine had most likely been consumed within 24 hours of testing, and possibly within 12 hours of testing. However, I do not agree with this submission as Ms. Bugyra was not able to say for certain that this is when the cocaine was consumed so S.M.’s recollection could be correct. Furthermore, as Ms. McCallum submits, S.M.’s memory of when she consumed cocaine is over two years old and falls within the category of expected inaccuracies of a witness, and it is not relevant to the issues at trial. Finally, for reasons I have given, there is a possibility the S.M. consumed some cocaine with Ms. Richardson at the bus station and that she has no memory of that. For these reasons I find that this is not a significant issue.

[131] With respect to the first two inconsistencies relied upon by Mr. Hynes, the position of Ms. McCallum is that Mr. Hynes' submission improperly isolates these inconsistencies and disregards the many other facts S.M. remembered accurately from when she woke up, which were confirmed by other witnesses and real evidence. Ms. McCallum argues that the inaccuracy of Ms. McCallum's memory was minor, and the other remaining facts should be relied on because they were corroborated and confirmed. It is her position that this case does not rise or fall on whether the Complainant ran when she woke up to Mr. Niyongabo on top of her. Mr. Hynes argues that an honest witness would be unlikely to be mistaken about whether or not she remembered waking up to someone on top of her, or whether she ran away. He submits that either her memory is deeply flawed, or she is being deceitful; either way, her evidence is unreliable.

[132] As I have said, I agree with Mr. Hynes that these are important inconsistencies. I fail to see how S.M. could believe that she ran away or even tried to run away assuming that she awoke to find Mr. Niyongabo on top of her. She had the conversation I have set out with Mr. Basnat and remained with Mr. Niyongabo for another 12 minutes before going to the Common Lobby. Furthermore, although I appreciate that she was very intoxicated and tired when she made her statement to Nurse Bobala, given that S.M. did not seem to appreciate where she was until she spoke to Mr. Aber, what she believed when she woke up is questionable. There is at least an inconsistency in this regard that is important. There is also a serious question as to the reliability of what S.M. believed to be happening given her state of intoxication.

[133] In addition, Mr. Hynes argues that the more concerning issue is that S.M.'s testimony at the trial itself was both internally inconsistent and frequently did not accord with video footage nor the evidence of collateral witnesses. The primary examples that he relies upon are as follows:

a) In direct examination, S.M. testified that she believed that she was invited by Mr. Niyongabo to have a drink in a condo. In cross-examination, she agreed that she also had a definitive recollection that Mr. Niyongabo knew of the place where they were going, had been there before, and knew that there were no surveillance cameras there. She could not reconcile these competing memories. When asked in cross-examination whether, by sun up, she knew that she was not in a condo, S.M. replied: "I don't know, I don't care" and further "I'm not able to tell you, I don't care, it doesn't matter”. Mr. Hynes argues that an honest witness would not be flippant or careless about whether she could reconcile two contradictory memories, such as S.M.'s memories of where she believed she was going when she made her way to 180 Dundas. I agree that these answers are concerning. Furthermore, I have found that S.M. must have realized that she was going into a parking garage the first time as she was not intoxicated at that time.

b) S.M. repeatedly testified that she remembered nothing about her conversations with Mr. Niyongabo early in the morning on April 21, including even the names of Mr. Niyongabo and the other male who was with them. When it was put to her that she was seeking drugs, however, she remembered that Mr. Niyongabo had offered her drugs and was talking about "Tina" or crystal meth once they arrived at 180 Dundas. Ms. McCallum submits that this is not an inconsistency because although S.M. has poor memory of that night, she does not have absolutely no memory. She argues that the suggestion that she has a selective memory defies common sense. She was attempting to report a crime committed by Mr. Niyongabo and she described him accurately. There would be no reason to hold back all the memories of his name, his background, etc. Although I agree that there would be no reason for S.M. to hold back on information about Mr. Niyongabo there is no evidence as to why she would have no memory of at least some of this information as she can be seen talking a lot to Mr. Niyongabo as they walked to 180 Dundas, at a time when she was not intoxicated.

[134] I have carefully considered all of these submissions. I agree with Mr. Hynes that in many respects the evidence of S.M. is unreliable given her lack of memory for most of the time she was with Mr. Niyongabo. For example, she could only comment on what she saw of the video taken by Mr. Basnat as she had no memory of communicating with him. To the extent she had memory of going to ask for help, she only had snippets of memory of what can be seen on the video and what I heard from Mr. Aber and Mr. Basnat.

[135] My overall assessment of S.M.’s credibility is more difficult. As she testified, I found that for the most part she was doing her best to be honest in her answers. She did seem to limit her evidence to what she presently recalled. For example, on one occasion she gave some evidence but added that it was what she said in her statement but that she did not recall it now. However, having reflected on all of the evidence that she gave, I have concerns about aspects of S.M.’s evidence that are significant.

[136] First of all, there are the two significant inconsistencies in S.M.’s evidence that I have already set out; whether Mr. Niyongabo was on top of her when she “woke up” and whether she ran away from Mr. Niyongabo after she woke up. The Crown has focused on the admission of prior consistent statement by S.M. to offset the inconsistencies in her evidence, but both of these inconsistencies go to the issue of whether or not S.M. immediately believed that Mr. Niyongabo was having forced sexual intercourse with her at the time she woke up or came to when Mr. Basnat opened the door to the P2 Vestibule the first time.

[137] Although what S.M. told Ms. Bobala was a statement she made when she was very tired, it was statement that was made close in time to the alleged sexual assault. I agree with Ms. McCallum that the complainant’s evidence is confirmed by the fact that sexual intercourse is admitted but when the sexual intercourse occurred is an important issue, as I will come to. In the circumstances of this case I do not agree with Mr. Hynes that this means S.M. is not being honest but this inconsistency does impact the reliability of her evidence on this point and given the significant of this inconsistency I have concluded that I cannot rely on S.M.’s evidence on this point to determine that this is when Mr. Niyongabo had forced sexual intercourse with her.

[138] As for S.M.’s evidence that she ran away from Mr. Niyongabo, that is clearly incorrect and even her evidence that she was trying to run away from Mr. Niyongabo makes no sense. As I have already found, she remained in his company for about 12 minutes before going to the Common Lobby. On this issue I prefer the evidence of Mr. Aber based on which I find that S.M. did not realize where she was and what had happened until he spoke to her. I will come back to this when I review the issue of capacity.

[139] Finally, although I agree with Ms. McCallum that the inconsistencies between S.M.’s evidence and the evidence from Mr. Woods about what happened at the Elephant and Castle do not meaningfully undermine S.M.’s evidence, I am concerned that her evidence was unclear on whether or not she could in fact pay her bar bill. Although I agree that some of Mr. Woods’ evidence may not be reliable, I do believe it likely that S.M. told him that whoever was coming was going to have the money to pay the bill. That suggests she was prepared to walk out without paying her bill from the outset, which is dishonest and a fact that she did not want to concede at trial for that reason.

[140] It is trite to say that I can rely on part of S.M.’s evidence and not on other parts. That is how I propose to proceed as I am left in the position of concluding that only certain parts of her evidence are both credible and reliable. In this case the more compelling evidence is the video evidence and the evidence of Mr. Aber and Mr. Basnat.

The admissibility of S.M.’s utterance to Mr. Aber that: “He raped me”.

[141] The Crown submits that S.M.’s first statement when she realized the Defendant had had sex with her was her statement to Mr. Aber: “he raped me”. I note that this position is at odds with the Crown’s reliance on S.M.’s evidence at trial that when she woke up, she realized that Mr. Niyongabo was on top of her and forcibly having sex with her. In any event, as already stated, I do not find that trial evidence of S.M. to be reliable. I do however accept Mr. Aber’s evidence that S.M. made this utterance as well as the accuracy of his observations of her before and after she made this statement.

[142] Mr. Hynes agrees that this prior statement can be considered on the issue of S.M.’s credibility, as a prior consistent statement, in accordance with the principles in R. v. L.O., 2015 ONCA 394 and R. v. Murray, 2017 ONCA 393, but he otherwise objects to this prior statement being admitted under the spontaneous utterance exception to the rule excluding hearsay, arguing that it was not spontaneous and that any probative value does not exceed its prejudicial effect.

[143] Turning first to how the statement can be used, the court in L.O. at para. 32 referred to R. v. Dinardo, 2008 SCC 24 at para. 39, where the Supreme Court held that prior consistent statements could not be used to confirm in-court testimony. i.e. for the truth of their contents, but:

… in light of the evidence that the complainant had difficulty situating events in times, was easily confused, and lied on occasion, the spontaneous nature of the initial complaint and the complainant’s repetition of the essential elements of the allegations provide important context for assessing her credibility.

[144] The court in L.O. applied Dinardo and at para. 34 confirmed that consistencies in the prior statements provided important context to assess the defence attack on the complainant’s reliability based on alleged inconsistencies. The court went on to state at paras. 35-36:

35 … An isolated, minor inconsistency in a sea of otherwise consistent descriptions of relevant events would have far less impact on L.F.'s credibility and reliability than would several material inconsistencies going to the heart of her allegations.

36 The jury had to consider the entirety of the evidence relating to L.F.’s various statements, including the consistencies in those statements, in deciding the impact of any inconsistencies in those statements on her credibility and reliability. To the extent that L.F.’s statements were consistent, especially on the central features of the allegations, that consistency could counter, or at least mitigate, the claim that L.F. was not credible or reliable because of her many prior inconsistent statements…

[145] For these reasons, I find that I can rely on this statement in assessing the significance of the inconsistencies in S.M.’s evidence.

[146] Ms. McCallum however also seeks to rely on S.M.’s statement to Mr. Aber for its truth. She submits that this statement is admissible on this basis for a number of reasons: 1) as a spontaneous utterance for the truth of its contents, 2) under the principled approach to hearsay evidence, and (3) the exception to the rule against prior consistent statements.

[147] To find this statement admissible as a spontaneous utterance for its truth, the Crown relies upon this traditional exception to the hearsay rule as stated in R. v. Khan, (1988) 1988 CanLII 7106 (ON CA), 42 C.C.C. (3d) 197 (Ont. C.A.), affirmed 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, at para 15, R. v. Peterpaul, 2001 CanLII 24119 (ON CA), [2001] O.J. No. 100 (ONCA) at para 26 and R. v. Khan, 2017 ONCA 114 at para 15. For a prior statement to be admitted under the spontaneous utterance exception, the statement must be generated in circumstances that undermine the ability to contrive the statement which usually means that there was some psychological extremis which means that the statement was made under stress or pressure, which undermined the opportunity to concoct. In following this logic, the statement should also be reasonably contemporaneous with the alleged stress or pressure, although exact contemporaneity is not required. The analysis as to whether or not a statement is sufficiently contemporaneous is functional. A circumstantial guarantee of trustworthiness comes from the declarant being under such stress or pressure from the triggering event that the possibility of concoction or distortion when making the statement can safely be disregarded; see R. v. Head, 2014 MBCA 59 para 31 following R. v. Clark (1983), 1983 CanLII 1805 (ON CA), 42 O.R. (2s) 609 at 622, (C.A.), leave to appeal to S.C.C. ref’d, [1983] S.C.C.A. No. 253.

[148] Ms. McCallum submits that the Complainant’s statement immediately following the offence meets the requirements of this exception because it came about spontaneously and in response to a discrete traumatic stressful event that she neither foresaw nor initiated. She was disoriented. She was in pain. She was then confronted by a security guard. There was no opportunity to concoct a lie that she believed that she was in her apartment. When she was approached a short time later, by Mr. Aber and he explained that she was not in her apartment, her immediate response was to scream that she had been raped. These were her immediate responses as she was being made aware of exceptionally concerning events.

[149] As for the principled approach to hearsay, Justice Hourigan in Khan (2017) supra, held at paras. 18 and 21, that: "[a]n excited utterance can also satisfy the principled approach to the hearsay rule". Hourigan J. explained that the reliability of the statement comes from the absence of an opportunity to concoct a story. As for the necessity requirement, the principled approach does not require that the witness be absent or unable to give evidence. It can be satisfied where "the witness is unable to give a full and frank account of the events, or where the witness has difficulty recalling significant details of the event." Where the witness testifies, the objection to hearsay statements arising from the absence of an opportunity to cross-examine is negated.

[150] Finally, Ms. McCallum argues that S.M.’s statement is admissible as an exception to the rule against prior consistent statements and in particular as “narrative as circumstantial evidence”. This was also considered in Khan (2017), supra at paras. 31-32 where the court held that sometimes the circumstances surrounding the making of the prior consistent statement is such that the statement assists in assessing the reliability and credibility of a witness’ in -court testimony, giving the prior consistent statement admitted as “narrative” a more substantive use. I note that under this exception however, the statement is not evidence of its truth. It can only be used to assess the reliability and credibility of S.M.

[151] I have concluded that S.M.’s statement that she was raped is admissible for its truth as either a spontaneous utterance or using the principled approach for the introduction of hearsay evidence. It is also of some assistance as a prior consistent statement in supporting her credibility as a witness in line with the principles in Lo, supra. On the basis that the statement is true, it only serves to prove that S.M. did not consent to the admitted sexual intercourse. I have decided, notwithstanding this conclusion, that it would be dangerous to rely on this statement for its truth, given the concerns I have about S.M.’s capacity at the time she made the statement, that I will come to.

[152] However, the fact that S.M. made this statement is also admissible for S.M.’s state of mind, particularly when considered in the context of her entire conversation with Mr. Aber. I rely on her statement to Mr. Aber not for the truth of the fact that S.M. asserted that the sexual intercourse occurred without her consent but rather that it was at this point that she believed it had occurred. I accept Mr. Aber’s evidence, which makes it clear that S.M. only realized that she was not in an apartment building after he explained to her that she was in an office building. I find that before this she was still under the influence of whatever was causing her intoxication. Once she “woke up”, as Mr. Aber put it, she believed she had been raped and she had pain in her vagina as she reported to Ms. Bobala. The fact is that it is admitted that S.M. had had sexual intercourse with Mr. Niyongabo and so to that extent her belief is corroborated. I still must decide if she consented to it but the fact that she only realized where she was after her conversation with Mr. Aber is important to the issue of her capacity, as I will come to.

When did the admitted sexual intercourse occur?

[153] Although the fact that Mr. Niyongabo had sexual intercourse with S.M. is admitted, there is no admission as to when that sexual intercourse occurred during the early morning hours of April 21, 2018. Before I can consider whether or not S.M. consented to the sexual intercourse and/or whether or not she had the capacity to consent, I must determine when the admitted sexual intercourse took place.

[154] Mr. Hynes argues that the Crown has not proven that Mr. Niyongabo was having sexual intercourse with the Complainant at the time Mr. Aber first saw her. The Crown’s position is that this is when the sexual intercourse occurred.

[155] I have already explained why I do not find the evidence of S.M. that she awoke to find Mr. Niyongabo on top of her with his penis in her vagina to be reliable. Ms. McCallum also relies on the statement by Mr. Niyongabo to Mr. Basnat that he was not done yet, but I do not agree that the only reasonable inference based on this statement is that Mr. Niyongabo was in the process of engaging in sexual intercourse with S.M. at that time as opposed to some other type of sexual activity or for that matter, as Mr. Hynes argues, that Mr. Niyongabo was doing something else she did not want him to do. There is no other evidence that confirms that this is the time when Mr. Niyongabo engaged in sexual intercourse with S.M. In fact, the evidence of Mr. Aber, who was the first to see Mr. Niyongabo engaged in an intimate sexual act with S.M. suggests that at this point he was engaged in oral sex on her.

[156] Although I cannot be certain, I find it likely that Mr. Aber discovered S.M. and Mr. Niyongabo shortly after he engaged in sexual intercourse with S.M. Although in theory, Mr. Niyongabo could have engaged in sexual intercourse with S.M. at any time while they were in the Parking Garage and they do not appear on video, I find this is the most likely time as Mr. Niyongabo’s friend had left the two of them alone, S.M. was naked from the waist down, Mr. Niyongabo was barefoot and Mr. Niyongabo was clearly engaged in sexual activity with S.M. at the time Mr. Aber first saw them.

[157] However, given that I cannot be certain when the sexual intercourse occurred, for the purpose of considering whether or not S.M. consented to the admitted sexual intercourse and/or had the capacity to do so, I will consider two periods of time when it could have occurred; the first period commencing at 2:35 a.m. when they entered the Parking Garage until 6:16 a.m. when S.M. showed obvious signs of intoxication (“Period One”) and the period from then until the time when Mr. Aber discovered S.M. and Mr. Niyongabo in the P2 Elevator Vestibule (“Period Two”). I will also consider whether or not S.M. consented and/or had the capacity to do so with respect to the sexual activity Mr. Niyongabo was engaged in with her when Mr. Aber first entered the P2 Parking Vestibule.

Has the Crown proven beyond a reasonable doubt that S.M. did not consent to sexual intercourse with Mr. Niyongabo?

(a) The Law

[158] As already stated, the two main issues in this case are whether or not S.M. consented to sexual intercourse with Mr. Niyongabo and whether or not she had the capacity to consent. The Supreme Court of Canada in R. v. Hutchinson, 2014 SCC 19, at para. 4, set out the two-step approach that I must apply in this case; see also R. v. G.F., 2019 ONCA 493 at para. 41. At the first stage I must determine whether the Crown has proven beyond a reasonable doubt that the Complainant did not consent to the sexual activity i.e. that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1) of the Criminal Code. If I make that finding, there is no need to proceed to the second step of the framework; has the Crown proven that her consent was vitiated as she did not have the capacity to consent.

[159] The court in G.F., supra, went on to say:

47 Support for this two-step approach is also found in academic commentary on capacity and consent: Janine Benedet & Isabel Grant, “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Consent, Capacity, and Mistaken Belief” (2007) 52:2 McGill L.J. 243. The authors, at p. 270, suggest that an inquiry as to capacity to consent should not be necessary where the Crown has proven non-consent:

A finding of incapacity leads inevitably to a finding of nonconsent because the complainant is unable to provide a legally valid consent. Yet the precise relationship between capacity and consent is complex. It might appear logical to say that capacity should be addressed prior to consent because capacity is a prerequisite to consent. Thus, one could argue that a woman who is incapable of giving consent is also incapable of withholding consent.

We believe, however, that the level of understanding required to give meaningful consent to sexual activity may be higher than that which is required to withhold it. In other words, we believe it is possible for a woman to be incapable of giving consent in a particular situation, and yet be capable of withholding it. For example, a woman could know that she doesn’t want any physical contact with the man in question, even if she does not understand the sexual nature of the activity or its potential consequences. Because of the serious implications of finding someone incapable of consenting, we suggest that where there is evidence of nonconsent, that evidence should be looked at before considering capacity. [Emphasis in original]

48 It is difficult to apply the idea of capacity to an absence of a subjective state of mind. Recall that the Crown need not prove that the complainant made a conscious decision to refuse sexual contact, for which an operating mind might be required: J.A. at para. 37. Rather, the Crown is required to prove the absence of consent by reference to the complainant’s subjective internal state of mind: Ewanchuk at paras. 25-27. Where it is proven that the complainant did not affirmatively consent to sexual touching, it may serve no purpose to inquire further to assess whether, had he or she consented, he or she would have had the capacity to do so, although in some cases a trier may elect to make alternative findings. In any case, the analysis should not be blurred between the two separate issues, consent and capacity to consent. [footnote deleted] Further, where potential incapacity relates to non-transient conditions, avoiding unnecessary inquiries as to capacity where non-consent is proven is more respectful of a complainant’s autonomy and privacy.

[160] At para. 45 of G.F., supra, the court stated:

For the purposes of establishing the actus reus there is no “third option”; either the complainant consented or he or she did not: Ewanchuk, at para. 31. As indicated in R. v. A. (J.), at para. 37, “[t]he complainant is not required to express her lack of consent or her revocation of consent for the actus reus to be established” (emphasis in original).

[161] The most recent statement on the law of “consent” was set out in R. v. Barton, 2019 SCC 33 at paras. 87-90. It is the conscious agreement of the complainant to engage in every sexual act in a particular encounter with the other person and it must be freely given. This consent must exist at the time the sexual activity in question occurs. For purposes of the actus reus analysis, consent means that the complainant in her mind wanted the sexual touching to take place.

[162] As Ms. McCallum submitted, a court can draw an inference from a complainant’s pre-existing attitudes and assumptions. The court in R. v. Garciacruz, 2015 ONCA 27 at para. 69, held that:

In the absence of direct evidence on the issue of consent, a court can draw inferences from a complainant’s pre-existing attitudes and assumptions regarding the period during which she has no recollection. In appropriate cases, the court can conclude that the complainant must have been incapable of consenting at the time of the sexual interaction because, had she been capable of consenting, she clearly would have refused to consent. This type of inference would support the trial judge’s finding that the complainant was asleep and incapable of consenting.

[163] The court in R. v. Al-Rawi, 2019 NSCA 10 at para. 69 came to the same conclusion and at para. 70 held that a complainant’s answer to a question as to whether or not she would have consented is usually received and may or may not have a bearing on the determination if consent or capacity consent were absent.

(b) The Evidence – Period One

[164] S.M. repeatedly testified that she did not want to have sex with the Defendant and said that she would not have had sexual intercourse with him. Ms. McCallum argues that although S.M. does not have a memory of the beginning of the sexual act, she knows how she would have behaved. Her evidence goes beyond an assumption.

[165] In considering this submission, I must consider the fact that S.M. also testified that it was out of character for her to go somewhere and drink with two male strangers. That however is far different then consenting to have sex intercourse in a parking garage with one of them. I agree with Ms. McCallum’s submissions. S.M. stated that at no point on April 21, 2018 did she want to have sex with the Defendant. Her actions reflected this lack of desire. She stated the Defendant’s friend bluntly asked her for sex and she rejected him. Her last memory is that she did not want to even kiss the Defendant. I note that this evidence was not challenged. None of her actions suggested that that morning she wanted to have sexual intercourse with a stranger.

[166] The video evidence corroborates S.M.’s evidence that she did not want to have sex with the Defendant. At no point in any of the video evidence did S.M. act affectionately or in a manner that could be perceived as wanting to be touched by the Defendant. The video evidence does not show two people getting more comfortable or forming an attraction or meaningfully engaging with each other in anyway. The opposite. The video captures S.M. being standoffish with the Defendant at 2:38 a.m. when Mr. Niyongabo hugs her while she is leaning against the wall. She does not reciprocate the hug.

[167] For these reasons I find that the Crown has proven beyond a reasonable doubt that if the sexual intercourse occurred in Period One, S.M. did not consent.

(c) The Evidence – Period Two

[168] As the video progresses, by 6:25 a.m. as I have said, although I do not see Mr. Niyongabo touching S.M. or S.M. aggressively pulling her arm away from the Mr. Niyongabo's touch as alleged by the Crown, the video does show that S.M. is upset and at times it appears she is yelling at Mr. Niyongabo. She does not hug him. She does not kiss him. She does not hold his hand when they walk down the street. She does not lean on him. The video also demonstrates the Defendant’s complete lack of concern for the safety of S.M. as she aimlessly walks in live lanes of traffic. All the evidence is consistent with S.M.’s evidence that she did not want to have sex with the Defendant.

[169] The Crown also relies on the fact that just after Mr. Basnet told Mr. Niyongabo that he had to leave, S.M. told him to stop and asked what he was doing. Ms. McCallum argues that the video captured S.M.’s lack of consent. Mr. Hynes however submits that there are other reasonable explanations for this utterance. He argues that Mr. Basnet did not observe any sexual act and that any sexual interaction was no longer in progress at this point in the video following Mr. Basnet's confrontation of the pair. Mr. Hynes submits that there are multiple other possible explanations for S.M.'s exclamation, such as that she was objecting to being urged to get dressed or that she was protesting being hurried by Mr. Niyongabo.

[170] I agree with Mr. Hynes that there are a number of possible reasons why S.M. said “stop” and asked what Mr. Niyongabo was doing. Furthermore, I have already found that her evidence that she realized when she woke up that Mr. Niyongabo was having forced intercourse with her is not reliable. As I will come to, I find that it was only when S.M. spoke to Mr. Aber that she realized that she had had intercourse with Mr. Niyongabo.

[171] The Ontario Court of Appeal has held in R. v. P.R., 2014 ONCA 131 at para. 5, that it is open to a trial judge to conclude that the complainant’s demeanour within minutes of the alleged assault does not accord with complainant having consensual sex with the defendant. Ms. McCallum argued that the strength of the inference that S.M. did not want to have sexual intercourse with Mr. Niyongabo is reinforced by her hysterical reaction once she realized that Mr. Niyongabo had had sex with her. S.M. testified that she became hysterical and Mr. Aber’s evidence, which I accept, was that S.M. became very agitated and raised her voice and began screaming repeatedly: “he raped me, he raped me”. I accept Mr. Aber’s evidence and find that it was only after S.M. had her conversation with Mr. Aber that she came to believe that she had been raped. Once she did, she became hysterical and immediately complained that Mr. Niyongabo had raped her.

[172] Furthermore, as I have said, the video evidence at 8:51 a.m. shows that S.M. is upset and agitated, and she is seen pushing Mr. Niyongabo. This is some evidence that supports the Crown’s position that she did not consent to the sexual intercourse, assuming that it occurred during what I have defined as Period Two.

[173] The fact that there was a delay in S.M. claiming that she had been raped by Mr. Niyongabo, in that she remained in his company for about 12 minutes before going to the Common Lobby to ask for help, does not undermine the inference that she did not consent to sexual intercourse. The Supreme Court of Canada has made it clear that sexual assault cases should be decided "without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma": R. v. Shearing, 2002 SCC 58 at para. 121. There is no inviolable rule on how victims of sexual assault will behave: R. v. D.(D.), 2000 SCC 43 at para. 65.

[174] I agree with Mr. Hynes that there is no evidence that Mr. Niyongabo was aggressive or forceful with S.M. The video evidence conveys his demeanor as calm and measured. He does not chase or restrain her. He does however watch as she walks on the street in traffic and is certainly aware of her state of extreme intoxication. The issue is not whether he was aggressive but rather whether or not S.M. consented to having sexual intercourse with him.

[175] For these reasons, I find that the Crown has proven beyond a reasonable doubt that if the sexual intercourse occurred in Period Two, which for the reasons I have given I find likely, S.M. did not consent to that sexual intercourse or any other type of sexual activity.

Has the Crown proven beyond a reasonable doubt that S.M. did not have the capacity to consent to sexual intercourse with Mr. Niyongabo?

(a) The Law

[176] Although I have found that the Crown has proven that the Complainant did not consent to sexual intercourse with Mr. Niyongabo, which means that an inquiry into her capacity is not necessary, in the event I have reached an incorrect conclusion, I will consider whether the complainant lacked capacity to consent based on the evidence that I have heard.

[177] The Crown argues that S.M. was unconscious at the time Mr. Niyongabo had sexual intercourse with her. There is no doubt that as a matter of law, if S.M. was unconscious or sleeping at the time of the sexual intercourse that she not only did not consent but lacked the capacity to consent.

[178] For reasons I have already set out, although I find it likely that Mr. Aber discovered S.M. and Mr. Niyongabo shortly after Mr. Niyongabo engaged in sexual intercourse with S.M., in theory, Mr. Niyongabo could have engaged in sexual intercourse with S.M. at any time while they were in the Parking Garage and they do not appear on video. There is no evidence that S.M. was unconscious or asleep during Period One or during Period Two, save for the evidence of Mr. Aber and Mr. Banat that Ms. McCallum relies on at the time that they saw first saw S.M.

[179] To consider the question of incapacity with respect to the admitted sexual intercourse, given I cannot determine when that occurred, I must therefore consider the law on the question of capacity short of unconsciousness or sleeping. If the Complainant was conscious but did not have an operating mind capable of consenting, then consent is also vitiated.

[180] The Ontario Court of Appeal in G.F., supra at para. 26, held that complete unconsciousness and absence of memory are not the only conditions which establish incapacity. Varying degrees of awareness, memory, and ability to articulate what happened have supported findings of incapacity.

[181] On the issue of incapacity, the court went on to state, at paras. 35 – 38:

35 As noted in Janine Benedet, "The Sexual Assault of Intoxicated Women", (2010) 22 Can. J. Women & L. 435, at p. 442:

Turning first to incapacity, there are numerous cases in which courts find a complainant incapable of consent due to intoxication, but in almost all of these cases the complainant is also asleep or unconscious when the sexual assault begins. Where the complainant is not unconscious, but merely drunk or high, courts have struggled to articulate a threshold for incapacity short of total non-responsiveness.

36 An unconscious or sleeping person is incapable of consenting to sexual activity. On the other hand, capacity for considered evaluation of the collateral risks and consequences of sexual activity sets the bar too high for capacity to consent to sexual relations.

37 In R. v. Al-Rawi [citation omitted] (N.S. C.A.), Beveridge J.A. discussed elements of capacity to consent to sexual relations established by the jurisprudence, at paras. 60-61, 66-67, and I adopt that summary, subject to the caveat that, in light of the varieties of human conditions which may raise issues of incapacity, it may not describe all of the circumstances in which a complainant could be found to lack an operating mind:

[60] This begs the question: what constitutes an operating mind? Comatose, insensate or unconsciousness cannot qualify. Major J., in R. v Esau, supra, reflected that being unconscious due to intoxication is not the only state capable of removing a complainant's capacity to consent (para. 24). Mere awareness of the activity is also insufficient to ground capacity where the trial judge accepted that the complainant was "out of control" and "not able to say no" due to the involuntary ingestion of drugs, [citations in original].

[61] On the other hand, requiring the cognitive ability necessary to weigh the risks and consequences of agreeing to engage in the sexual activity goes too far.

[66] Therefore, a complainant lacks the requisite capacity to consent if the Crown establishes beyond a reasonable doubt that, for whatever reason, the complainant did not have an operating mind capable of:

1. appreciating the nature and quality of the sexual activity; or

2. knowing the identity of the person or persons wishing to engage in the sexual activity; or

3. understanding she could agree or decline to engage in, or to continue, the sexual activity.

[67] In cases where consent and capacity to consent are live issues, the trial judge must determine if it has been established beyond a reasonable doubt that the complainant did not consent, or lacked the capacity to consent. As detailed above, these inquiries are entirely subjective.

[Emphasis added]

38 Here, I agree with the submissions of the Crown on appeal that while mere proof of drunkenness, loss of inhibitions, regret for a bad decision or some memory loss do not of themselves negate capacity for consent, some physical actions such as walking a short distance, making a phone call, speaking, and some awareness of or resistance to sexual activity do not necessarily preclude a finding of incapacity. I also agree that some memory of the events is not necessarily inconsistent with incapacity: [Citations omitted] … As the case law demonstrates, the trier of fact must consider all the evidence to make the factual determination of the complainant's capacity at the relevant time. Issues of incapacity can arise in a multitude of circumstances, including sleep, intoxication, illness, and intellectual disability.

[182] Counsel provided cases where the courts have considered the question of incapacity. They are of some assistance in considering how other judges have applied the law to the facts of the specific cases before them. I recognize that each case turns on its own facts but a review of some of those cases if of some assistance.

[183] Mr. Hynes relies on R. v. J.R., 2006 CanLII 22658 (ON SC), [2006] O.J. No. 2698, where at para. 18 Justice Ducharme stated:

Absent expert evidence, a loss of memory or a 'blackout' is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period. Indeed, Ms. Martin the toxicologist called by the Crown described a blackout as, "a complete loss of memory for a portion of time during a drinking episode." In a sexual assault case this is particularly unfortunate since, as was noted in R. v. Esau (1997), 1997 CanLII 312 (SCC), 116 C.C.C. (3d) 289 at 296 (S.C.C.), '[t]he parties testimony is usually the most important evidence in sexual assault cases." Esau is particularly relevant to the case at bar because it is a sexual assault case involving a complainant with no memory of the relevant time. In Esau at 297, Justice Major said of the complainant's memory loss, "[a]ny number of things may have happened during the period in which she had no memory." Thus, the only significance of memory loss, without more, is that the complainant cannot give direct evidence as to whether or not she consented to the sexual contact or whether or not she had the capacity to do so.

[184] Ducharme J. went to state at para. 20:

This does not mean that evidence of memory loss or a blackout is unimportant, irrelevant or necessarily lacking in probative value. It may well be circumstantial evidence which, when considered with other evidence in a case, may permit inferences to be drawn about whether or not a complainant did or did not consent or whether she was or was not capable of consenting at the relevant time. But even here, while not required as a matter of law, for such evidence to be probative, some expert evidence will almost always be essential.

[185] Justice Ducharme went on to consider the circumstances before him and found, based on the complainant's attitude towards sex with the defendant, the consumption of drugs and alcohol, and the state of the complainant's clothing that she did not consent and at the time of the sexual contact that she lacked the capacity to do so.

[186] Mr. Hynes also relies on R. v. Meikle, 2011 ONSC 650. Justice Trotter, as he then was, stated, at para. 48 that there is no mandatory requirement for expert evidence in these circumstances although it may sometimes be helpful. Before him he had a complainant, who was highly intoxicated at the time of the sexual interaction, she had blacked out, witnesses testified she was intoxicated, but they were not overly concerned about her condition, and the complainant lost her phone but was able to return to the bar and look for it. Furthermore, she was cognizant enough to provide her name and number to the concierge. Justice Trotter concluded, at para. 57, that in all of the circumstances he had a reasonable doubt whether or not the complainant’s level of intoxication had crossed the line to the point of incapacitation.

[187] Ms. McCallum relied on a number of cases. In R. v. Merritt, [2004] O.J. No. 1295 (Ont. S.C.J.), Justice Hill held at para. 56:

While capacity to consent to sexual activity may not amount to a very significant standard of cognitive awareness, equating relatively primitive actions such as walking a short distance, or unassisted vomiting, to capacity to consent to sex is entirely unpersuasive.

[188] In addition, Ms. McCallum relied on the following cases where extreme intoxication and incapacity were found, and the court found that the complainant did not have an operating mind because there was a demonstrated loss of awareness or appreciation/understanding of her surroundings. Ms. McCallum relies on the case of Al Rawi, supra, but first of all that was a case where the Nova Scotia Court of Appeal considered a Crown appeal and found that the trial judge had erred in law and ordered a new trial. Furthermore, the facts of that case are quite different from the case at bar as the complainant was found unconscious in the rear seat of a taxi, naked from the waist down.

[189] Ms. McCallum referred to a decision of Justice Greene of the Ontario Court of Justice; R. v. Tariq, 2016 ONCJ 614. In that case, at para. 124, Greene J. found that the complainant did not have the capacity to consent to sexual activity in light of the amount of alcohol the complainant had consumed, the indicia of impairment as seen in the videos, which included that fact that the complainant’s walking appeared severely hampered on surveillance, her gross motor skills and balance were substantially impacted, she had a dazed and confused expression in the hotel lobby and elevator, the fact that she had an illogical conversation with one person and illogically attempted to call another person, the fact she made random telephone and she was falling asleep in the elevator.

[190] In R. v. M.A.P., 2004 NSCA 27, the Nova Scotia Court of Appeal upheld the trial judge’s finding that the complainant was too intoxicated to provide consent, relying on the fact that the complainant was plastered, falling down drunk, barely knew where she was, did not know who people were and she fell down a flight of stairs. This case is the closest on the facts to the case at bar.

(b) Evidence Period One

[191] In this period of time, the evidence does not support a finding that S.M. did not have the capacity to consent to sexual intercourse. When she can be seen on video, she does not show any signs of intoxication.

(c) Evidence Period Two

[192] Ms. McCallum submitted that the evidence of S.M. that she awoke to the Defendant inside her having forcible sexual intercourse with her and the observations of Mr. Aber provide direct evidence that S.M. was unconscious at the time the Defendant was forcing unprotected vaginal sex. She also submits that since S.M. was naked from the waist down when Mr. Aber saw her and she did not respond at all to his presence or to Mr. Basnat initially, that given, her animated response when she saw Mr. Basnat the second time and given that to some extent she did not dress herself, it is reasonable to infer that she was still not conscious when Mr. Basnat first saw her.

[193] I have already explained why I find the evidence of S.M. on this point not to be reliable in terms of when the sexual intercourse occurred. In terms of the evidence of Mr. Aber, although he had no way of knowing whether or not S.M. was sleeping or unconscious, I accept his evidence that she was unresponsive and “lifeless” during the time he was having a conversation with Mr. Niyongabo. As for Mr. Basnat’s evidence, Mr. Basnat testified that when he closed the door, he heard murmurs suggesting they were speaking to one another and as already stated, S.M. can be heard stating "stop" and asking what Mr. Niyongabo was doing, which suggests that S.M. was somewhat awake by this point.

[194] Whether or not S.M. was sleeping or unconscious at the time that Mr. Aber first saw her, I do find that S.M. was in a state of extreme intoxication at the time she was first observed by Mr. Aber. She was totally unresponsive and the video that I have already referred to in Period Two makes it clear that shortly before this time, S.M. was disoriented and totally oblivious to her surroundings as she walked on the street without regard to traffic. She was stumbling and uncoordinated and weaving as she walked. There is no explanation for this but for S.M. being in a state of extreme intoxication. I find that she was not suicidal or acting or trying to get Mr. Niyongabo’s attention. Even if S.M. was not fully unconscious or asleep when Mr. Aber first saw her, I accept his evidence that she was “lifeless” and not moving despite what Mr. Niyongabo was doing to her.

[195] Mr. Hynes conceded in his written submissions that if I accept Mr. Aber’s evidence that he witnessed a sexual act in progress while he perceived S.M. to be, in his words, "lifeless" this evidence would be important to the question of S.M.'s capacity. He argues however, this evidence is incredible on its own and incompatible with what was proffered by Mr. Basnet. I have already explained why I accept this evidence of Mr. Aber.

[196] I also rely on my observations of how S.M. appeared when she spoke to Mr. Basnet. Again, her speech is not normal, it is somewhat slurred and erratic, her eyes do not look normal in that she does not seem to be focusing properly and she is unsteady on her feet, not to mention her disheveled appearance.

[197] Dealing first with the evidence of Mr. Aber, I have already found based on his evidence that Mr. Niyongabo was engaged in an intimate sexual act with S.M. at the time he entered the P2 Elevator Vestibule and that Mr. Niyongabo was likely performing oral sex on S.M. Based on his evidence I find that at the very least S.M. was asleep. She did not move or respond to his voice or his interaction with Mr. Niyongabo or to his presence. On this basis alone, the Crown has proven a sexual assault given that S.M. lacked capacity to consent to the sexual touching by Mr. Niyongabo although I do not find that the sexual touching at this time was that of sexual intercourse.

[198] As for the evidence of Mr. Basnat, he only saw S.M. for a matter of seconds and although he did not see her move or respond he said that she was under a blanket. I cannot conclude that at the precise time that Mr. Basnet observed S.M. and Mr. Niyongabo that Mr. Niyongabo was engaged in sexual intercourse or any sexual activity with S.M. His evidence of what he observed is consistent with the evidence of Mr. Aber. It does appear however, based on what Mr. Basnat heard after closing the door, that S.M. was speaking to Mr. Niyongabo immediately after Mr. Basnat announced his presence.

[199] Mr. Hynes argues that S.M.’s hostility towards Mr. Basnat and Mr. Niyongabo and her aggressive insistence that she was in her own apartment building and not a trespasser, betray a state of alertness that is inconsistent with the Crown theory that she lacked capacity to consent only moments before. He argues that her statement to Mr. Basnat betrays a subjective understanding that she is not in her apartment but is cognizant that she is in some other area of an apartment building. He submits that her protestation of "wait, wait," when Mr. Basnet finally said he is going to call police indicated an intent to mislead that would require the capacity to deceive. It is his position that the inaction on the part of Mr. Aber and Mr. Basnet indicate that they were not concerned about her condition. Mr. Hynes argues that these facts are analogous to those on which Justice Trotter based his finding in Meikle, supra.

[200] I do not accept the submission that at this point S.M. was alert. Although she was assertive minutes after she alleged she was assaulted, I do not find that this behaviour is evidence of her capacity. I find that based on the video evidence, S.M. truly believed at that point that she was in a residential building. The fact that S.M. seemed to truly believe that she was in her apartment building, in my view, is strong evidence of her state of extreme intoxication and her incapacity. Her suggestion that this is her building or apartment only shows a possible base awareness of being surrounded by walls. As Ms. McCallum submitted, this primitive awareness does not equate to an operating mind. This is an example of according a primitive act with an operative mind, which Justice Hill rejected in Merritt,supra.

[201] Mr. Aber was also able to see multiple indicia of intoxication when he spoke to S.M. in the Common Lobby including slurred speech, unsteadiness, reduced awareness, and difficulty comprehending. He believed she was coming off of something. He also witnessed her inability to comprehend where she was.

[202] Ms. McCallum also relies on the observations of Mr. Jean Louis and the others who interacted with S.M. after she left 180 Dundas. Given my concern that she may have consumed drugs with Ms. Richardson, I have not considered that evidence in coming to a determination of whether or not S.M. was incapacitated during Period Two.

[203] I do not know what caused this state of extreme intoxication, but I do not need to determine that. S.M. was not intoxicated when she left the Elephant and Castle and she testified that she only took two sips of the bourbon that Mr. Niyongabo offered to her. She may well have had more during the period when she has no memory given the empty bourbon bottle found in one of the areas she and Mr. Niyongabo that morning.

[204] The evidence of Ms. Bugyra, as to what symptoms one could expect in someone who is intoxicated by alcohol and the medication that S.M. was on, as central nervous system depressants, are symptoms that S.M. was clearly experiencing including reduced muscle control, drowsiness, altered level of consciousness, impaired memory, confusion, and dizziness.

[205] Mr. Hynes submits that even if a reasonable inference of incapacity is available, the evidence gives rise to multiple alternative reasonable inferences. The surveillance video between 6:25 a.m. and S.M.'s return to the Parking Garage with Mr. Niyongabo shows that she chose to accompany him back to P2 without coercion or force on the part of Mr. Niyongabo. Although it is true that S.M. followed Mr. Niyongabo back into the building, given my observations of her behaviour on the street, there is clear evidence of extreme intoxication.

[206] I find that S.M.’s presentation and actions from 6:16 a.m. to 8:51 a.m. on April 21, 2018 demonstrate that she was experiencing symptoms of extreme intoxication and did not have an operating mind while she was in the Parking Garage. The videos show that not only was S.M. having difficulty walking and losing her balance, she did not seem to appreciate that she was walking on the street with cars trying to avoid hitting her. In addition, based on the evidence of the video taken by Mr. Basnat, although S.M. was speaking to him forcibly enforcing what she believed were her rights, she believed that she was in her apartment building. On the video she looks disoriented and she is clearly confused. She did not have the cognitive ability to comprehend where she was; therefore, in my view, she could not appreciate the nature or quality of any sexual acts. She could not process information. She did not know who she was with; therefore, she could not appreciate the identity of the person wishing to engage in the sexual activity. This is confirmed by the evidence of Mr. Aber that she asked him about someone living in the building - she did not know where she was. She was in an unfurnished room, and yet she thought she was in her own apartment building. I find on all of this circumstantial evidence that S.M. was not capable of making voluntary informed decisions and that she lacked the capacity to consent to any sexual activity.

[207] I appreciate that being in a state of extreme intoxication does not equate incapacity. However, given all of these circumstances I find that the Crown has proven beyond a reasonable doubt that S.M. did not have the capacity to consent to any sexual touching, including sexual intercourse, during Period Two. This finding applies to the sexual activity that Mr. Aber observed and the sexual intercourse if it occurred during Period Two.

Has the Crown proven beyond a reasonable doubt the Mens Rea element?

[208] While the Defence did not rely on any mens rea defence, I must consider it in any event. There are two elements the Crown must prove beyond a reasonable doubt to establish the offence of sexual assault; 1) that Mr. Niyongabo intended to have sexual intercourse with S.M. and 2) that he knew or was reckless or willfully blind to her not consenting or her not having the capacity to consent.

[209] The evidence before me is consistent with a finding that Mr. Niyongabo was not intoxicated. There could be no doubt then that he intended to have sexual intercourse with S.M. I also find beyond a reasonable doubt that Mr. Niyongabo would have known that S.M. had not communicated her consent to having sexual intercourse with him and that she was so intoxicated that she lacked the capacity to consent. He provided S.M. with alcohol and he spent hours with her, and he observed her inability to walk steadily and her walking on the street. Her impairment was obvious. Regardless of the reason for S.M.’s intoxication, Mr. Niyongabo must have known that she was so intoxicated when he engaged in sexual activity with her that it should have been obvious to him that she did not have the capacity to consent or he was willfully blind or reckless to this fact. Moreover, as Mr. Niyongabo did not testify, there is no basis to find that he had a mistaken belief that she was consenting.

Disposition

[210] Mr. Niyongabo would you please stand.

[211] For the reasons I have given I find you guilty of Count #1.

Spies J.

Released: January 17, 2020

COURT FILE NO.: CR-19/1-122

DATE: 20200117

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

NELSON NIYONGABO

REASONS FOR JUDGMENT

Spies J.

Released: January 17, 2020

Edited Decision Released: January 21, 2020

[^1]: I heard no evidence about a blanket, nor was one found by police. However, at the end when S.M. is standing and talking to Mr. Basnat and is visible on the video, she is only wearing a black tank top under her coat whereas at the Elephant and Castle she had a white sweater on under her coat. It is possible that Mr. Basnat mistook the sweater or even her coat for a blanket.

[^2]: Unfortunately, police were not able to find Ms. Richardson to take a statement and later determined that she had died before the trial.