COURT FILE NO.: CR-0279/18 DATE: 20201021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JUSTICE MARSHALL

SHAMMAR MIRON

Deborah Moskovitz, for the Crown

Roy Buchan, for Justice Marshall

Danielle Gendron, for Shammar Miron

HEARD: September 9-12, 16-20, 23-27, October 8, November 12-15, December 10, 2019, & January 17, 2020

PUBLICATION RESTRICTION NOTICE

By order made under subsection 486.4(1) of the Criminal Code, information that may identify the complainant may not be published, broadcasted or transmitted in any manner.

REASONS FOR JUDGMENT

garton j.

INTRODUCTION

[1] The accused, Justice Marshall and Shammar Miron, are charged in separate counts in the indictment with sexual assault, sexual interference, and invitation to sexual touching, contrary to ss. 271, 151, and 152, respectively, of the Criminal Code.

[2] The complainant, K.A., is now 18 years old. On March 20, 2017, when the offences are alleged to have occurred, she was 15 years old – and 36 days shy of her 16th birthday. Mr. Miron and Mr. Marshall were 20 and 21 years old, respectively, at that time.

Offences that Mr. Marshall is Facing

[3] The charges that Mr. Marshall is facing are set out in counts 1, 2, and 3 of the indictment. There is no dispute that Mr. Marshall engaged in sexual intercourse with K.A. in his bedroom at his apartment in the early hours of March 20, 2017. During her police interview, her testimony at the preliminary inquiry, and in her examination-in-chief at trial, K.A. stated that she consented to having sex with Mr. Marshall. It was only during cross-examination by counsel for the co-accused, Mr. Miron, that she asserted for the first time that some of the sexual activity with Mr. Marshall was not consensual.

[4] Mr. Marshall testified that K.A. initiated and consented to the sexual activity. He also testified that K.A. told him that she was 17 and that he had no reason to disbelieve her based on her appearance, her behaviour, and all of the circumstances.

[5] Given K.A.’s age at the time, consent is not a defence to charges under ss. 271, 151 and 152, except in certain limited circumstances. Pursuant to s. 150.1(1) of the Code, it is not a defence that the accused believed that the complainant was 16 years of age or more unless the accused took all reasonable steps to ascertain the complainant’s age.

[6] Ms. Moskovitz, on behalf of the Crown, did not argue that K.A. did not consent to the sexual activity with Mr. Marshall. However, she submits that Mr. Marshall’s testimony that he believed K.A. was 17 is not credible. She further submits that even if Mr. Marshall honestly believed that K.A. was 16 years of age or older, his belief was not objectively reasonable, and he did not take all reasonable steps to ascertain her age.

[7] Mr. Buchan, on behalf of Mr. Marshall, submits that Mr. Marshall was a credible witness who was not shaken in cross-examination, and that his testimony that he believed K.A. was 17 years old should be accepted. He further submits that the Crown has not established beyond a reasonable doubt that Mr. Marshall did not take all reasonable steps to ascertain K.A.’s age.

Offences that Mr. Miron is Facing

[8] The charges that Mr. Miron is facing are set out in counts 4 to 9 in the indictment. Mr. Miron is charged with two counts of sexual assault, two counts of sexual interference, and two counts of invitation to sexual touching.

[9] There is no dispute that Mr. Miron, on two occasions during the afternoon or early evening of March 20, 2017, had sex with K.A. in a bedroom at Mr. Marshall’s apartment. Mr. Miron slept in that bedroom on those occasions when he stayed overnight at Mr. Marshall’s place.

[10] K.A. initially testified that she did not consent to having sex with Mr. Miron on either occasion. Later on in her testimony, however, she stated that she consented to the first but not to the second incident of sexual activity. Both Mr. Miron and K.A. had consumed alcohol during the afternoon and prior to the sexual activity.

[11] Mr. Miron denied that he was drunk and testified that K.A. consented to having sex with him on both occasions. He believed that she was 17 years old, based on all of the circumstances, including what T.N., who accompanied K.A. to Mr. Marshall’s apartment that night, had told him, other information provided to him by K.A herself, and his observations regarding K.A.’s appearance and behaviour.

[12] The issues with respect to the counts relating to each of the two incidents of sexual activity between Mr. Miron and K.A. are:

i) whether the Crown has established beyond a reasonable doubt that K.A. did not consent to having sex with Mr. Miron;

ii) if K.A. consented, or there is a reasonable doubt about the lack of consent, whether the Crown has established beyond a reasonable doubt that her consent was vitiated by a lack of capacity due to intoxication; and

iii) whether the Crown has established beyond a reasonable doubt either that Mr. Miron did not honestly believe that K.A. was at least 16 years old or, if he did have such a belief, that he did not take all reasonable steps to ascertain K.A.’s age.

[13] The principles in R. v. W.(D.), [1991] 1 S.C.R. 742, apply.

OVERVIEW

[14] At the time of the alleged offences, K.A. was in the care of the Children’s Aid Society (“CAS”). She had been in CAS care for almost 11 years, or since she was about six years old. She had lived in a number of foster homes and two different group homes.

[15] In March 2017, K.A. was residing in a group home in Oshawa, where she met another resident, T.N., who was 14 years and eight months old. Both K.A. and T.N. had a history of running away from the various residences where the CAS had placed them.

[16] K.A. did not like the group home in Oshawa or her CAS worker and complained that she was not allowed any community time or “CT.” T.N. was similarly ill-disposed toward the group home. On March 19, 2017, at around 7:00 p.m., the two girls jumped out of T.N.’s bedroom window and made their way to Tim Hortons, where they had access to free WiFi. This was not the first time for either of them to go AWOL in order to use the WiFi at Tim Hortons.

[17] K.A. testified that she did not bring her cell phone with her on March 19, 2017, when she and T.N. left the group home. Thus, she had to use T.N.’s tablet to send Facebook messages to family and friends while at the restaurant.

[18] According to T.N., they each had their own devices that night: T.N. had a tablet and K.A. had her own cell phone. T.N. testified that K.A. did not borrow and had no need to borrow her tablet.

[19] Both K.A. and T.N. testified that they had never met or had any communication with Mr. Marshall prior to March 19, 2017, although they had heard his name mentioned by one of the girls at the group home. At some point that night, either K.A. or T.N. started Facebook messaging Mr. Marshall.

[20] K.A. testified that it was T.N. who contacted Mr. Marshall and that she was not party to any of their communications. She initially testified that she only saw one message from Mr. Marshall, in which he stated that an Uber would be arriving at the Tim Hortons in 15 minutes. This message was sent in the early hours of the morning on March 20, 2017. T.N. showed her the message.

[21] K.A. later acknowledged that she saw Mr. Marshall’s Facebook profile and his photograph while they were at Tim Hortons. She also acknowledged looking at photographs to see who Mr. Marshall’s friends were. She testified that she thought Mr. Marshall was 18 or 19 years old although, according to Mr. Marshall, his age, which was 21, was included in his profile. When asked if she thought Mr. Marshall was attractive, K.A. stated, “No, not really.”

[22] T.N. denied texting Mr. Marshall and testified that it was K.A. who was messaging him. T.N. testified that she saw K.A. sending sexually suggestive photographs of herself to Mr. Marshall and overheard her on the telephone telling him, among other things, that she was 17 and that she thought he was sexy.

[23] Mr. Marshall testified that around 1:00 a.m. on March 20, 2017, he was about to go to bed when he received a “new friend request” from a person by the name of K.A. The message said, “You’re sexy.” When he viewed K.A.’s profile, which included her photograph, he did not recognize her as anyone he knew or had ever met. She looked to be at least 18 years old. He exchanged various text messages with her and they also spoke on the telephone for about 20 minutes. K.A. told him that she was 17. She sent him a flirtatious photograph of herself and said that she wanted to hook up with him that night. K.A was insistent that he send an Uber to bring her to Toronto. Mr. Marshall initially refused but ultimately sent the Uber to pick her up.

[24] K.A. testified that while she and T.N. were at Tim Hortons and before the Uber arrived, they agreed that they would lie to Mr. Marshall about their respective ages. It was their mutual intention to give him the impression that they were at least 17 years old. K.A. testified that she knew at the time what “statutory rape” was – that is, having sex with someone under a certain age – and that she was underage for consensual sex. She acknowledged that she nevertheless deliberately chose to lie to Mr. Marshall about her age and to engage in a calculated course of conduct intended to deceive him.

[25] K.A. testified that she “could” have been wearing makeup. In cross-examination, she agreed that she brought make-up with her from the group home, and that she put on eyeshadow, eye liner, and mascara in the washroom at Tim Hortons in preparation for meeting Mr. Marshall.

[26] The Uber picked up K.A. and T.N. at the Tim Hortons sometime after 2:00 a.m. on March 20, 2017. It arrived at Mr. Marshall’s apartment building in the Distillery District in Toronto at 3:10 a.m. Mr. Marshall met K.A. and T.N. at the entrance to the building. He testified that K.A. got out of the car and gave him a hug. He was surprised to see a second girl. When he asked T.N. her name, K.A. answered for her, giving him T.N.’s first name. T.N. testified that she said “Hi” to Mr. Marshall and introduced herself. According to K.A., Mr. Marshall hugged both of them and then escorted them up to his sixth-floor apartment.

[27] After entering the apartment, T.N. immediately went to the washroom. Mr. Marshall asked K.A. if she wanted to go to his bedroom. She agreed. There was some further conversation in the bedroom, after which the sexual activity that is the subject matter of the charges against Mr. Marshall took place. T.N. slept on a couch in the living room that night.

[28] K.A. and T.N. spent the entire next day at Mr. Marshall’s place. T.N. met Mr. Miron that morning, when he emerged from a bedroom in the apartment. He got up around 5:30 a.m., saw T.N. in the living room, and introduced himself. They engaged in some small talk and watched a show. At some point, K.A. entered the room. She and Mr. Miron introduced themselves to each other and spoke briefly before K.A. returned to Mr. Marshall’s bedroom.

[29] Mr. Miron testified that he had asked T.N. how old she and K.A. were before K.A. came into the living room and that T.N. told him that they were 17. T.N.’s evidence was inconsistent as to what she told Mr. Miron, if anything, about K.A.’s age. Mr. Miron went back to bed at around 6:00 or 7:00 a.m.

[30] Later that day, Mr. Miron, K.A. and T.N. walked to an LCBO, where Mr. Miron bought a bottle of rum. He bought the brand of rum that K.A. requested. Mr. Marshall left the apartment at noon to go to a medical appointment. He returned around 2:30 p.m., at which point the bottle of rum was opened.

[31] The evidence indicates that T.N. did not drink very much alcohol. Mr. Marshall testified that he had three shots of rum and was not at all drunk.

[32] Mr. Miron acknowledged telling the investigating officers during his police interview that he had “a few drinks” and that he was drunk. He explained during his testimony, however, that he was not drunk in the sense of being “overly intoxicated,” “belligerent.” or “highly wasted.” Mr. Marshall described Mr. Miron as “tipsy drunk” as opposed to being “really out of it.” Mr. Miron’s speech was not slurred.

[33] K.A. testified that she was “wasted” and at one point needed T.N.’s assistance in getting to the bathroom. Mr. Marshall described K.A. as “pretty drunk” but not “falling over.” At one point, while K.A. was in the bathroom, she called out to T.N., who assisted her in getting to Mr. Miron’s bedroom. T.N. told her to lie down. K.A. took a nap.

[34] During her police interview, K.A. stated that Mr. Miron came into the room while she was lying in bed and that the first incident of sexual activity between her and Mr. Miron took place at that time. At trial, K.A. testified that the first incident of sexual activity took place after she took a nap, felt more sober, and joined the others in the living room for a while. She and Mr. Miron then went into his bedroom and had vaginal and anal intercourse. Although she initially testified that she kept telling him “no” and to stop, she later testified that the sex was consensual.

[35] K.A. testified that she napped for less than an hour. When she woke up, she went into the living room and consumed more rum. A couple of hours later, she went with Mr. Miron to his bedroom after he asked her if she wanted to watch Netflix with him. She testified that she put her head on his shoulder because she was tired and drunk. The second incident of sexual activity, which consisted of vaginal intercourse and fellatio, occurred at that time.

[36] At 8:15 p.m., two police officers arrived at the apartment door with the intention of apprehending K.A. K.A.’s sister, S.W., had learned of K.A.’s whereabouts through K.A.’s Facebook messages and then communicated the information to K.A.’s mother, who reported it to the police. K.A.’s mother was aware that K.A. had left the group home and was concerned about her safety.

[37] K.A. and T.N. did not want to go back to the group home and hid when the police arrived. The police apprehended T.N., who initially refused to identify herself. The police, believing that they had K.A. in their custody, headed to Oshawa and returned T.N to the group home. Shortly after apprehending T.N., they discovered that they had the “wrong girl.” T.N., who left the group home within minutes of being returned to it, texted K.A. that the police were returning to Mr. Marshall’s apartment. K.A. testified that she freaked out upon learning this news, which she communicated to Mr. Marshall. K.A. was furious with her mother and sister for contacting the police.

[38] K.A. ultimately called her mother, D.W., who lives in Richmond Hill, and asked her to pick her up. D.W. and her partner met K.A. at a Tim Hortons on King Street in Toronto shortly before 1:00 a.m. on March 21, 2017 and took her home. D.W. notified the police that K.A. was with her. An officer later arrived at their home and drove them to Scarborough General Hospital, where K.A. underwent various tests.

EVIDENCE

Evidence of K.A.

The DVD-Recorded Police Interview of K.A.: March 28, 2017

[39] K.A. was interviewed by Detective Constable Heather Heidgress on March 28, 2017. The interview was recorded and admitted as evidence pursuant to s. 715.1 of the Criminal Code.

[40] K.A. made it clear during the interview that she strongly disliked the Oshawa group home and her CAS worker. She stated that she planned to “get out of CAS” as soon as she turned 16, as she wanted to “see the world.”

[41] K.A. spoke of her continuing use of drugs, although she stated that she would “rather get drunk than high.” She noted that “weed” did not do anything for her. “Molly” or Ecstasy, however, had an effect on her. She stated that she had used crystal meth but had never tried crack cocaine or heroin.

[42] K.A. stated that on Sunday, March 19, 2017, she learned that T.N. was planning to run away from the group home. K.A., who described herself as “done with the place,” decided to go with her. They left around 7:00 p.m. that night and alternately walked and ran to a nearby Tim Hortons, which took them about 25 minutes.

[43] In cross-examination, K.A. agreed that at the preliminary inquiry she testified that they did not arrive at Tim Hortons until 8:00 or 8:15 p.m., as they wandered the streets until it got dark. She also stated that they went to two different Tim Hortons that night. The first one was “right around the corner” from the group home, or about a 10-minute walk. They eventually left because it was not open 24/7, and they did not want to linger in a place where there were cameras.

[44] K.A. told Officer Heidgress that she and T.N. initially planned to go to a hotel in Brampton to see some of T.N.’s friends, one of whom was a person by the name of “Soodge.” K.A. understood from T.N. that T.N. had been there before, and that Soodge was charged with sexual assault or “statutory rape” because “the girl was fourteen years old.” K.A. was unaware of T.N.’s relationship with Soodge, other than the fact that he sold her drugs. When asked by Officer Heidgress what she and T.N. planned to do at the hotel in Brampton, K.A. stated “just stay there, do drugs, and get drunk.” When asked if they planned to have sex, K.A. stated, “Well, I’m not completely sure. But if we’re going to a hotel, what’s the odds of not?”

[45] In cross-examination, K.A. testified that she did not plan to have sex with anyone at the hotel in Brampton, but “if it happened, it happened.” She also testified that she and T.N. hatched the plan to go to Brampton days, if not weeks, before they ran away from the group home.

[46] K.A. stated that when the plan to go to Brampton fell through, T.N. continued texting on her tablet. K.A. told Officer Heidgress that she herself did not have a cell phone, tablet or any other electronic device that night, and therefore used T.N.’s tablet to communicate on Facebook with her mother, her Aunt Rebecca, and her ex-boyfriend, Dillon. She stated that she used her own Facebook account while using T.N.’s tablet, but deleted the text messages that she sent each and every time that she handed the tablet back to T.N. Thus, all the text messages that she sent that night were erased.

[47] K.A. texted Dillon and asked him to have his friend pick them up. The friend lived across the street from the Oshawa group home. By 9:15 p.m., it became clear that Dillon, who lived in Lindsay, was unable to arrange a ride for them to his place. However, K.A. and Dillon continued to communicate with each other that evening whenever K.A. had access to the Internet via T.N.’s tablet.

[48] At trial, K.A. testified that while she was at Tim Hortons, she spoke to her mother and told her that she had run away from the group home. She asked her mother to pick her up. However, that was not possible as her mother’s partner, S.D., who would be doing the driving, was at work. Her mother did not drive. K.A. stated that her mother did not appear to be particularly concerned about the situation because K.A. frequently ran away from group homes or “as often as she could.” I note that K.A.’s mother, D.W., testified that K.A. did not phone her to tell her that she had left the group home with a girl named “T” until she was already in Toronto. K.A. refused to disclose her location to her mother but assured her that she was in a safe place.

[49] K.A. told Officer Heidgress that it was T.N. who initiated contact via Facebook with Mr. Marshall while they were at Tim Hortons. K.A. did not know how T.N. came to know Mr. Marshall. At some point, T.N. told her that Mr. Marshall was sending an Uber to pick them up. The car eventually arrived and drove them to Mr. Marshall’s apartment at 75 Cooperage Street in Toronto. They arrived there at 3:10 a.m. on March 20. The trip took less than an hour. Mr. Marshall met them at the entrance and escorted them up to his unit on the sixth floor.

[50] K.A. maintained that she had nothing to do with setting up the trip to Mr. Marshall’s apartment. She did not see any of T.N.’s text messages to Mr. Marshall. She was aware of only one text message from Mr. Marshall, in which he stated that he had food, weed, alcohol, and drugs at his place. However, when the girls arrived, Mr. Marshall had no alcohol, weed or drugs, although K.A. noticed a couple of bongs on a table and empty liquor bottles on top of the refrigerator.

Sexual Activity Between Mr. Marshall and K.A.

[51] K.A. stated that after entering the apartment, T.N. immediately went to the washroom. Mr. Marshall then asked K.A. if she wanted to go to his bedroom:

And then he’s like, do you want to go to my room, like to me. Like right now? He’s like yeah, I’m tired. So I’m like, okay, like whatever. I wasn’t expecting to have sex, but we did. And then I’m almost asleep and then he starts up again. And then like, I didn’t sleep much while I was there because I didn’t know what was gonna happen.

[52] Mr. Marshall did not use a condom.

[53] At trial, K.A. did not recall Mr. Marshall telling her that he was tired, but ultimately adopted this part of her statement as true.

[54] When asked by Officer Heidgress what she understood from his suggestion that they go to his bedroom, K.A. stated that she “wasn’t really thinking” and “so, like, I’m like, whatever. Like I’m tired. So then we lay down and he starts kissing me.” When asked what she did when he began to kiss her, K.A. stated: “Well, I didn’t pull away. So I don’t think he can be charged with anything.”

[55] At trial, K.A. testified that she was “totally cool” with going to Mr. Marshall’s bedroom.

[56] K.A. stated that at no point did she try to stop Mr. Marshall. He took off her pants and unzipped his own pants. Initially, he was on top of her during intercourse. They then “took a break.” She was “almost sleeping” when he commenced having vaginal intercourse with her “from the back.” They stopped for a while. Mr. Marshall then recommenced vaginal intercourse from the back and ejaculated. K.A. was not sure how many times he ejaculated. She also performed fellatio on him.

[57] Later on during the interview, K.A. stated that she had sexual intercourse with Mr. Marshall three or four times during the night and that she was “pretty sure” that he ejaculated each time. The bedroom door was closed, and they were alone in the room at all times.

[58] Toward the end of the interview, the following exchange took place between Officer Heidgress and K.A.:

Heidgress: … I know that you’re telling me about you and Justice and that you did it and you know it’s not like you really, you didn’t say you didn’t –

K.A.: I didn’t want to but I also – but I also didn’t say like yes I’m going to.

K.A.’s Testimony at Trial with Respect to Sexual Activity with Mr. Marshall

[59] At trial, K.A. testified that she and Mr. Marshall “obviously” had some discussion after they entered his bedroom and before they had consensual sex. She could not recall, however, what they discussed.

[60] During cross-examination by counsel for Mr. Miron, K.A. stated that she had sex with Mr. Marshall on three occasions during the night but that she only consented to the first sexual activity:

Q. You consented to having sex with Justice Marshall?

A. Yeah, for the first time, not for the other three.

Q. The other three …

A. Sorry, the other two.

Q. Okay. So, this is – this is new evidence that we haven’t heard. So, now your evidence is that you did not consent to having sex with Justice Marshall on other occasions?

A. Not other occasions, no.

Q. It was all throughout the night in terms of with Justice, right?

A. Yeah.

Q. And I just want to be clear so that we are all on the same page, is that your evidence on this point is that between you and Justice, you had sex three times, sexual …

A. Yes.

Q. The second two times you did not consent?

A. No.

[61] K.A. agreed that she made no mention during her police interview or at the preliminary inquiry that some of the sexual activity with Mr. Marshall was non-consensual. It was then suggested to her that this was the first time that she had ever told anyone that she did not consent to some of the sexual activity with Mr. Marshall. K.A. disagreed. When asked to whom she had made this disclosure, she refused to answer the question.

[62] When it was suggested to K.A. that all the sexual activity with Mr. Marshall was consensual, she testified that not only did she not consent to intercourse with Mr. Marshall on two occasions but that he also forced her to perform fellatio:

A. … [T]he first time I gave my consent and the other two times I did not. Statutory rape.

Q. What about when you gave him the blowjob?

A. He made me.

[63] K.A. was then questioned with respect to her evidence-in-chief during the preliminary inquiry, when she testified that she consented to oral sex with Mr. Marshall. She agreed that she testified as follows:

Q. And you also talked about when you’re with Justice, oral sex takes place as well.

A. Yes. That was my choice.

The Court: That was what, I’m sorry.

A. That was my choice.

The Court: That was your choice, is that what you said?

A. Yes.

[64] When asked which version of events was true – that is, did she or did she not consent to oral sex – K.A. stated that she performed fellatio on Mr. Marshall on two occasions. When asked to confirm that this was the first time that she had alleged two acts of oral sex with Mr. Marshall, K.A. refused to answer the question: “I’m not going to keep doing this. Either charge them or don’t. I don’t give a fuck.”

[65] In re-examination, when asked to confirm that the first act of oral sex was consensual but the second act to oral sex was not, K.A. testified as follows:

Q. So, when you were being questioned by Mr. Marshall’s lawyer, you indicated that the oral sex the second time wasn’t consensual but it was the first time.

A. No, I was talking about sex in general, not oral sex.

[66] In re-examination, when asked what she meant when she said that she did not consent to sexual intercourse with Mr. Marshall, K.A. stated that she did not say “yes.” She testified: “I didn’t say anything. That’s still not giving consent.” However, she then went on to state that the second time that they had sex she told him to “get off.” When asked if she recalled saying anything else to Mr. Marshall, she stated that she did not remember any conversation with him or “even the sound of his voice if that helps you actually clue in to how bad my memory is.”

K.A. Meets Shammar Miron

[67] K.A. told Officer Heidgress that she first became aware of Mr. Miron’s presence in the apartment when she got up in the morning and went into the living room. It is not entirely clear whether they were first introduced to each other at 5:30 a.m., when K.A. left Mr. Marshall’s bedroom to use the washroom, or when she got up later that morning at around 7:00 a.m. Mr. Miron was sitting on a chair in front of the television. K.A. sat on the couch with T.N. K.A. and Mr. Miron engaged in some small talk. He told her that he was from Oshawa, that he managed a store, and that he got up at 5:30 a.m. every day. K.A. understood that Mr. Miron did not live with Mr. Marshall but stayed at his place on weekends. He had his own bedroom in the unit.

Trip to the LCBO

[68] K.A. told Officer Heidgress that she, T.N. and Mr. Miron left around one or two o’clock in the afternoon and walked to an LCBO, where Mr. Miron bought a 750-millilitre bottle of Kraken rum. They took special care to avoid walking near 51 Division as neither K.A. nor T.N. wanted to be taken back to the group home. About the same time that they left for the liquor store, Mr. Marshall left to go to a medical appointment at the hospital.

[69] K.A. initially stated in cross-examination that all three of them wanted to avoid the police station en route to the liquor store because she and T.N. were “missing children.” It was then suggested to K.A. that it was she and T.N. who chose a route to avoid the police because they did not want to go back to the group home – that Mr. Miron had no reason to avoid the police because they had already told him that they were 17 years old. K.A. replied, “okay” in response to this suggestion. In re-examination, she stated that her response was “‛okay’ with a question mark” as opposed to an indication that she agreed with the suggestion.

[70] At trial, K.A. agreed that they went to the liquor store because they wanted to drink and there was no alcohol in the apartment. All four of them – herself, Mr. Miron, Mr. Marshall, and T.N. – shared the bottle.

The Consumption of Alcohol

[71] The bottle of rum was opened after Mr. Marshall returned from his medical appointment. K.A. stated: “Everybody’s drinking. Well, kind of. Like they’re doing a couple of shots. T.N.’s not really drinking. She’s like pretending … cause I guess she doesn’t want to get drunk.” K.A. described herself as “wasted.” She stated that she was so drunk that she could not walk and needed T.N.’s assistance in getting to the bathroom. Later on, when she went to use the bathroom again, she “fell on her face.” Mr. Miron helped her up and walked her to the bathroom. He did not go into the room but closed the door for her. He also helped her walk back to the living room. She continued to drink. When she began to feel unwell, she walked very slowly to Mr. Miron’s bedroom and lay down.

[72] At trial, K.A. testified that she assumed that she drank most of the rum because she was the only one who got drunk.

[73] K.A. told Officer Heidgress that she used T.N.’s tablet to Face-time on Messenger with her sister, S.W. She told S.W. that she was in a sixth-floor apartment on Cooperage Street, that she was “completely drunk,” and that she “couldn’t even message.” K.A. also texted her aunt and told her that she was safe. K.A. also stated that she had been Facebook messaging on T.N.s tablet with Dillon that day. They exchanged messages between 5:30 a.m. and 8:00 a.m. Dillon continued to call her “all day long” and before she and the others started to drink.

[74] According to K.A., Mr. Miron, who was in the same room while she was Face-timing with S.W., took the tablet from her and shut it off. T.N. then took the tablet and told K.A. that she needed to sleep. They gave her some water but when she tried to drink it, she spilled it on her clothes and dropped the cup on the floor.

Sexual Activity Between Mr. Miron and K.A.

First Incident of Sexual Activity with Mr. Miron: K.A.’s statement to police

[75] K.A. stated that at some point, while she was lying in bed, Mr. Miron entered the room, took off her pants, and attempted to have vaginal intercourse with her. She stated that it hurt. Although she kept telling him “no,” and that she “couldn’t take it,” he continued and got his penis partly inside her vagina. She was not sure if he ejaculated.

[76] K.A. stated that Mr. Miron then attempted to have anal intercourse with her. She stated that she “couldn’t take that either.” She was “almost crying at that point” and was telling him “no.” He only penetrated her anally “a little bit.” He then picked her up, put her on the bed, pulled up his pants, and left the room. She pulled up her pants and slept for less than an hour. When she got up, she was “still wobbly” but “not that wobbly.” She stated, “So I’m like yow, I’m sober. I wasn’t sober.”

[77] K.A. told Officer Heidgress that the second incident of sexual activity took place a couple of hours after she woke up from her nap. There was no attempt at anal intercourse during the second incident: Transcript of interview, at p.119.

[78] Officer Heidgress then questioned K.A. in more detail with respect to the attempted vaginal and anal intercourse during the first incident: Transcript of interview, commencing at p. 120, line 2. K.A. stated that when Mr. Miron was attempting to have vaginal intercourse, she was saying “no,” “it hurts,” and “you need to stop.” She was on her back and Mr. Miron was on top of her.

[79] When asked how the anal intercourse happened, K.A. stated: “[H]e put me like on top of him. And then that’s kind of how. Except that’s not how anal works, so … he gets off of me.”

[80] Mr. Miron then sat on the edge of the bed and she sat on his lap. When asked how she ended up on his lap, she stated: “Well, like I kind of just got up. He’s like, sit on me. So I did.” It was in that position that he was trying to penetrate her anally. It hurt. She tried to get off and swung her legs to the side, but he would not let her go. She continued to try to pull away from him. Eventually, he let her go. After he left, she fell asleep. When she woke up, she got up and left the bedroom. A couple of hours later, she went back into the bedroom and rested her head on Mr. Miron’s shoulder: Transcript of interview, at p.126.

First Incident of Sexual Activity with Mr. Miron: K.A.’s Evidence at Trial

[81] At trial, K.A. agreed that after consuming alcohol, she lay down and took a nap, after which she felt more sober. She then joined the others in the living room. Shortly thereafter, she went with Mr. Miron to his bedroom. She did not recall if she started kissing his neck. She did not recall Mr. Miron, prior to the commencement of any sexual activity, asking her if she was going to remember this, and that she told him “yes.”

[82] In cross-examination, counsel for Mr. Miron suggested to K.A. that Mr. Miron removed her pants but that she helped him by lifting her legs, and that she took off her own shirt. K.A. responded: “No, my shirt never came off until he pushed it up.”

[83] K.A. testified that she never said “no” to Mr. Miron, but that she also “didn’t really say ‘yes’ either.” She added: “That’s also when I’m drunk, right, so that’s also taking advantage of me.” When it was suggested to her that she was sober enough to realize what was happening, K.A. stated: “I was still drunk though.”

[84] It was suggested to K.A. that she had sex with Mr. Miron while she was on the bottom and he was on top of her, and that she then moved so that she was on top of him. K.A. responded: “He asked me to.” She agreed that at one point, she told him to slow down, and that he did slow down.

[85] It was suggested to K.A. that her response to Officer Heidgress that she “kind of just got up. He’s like sit on me, so I did” indicated that she was consenting and going along with the sexual activity. K.A. responded: “And then while he’s in me, I say ‘Stop. It hurts’.” However, later on during cross-examination, K.A. agreed that she never said “no” or told Mr. Miron to stop during the first time that they had sex. It was only during the second time that they had sex that she told him to stop. She testified that she consented to the first incident of sexual activity.

[86] K.A. agreed that after having sex with Mr. Miron, she fell asleep for a while and then returned to the living room, where T.N. and Mr. Marshall were located.

[87] K.A. testified that Mr. Marshall suggested to her after she returned to the living room that she should have sex with Mr. Miron. K.A. denied that she responded to that suggestion by telling him, “We already did.” She agreed, however, that that thought went through her mind at the time. When it was suggested to her that she had that thought because the sexual activity with Mr. Miron had been consensual, K.A. stated:

A. Like I did say in my statement, at first I didn’t say no. And then after I kept saying “get off me, get off me.”

Q. Well, after is when you have sex with him a second time, right?

A. Mm-hmm.

[88] Later on in her evidence, K.A. clearly stated that she consented to the first incident of sexual activity with Mr. Miron:

Like I did say, I gave consent to both of them for the first time. The other two times with Justice and the other time with Shammar, I did not give consent.

Second Incident of Sexual Activity with Mr. Miron: K.A.’s Statement to Police

[89] K.A told Officer Heidgress that when she woke up, she continued to drink and “chill” with everyone while seated on the couch in the living room. T.N., Mr. Marshall, and a 26-year-old male friend of Mr. Marshall’s were playing video games. A couple of hours later, Mr. Miron asked her if she wanted to watch Netflix with him. K.A. told Officer Heidgress:

Shammar is watching Netflix. He asked me to go. I was like okay. So then we start watching it. And then I put my head on his shoulder cause I’m like about to pass out. And that’s when he wanted to have sex again. I said “no” again.

[90] Mr. Miron started kissing her neck. He took off his pants and then started pulling down her pants while she was trying to sleep. She did not say anything to him at first. She stated that she did not leave the room because “I’m like still drunk.”

[91] K.A. stated that during vaginal intercourse, she was on her back and Mr. Miron was on top of her. Mr. Miron then told her, “I bet you’re good at riding.” He then put her on top of him and, with his hands on her hips, moved her up and down. Her pants were off but her shirt was on. She tried to get off but he was holding her. She told him “no,” and to stop, and that it was hurting. After he ejaculated in her vagina, he put her back on the bed.

[92] Immediately thereafter, Mr. Miron wanted her to perform fellatio. K.A. told Officer Heidgress: “So I did. And then he’s like, deep throat it.” She began to gag and told him, “I can’t.” She stated: “And then he’s like pushing my head in. And I couldn’t. So like I back up. And then after that he pulls up his pants and leaves the room.” She could not remember if Mr. Miron ejaculated in her mouth.

[93] The oral sex did not last long. K.A. pulled up her pants and tried, without success, to fall asleep. She later joined Mr. Miron, Mr. Marshall, T.N., and the other male in the living room.

[94] K.A. told Officer Heidgress that Mr. Miron gave her a number of hickeys, one of which was on her left nipple. It was swollen and quite painful. She stated that she later showed them to her mother and the staff at Scarborough General Hospital, where she attended on March 21, 2017. No medical records were adduced at the trial.

[95] K.A. told the police that both incidents of sexual activity with Mr. Miron happened “way later” after their first meeting earlier that morning, but added, “I guess not that much later.”

Second Incident of Sexual Activity with Mr. Miron: K.A.’s Evidence at Trial

[96] K.A. testified that she continued to drink while in the living room and before returning to the bedroom with Mr. Miron to watch Netflix.

[97] In terms of the quantity of alcohol she consumed during that interval, she stated that she was “pretty much the only one drinking” at that point. She testified that the bottle of rum was a quarter or half full when she went into Mr. Miron’s bedroom the first time, and that there was the same amount of alcohol in it when she returned to the living room, from which she concluded that the others had stopped drinking. She agreed that the bottle had been shared by the four of them, but that “it didn’t seem like T.N. was even drinking.”

[98] K.A. denied that she followed Mr. Miron into the bedroom or knocked on the door prior to the second incident of sexual activity. She stated that he had asked her to come and watch “The Simpsons” with him. She sat beside him at the top of his bed. She put her head on his shoulder because she was tired and drunk, and not because she wanted to be intimate with him.

[99] When it was suggested to K.A. that it made no sense that she would go back into a room with Mr. Miron and put her head on his shoulder if he had earlier raped her, K.A. stated: “Like I said, the first time I didn’t say no, but I didn’t say yes either. But the second time I did say no.” She denied that she initiated the sexual activity with Mr. Miron on both occasions.

[100] In re-examination, K.A. was asked to explain the apparent discrepancy between her police interview, where she stated that she had said “no” to Mr. Miron – that she could not take it – during the first incident of sexual activity, and her evidence in cross-examination, where she stated that she consented to sexual activity with him on the first occasion. She testified as follows:

Q. So the timeline in the transcript (of the police interview) appears to be describing the first time that you had sex with Shammar, and then the second time was around with the Netflix. You’re telling us now it was consensual, but I’ve shown you passages in the transcript where you talk about telling Shammar “no, I can’t take it.”

A. And that was the second time, was it not?

Q. I’m asking you, K.A., to explain to us.

A. The first time it was the fact that I’m tight as – it’s not a hotdog down a hallway. It’s like a pencil and I don’t know, something like that. I was, too, tight for him to go in, that’s why I kept saying “no, I can’t, I can’t take it.”

Q. So, what do you mean when you tell us that it was consensual the first time?

A. Because the first time I did try.

Q. And why are you saying that it wasn’t consensual the second time?

A. Because I couldn’t take it. I couldn’t do nothing. And I told him at the end of the first time, I can’t do this.

[101] When asked why she was saying that the sex was not consensual the second time, K.A. stated that Mr. Miron “kept trying,” even though his penis was too big for her vagina.

Arrival of the Police at Mr. Marshall’s Apartment

[102] Police Constables Mason and James knocked on the door of Mr. Marshall’s apartment at 8:15 p.m. on March 20, 2017. They were responding to a call by K.A.’s mother in which she voiced concerns about K.A. being sexually assaulted there.

[103] K.A. told Officer Heidgress that Mr. Miron looked through the peephole, saw the officers in the hallway, and told K.A. to hide. K.A. hid under the sink in one of the bathrooms. After Mr. Miron opened the door, she heard the officers asking T.N. to tell them her name. When T.N. left with the police, she took K.A.’s purse, which contained K.A.’s chain, watch and make-up.

[104] At trial, K.A. clarified that Mr. Miron did not tell her to hide but told her to go to the back room. She chose to hide because she did not want to be picked up on a “missing person’s warrant thing” and be returned to the group home. No one forced her to hide.

[105] After the police left, K.A. came out from her hiding place and asked Mr. Marshall and Mr. Miron, “What the hell just happened?” At trial, she agreed that she knew exactly what had happened but failed to tell the accused the truth: “Obviously I’m not going to tell them, ‘Oh, I’m a missing person.’”

[106] Mr. Marshall was very upset with the police, yelled at them, and told them that they needed a warrant. According to K.A., he continued to yell after the police were gone. K.A. told him to stop yelling because he was “gonna draw drama.”

[107] K.A. told Officer Heidgress that T.N. sent her a text message later that night. She told K.A. that the police had returned her to the group home but that she had taken off again and was currently at a Tim Hortons. K.A. claimed that she used Mr. Marshall’s cell phone to communicate with T.N. after the police removed T.N from the apartment.

[108] According to K.A., T.N. asked her why she disclosed Mr. Marshall’s address to her sister, S.W. K.A. told Officer Heidgress that she did not recall having given his address to S.W., to her mother, or to her aunt. T.N. told K.A. that she should get out of the apartment because the police were going to return either later that night or the next morning. K.A. described herself as “freaking out” at this news. When she told Mr. Miron that the police were coming back, Mr. Miron told Mr. Marshall, who then ordered her to “get the fuck out of my house.”

[109] K.A. stated that she grabbed her jacket, put on her shoes, and asked to make a quick call to her mother to come and get her. Mr. Marshall told her to make the call from Tim Hortons. She asked him how that would be possible without a phone. She stated that she was kicked out of the apartment without making that call.

[110] At trial, K.A. estimated that she was kicked out about an hour or two after the police left, or around 11:00 p.m. She was angry that she had been kicked out because she was unfamiliar with that area of Toronto and had no place to go. She denied that she made up a false story because she thought that was the best way to get attention.

[111] In cross-examination, K.A. testified that S.W., as well as T.N., told her that the police were coming back to the apartment. She testified that she used Mr. Marshall’s phone to speak to S.W. and communicate with her on Facebook after the police left with T.N. She agreed that at the preliminary inquiry, she testified that she could not recall and was uncertain as to whether she used Mr. Marshall’s phone.

K.A. Leaves Mr. Marshall’s Apartment and Walks to Tim Hortons at Victoria and King Street

[112] After leaving the apartment, K.A. passed by a police station. She stated that she “wanted to be picked up but then again I didn’t” because she did not want to go back to the group home. She eventually found a Tim Hortons, where she asked one of the patrons, whom she described as a “normal white guy,” if she could use his phone. He obliged but told her to be quick. It was about 11:00 p.m. She called her mother, D.W., and told her that she was at the intersection of Victoria and King Street. Her mother asked her what happened. K.A. told her that “they kicked me out and I don’t know what to do.” Her mother and stepfather eventually arrived and took her to their home in Richmond Hill. Her mother called the police and told them that K.A. would be staying with her.

[113] K.A. stated that while she was at Tim Hortons, some police officers walked in, looked at her, and then left. At trial, she reiterated that she did not engage with the officers because she did not want to be returned to the group home. She anticipated that upon her return, her privileges would be severely restricted because she had run away. She also stated that she had been in care for 11 years by that time, and the last thing she wanted was to end up back at that group home.

[114] At trial, K.A. testified that while she was at Tim Hortons, she used a fellow patron’s phone to call not only her mother but also her former foster mother, M.M., and spoke to her for about 15 minutes. K.A. disagreed with the suggestion that it was unlikely that a stranger would have let her use his phone for over a quarter of an hour. However, she then testified that she may actually have borrowed a phone from more than one customer at Tim Hortons.

[115] K.A. testified that she called M.M. a second time about 30 minutes after her first call to her. She testified that she used her mother’s phone to make this call and to tell M.M. that her mother had arrived.

[116] Since Tim Hortons closed at midnight, K.A. ended up sitting on a wall outside the restaurant for about half an hour while waiting for her mother.

[117] K.A. denied the suggestion that she had her own phone that night and that she made these calls to her mother and M.M. on that phone. She also denied having a device that contained all the correspondence between herself and Mr. Marshall, and that she deliberately withheld that correspondence from the police.

[118] D.W. testified that when she and S.D. arrived at Tim Hortons, K.A. was sitting in the flower bed in front of the restaurant and talking to M.M. on her own cell phone or tablet. D.W. took the phone from her and spoke to M.M. herself. There was no one else around as the restaurant was closed. D.W. testified that she had bought a cell phone and tablet for K.A. as Christmas presents in 2016.

Discussion About a Hotel or “Telly” in Brampton

[119] K.A. told Officer Heidgress that she never attempted to leave while she was at Mr. Marshall’s apartment. Officer Heidgress then asked her:

Q. If you went to leave do you think you would have been stopped or you would have been allowed to go?

K.A.: I would have probably been stopped because I know that the Monday, Justice was like, “Hey, you’re going to a telly [hotel] tonight.” Blah, blah, blah.

[120] When asked what she meant by “Blah, blah, blah,” K.A. replied that the hotel was in Brampton. She then spoke of her cousin and her cousin’s 15-year-old daughter, who were prostitutes in Brampton. She did not know whether they knew Mr. Marshall. When asked what “going to a hotel” meant to her, K.A. stated, “Like prostituting.” She thought that she and T.N. would probably be taken by Uber to Brampton. Any plans regarding Brampton, however, were abandoned after the police showed up at the door.

[121] In re-examination, when asked what she meant when she told Officer Heidgress that she thought she would be stopped if she tried to leave the apartment, K.A. stated: “I don’t know. I don’t remember.”

[122] K.A. stated that she had earlier heard Mr. Marshall talking to someone on the telephone about a “telly.” She could not recall what he had said. However, it was following that conversation that he told her that she was going to a hotel in Brampton. He told her: “You get to get fucked. Like drink and high and whatever else you want to do.” K.A. told Officer Heidgress that her first response was “I’m like okay. Like yeah.” She stated that she was already drunk by that time. However, at another point during her interview, K.A. stated that the “telly” conversation occurred sometime prior to Mr. Marshall leaving for his medical appointment, which was around noon. His “telly” remarks were addressed just to her and not to T.N. She understood from his remarks that she was “gonna prostitute and make them money and give it to them.”

[123] K.A. stated that although she and Mr. Marshall did not engage in any sexual activity other than during the early hours of the morning on March 20, 2017, he told her that evening, “You’re sucking my dick tonight.” K.A.’s response was, “Oh, am I? Like who knew?” Mr. Marshall replied, “Yeah you are.” K.A. told him, “You didn’t ask.” Mr. Marshall responded, “I know, but you are.” This conversation allegedly took place after the sexual activity with Mr. Miron and before the police arrived.

[124] K.A. told Officer Heidgress that both Mr. Marshall and Mr. Miron were easy to find on Facebook.

Messages Sent by K.A. While at Mr. Marshall’s Apartment

[125] Officer Heidgress asked K.A. if she recalled sending messages asking for help while she was at the apartment. K.A. stated that she sent messages to her Aunt Rebecca and “whatever” asking for help because she “needed to get out of there.” She only came to this realization, however, after the police had attended at the apartment.

[126] Earlier during her interview, K.A. stated that she responded to texts from her aunt, who was telling her “to get out of there blah, blah, blah.” K.A., in response, texted her, “I’m like I’m safe. I’m safe.” She told Officer Heidgress that this was before she could no longer text because she was drunk.

[127] At trial, K.A. did not deny texting her Aunt Rebecca that she was safe but stated that she had no current recollection of having done so. She agreed that she never told her aunt that she was being held in the apartment against her will or that she needed to escape.

[128] K.A. could not recall when she chatted on Facebook Messenger with S.W. She testified that she never told S.W. that she had to leave the apartment. In fact, she did not want S.W. to call the police as she did not want to go back to the group home. K.A. testified that she was initially very upset or “pissed off” that her sister or family had contacted the authorities, but stated that by the next day, she did not care.

[129] During the police interview, K.A. stated that she believed S.W. saw Mr. Miron, who is Black, while she and S.W. were on a video chat. K.A. commented to Officer Heidgress: “Like, they aren’t racist but …” Heidgress responded, “Fair enough.” K.A. answered, “Yeah.”

[130] In cross-examination, K.A. was asked what she meant by her comment, “Like, they aren’t racist but …” She stated that she understood that during their video chat, S.W. had seen “a Black guy on top of me pulling up my shirt.” K.A. was in Mr. Miron’s bedroom at the time. (S.W. testified that she saw no such thing. She only caught a glimpse of a “dark-skinned” male who was standing at the foot of the bed.) When K.A. was asked if Mr. Miron came over to her, lay on top of her, and pulled up her shirt, K.A. testified:

A. It’s not that he laid on top of me, that’s not what I said.

Q. Oh, I thought you said he was on top of you.

A. Beside me, on top of me, I don’t remember.

Q. So he was either beside you or on top of you, you don’t remember, and he pulled up your shirt.

A. Yes.

Q. And [S.W.] saw this?

A. Yes. And then Shammar hung up the phone.

[131] When asked again what she meant by the words, “they aren’t racist,” she stated that she did not know, and that if counsel asked her that question again, she was walking out of the closed-circuit television room from where she was testifying.

[132] K.A. told Officer Heidgress that at some point she used T.N.’s tablet to send S.W. a screenshot of her “current location,” that is, Mr. Marshall’s apartment building on Google maps. During her testimony, she added that she told S.W. that the building was across from George Brown College. She testified that she did not know Toronto. When she was granted community time, she just walked around and went to places like Starbucks.

K.A.’s Evidence at Trial

[133] I have already referred to some aspects of K.A.’s testimony at trial in reviewing her police interview. The following is a summary of other evidence that she gave during the trial.

[134] As stated earlier, K.A. testified that she and T.N. agreed when they were at the Tim Hortons in Oshawa that they would lie to Mr. Marshall about their age since, as K.A. put it, “No one wants to be around little kids.” She applied make-up in the Tim Hortons’ washroom before taking the Uber. When she and T.N. arrived at Mr. Marshall’s apartment, they both presented themselves as older than their actual respective ages.

[135] K.A. testified that she is five feet tall and that she was the same height back in March 2017. Both her mother and sister are also quite short. K.A. weighed between 115 and 120 pounds at the time. When she arrived at Mr. Marshall’s place, she was wearing a Toronto Raptor’s t-shirt and Roots pants. She later changed into black leggings.

[136] K.A. was unaware of T.N.’s exact age but thought that she was fourteen. T.N. was about five feet five inches to five feet seven inches tall. K.A. testified that T.N. always tried to appear older than her actual age. T.N. wore makeup and was able to speak and conduct herself in a more mature manner when the need arose. When it was suggested to K.A. that she was able to do the same thing, K.A. stated, “I still look like I’m 13” – a statement with which I would disagree, having observed K.A. over several days during her testimony. She is now 18 years old and currently presents as at least that age, if not older.

[137] K.A. testified that she had lied in the past about her age because she preferred the company of older people. When she was 15 years old, she befriended a male who was 19 years old. When she was in Grade 9, she dated a 22-year old. K.A. testified:

Q. So I’m going to suggest that you were able to act older and be more mature in order to have friendships with people that were older than yourself, right?

A. I still hang out with people way older than me. I don’t like kids my age, ‘cause they’re all just drama.

[138] K.A. agreed that her personality and demeanour when she was 15 was more mature than that of the average 15-year-old “because I’ve been through so much shit that no one – a lot of people have not been through.” She testified that as a 15-year-old, she found it easier to relate to people who were 19, 20 or 21 than to people her own age.

[139] K.A. testified that she had lied numerous times to the police about her name and age and had become “pretty practiced” or “pretty good” at holding herself out to be older that her actual age. The police always accepted her word that she was 16, 17, or 18 years old.

[140] In re-examination, K.A. testified that when she is sober, she is able to present herself as “older and more knowledgeable,” but not when she is drunk.

[141] K.A. testified that she did not hear anyone at Mr. Marshall’s apartment ask T.N. how old she was or if she was in school. She did not overhear T.N. tell anyone her age.

[142] K.A. testified that after she arrived at the apartment, “someone” asked her how old she was, but she could not recall who asked this question, when it was asked, or who was present when it was asked. She could not recall if it was asked when she first arrived or later that day.

[143] In cross-examination, K.A. agreed that prior to the preliminary inquiry in August 2018, she discussed the events of March 20, 2017 with her mother, and told her that she had lied about her age on that day:

Q. So, you also told your mom that you lied about your age and you said you were 17 and not 15, right?

A. Yes.

[144] K.A. testified that she did not recall speaking to anyone at Mr. Marshall’s apartment about what grade she was in or whether she was still in school. She was going to school “on and off” at the time. She would have been in Grade 9. She did not remember any discussion with anyone about her having come from a group home. She testified that she had “no idea” if she spoke to either Mr. Marshall or Mr. Miron about her home life.

[145] K.A. did not remember what, if any, discussion she had with Mr. Marshall before he asked her if she wanted to go to his room. She did not recall any discussion she may have had with him while they were in the room or later on, after she left the room.

[146] K.A. did not recall discussing her age at any point with Mr. Miron. When asked if it was possible that she told both Mr. Marshall and Mr. Miron that she was 17 years old, she stated, “I’m not sure.”

Communication with Mr. Marshall While at Tim Hortons in Oshawa

[147] K.A. testified that she had never met or spoken to Mr. Marshall prior to attending at his apartment. A couple of girls at the group home had mentioned his name. According to K.A., one girl told her that he was a pimp. K.A. agreed that at the preliminary inquiry, she testified that after hearing that information, she did not “bother messaging him” as she was predisposed to have nothing to do with “people like that.” Nevertheless, she took the Uber to his place in the middle of the night and agreed to go to his bedroom within minutes of her arrival.

[148] K.A. testified that while she and T.N. were at Tim Hortons, T.N. used K.A.’s Facebook account to message Mr. Marshall. According to K.A., this was the only time that K.A.’s Facebook account was used to contact Mr. Marshall.

[149] K.A. testified that she did not read the text messages between T.N. and Mr. Marshall. All T.N. told her was that the Uber would be there in 15 minutes and that it was a black Honda. K.A. testified: “So, then I took my phone back or I guess, the tablet, ‘cause I logged in on the tablet, and I was just saying goodbye to whoever I was talking to, and I gave her back the tablet.”

[150] When questioned further about her reference to “my phone,” K.A. explained that she misspoke and that the tablet belonged to T.N. K.A. maintained that she did not have a phone or a tablet with her that night.

[151] In cross-examination, K.A. agreed that she saw Mr. Marshall’s Facebook profile and his photograph while she was at Tim Hortons. T.N. also showed her the text message from Mr. Marshall in which he stated that the Uber would be arriving shortly. When asked if she thought Mr. Marshall was attractive, K.A. stated, “No, not really.” She denied commenting to T.N. that she thought that he was attractive and that she would like to get to know him. She was aware from his profile that he was older than she was – perhaps 18 or 19 years old. However, she denied knowing that he was 21. She confirmed in her testimony that she wanted to make sure that she appeared older than her actual age when she met him.

[152] K.A. testified that she deleted all the correspondence that she had with Dillon, her mother and her aunt while she and T.N. were at Tim Hortons. She made these deletions every time she handed T.N.’s tablet back to her “because it’s nobody’s business and [“T.N.”] was on my account.” She testified that T.N. was using both her own and K.A.’s Facebook account at the time. K.A. denied that her testimony at trial was the first time that she had ever stated that T.N. used K.A.’s Facebook account to correspond with Mr. Marshall. She made no mention of this in her statement to the police or at the preliminary inquiry.

[153] K.A. denied exchanging text messages with Mr. Marshall or speaking to him on the telephone when she was at Tim Hortons. She denied telling him that she thought he was sexy and that she was interested in having sex with him. She denied telling him that she was 17, that she lived with her sister, and that she was not in school. Although she agreed that she saw his profile on Facebook, she denied searching his profile for his age. She only looked at his photographs and who his friends were. She denied that Mr. Marshall told her that it was very late and suggested that she take the train to Toronto the following day if she was interested in him.

[154] K.A. testified that she has a new Facebook account because she forgot the password to her old account and thus could not log in. When asked how she could have forgotten her password between March 19, 2017 and March 28, 2017, when she was interviewed by the police, K.A. stated that she has six different Facebook accounts. She explained that she has drug dealers on some accounts, which she keeps separate from her family account. She was using her family account when messaging people from Tim Hortons on March 19, 2017.

[155] K.A. agreed that she used her family account frequently and therefore knew the password “quite well.” When asked how, in these circumstances, she could have forgotten the password, she stated that she was “really fucked up” about “this whole situation” and was not on Facebook “for a whole week,” which was a “lengthy period of time” for someone who uses social media “24/7.” In actual fact, K.A. was using her Facebook account to send messages to S.W. on March 21, which was the day after these events. She clearly had not forgotten her password.

[156] When it was suggested to K.A. that she deleted the correspondence that she had with various parties leading up to her meeting with Mr. Marshall because she wanted to hide relevant evidence, K.A. became extremely irate and threatened to leave the closed-circuit television room. She denied that she and Mr. Marshall were messaging one another on her Facebook account while she was at Tim Hortons in Oshawa. She stated that he messaged her the day after he kicked her out of his apartment, asking her, “You all good?” She testified that she took a screenshot of this message and forwarded it to her mother. She did not, however, send it to the police, Crown counsel, or Victim Witness Services.

K.A.’s Discussions with her Mother and S.W. About What Took Place in Mr. Marshall’s Apartment

[157] K.A. agreed that she discussed with her mother what happened at Mr. Marshall’s apartment. When it was suggested to her that she told her mother things that she never mentioned to the police, K.A. anticipated the line of questioning that defence counsel was about to commence and responded:

What do you mean by that? Are you talking about how my mom said that they called me back inside and I had to do rounds with four other guys? ‘Cause I know that’s exactly what you’re talking about.

[158] The above response by K.A. was a reference to an application brought by defence counsel pursuant to s. 276 of the Criminal Code. The application, which was granted on September 16, 2019, permitted defence counsel to cross-examine K.A. on statements that she made to her mother after her mother picked her up at Tim Hortons. During her police interview on November 14, 2017, D.W. stated that K.A. had told her that after she was kicked out of Mr. Marshall’s apartment, he and Mr. Miron called her back in and “fucked her in the ass.” She also told her mother that while she was in the apartment, they forced her to perform fellatio on four unknown males. K.A. made no reference in her statement to the police or at the preliminary inquiry to four other males being present or having to perform oral sex on them.

[159] Pursuant to provisions in the Criminal Code, K.A. was served with the s. 276 application and was provided with her own lawyer, Kelly Bryan. Having been alerted to the contents of the application, K.A. predicted where defence counsel was headed in terms of her cross-examination and volunteered that she had defied instructions not to discuss the contents of the application with her mother:

Q. So, [K.A.], I’m going to suggest that you told your mother that there were four additional guys that were there aside from Shammar Miron and Justice Marshall.

A. No, I did not say that, my mom took something in a different way.

Q. Now, when you said, said she took something in a different way, is that because you only mentioned it to her once and then she got confused or how do you know that?

A. Because I’ve talked to her recently about this because this is all bullshit, about [excerpt of transcript redacted] and apparently I gave rounds.

Q. So when you said you talked to her recently about this, is that, you mean recently from when you met with Kelly Bryan and …

A. Yeah.

Q. …were advised of the application?

A. Yes.

Q. So you and your mom talked about that particular evidence pertaining to the application, right?

A. Yes.

Q. And you would agree that you had been warned previously by counsel, Crown or the police, not to talk about your evidence with other parties.

A. As soon as I heard that I called my mother. I didn’t give a fuck what anybody said.

[160] K.A. testified that she was really mad at her mother, and told her that “she really fucked up, that she lied and stuff like that. … I was really mad at my mom.”

[161] When asked if there were, in fact, four other males present in the apartment, K.A. stated “no.” The only males she saw were Mr. Marshall, Mr. Miron, and the other male whose name she did not recall. She did not have any sexual interaction with that male. She was not called back into the apartment after she was kicked out and was not forced to perform sexual services on four unknown males.

[162] In re-examination, K.A. testified that she did not remember telling her mother about the “four additional males,” and described herself as “unstable” when her mother first picked her up.

[163] K.A. testified that she spoke to S.W. on video chat multiple times while she was at Mr. Marshall’s apartment. She has also spoken to S.W. about this case many times since then, particularly prior to her police interview. They did not discuss the case much after the interview. She could not recall if they spoke about it after the preliminary inquiry because she had done “too many drugs” to be able to remember.

[164] K.A. initially stated that she stopped talking about the case with S.W. after S.W. was served with a subpoena about a year ago. She testified that she was warned that such discussions could jeopardize the case. However, she also stated, “I don’t give a fuck about not talking to witnesses. They’re my family, right?” Despite this proclamation, K.A. denied that she continued talking to family members about the case, with the one exception being her mother. She then stated that the discussions with her mother were limited to the subject matter of the s. 276 application. In re-examination, she testified that she also probably spoke to her mother about the case before or just after the preliminary inquiry.

K.A.’s Drug Use

[165] K.A. testified that she did not see any drugs or anyone using drugs at Mr. Marshall’s apartment. She was not aware of being slipped any drugs while she was there. She stated that “they offered her marijuana” but she declined. She was “pretty sure” that it was Mr. Miron who made the offer. No one pressured her to smoke weed. The offer was made during the afternoon of March 20, when the “other guy” – that is, the 26-year-old male – was present. The “guys” were “riding around” on a hoverboard and playing videos.

[166] K.A. told Officer Heidgress that she used “weed” and had smoked weed that contained crystal meth in the past. At trial, she testified that she did “Molly” here and there, but that was “nothing compared to the stuff I do now.” In addition to weed, she now uses crack cocaine and has taken fentanyl.

[167] K.A. testified that back in March 2017, she preferred to drink alcohol as opposed to smoking weed. She described herself at that time as an experienced drinker for a 15-year-old.

[168] K.A. denied being under the influence of drugs while testifying, although she acknowledged that she smoked a joint before coming to court. She denied that she was under the influence of drugs on September 9, 2019, when the court adjourned early because she was falling asleep while her police interview was being played. During her testimony on September 18, 2019, she acknowledged that she has a bad memory as a result of her use of drugs.

K.A.’s Lies to T.N. re Timing of Sexual Activities with Mr. Miron

[169] K.A. testified that all the sexual activities with Mr. Marshall and Mr. Miron took place before the police arrived and removed T.N. from the apartment: “Everything happened before [the arrival of the police.]” This is in accord with what she told Officer Heidgress during her police interview.

[170] However, in K.A.’s Facebook correspondence with T.N. just days before the preliminary inquiry, she told T.N. that all the sexual activity with Mr. Miron took place after the police attended at the apartment. K.A. testified that she lied to T.N. because she did not want T.N. “knowing my business until court happened.” She did not feel that T.N. “needed all the information.” When asked why, if that were the case, she chose to disclose to T.N. other details of the alleged assault by Mr. Miron, K.A. replied that she only told her “a little bit of what happened.”

[171] When asked again why she changed the timeline of the alleged assaults by Mr. Miron, K.A. responded, “I’m not answering that question.” She denied the suggestion that she changed the timeline because her allegations would be more believable if they happened after the police had appeared on scene and apprehended T.N.

[172] According to K.A., T.N. messaged and called her multiple times during the week leading up to the commencement of the trial. K.A. could not recall much of their conversation, other than the fact that T.N. wanted to know “why she was doing this.” T.N. stopped communicating with her after K.A. told her that she, K.A., could be charged for having contact with her.

Where K.A. Lived After Her Mother Picked Her Up on March 21, 2017 and Before her Police Interview on March 28, 2017

[173] K.A. testified that after being picked up and taken home by her mother on March 21, and prior to her police interview on March 28, she went back and forth between different homes in order to evade the police and the CAS. She spent three days at her Aunt Rebecca’s home “so that [she] was hidden.” She then returned to her mother’s home. After that, she stayed with another aunt. When she returned to her mother’s house, neither her mother nor stepfather called the CAS. However, it was a CAS worker who took her to the police station to be interviewed on March 28, 2017.

[174] While testifying with respect to her whereabouts during this period, K.A. became very angry, stating that the subject of her family helping her to stay hidden was not relevant. She then walked out of the CCTV room. As she exited, she could be heard telling someone, “They keep asking about you.”

[175] When K.A. later resumed her testimony, she stated that the police and the CAS knew that she was staying with her mother and her aunt, and that they consented to her staying there. During that period, she spoke to her mother and aunt about what happened in Mr. Marshall’s apartment, and provided her mother with details of what took place there. She denied embellishing what had happened, such as telling her mother that she was forced to provide sexual services to four unknown males, in order to get her mother’s attention.

Attendance at the Hospital on March 21 or 22, 2017

[176] K.A. testified that a police officer picked her up from her mother’s home on the evening of March 21 or 22, 2017, and took her to the hospital.

Running Away from Group Homes, Amber Alerts, and Access to WiFi

[177] K.A. was aware that an Amber Alert would probably be issued for her when she ran away from the group home on March 19, 2017. She explained that Amber Alerts were regularly issued for her if the police could not find her within a couple of hours. She estimated that there had been six or seven Amber Alerts issued for her in the past. She regularly ran away from all the group homes and, with one exception, all the foster homes that she had been placed in – that is, almost every weekend or every couple of days.

[178] K.A. testified that there was no access to WiFi at the group home. Thus, she had to sneak out to Tim Hortons or some other venue that had WiFi in order to communicate with family or friends. She added, however, that she did not take any device with her on March 19, 2017.

[179] K.A. agreed that she had her own device with her on March 7, 2017, when she replied to a Facebook message from S.W. She did not recall where she went in order to access WiFi on that occasion.

Testimony of D.W.

[180] K.A.’s mother, D.W., has four other children. K.A. is the middle child, with two older and two younger siblings. D.W. testified that she and K.A. are “extremely close.” She described their relationship as “best friends” and stated that she is K.A.’s “biggest fan.”

[181] D.W. testified that K.A. was in the care of the CAS from the age of seven. D.W. saw her twice a week at the group home in Oshawa. K.A. was also allowed to have “home visits” at her mother’s residence. At the time of the events before the court, K.A. was scheduled to commence living with her mother in Richmond Hill within a matter of weeks.

[182] D.W. testified that on the evening of March 19, 2017, K.A. called and told her that she had run away from the group home with a girl named [T.N.] and that she was in Toronto. She sounded calm. She stated that she was “okay” and in a “safe spot” but refused to disclose the location. She also stated that she was scared of the police – she thought that she was in trouble because she had run away. She did not want to go to D.W.’s house as it would ruin or disrupt the CAS-approved plan for her to move in with her mother.

[183] D.W. assumed that K.A. used her own cell phone to call her. D.W. had bought her a cell phone and a tablet as Christmas presents in 2016. There was no chip in the phone but K.A. used WiFi to make calls and communicate via Facebook Messenger and TextMeNow.

[184] On March 20, 2017, one of D.W.’s other daughters, S.W., called and told her that while she was video-chatting with K.A., she saw K.A. lying on a bed. Her shirt was pulled up and “there was a coloured man pretty much on top of her or leaning over her.” (S.W. testified that she never said these things to her mother. She only caught a quick glimpse of Mr. Miron, who was standing at the foot of the bed.) D.W. was naturally concerned. She testified that K.A. usually did not go to other people’s homes when she ran away. Rather, she would go to a park or school or hang out with friends. It was also unusual for K.A. to refuse to tell her where she was. D.W. asked S.W. to stay on the phone with K.A. and find out her whereabouts.

[185] D.W. learned later that night that K.A. had sent S.W. a photograph containing a street name. D.W. gave that information to the police, who later called to say that they had attended at the apartment. She later received a call from K.A., who yelled at her for having called the police. D.W. lied to her and denied having called the police. K.A. then blamed S.W. for having contacted the authorities. Following this conversation, D.W. called the police and told them that K.A. was still at the apartment. She was told that the officers would return there after they had dealt with T.N.

[186] D.W. received another call from K.A. around 11:30 p.m. or 11:45 p.m. on March 20. K.A. said that she had been kicked out of the apartment. D.W. told her that she would pick her up. They continued speaking on the phone until K.A. reached the Tim Hortons on King Street. By that time, D.W. and her partner, S.D., had gotten on the subway.

[187] D.W. and S.D. arrived at Tim Hortons shortly before 1:00 a.m. on March 21. K.A. was sitting in the flower bed in front of the restaurant and talking on her cell phone or tablet to M.M. D.W. took the phone and spoke to M.M. herself. There was no one else around as Tim Hortons had closed at midnight.

[188] D.W. testified that K.A.’s breath smelled of alcohol and her pupils were dilated. K.A. denied taking any drugs. She was crying and hugged her mother. D.W. testified that K.A. was “not herself.” Her clothes were “pretty dirty,” she had hickies on her neck and chest, and she was limping.

[189] While they were at Tim Hortons, K.A. started telling D.W. what had happened to her. She continued to describe those events while they were on the subway. D.W. testified that K.A. told her that Mr. Marshall and Mr. Miron had kicked her out of the apartment after the police left but then called her back in from the hallway. The two of them then “fucked her in her ass.” She stated that she was hurt. She also stated that at some point when she was in the apartment, “four other guys” came in and that Mr. Marshall and Mr. Miron “made her give rounds” or oral sex to all of those males.

[190] As soon as she arrived home, D.W. notified the York Regional Police that K.A. was with her. An officer later arrived and took them to the Scarborough General Hospital, where K.A. underwent various tests. They were at the hospital from about 2:30 a.m. to 6:30 a.m.

[191] K.A. stayed at her mother’s home for about a week and was then placed in a group home in Markham. She was only there for four days before she was returned to the group home in Oshawa. K.A. did not stay there for long. She ran away again, this time to New Brunswick with her boyfriend, Dillon. They left at the end of March 2017. K.A. remained in New Brunswick for about one-and-a-half years, although she returned to Ontario on a couple of occasions.

[192] D.W.’s description of K.A.’s demeanour and level of maturity in March 2017 was completely at odds with K.A.’s own description of herself at the time. During her testimony, D.W. kept referring to K.A. as being 14 years old at the time of these events, when she was actually only 36 days shy of her sixteenth birthday.

[193] According to D.W., K.A. preferred to hang out with younger children – 11 and 12-year-olds – “because of her mentality.” She asserted that in March 2017, K.A. she was “still playing with toys.” She testified that K.A. “never hung out with older children ever.”

[194] D.W. testified that K.A. “looked like a child” at the time, although she agreed that K.A. wore makeup, including lipstick, eyeliner and mascara.

[195] D.W. agreed that K.A. is smart, but then asserted that she was “below normal intelligence” and described her as a follower. She testified that when K.A. was in grade 6, she was functioning at a grade 2 level. When she was in grade 9, she was functioning at a grade 6 level.

[196] D.W. rejected the suggestion that K.A. preferred the company of young adults or people in their early twenties. She had no knowledge of K.A. having dated a 22-year-old when she was in grade nine. Contrary to K.A.’s testimony, she insisted that K.A.’s preference for hanging out with older people only developed after this incident. She had never met K.A.’s boyfriend, Dillon, and was unaware that he was four years older than K.A.

Testimony of S.W.

[197] S.W., age 22, described her relationship with her younger sister, K.A., as “pretty close,” although they did not spend a lot of time together. As S.W. put it, she was never around K.A. when they were growing up. S.W. would see her once a month, if that, when K.A. was in foster care or a group home. Visits were at the CAS office and later on at their mother’s house. K.A. had never visited S.W. at S.W.’s home, where she lived with her boyfriend.

[198] S.W. was only aware of K.A. having run away from a group home on one previous occasion. She first learned that K.A. had run away from the Oshawa group home after reading an Amber alert posted on Facebook. Their mother, D.W., told her that K.A. was fine but S.W. wanted to confirm that for herself. She tried to reach K.A. through Facebook Messenger and Facebook calls, asking her where she was and if she was okay. Sometime between 4:00 and 6:00 p.m. on March 20, 2017, K.A. replied with a “Hi” or “Hey.” She and S.W. then started a video chat. K.A. was using either her phone or her tablet – she owned both devices – and used WiFi to connect to Facebook.

[199] S.W initially testified that they had one video chat that lasted 20 to 25 minutes. However, she agreed in cross-examination that the documentation regarding their calls and text messages indicates that the video chat lasted two minutes and 40 seconds. She explained that the chat may have seemed longer because of all the information that she was attempting to elicit from K.A. She also testified that there may have been a second video chat where K.A. “never showed herself.” She agreed that the video chats probably lasted a total of five to ten minutes.

[200] When K.A. first answered S.W.’s call, she was sitting on a bed in a bedroom. The camera showed only the left side of K.A.’s face. Two minutes into the conversation, K.A. lay down on the bed, at which point the right side of her face was obscured by a pillow. When K.A. lay down, S.W. noted that her shirt, which she believed was a tank top, was rolled up a little bit. There was a window behind K.A. S.W. could also see the headboard of the bed. It was quiet in the room. K.A. was the only one talking.

[201] As K.A. lay down, her phone fell out of her hand or went down on the bed, at which point S.W. caught a “quick glimpse” of a tall male standing near the foot of the bed. She described him as dark-skinned and about six feet tall.

[202] S.W. described K.A. as “kind of out of it.” She seemed to understand “a little bit” and was responsive to the questions asked of her. However, she was nodding off a little bit. She was lying down as she spoke to S.W. and sounded tired. Her eyes kept closing and opening. She spoke quietly and was not as talkative as she usually is. S.W. also described her as “not speaking very clearly” – that she was “more slurring her words.” It appeared to S.W. that K.A. “wasn’t sober.” She agreed that any conclusions that she drew about K.A.’s demeanour were based solely on the video. She was not in a position to know whether or not K.A.’s breath smelled of alcohol.

[203] S.W. wanted to find out K.A.’s location and succeeded in this endeavour as a result of information provided to her by K.A. S.W. first asked K.A. if she could come over to the apartment. K.A. told her “no.” S.W. then asked for the number of the unit she was in. K.A. told her that it was either 613 or 614 and that it was on the sixth floor. This information proved to be accurate – Mr. Marshall’s apartment was Unit 613. S.W. asked K.A. to stand up and look out the window. K.A. complied with that request and gave her the name of the building across the street, which was the Thornton and Lucie Blackburn Conference Centre.

[204] Sometime later that day and after their video chat, S.W. messaged K.A. on Facebook and asked her to confirm the apartment number and the spelling of the conference centre. After K.A. confirmed that information, S.W. was able to find the area where Mr. Marshall’s apartment was located using Google.

[205] S.W. testified that during their video chat, K.A. looked up or over her phone on three or four occasions. S.W. assumed that she was looking at the male whom she had seen briefly at the beginning of their conversation and who was standing near the foot of the bed. S.W. acknowledged, however, that she had no way of knowing if or when he left the room or what he was doing. She certainly did not see him touch K.A., lift up her shirt, or lie on top of her.

[206] The video chat ended when K.A. told her that she was wanted in the living room and that she had to go. S.W. did not hear any voices in the background, other than the sound of a girl laughing. S.W. believed that K.A. was using her cell phone as opposed to her tablet during the video chat.

[207] While speaking to K.A. on the video call, S.W. was relaying any information that she received from K.A. to their mother, who then notified the police.

[208] After the police attended at the apartment, K.A. messaged S.W. and accused her of “calling the cops.” S.W. denied calling them. S.W. testified that K.A. was clearly upset that the police had been notified. K.A. told her that she was still in the apartment. S.W. relayed this information to her mother, who again contacted the police.

[209] S.W. acknowledged that during her police interview on November 24, 2017, she made no mention of K.A.’s shirt being rolled up a little bit. She agreed that this would be an important piece of information to relate to the police given K.A.’s allegation that she had been sexually assaulted. S.W. testified that she failed to mention this detail to the police because she was in a hurry to get to work. She denied the suggestion that she never saw K.A.’s shirt pulled up.

[210] In describing to the police the male whom she saw at the foot of the bed, S.W. stated: “I don’t know how to say it without sounding rude. He is darker than what I would see around.” She explained that at that time, she associated only with family members, all of whom were white. She had never associated with anyone who had dark skin. She denied that she panicked when she saw K.A. in the company of a dark-skinned male. She testified that what concerned her was the fact that K.A., as far as she knew, did not associate with older people. However, she agreed that the male in question was wearing a hoodie, that she did not get a good look at his face, and that from the quick glance that she got of him, there was no way she could say how old he was. She then stated that she believed he was older because he was tall, and much taller than anyone with whom K.A. was known to associate. She agreed, however, that since she did not see K.A. very often, she did not know who she hung out with.

[211] S.W. never met Dillon, K.A.’s boyfriend at the time. She did not know how tall Dillon was and was unaware that he was four years older than K.A. She knew nothing about any relationship that K.A. had with a 22-year-old male when K.A. was in grade 9.

[212] S.W. testified that K.A. looked younger than her age at the time and that she was not as mature as other 15 or 16-year-old girls. When asked to elaborate, she testified that K.A. joked around a lot and did not take things seriously. She agreed that K.A. wore make-up, including lipstick, eyeliner and mascara.

Testimony of Police Constable Andrew Mason

[213] On March 20, 2017, at 7:45 p.m., Police Constables Andrew Mason and Brian James were dispatched via a “sexual assault radio call” to an apartment building in the Distillery District near the Thornton and Lucie Blackburn Conference Centre. They were not given the exact address of the building but were told that the apartment number was possibly 613. They were to apprehend K.A., a young person. The report had been called in by K.A.’s mother, who was acting on information she had received from K.A.’s sister.

[214] By 8:15 p.m., the officers had determined that the building in question was 75 Cooperage Street. Officer Mason testified that upon exiting the elevator on the sixth floor, he heard very loud music with a very deep bass sound coming from Unit 613. The officers knocked on the door. Mr. Miron opened the door part way. He appeared surprised.

[215] Officer Mason asked to speak to the tenant or registered owner of the unit. He explained that they were there to locate a female who was a minor and who had asked for help from a family member after being forced to take part in sexual activities. He also advised Mr. Miron that the female was on file as missing. He did not tell Mr. Miron that she was missing from a group home. Nor did he tell him her name.

[216] Mr. Miron told them that he was not the owner or tenant of the unit, that he was just a visitor, and that it would take him 10 minutes to find the owner. Officer Mason advised him that they were not going to wait 10 minutes. Mr. Miron attempted to shut the door but the officers forced it open and entered the apartment. Officer Mason stayed with Mr. Miron in the living room and took down his identification information while Officer James went to look for K.A.

[217] Officer Mason testified that he and his partner used their flashlights as the apartment was in complete darkness. There were no lights on. He described the apartment as messy, with items all over the countertop. He also testified that there was a strong odour of both fresh and burned marijuana.

[218] While Officer Mason was speaking to Mr. Miron, Officer James located a young female. Officer Mason also saw Mr. Marshall. The officers told him that they were removing the female from the apartment. Mr. Marshall immediately used his cell phone to call his lawyer and started yelling at the officers, telling them that they had no grounds to be in the apartment without a warrant. As the officers exited the apartment, Mr. Marshall followed them out and down the hallway. He continued to insist that they needed a warrant to enter his home.

[219] Officer Mason estimated that they were in the apartment for less than three or four minutes.

[220] Officer Mason described the young female, who turned out to be T.N., as not wanting anything to do with the police. She initially refused to identify herself. However, by the time they got off the elevator, and after being asked numerous times for her identification, she produced her student identification card. The officers then realized that she was not the female that they were looking for.

[221] A computer check revealed that T.N. was missing from the group home in Oshawa. While driving to Oshawa to return her to the group home, the officers asked T.N. multiple times who the other girl was. T.N. eventually admitted that she knew K.A. but would not say how she knew her or if K.A was in Mr. Marshall’s apartment. T.N. made it clear that she did not want to go back to the group home.

[222] While en route to Oshawa, the officers were notified that K.A. was still in the apartment. Arrangements were then made for other officers to attend there.

Testimony of Police Constable Brian James

[223] Officer James’ evidence regarding his attendance at Unit 613 was more or less in line with that of Officer Mason. He noted that Mr. Miron was polite in terms of his interaction with the officers after they knocked on the door. They only forced open the door out of concern for the safety of the young person whom they believed was inside the apartment.

[224] Officer James described the apartment as dark but made no mention of having to use a flashlight. There was music playing. He did not say whether it was loud or soft. He made no mention of the apartment being messy. He did not recall seeing or smelling marijuana. He added that if he had made such an observation, he would probably not have noted it, presumably because it was of little consequence to him in the circumstances.

[225] Officer James was in the hallway when Mr. Marshall walked out of a bedroom and asked what was going on. Officer James told him that they were there to look for a girl. Mr. Marshall immediately got on his phone and demanded that they leave. He continued to be confrontational, telling the officers that they had no right to be in his place without a warrant.

[226] Officer James testified that when he located T.N., he believed that she was K.A., although T.N. refused to identify herself and would not say what she was doing in the apartment. She told him that she there by herself. She did not want to leave. Officer James led her out by the arm.

[227] Officer James initially testified that as he, T.N., and Officer Mason left the apartment, the door closed behind them. He later testified that he could not recall if Mr. Marshall continued to yell at them after they were out the door. He was sure, however, that Mr. Marshall did not get on the elevator with them.

Testimony of T.N.

[228] T.N. was a Crown witness at the preliminary inquiry but was called as a defence witness by counsel for Mr. Marshall at trial. Her evidence was problematic as there were instances when she blatantly lied about the extent of her contact with Mr. Marshall after March 20, 2017.

[229] T.N. testified that she had been living at the group home in Oshawa for about a month prior to March 19, 2017. K.A. arrived there about two weeks later. The two of them had run away together on a previous occasion and gone to Tim Hortons. They did not leave Oshawa during that particular escapade.

[230] T.N. did not like the group home and ran away from it numerous times. She would go to Tim Hortons to use the WiFi. However, on March 19, 2017, she planned to go to Brampton to see friends, including someone by the name of Soodge. She testified that when that plan fell through, K.A. started making plans to see Mr. Marshall. T.N. denied knowing Mr. Marshall or having heard his name from another girl, “W”, at the group home. However, she understood that W had spoken to K.A. about Mr. Marshall.

[231] At the time of these events, T.N. was 14 years and 8 months old and about 5 feet 4 inches to 5 feet 5 inches in height. She is now closer to 5 feet 6 inches tall. During her video-recorded interview with the police on March 27, 2017, she was wearing jogging shorts, a t-shirt and a sweatshirt. She testified that she was also dressed casually when she attended at Mr. Marshall’s apartment on March 19, 2017, as she was there to “chill” as opposed to trying to impress anyone. Nonetheless, she still intended to portray herself to Mr. Marshall as older than her actual age. She wanted to be accepted as being an older person.

[232] T.N. testified that on March 19, 2017, K.A. saw her as she was about to leave the group home and asked if she could join her. The two of them then jumped out a window and went to a 24-hour Tim Hortons, where they used the WiFi. It was about 8:00 p.m. T.N. had a tablet and K.A. had a cell phone. They were later picked up by an Uber and taken to Mr. Marshall’s place as a result of arrangements that K.A. had made with Mr. Marshall using her cell phone. K.A. told T.N. that she did not know and had never met Mr. Marshall before. Similarly, T.N. had never met and did not know Mr. Marshall prior to that evening.

[233] T.N. testified that she did not pay much attention to what K.A. was doing while they were at Tim Hortons. She was focused on her own device and her own plans. However, she was aware that K.A. was communicating with Mr. Marshall on Facebook. T.N. overheard K.A. telling Mr. Marshall that she was 17 years old and that she found him sexy or attractive. K.A. sent him a photograph or photographs of herself that were of a sexual nature. T.N. did not actually see the photographs, but K.A. told her about them. K.A. was “basically begging” Mr. Marshall to send an Uber.

[234] T.N. agreed that she made no mention during her police interview of having heard K.A. tell Mr. Marshall that she was 17 and that she thought he was sexy. Nor did she mention during the interview that K.A. sent sexy photographs of herself to Mr. Marshall. T.N. did, however, mention these matters during her testimony at the preliminary inquiry in August 2018. T.N. also testified at the preliminary inquiry and at trial that K.A. was naked in the photographs. At trial, she stated that K.A. briefly showed her the pictures. T.N. explained that she did not provide the police with a lot of details because she did not know “how big everything was going to get.” She did not initially think that anything wrong had happened to K.A.

[235] T.N. agreed that she contacted Mr. Marshall sometime after her police interview on March 27, 2017 and prior to the preliminary inquiry in August 2018. She thought it was about a month after the incident but before Mr. Marshall was arrested when she reached out to him on social media and added him as a friend on Facebook. (Mr. Marshall was charged with these offences in April 2017). T.N. testified that she wanted to find out what happened and met with Mr. Marshall at his apartment on one occasion to talk to him.

[236] When asked how many times, other than on that one occasion, she had seen Mr. Marshall since March 20, 2017, T.N. stated “none” or “none that I can recall.” This was a blatant lie. T.N. ultimately acknowledged that on March 20, 2019, which was two years after these events, she was charged with obstruct police after the car that she and Mr. Marshall were in was involved in an accident. Mr. Marshall was driving but T.N. initially told the police that she was driving.

[237] T.N. testified that other than on March 20, 2019, she had not seen Mr. Marshall. Again, this was a lie. Following the completion of her testimony, it was confirmed that T.N., along with Mr. Marshall’s sister, visited Mr. Marshall at the Toronto South Detention Centre on two occasions in June 20, 2019. It was also agreed that on September 17, 2019, T.N. sent sexually provocative photographs of herself to Mr. Marshall at the jail. This was just days before she testified at this trial, which was on September 23, 2019. Mr. Marshall never received the photographs as they were intercepted and seized by staff at the detention centre.

[238] T.N. acknowledged that she did not want to see Mr. Marshall or Mr. Miron go to jail for the charges before the court and asserted that K.A.’s allegations were “foolishness.”

[239] T.N. denied that she was the one who made the connection with Mr. Marshall when she and K.A. were at Tim Hortons on March 19, 2017. T.N. testified that she had no interest in Mr. Marshall and no interest in communicating with him on any device at that time. At no point while they were at Tim Hortons did she lend her tablet to K.A. K.A. used her own device the entire time.

[240] T.N. testified that while they were at Tim Hortons and during the ride to Mr. Marshall’s apartment, K.A. told her several times that if anyone asked about their ages, she should say that she was 17 and that K.A. was 18. T.N. testified that she had no problem lying about her age as she had lied about it many times in the past.

[241] T.N. had also heard K.A. lie about her age. K.A. had told her that she preferred to hang out with “older” people, meaning people in their late teens or early twenties. T.N. had personally observed that K.A. had the ability to present herself as more mature or older than her actual age. T.N. made these observations during dinnertime at the group home during the two-week period that K.A. was living there. T.N. also observed K.A. interacting with older people and approaching older adult males when, on one occasion, she, K.A., and two other girls were at Tim Hortons after running away from the group home.

[242] T.N. testified that on March 19, 2017, K.A. brought a make-up bag with her when she left the group home and put on make-up during the Uber ride on the way to Mr. Marshall’s apartment.

[243] When they arrived at 75 Cooperage Street, K.A. got out of the car and hugged Mr. Marshall. T.N. did not hug him but said “Hi” and introduced herself. Almost immediately after entering the sixth-floor apartment, T.N. used the washroom and thus did not hear any conversation between Mr. Marshall and K.A. While she was in the bathroom, Mr. Marshall and K.A. went into the bedroom. When she came out of the bathroom, she sat on the couch in the living room and started using her tablet.

[244] T.N. first encountered Mr. Miron around 5:00 or 6:00 a.m. on March 20, 2017, when he emerged from another bedroom. They introduced themselves to each other and engaged in small talk. Mr. Miron was pleasant and polite. He asked her how old she and her friend were. She told him that they were both seventeen. In response to other questions, T. N. told him that she was not in school and not working but that she was looking for work. During this conversation, the television was on and they were intermittently watching a show.

[245] In cross-examination, T.N. agreed that at the preliminary inquiry, she testified that she told Mr. Miron that she was 16 years old. She explained that she initially told him that she was sixteen. However, as she and Mr. Miron were discussing her age, K.A. came out of Mr. Marshall’s bedroom and joined them in the living room. T.N. then remembered that K.A. had told her to say that she was 17. She then told Mr. Miron that she “forgot” and that she was 17 years old. Mr. Miron asked her if she was sure that she was seventeen. She replied “yeah.”

[246] Later on during her testimony, T.N. stated that she initially told Mr. Miron that she was 17 but then advised him that she was 16. She gave him the age of 16 even though K.A. had told her to say that she was 17.

[247] T.N. acknowledged testifying at the preliminary inquiry that she never told Mr. Miron or Mr. Marshall how old K.A. was. She testified that she did not talk at all to Mr. Miron or Mr. Marshall about K.A.’s age.

[248] T.N. acknowledged testifying at the preliminary inquiry that Mr. Miron never asked, and she never told him if she was in school. She also never told him where she had come from.

[249] T.N. testified that she heard K.A. lie about her age at Tim Hortons when she was speaking on the phone to Mr. Marshall, but she did not hear her speak to anyone about her age while they were at his apartment.

[250] T.N. testified that later that morning, she, K.A. and Mr. Miron went to the liquor store and bought a bottle of Kraken rum. They opened the bottle and started to drink after Mr. Marshall returned from his medical appointment. K.A. got “pretty drunk.” However, she lay down to have a nap around 3:00 or 4:00 p.m. and became “more sober.” At no point did T.N. see Mr. Miron go into the bedroom with K.A. when she was intoxicated. Nor did she see him behave inappropriately toward K.A.

[251] During cross-examination, T.N. testified that at one point K.A. was having difficulty using the bathroom and called T.N. into the room to assist her. After using the washroom, K.A. needed some assistance in walking. Mr. Miron got her some water, which K.A. spilled. K.A. then went into Mr. Miron’s bedroom and lay down on the bed. Mr. Miron was not in the room at that time. T.N. never saw him enter the room but agreed that it was possible he went in and she just didn’t see him. She was not continuously watching Mr. Miron while she was in the apartment.

[252] During her police interview, T.N. stated that she assisted K.A. in messaging S.W. When asked at the preliminary inquiry if she assisted K.A. in this regard, T.N. stated, “Not really.” At trial, she explained that she only assisted K.A. in sending one text message and that K.A. continued sending messages on her own.

[253] T.N. testified that she herself was drinking but she was not drunk.

[254] T.N. testified that she was never scared of either Mr. Marshall or Mr. Miron while at the apartment. She was unaware that anything was wrong until the police showed up. K.A. appeared to be fine and never indicated to T.N. that anything was amiss, despite opportunities when she could have done so.

[255] T.N. testified that the only people she was afraid of that night were the police officers, who came in, grabbed her by the arm, dragged her out of the apartment and took her down the elevator. She did not want to go back to the group home. While she was being put in the scout car, one of the officers asked her, “Who is this person (referring to Mr. Marshall) to you?” T.N. responded, “A friend.”

[256] T.N. testified at the preliminary inquiry in August 2018 that she strongly disliked K.A. At trial, she testified that this was an accurate description of how she felt about K.A. at that time. She complained that K.A. contacted her on numerous occasions leading up to the trial. It was K.A. who initiated contact with her and not the other way around. K.A. wanted to know if she was coming to court to testify.

[257] T.N. testified that March 19, 2017 was not the first time that she had run away from a group home in one city and gone to another jurisdiction, although she never left the province. She had done this on more than five occasions. Sometimes other girls came with her when she left a group home but she did not bring them with her. When she went AWOL, the plans she made were for herself. She would not necessarily let anyone else accompany her to her planned destination.

Testimony of Justice Marshall

[258] At the time of these events, Mr. Marshall had been residing at his three-bedroom apartment for two years. Mr. Miron, who was a good friend at the time, occasionally stayed overnight, sometimes as a matter of convenience in order to be closer to his place of work. Mr. Miron also visited Mr. Marshall at his apartment just to hang out with him. They sometimes went to clubs or bars together.

[259] In cross-examination, Mr. Marshall was questioned as to how common it was for girls to come over to his place when Mr. Miron was there. Mr. Marshall testified that there was only one occasion when that happened. He and Mr. Miron had been at a club and two women came back to his apartment with them.

[260] Mr. Marshall testified that he did not object to Mr. Miron drinking alcohol in his apartment and was not in the habit of monitoring how much Mr. Miron consumed. Neither he nor Mr. Miron smoked marijuana. The bongs in the apartment belonged to Emanuel, who lived in the unit across the hall from Mr. Marshall. Emanuel did not smoke in his own place because he had children. He smoked only a small amount of weed before playing three-hour video games with Mr. Marshall. Mr. Marshall did not allow any other drugs in his house.

[261] Mr. Marshall testified that he was home all day on March 19, 2017. Around 1:00 a.m. on March 20, when he was about to go to bed, he checked his phone messages and noticed a “new friend request” from a person by the name of K.A. The message stated: “Hey, you’re sexy.” Mr. Marshall accepted the message so that he could view the person’s profile. He did not recognize K.A. from her photograph as someone whom he knew or had ever met. The photograph showed her from the waist up or, as Mr. Marshall put it, from under her chest to above her head. It had been “filtered” in the sense that the hue or colour of it had been changed. Other than that, it did not appear to have been altered or edited.

[262] Mr. Marshall thought that K.A. was “pretty cute.” She appeared to be at least 18 years old. He messaged her back and asked her who she was. She responded: “I’m [“K”]. You don’t know me but I think you’re sexy.” Mr. Marshall asked her, “What’s up?” K.A. answered, “Nothing.” She told him that she was bored and asked him if he wanted to “hang out.”

[263] Mr. Marshall asked K.A. for her phone number. K.A. told him to give her his number so that she could call him using WiFi. She explained that her phone was “down” because she had not paid her phone bill.

[264] When K.A. called him, Mr. Marshall answered the phone and asked her where she was from. She said that she was from Oshawa. He told her that he was from Toronto. Mr. Marshall asked her how old she was. She told him that she was seventeen. She asked him his age. He told her that he was twenty-one. He did not ask her for her date of birth.

[265] Mr. Marshall asked K.A. when she wanted to hang out. K.A. replied, “Tonight – right now.” He asked her if she had her own place. She stated that she lived with her sister, who was 20 years old. She also stated that she would prefer to come to his place. When Mr. Marshall asked her if her sister could come, K.A. told him “no,” because her sister had a boyfriend.

[266] Mr. Marshall asked K.A. if she planned to stay the night or whether she had to go home or to school or work in the morning. She told him that she was not attending school and that she did not have a job, although she was looking for work. He did not ask her when she quit school or what grade she was in when she quit.

[267] K.A. asked him if he had liquor or any drugs. Mr. Marshall told her “no.”

[268] There was further discussion as to how K.A. was going to get to Mr. Marshall’s place. K.A. asked him if he drove or if he could get someone to pick her up. He answered “no” to both questions. She then asked him if he could send an Uber. Mr. Marshall told her that he had an Uber account but refused to send a car for her. K.A. repeatedly asked him to send a car. He repeatedly turned down her request. K.A. then told him that “if you can give me a way down then, you know, obviously, I mean I wanna hook up with you and have sex.”

[269] Mr. Marshall testified that during their telephone conversation, K.A. did not sound “like a kid.” She sounded mature and “like she was into me.” She was telling him that she wanted to hang out with him and that she “wanted to hang out now.” Mr. Marshall testified that the manner in which K.A. set up their date indicated to him a certain level of maturity.

[270] The conversation ended when K.A. stated that she would try to find her own way to his place. Ten minutes later, she sent him a “flirtatious” photograph of herself in which she was wearing a t-shirt and panties. She was seated on a counter and showing off the side of one hip. Mr. Marshall testified that she appeared to be 17, 18 or even 19 years old. She looked “really nice” and was “done up well.” When Mr. Marshall asked her why she sent the photograph, K.A. responded in a text message that “if I come down, this is all yours.” Mr. Marshall testified that at that point, he “felt tempted.” He had not wanted to send an Uber because of the cost and the fact that it was so late. However, after learning that the Uber would only cost fifty dollars, he ordered one for her. This was after K.A. indicated that she would arrange for her own transportation back to Oshawa. She stated that she would either take the train or ask a friend to pick her up the following day.

[271] Mr. Marshall was under the impression that K.A. was at home when she spoke to him on the phone and was messaging him on Facebook. He had no idea that she was at a Tim Hortons. Their phone conversation lasted about 20 minutes.

[272] In cross-examination, Mr. Marshall agreed that he saw his getting together with K.A. as a “hook-up” which, according to his testimony, was the phrase used by K.A. herself in describing the purpose of her coming to his place. However, he added that their “hook-up” could have led to their spending more time together, in which case he would have gotten to know her better. He had just broken up with his girlfriend a week earlier. He testified that K.A would have known how old he was as his age was posted on Facebook.

The Arrival of K.A. and T.N. at Mr. Marshall’s Apartment

[273] Mr. Marshall did not communicate with K.A. during her 50-minute Uber ride to his place as she had told him that her phone was down. When he went downstairs to meet her, she was “all smiles.” She got out of the car and gave him a hug. He hugged her back and told her that she looked nice. Her hair was “done” and she was wearing make-up, some of which he later noticed had rubbed off on his shirt. He described K.A. as having “big breasts” and a “big bum.” She was wearing tights and a sweater. She had also brought a pair of sweat pants.

[274] When Mr. Marshall saw T.N. getting out of the car, he commented to K.A. that she had made no mention of bringing along a friend. K.A. stated that T.N. came with her “at the last minute.” When Mr. Marshall asked T.N. her name, K.A. answered for her, giving him T.N.’s first name. Mr. Marshall had never met or spoken to T.N. prior to this night.

[275] Mr. Marshall described T.N. as a “pretty good-looking person” who appeared to be the same age as K.A., that is, 17 years old. T.N. was taller than K.A.

[276] Mr. Marshall testified that he was confident that K.A. was the same person with whom he had spoken on the telephone. Her voice was the same and her actions were consistent with her being the same person. She got out of the car, came up to him and gave him a hug. He did not repeat the questions that he had earlier asked her, such as where and with whom she lived, how old she was, whether she was in school, whether she had a job etc.

[277] In cross-examination, Mr. Marshall agreed that K.A. did not look like a “mature woman in her twenties.” However, she also did not look like a 15-year old. She looked to be her stated age – that is, 17. Mr. Marshall agreed that some teenagers will lie about their age in order to buy alcohol or get into bars. However, he had no experience with respect to teens lying about their age in order to hook up with someone.

[278] Mr. Marshall agreed that K.A. was short. She is the same height that she is today, at age eighteen. However, she was “thicker” or heavier back in March 2017. He noted that her mother and sister, S.W., are also very short. Mr. Marshall testified that he is 5 feet 11 inches tall and weighed 140 pounds in 2017.

[279] Mr. Marshall brought K.A. and T.N. up to his apartment. T.N. asked to use the washroom. Mr. Marshall asked her if she was content to sleep on the couch in the living room. She said that she was.

[280] Mr. Marshall told K.A. that he was tired and asked her if she wanted to go to his bedroom. She said “yes.” Mr. Marshall retrieved a blanket, gave it to T.N., and returned to the bedroom, where he and K.A. lay down. Mr. Marshall asked K.A. how old T.N. was. K.A. told him that she was 17. Mr. Marshall asked her what time she would be leaving the next day. K.A. asked him if she could stay until the evening. He replied that that would be fine. He also told her that he had a friend staying in the apartment and suggested that the four of them go out and do something together, although he had an appointment that he had to go to in the afternoon.

[281] Mr. Marshall testified that he closed his eyes for a second because he was tired. K.A. nudged him and asked him if he wanted to have sex. He asked her, “Right now?” She replied “yes.” They began to kiss. He took off her sweater and undid her bra. He described her breasts as fully developed or mature. K.A. started pulling down her tights. He then pulled them completely off. There was a brief discussion about condoms. Neither of them had a condom. K.A. stated that it was fine as long as he was “clean.” He told her, “Yeah, I’m good as long as you are too.” K.A. replied “yeah.”

[282] When Mr. Marshall took off his shirt, K.A. told him that he was “so sexy.” She also told him that she did not usually date guys his age. She stated that she dated older men, and that her boyfriend was 26 years old.

[283] Mr. Marshall asked K.A. to perform fellatio, which she did. After about 10 minutes, he asked her to stop. They then had vaginal intercourse for about 20 minutes. Initially, he was on top of her. He then had intercourse with her from behind. The sexual activity ended with fellatio, during which Mr. Marshall ejaculated. Mr. Marshall denied that there was any further sexual activity thereafter. He was very tired and fell asleep.

[284] Mr. Marshall denied the suggestion that he initiated sex with K.A. He testified that he was very tired and had been about to go to sleep when K.A. messaged him on Facebook. He had a medical appointment the next day and wanted to get some sleep beforehand. K.A. did not arrive at his place until after 3:00 a.m. He pointed out that it was K.A. who first brought up the topic of sex when they were speaking on the telephone. He denied that he would have been disappointed if he and K.A. had not had sex after he had spent $50 on an Uber to take her to his apartment. He testified that he was not rich but he was also not broke, and noted that K.A. had agreed to make her own way home.

[285] Mr. Marshall estimated that he and K.A. conversed in his bedroom for about 15 minutes prior to having sex.

[286] Mr. Marshall got up at 11:00 a.m. and left the apartment around noon to go to his medical appointment. The appointment was related to injuries he had sustained in a serious accident two years earlier, when he suffered trauma to the head and was in a coma and on life support for several months. Following his release from the hospital, he had to learn how to walk and talk again, as well as use his hands. As a result of his injuries, he was unable to work and was receiving payments from the Ontario Disability Support Program.

[287] Mr. Marshall testified that K.A. was not in the bedroom when he woke up. Nor was she in the washroom across the hall from his bedroom. T.N., who was in the living room, told him that K.A. was in the bathroom with Mr. Miron. Some minutes later, K.A. and Mr. Miron walked out of the bathroom. Although Mr. Marshall initially believed that K.A. and Mr. Miron had “hooked up,” he later understood that they had “just been talking.” In any event, as a result of K.A.’s flirtatious behaviour toward Mr. Miron, Mr. Marshall decided that he did not want to hang out with her or the others any more. He was no longer interested in getting to know her better and had no intention of inviting her back to his room “to talk or kiss or whatever.” He told K.A. that he was going to be busy the rest of the day and offered to accompany her to Union Station on his way to his appointment. K.A. stated that she would like to stay as Mr. Miron had agreed to buy a bottle of liquor.

[288] Mr. Marshall testified that he did not care whether K.A. stayed or left. He just did not want to spend any more time with her. He had his appointment to go to. Later on, he played video games. He also contacted his ex-girlfriend in an effort to reconcile with her. He was not angry or upset with K.A. He noted that Mr. Miron, K.A., and T.N. were all in his relatively small apartment and he was not going to “act all pissy the whole time. That’s not me.”

[289] Mr. Marshall told Mr. Miron, K.A., and T.N. that they would have to get to and from the liquor store quickly because he had to leave for his appointment. Mr. Miron did not have a key to the apartment and Mr. Marshall was not prepared to give him one so that he could let himself in. When Mr. Miron, K.A. and T.N. returned from the liquor store, Mr. Marshall left for his appointment. He returned around 2:30 p.m. Mr. Marshall testified that Mr. Miron was mistaken when he testified that Mr. Marshall was not home when they got back from the LCBO.

[290] Mr. Marshall testified that he had only one or two conversations with T.N. He never asked her how old she was and T.N. never told him her age. Nor did T.N. give him any information regarding K.A.’s age. However, Mr. Marshall recalled Mr. Miron making a comment at some point about the fact that both girls were seventeen.

[291] Mr. Marshall testified that his main conversation with T.N. took place after T.N. noticed his native status card on the kitchen counter. It turned out that they both belonged to the Nigmon Band and were from the same small reserve on Cape Breton Island. Mr. Marshall had lived on the reserve for three or four years but left when he was very young and had never returned. He and T.N. had never met prior to March 20, 2017. However, during their conversation they learned that one of T.N.’s cousins had babysat Mr. Marshall’s younger brother.

[292] Mr. Miron, K.A. and T.N. waited for Mr. Marshall to return from his appointment before opening the bottle of rum. Mr. Marshall retrieved some shot glasses. T.N. indicated that she wanted pop to drink with the rum. Mr. Marshall also wanted some pop. He initially testified that Mr. Miron and T.N. probably bought the pop at the corner store attached to his apartment building, which would have been a round trip of about five minutes. Upon further reflection, however, he thought that this store may not have existed at the time, and that they may have taken a taxi to another store, as described by Mr. Miron in his testimony.

[293] Mr. Marshall testified that he consumed three shots of rum and that he was not at all drunk. He played video games with his friend, Emanuel, for two or three hours that afternoon and needed to be sober in order to play. The games were “continuous” in the sense that he could not put them on pause or take a break. T.N. watched as they played the games.

[294] Mr. Marshall testified that Mr. Miron and K.A. were flirting with each other and looked as though they were going to “hook up.” At some point, Mr. Marshall saw them go into the bedroom to “watch something or to talk.” He recalled that later on, Mr. Miron came out of the bedroom, sat on the couch and was smoking a cigarette. K.A. followed him out and sat on his lap. Mr. Marshall also recalled K.A. telling him that Mr. Miron was a lot sexier than he was. Mr. Marshall responded: “Well, why don’t you guys just hook up?” K.A. replied, “Yeah, well, we did.”

[295] Mr. Marshall thought that Emanuel, who did not consume any of the rum, left the apartment around 6:00 p.m. After he left, Mr. Marshall continued playing video games. He also spent some time on his phone in his bedroom while trying to reach his ex-girlfriend. At some point, Mr. Miron commented to Mr. Marshall that K.A. had a boyfriend. Mr. Marshall was not told anything about the boyfriend. He only learned later on through K.A.’s testimony that her boyfriend, Dillon, was 19 years old.

[296] Mr. Marshall testified that T.N. drank a little bit. He described Mr. Miron as “tipsy drunk” as opposed to being “really out of it.” Mr. Miron was not belligerent, and his speech was not slurred.

[297] Mr. Marshall testified that K.A. got “pretty drunk” but he never saw her “falling over.” He recalled that at one point, K.A. was in the bathroom and called out to T.N., who assisted her in getting to the bedroom and told her to lie down. It was possible that Mr. Miron also helped take K.A. to the bedroom. When asked if Mr. Miron went into the bedroom afterwards, Mr. Marshall stated “no,”, that “we left her alone.” K.A. fell asleep but came out later and sat on Mr. Miron’s lap. Mr. Marshall did not know if K.A. continued to drink after that. He described her as very flirtatious with Mr. Miron throughout the day.

[298] Mr. Marshall agreed in cross-examination that while he was playing video games, he did not pay that much attention to the comings and goings of K.A. and Mr. Miron. He was aware, however, that they were together in the bedroom on two occasions.

Arrival of the Police

[299] Mr. Marshall was in his bedroom when he heard the police arrive. He walked into the living room and asked them what was going on but the officers just ignored him and initially refused to tell him why they were there. Mr. Marshall told them that they were not allowed into his home without his permission and, after calling and speaking to his mother, asked if they had a warrant. They told him that they did not need a warrant to search for a missing 14-year-old girl. Mr. Marshall asked them who was 14 years old. The officers stated that they had already taken her out. They did not give him a name. According to Mr. Marshall, he thanked them for letting him know but told them to knock next time and he would let them in.

[300] Mr. Marshall testified that he was upset that the police were, in his view, disrespectful of him. He acknowledged that he may have “gotten loud” but denied shouting at the officers.

[301] Mr. Marshall denied that the apartment was in darkness or that the officers used flashlights. He denied that his apartment was messy. He noted that K.A. and Mr. Miron had done the dishes while he was at his appointment. He described in some detail the location of various items and pieces of furniture and professed some confusion as to why the officers perceived the place to be untidy.

[302] Mr. Marshall testified that he may have stepped out of his apartment briefly as the officers left, but he did not follow them down the hallway. When he re-entered the apartment, Mr. Miron told him that the police had taken T.N. and that K.A. was in the washroom.

[303] When Mr. Marshall asked K.A. why she brought T.N. to his home, she told him that T.N. had nowhere else to go. When asked why she lied to him about T.N.’s age, she stated that she did not think that he would have let T.N. into the apartment if he knew that she was just fourteen.

[304] Mr. Marshall testified that the attendance of the police did not cause him to question K.A.’s age. He still believed that she was seventeen. The police had only spoken of one missing underage girl. K.A. not only looked older but also acted in a mature manner. This was evident not only from his own interactions with her prior to their having sex but also from his observations of her the following day. These included her interactions with Mr. Miron, the manner in which she was flirting with Mr. Miron, and the fact that she did most of the talking. It never occurred to Mr. Marshall that K.A. was under the age of consent.

[305] Mr. Marshall told K.A. that she would have to leave the apartment. However, he denied “kicking her out.” He realized that it was late and that she probably did not have a ride back to Oshawa. He therefore told her that he would get an Uber to take her home, but she would have to wait until midnight when the prices dropped. K.A. agreed to this plan. Later on, however, she informed him that the police were coming back. A few minutes later, after speaking to her parents on her cell phone, she told him that they were going to pick her up and that she was leaving “now.” She asked for instructions to the nearest Tim Hortons. Mr. Marshall directed her there using Google maps on her phone. He gave her a hug and asked her if she was “good” before she left. She indicated that she was. That was the last time that he saw her. He sent her a text message the following day, asking if she had gotten home safely. She replied that she had. During her testimony, K.A. mentioned having received a text message from Mr. Marshall.

[306] Mr. Marshall testified that he was not concerned about the prospect of the police returning to his apartment. He intended to keep his door locked so that they would have to knock before he let them in.

[307] Mr. Marshall testified that K.A. had a Samsung phone. He also had a Samsung phone. When he returned from his medical appointment, he let her use his charger.

Mr. Marshall’s Relationship with T.N.

[308] Mr. Marshall testified that about a month after these events, T.N. contacted him and came over to see him. About one year ago, he and T.N. started talking more frequently, saw each other on multiple occasions, and became very close friends. During his incarceration at the Toronto South Detention Centre, T.N. and his sister visited him on two occasions in June 2019. T.N. has told him that she “really likes him.”

[309] Mr. Marshall adamantly denied the suggestion that it was T.N. who messaged him from Tim Hortons in Oshawa and that she arranged to bring K.A. to his apartment. He maintained that he had never met T.N. prior to March 20, 2017. One of the underlying reasons that they have now become close was the happenstance discovery that they came from the same reserve in Nova Scotia.

Mr. Marshall’s Criminal Record

[310] In cross-examination, Mr. Marshall acknowledged his criminal record, which spans the three-year period between June 2016 and April 2019.

[311] On June 29, 2016, Mr. Marshall was convicted of criminal harassment and uttering threats. He was fined $10.00 and placed on probation for 2 years. On February 23, 2017, he was convicted of theft of a motor vehicle, dangerous driving, flight while pursued by police, and failing to comply with a recognizance. He received a four-month conditional sentence and probation for 12 months. On April 11, 2018, Mr. Marshall was convicted of obstruct police and breach of a recognizance, for which he received a sentence of 25 days in addition to 45 days of pre-trial custody. On July 9, 2018, and again on January 9, 2019, he was convicted of breaching a recognizance. On April 17, 2019, Mr. Marshall was convicted of assault and breach of a recognizance, for which he received a sentence of 60 days.

Testimony of Shammar Miron

[312] On May 23, 2017, Officer Heidgress spoke to Mr. Miron on the telephone, told him that he was going to be arrested on the charges of sexual assault and sexual interference, and asked him to turn himself in the following day. Mr. Miron complied with that request. He attended at 51 Division, was arrested, charged, and then interviewed by the police.

[313] The Crown applied for a ruling that Mr. Miron’s statement to the police was voluntary. Ms. Moskovitz indicated that she did not intend to introduce the statement as part of the Crown’s case but intended to cross-examine Mr. Miron with respect to parts of it.

[314] Counsel for Mr. Miron did not oppose the application and conceded that the statement was voluntary. However, it was the position of the defence that the entire statement should be admitted pursuant to the principles in R. v. Edgar, 2010 ONCA 529 and R. v. Liard, 2015 ONCA 414. It was submitted that limiting the playing of the statement to only a few portions would deprive the court of the “whole picture.” I found that the portion of the statement where Mr. Miron visibly reacted with disgust when it was suggested to him that he took advantage of K.A. by removing her clothes when she was in a semi-conscious state met the spontaneity requirement. I also found that the entire statement was admissible in order to provide context and to show Mr. Miron’s demeanour at other stages of the interview by way of contrast and comparison, and as the police provided him with more details about the allegations being made against him.

[315] Mr. Miron was 20 years old at the time of these events. He turned 21 seven days later, on March 27, 2017. He was employed at the time as a door-to-door salesman for a company that sold furnaces and air conditioners. He is currently working for a charity for his uncle and is also working toward the completion of his GED certificate.

[316] Mr. Miron and Mr. Marshall met when they were in Grade 7 and were attending the same public school. They became good friends. During the six or seven months leading up to the matter before the court, Mr. Miron sometimes stayed overnight at Mr. Marshall’s apartment. This happened about twice a month.

[317] Mr. Miron indicated that he and Mr. Marshall stopped being friends “last year.” When questioned as to why they were no longer friends, Mr. Miron stated there was no particular reason, but they had not spoken to each other for a while. They are prohibited from communicating with each other pursuant to their bail conditions.

[318] On Sunday, March 19, 2017, Mr. Miron slept over at Mr. Marshall’s place after returning from a work-related trip to Ottawa. He was tired and went to bed early. When he woke up the next morning at around 5:00 a.m., he saw T.N. sitting on the couch in the living room and watching television. She was wearing black tights and a blue blouse. Mr. Miron had never met or seen T.N. prior to this date. He approached her, sat on the couch, and they started to chat. He testified that “up close,” it appeared to him that she was wearing make-up.

[319] After introducing themselves, Mr. Miron asked T.N. what she was doing in the apartment. She told him that she had come with a friend, who was elsewhere in the apartment. Mr. Miron asked T.N. how old she was. She said that she was 17. He asked her where she came from. She said that she was from Toronto. He acknowledged in cross-examination that during his police interview, he stated that he thought T.N. lived in Lindsay. He explained that he believed T.N. told him that she was born in Toronto. He did not ask T.N. for her date of birth as he did not feel that it was necessary. They began watching a movie on Netflix.

[320] Mr. Miron disagreed with T.N.’s testimony that she told him at one point that she was 17 years old, and at another point that she was 16 years old.

[321] At around 5:30 a.m., K.A. came into the room and introduced herself. Mr. Miron told her his name. K.A. used the tablet that T.N. was using, gave it back to her, and left the room. Mr. Miron and T.N. continued watching television and engaged in small talk until around 6:00 or 7:00 a.m., when he went back to bed and fell asleep.

[322] Mr. Miron described K.A. as looking as though she had “just rolled out of bed.” Her hair was a bit messy. She was wearing track pants and a red t-shirt. She appeared relaxed and was in a good mood. He could not see if she was wearing makeup as the lights were off and it was still dark outside.

[323] Mr. Miron initially testified that he could not recall whether T.N. gave him any personal information about K.A. during their encounter in the living room and before K.A. made her appearance. He later testified, however, that T.N. had earlier told him that K.A. was 17. This is in accord with his statement to police. During his interview, he stated that when he saw T.N. that morning, he wondered “who the heck she was” and how she got there. They started chatting and were watching a show. It was during that period that T.N. told him that both she and K.A. were 17. When Mr. Miron met K.A., it appeared to him that she was, in fact, 17 years old.

[324] Mr. Miron agreed that K.A. never told him her age and that he never asked her for her age or date of birth. He testified that he saw no reason to doubt what T.N. had told him about their ages. Mr. Miron was not aware of the age of consent at the time but thought that it was probably 14 or 15 years old.

[325] Mr. Miron testified that he is 6 feet 3 inches tall and weighs 230 pounds. He agreed that K.A. was relatively short and certainly much shorter than he is. He had difficulty providing an estimate of her height and did not recall K.A.’s evidence that she was five feet tall. He did not have the opportunity to observe K.A. in court as K.A. testified via a closed-circuit television. Mr. Miron described her build as average.

Trip to the LCBO Later that Morning

[326] Mr. Miron testified that the LCBO was about an eight-minute walk from Mr. Marshall’s apartment. He, T.N. and K.A. arrived there around 11:00 a.m. En route, K.A. noticed the police station and suggested that they take another route. Mr. Miron did not ask her why she wanted to avoid the police as he did not think it was any of his business. He thought that she may have gotten into some kind of trouble in the past, such as being caught for shoplifting.

[327] All three of them went into the LCBO. K.A. suggested that they buy a bottle of Kraken rum. Mr. Miron had never tried that brand but complied with her request and purchased it.

[328] During his police interview, Mr. Miron stated that he had no recollection of buying liquor that day. He acknowledged during his testimony that this was a lie. He explained:

It just, you know, made me – it – facing all these allegations and, you know, me providing liquor for minors. It just painted a big, a worse picture for me. And I was young and I was scared, and I really didn’t think we’d be going to trial for this.

[329] Mr. Miron could not recall any specific conversation that they had on the way back from the LCBO but the three of them were laughing and joking around.

The Return to the Apartment and the Consumption of Alcohol

[330] Mr. Miron testified that they got back to the apartment just after 11:00 a.m. Mr. Marshall had not as yet returned from his medical appointment. I find that Mr. Miron was mistaken in this regard: Mr. Marshall was clear in his evidence that Mr. Miron, K.A., and T.N. returned to the apartment before he left at noon for his appointment, which was at 1:00 p.m. He knew this because he had not given Mr. Miron a key to the apartment.

[331] While waiting for Mr. Marshall to return from his appointment, Mr. Miron and K.A. conversed with one another as they were doing the dishes. Mr. Miron asked K.A. what grade she was in. She told him that she was in Grade 11 but had dropped out of school. She did not say when she quit school. He could not recall where she said she was from. In cross-examination, he disagreed with the suggestion that the only personal information that he knew about K.A. was her age.

[332] Mr. Miron appeared somewhat confused when cross-examined about the potential ages of a grade 11 student. He disagreed with the suggestion that someone could potentially be 15 years old and in grade 11. He was pretty sure that he was 17 at some point during the school year when he was in grade 11. He agreed that he either started grade 11 when he was 16 and turned 17 in March or started grade 11 when he was 17 and turned 18 in March. When asked whether a grade 11 student could be either 16 or 18, Mr. Miron stated that he was not too sure how to answer that question. Grade 11 was the last year of high school that he completed. About two years later, when he was 19, he enrolled in an alternative school.

[333] In the end, Mr. Miron agreed that it is possible that someone could be 16 years old in grade 11, and that he could have been 17 when he completed that grade. In terms of K.A.’s age, he relied on what T.N. had told him – that is, that K.A. was 17.

[334] Mr. Miron testified that while they were doing the dishes, K.A. got a video call via Facebook Messenger. She seemed annoyed with the caller, whom she identified to Mr. Miron as her boyfriend. Mr. Miron caught a few glimpses of Dillon during the video chat. He described him as a “scruffy Caucasian male” who appeared to be in his twenties. Dillon was asking K.A. where she was, what she was doing, and who she was with. K.A. did not want to talk to him, refused to answer his questions, and eventually hung up on him.

[335] Shortly thereafter, or around noon, Mr. Marshall returned, and the bottle of rum was opened. (Mr. Miron was mistaken with respect the time of Mr. Marshall’s return. I accept Mr. Marshall’s evidence that he got home around 2:30 p.m.) They all started to drink. After taking one shot, T.N. said that she wanted some pop to drink with the rum. She and Mr. Miron took a cab to a convenience store, where Mr. Miron bought pop and a package of cigarettes. They returned to the apartment about ten minutes later.

[336] Mr. Miron testified that he had a few drinks. He did not pay attention to how much everyone else was drinking. Mr. Marshall, T.N. and K.A. were seated on the couch in the living room. T.N. and K.A. were watching Mr. Marshall play video games. Mr. Miron sat on a chair.

[337] Mr. Miron recalled that K.A. took a nap and woke up several hours later, or around 4:00 p.m. She appeared to be fine. Nothing about her struck him as odd.

[338] In cross-examination, Mr. Miron disagreed with the suggestion that K.A. got so drunk prior to taking a nap that she had trouble walking and getting to the bathroom without assistance. He agreed that he may have given her a drink of water but did not recall her falling or his helping her to her feet. He testified that someone told him that she was taking a nap but he did not actually see her go into the bedroom. He agreed, however, that during his police interview, he stated that K.A. had said that she was tired and wanted to lie down, and that he, in response, told her to lie down. He testified: “So I said, go lay down, then they (presumably referring to K.A. and T.N.) went into the room.”

[339] Mr. Miron testified that during the course of the afternoon, he tried to entertain everyone by using the hover board. He posted a video of himself on the hoverboard around 5:00 p.m. K.A. had gotten up from her nap by that time. At some point thereafter, while he and K.A. were in the hallway just outside his bedroom, K.A. told him that she found him more attractive than Mr. Marshall. They then made a “mutual decision” to go into his bedroom. Later on during his testimony, Mr. Miron stated that it was between 4:00 or 5:00 o’clock when they had sex the first time. He agreed that during his police interview, he stated that the first sexual encounter took place around 3:00 or 4:00 o’clock. He explained that the “hoverboard video” led him to believe that they had sex after 5:00 p.m.

First Incident of Sexual Activity

[340] Mr. Miron testified that they sat on his bed and that K.A. started kissing his neck. He kissed her neck. She lay down on her back. He asked her, “Are you going to remember this tomorrow?” She replied, “Yes, I’m going to remember.” Mr. Miron testified that he asked this question because he had purchased liquor and K.A. had consumed some of it. He wanted to ensure that “everybody’s 100 percent, you know, it’s consensual.”

[341] K.A. lifted up her legs so that he could pull off her pants. She performed fellatio on him and they had vaginal intercourse while he was on top of her. He did not wear a condom as he did not have any with him. K.A. never pulled away from him, told him to stop, or said “no.” When she was in a position where she was “bent over,” she told him to “slow down.” He complied with that request. He disagreed with the suggestion that K.A. told him during intercourse that it was painful for her.

[342] Mr. Miron testified that he did not ejaculate because he did not want to have children and he wasn’t wearing a condom. Thus, they “just stopped.” They lay on the bed and talked for a few minutes. When K.A. fell asleep, he left the room, closed the door, and joined Mr. Marshall and T.N. on the couch in the living room.

[343] About half an hour later, K.A. joined them. Mr. Miron testified that she looked him straight in the eyes and told him, “Don’t worry. I still remember.” It appeared to him that K.A. was joking with him and that perhaps she thought he had been extra cautious in terms of checking on her state of sobriety when he had asked her before they had sex if she would “remember this tomorrow.” They continued talking to each other.

[344] At some point, Mr. Marshall commented that Mr. Miron and K.A. should “hook up.” K.A. then “randomly burst out” with the statement, “We already did.” She was smiling and laughing. Mr. Miron did not see her consume any alcohol at this time.

[345] During his police interview, Mr. Miron stated that when K.A. came into his room with him and started to kiss him, he just “went with the flow.” In cross-examination, it was suggested to him that he was not concerned with the age of consent or how old K.A. may have been. Mr. Miron reiterated that T.N. had told him that K.A. was 17, and that she looked to be that age.

[346] Mr. Miron agreed that during the police interview, he made no mention of K.A. taking a nap after the sex ended. He told the police that “we just left the room.” In explaining this discrepancy, Mr. Miron testified that K.A. only napped for about 30 or 40 minutes and thus left the room not long after he did: “So that’s the only way I could justify me saying, ‘we just left the room.’” I note that K.A. testified that she did, in fact, nap for “less than an hour” after the first incident of sexual activity.

Second Incident of Sexual Activity

[347] Mr. Miron testified that sometime after they had sex the first time and while they were in the living room, Mr. Marshall’s neighbour, Emanuel, arrived and was playing video games with Mr. Marshall. Mr. Miron was bored and decided to watch Netflix in his bedroom. He asked K.A. if she wanted to join him. She told him, “No, not right now.”

[348] Mr. Miron testified that he had been watching “Iron Fist” in his room for about ten minutes when K.A. knocked on the door and walked in before he had a chance to ask who was there. She lay down beside him and put her head on his shoulder. He put the television on pause. K.A. started kissing him. He kissed her back. She performed fellatio on him. She then climbed on top of him and they had vaginal intercourse.

[349] Mr. Miron testified that their sexual activities ended the same way that they ended the first time. K.A. was tired. He was tired. He did not want to “finish” because he was not wearing a condom. K.A. lay beside him and put her head on his shoulder. Then her phone rang. It was K.A.’s sister.

[350] Mr. Miron testified that K.A. had been complaining that “her people” kept “bugging” her or calling her and that she was getting annoyed. Mr. Miron got up so that she could take the call. He lit a cigarette and stood near the window as he smoked it. He was about four or five feet from K.A. and in front of the bed. He believed that he would have been out of view of the phone’s camera, assuming that K.A. and S.W. were Face-timing, although he might have been seen by S.W. if K.A. was not facing the camera when she first took the call. After a short time, he left the room, closed the door to give her some privacy, and went into the living room. Emanuel had left the apartment by this time. It was after 7:00 p.m.

[351] In cross-examination, Mr. Miron disagreed with the suggestion that S.W. called K.A. when he and K.A. were in his bedroom the first time that they had sex and that the call took place sometime between 4:00 p.m. and 6:00 p.m.

[352] Mr. Miron testified that, after speaking to S.W., K.A. joined him in the living room. Mr. Marshall was in another room.

[353] In cross-examination, Mr. Miron agreed that he told the police that K.A. performed fellatio on him after they had sexual intercourse. He testified that she may or may not have given him “more than one blow job” and that he regarded blow jobs as “included in sex.” He went on to state that upon reflection, he did not believe there was oral sex after intercourse. The sex ended when K.A. got off him.

[354] Mr. Miron did not recall but did not deny giving hickeys to K.A. on her neck and body.

[355] Mr. Miron’s description during his police interview as to how K.A. ended up coming into his bedroom the second time that they had sex was somewhat different from his evidence at trial. He told the officers that when he asked K.A. if she wanted to watch Netflix, she stated that she would join him. He went into the bedroom, lay down on the bed, and started watching a show. After a while, and not knowing her intentions, he called to her and told her, “Hey, if you want to come join me, come join me.” K.A. then came into the room, lay down beside him, and started kissing him, just as she had the first time. Mr. Miron made no mention during his interview of K.A. knocking on his bedroom door and then walking in before he had a chance to ask who was there.

[356] During his police interview, Mr. Miron initially appeared to be uncertain as to whether the second incident of sexual activity took place before or after the police arrived and apprehended T.N. At one point during the interview, he stated: “Actually it [referring to the second time that he and K.A. had sex] might have been bef – um, no, it was after. It was after she left. It was after [T.N.] left.”

[357] Mr. Miron explained this discrepancy on the basis that he had never been in a police station before and felt some pressure to answer the questions posed to him. Having thought over the sequence of events, he stated that it made no sense that he would have had sex with K.A. after T.N. left, given the “change in atmosphere” as a result of the police presence. In addition, he specifically recalled going into his room to watch Netflix prior to having sex with K.A. and that everyone, including T.N., was still in the apartment at that time.

[358] I note that later on during the interview, Mr. Miron indicated that the second sexual encounter did, in fact, take place prior to the arrival of the police as it would have been a “different story” had he known that K.A. was a runaway from a group home.

[359] Mr. Miron denied that he was drunk when he had sex with K.A. He denied that she was drunk the first or second time that they had sex. He denied forcing her to engage in any sexual activity and testified that at no time did she ever tell him to stop.

Arrival of the Police

[360] Mr. Miron testified that when he heard the police knock on the door at 8:15 p.m., he thought that Emanuel, who lived across the hall, was probably returning to the apartment. The door had been left ajar. When Mr. Miron opened it, two officers identified themselves as the Toronto Police, stated that they were “here for runaways,” and asked if he was the owner of the premises. Mr. Miron said “no.” He told them that the owner was in another room and that he would go and get him. As he closed the door – he may or may not have left it slightly ajar – he saw K.A. and T.N. running down the hallway. He went to get Mr. Marshall. By that time, the police had entered the apartment. They retrieved T.N. from one of the bathrooms and escorted her out of the apartment. T.N. looked very annoyed.

[361] Mr. Miron denied that the police had to push or force open the door. He disagreed with the suggestion that the officers told him that they were looking for an underage girl. He also disagreed with the officers’ testimony that the apartment was in darkness and that they had to use their flashlights. He testified that the lights may have been dimmed, but they were not completely off. There may have been music playing. He denied that the apartment was messy.

[362] Mr. Miron is clearly mistaken as to what the police told him. He appears to have conflated information that he learned at a later time with what the police said to him. I accept Officer Mason’s testimony that he told Mr. Miron that they were there to locate a female who was a minor and that she was on file as “missing.” Officer Mason did not describe the female as a “runaway” and made no mention that she was missing from a group home. He referred to only one female.

[363] Mr. Miron estimated that the police were in the apartment for five or ten minutes. Officer Mason testified that they were there for less than three or four minutes. After they left, the atmosphere in the apartment changed significantly. K.A. emerged from one of the bathrooms. Mr. Marshall, who was upset and yelling, had called his mother and possibly his lawyer. He and Mr. Miron wondered what was going on.

[364] According to Mr. Miron, K.A. then “fessed up” and told him that she and T.N. had run away from a group home. Mr. Marshall was on the phone and still yelling. Mr. Miron’s evidence as to what K.A. told him is contrary to the evidence of K.A., who testified that she did not tell Mr. Marshall or Mr. Miron that she was “a missing person” or runaway. Mr. Marshall testified that he continued to believe that K.A. was 17 years old even after the police left. When Mr. Marshall queried her as to why she had lied to him about T.N.’s age, K.A. told him that she was afraid that if he had known her age, he would not have let her into the apartment and that T.N. had no other place to go.

[365] Mr. Miron testified that a couple of hours after the police left, K.A. got a message via Facebook that the officers might be returning to the apartment. Mr. Miron communicated this news to Mr. Marshall, who then told K.A. that she “had to get the fuck out of this house.”

[366] Mr. Miron testified that he did not feel comfortable kicking K.A. out of the apartment. He told her that he would try to convince Mr. Marshall to let her stay “just for a bit so that we can figure something out.” However, Mr. Marshall was unmoved. In the end, Mr. Miron told K.A. that she had to leave. K.A. grabbed her stuff and left just before 11:00 p.m. She was “pretty pissed off” or angry when she left.

[367] Mr. Miron agreed that during his police interview, he indicated that K.A. left the apartment on her own accord – that after she learned from T.N. that the police would be returning, she communicated that message to Mr. Marshall herself, and told him that she had to go: “So [K.A.] went and told Justice and then she just left. She was like, okay, I got to go. Like I can’t be here, so she left.” Mr. Miron told the police that he did not hear the conversation between K.A. and Mr. Marshall as he was in his bedroom at the time. He told the police that that K.A. was angry but added that he did not believe that Mr. Marshall was “the type of guy to kick somebody out at three in the morning.” Mr. Miron testified that he may have been “sugar-coating” the situation when he spoke to the police and that Mr. Marshall told K.A. that she “had to go.” She did not leave of her own volition.

[368] Mr. Miron told the police that K.A. hugged him and that he hugged her back before she left. He testified that he lied to the police about giving her a hug. However, he also stated that he did try to “work something out so that she could figure out what she had to do, but ultimately [he] told her that … you do have to go because I don’t want the police back at the house.”

Mr. Miron’s and K.A.’s Level of Intoxication

[369] In cross-examination, Mr. Miron denied that he was “quite drunk” when he had sex with K.A. the first time. He acknowledged, however, that he told the police during his police interview that he was drunk. The relevant portion of the interview is set out below:

Mr. Miron: … [K.A.] was telling me shit, like I’m cuter than frigging Justice and this and that …

Heidgress: Mm-hmm.

Mr. Miron: … while she was sober, you know, sitting on my lap and this and shit like that, so that …

Heidgress: Mm-hmm.

Mr. Miron: … and when we went to the room, I got, she just, you know, started kissing me and shit so I just went with the flow. What the fuck? What was I supposed to do?

Heidgress: Mm-hmm.

Mr. Miron: At that point, I was drunk, too, so, you know, I just went with it. But then, what’s really bothering me is that, after like two hours later, she comes back in the room when I’m watching TV and does it a second time.

Heidgress: Does what?

Mr. Miron: Well, she’s down with me for a second time. Starts doing the same thing. And she’s sober at this point. It’s been three hours …, there’s no more liquor left. Who’s drunk for four or five hours unless you drink a whole ounce like four or five shots that you had, you can’t be that drunk.

[370] Mr. Miron acknowledged telling the police that he had a few drinks and that he was drunk. However, he was not drunk in the sense of being “overly intoxicated.” He was not “belligerent,” or “highly wasted.” He explained that he lied about being drunk during the interview because he “didn’t really want to answer the questions very truthfully.” He went on to state, however, that in terms of “anything that regarded the sex with [K.A.], I was being honest about, when saying that I did not rape her. … Whenever it was regarding the sex with [K.A.], I was being truthful.”

[371] Mr. Miron disagreed with the suggestion that when he told the police that K.A. was “sober at that point” – referring to the second time that they had sex – he was implying that K.A. was drunk the first time that they had sex. Mr. Miron noted that when they had sex the second time, five or six hours had passed, K.A. had taken two naps, and she had eaten. He acknowledged that he had not paid attention to the amount of liquor that she consumed and had no knowledge as to her level of tolerance with respect to alcohol. It appears that when Mr. Miron referred to five or six hours as having passed, he was referring to the time that had passed since the bottle of rum was opened, which was around 2:30 p.m., to the time of the second incident of sexual activity, which was around 7:00 p.m.

[372] Mr. Miron testified that he lied to Officer Heidgress when he told her that he was “pretty drunk” when the police arrived around 8:00 p.m. In explaining why he lied, he stated:

I just didn’t really feel like, when it came down to that, I just wasn’t really thinking what I was talking. I just said whatever I could, because to me, I just figured that the faster I answer the questions, the faster I get out of there, just like what the texts were saying. … Instead of just saying, “I don’t know,” or not answering the question, I used being drunk as an excuse. However, I’m under oath today. I have to tell the truth. That’s what I plan to do. It’s my first trial. So if I had said that then I – I wasn’t drunk at that point, no.

[373] I note that neither Officer Mason nor Officer James made any mention of Mr. Miron appearing to be under the influence of alcohol. Officer James described Mr. Miron as polite and testified that they only forced open the door out of concern for the young person whom they believed was in the apartment.

Call from Mr. Marshall in April 2017

[374] Mr. Miron testified that following Mr. Marshall’s arrest in April 2017, Mr. Marshall called him and told him that he had been charged with sexually assaulting K.A. Mr. Marshall did not, however, tell him that K.A. was under the age of consent or provide any details.

[375] In May 2017, Officer Heidgress left a message with Mr. Miron’s ex-girlfriend that Mr. Miron was being investigated for sexual assault and that the police wanted to speak to him. Mr. Miron immediately returned the call and turned himself in the following day, which was May 24, 2017.

Mr. Miron’s Criminal Record

[376] Prior to his arrest on these charges, Mr. Miron had no criminal record. On May 17, 2019, or about two years after his arrest, he was convicted of the possession of a firearm in a motor vehicle, obstruct justice, and failing to comply with a recognizance. He received a sentence of 60 days in addition to credit for 446 days of pretrial custody, and probation for two years.

ISSUES RELATING TO THE ACCUSED JUSTICE MARSHALL

[377] Counts 1, 2, and 3 charge Mr. Marshall with sexual assault (s. 271), sexual interference (s. 151) and invitation to sexual touching (s. 152).

[378] Crown counsel did not argue that K.A. did not consent to the sexual activity with Mr. Marshall. For the reasons stated below, I find that the Crown has not established beyond a reasonable doubt that K.A. did not consent to having sex with Mr. Marshall. That finding does not, of course, result in an acquittal. According to s. 150.1(1) of the Criminal Code, consent is not a defence to these charges as K.A. was under the age of 16 when the sexual activity took place. Pursuant to s. 150.1(4) of the Code, the pivotal issues in determining whether Mr. Marshall is guilty of these offences are whether the Crown has established beyond a reasonable doubt that he did not honestly believed that K.A. was at least 16 years old or that he did not take all reasonable steps to ascertain her age.

Legal Principles: Reasonable Steps

[379] In R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para.8, the Court observed that Parliament, in enacting s. 150.1(4), imported an objective element into the fault analysis to enhance protection for youth. As a result, to convict an accused person who demonstrates an “air of reality” to the mistake of age defence, the Crown must prove, beyond a reasonable doubt, either that the accused (1) did not honestly believe the complainant was at least 16 (the subjective element); or (2) did not take “all reasonable steps” to ascertain the complainant’s age (the objective element).

[380] The Court in George emphasized that determining what raises a reasonable doubt in respect of the objective element is a highly contextual, fact-specific exercise. In some cases, it may be reasonable to ask a partner’s age. It would be an error, however, to insist that a reasonable person would ask a partner’s age in every case. Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’s age in every case, given the commonly recognized motivation for young people to misrepresent their age. Such narrow approaches would contradict the open-ended language of the reasonable steps provision. That said, at least one general rule may be recognized: the more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them. This follows inevitably from the phrasing of the provision (“all reasonable steps”) and reflects the jurisprudence and academic commentary: George, at para. 9.

[381] In R. v. Duran, 2013 ONCA 343, [2013] O.J. No. 2388, at paras. 52-53, the Court stated that there is no automatic checklist of considerations applicable to every case. In some cases, an accused’s visual observation of the complainant may be enough to constitute reasonable steps. Other considerations would include the accused’s observations of the complainant; the complainant’s appearance and behaviour; the information the complainant told the accused about herself, including any information about her age; and the age differential between the accused and the complainant. The Court, at para. 54, set out the following passage in R. v. L.T.P. (1997), 113 C.C.C. (3d) 42 (B.C.C.A), where Finch J.A. stated:

In considering whether the Crown has proven beyond a reasonable doubt that the accused has not taken all reasonable steps to ascertain the complainant’s age, the Court must ask what steps would have been reasonable for the accused to take in the circumstances. As suggested in R. v. Hayes, [1991] A.J. No. 1232, supra, sometimes a visual observation alone may suffice. Whether further steps would be reasonable would depend upon the apparent indicia of the complainant’s age, and the accused’s knowledge of same, including: the accused’s knowledge of the complainant’s physical appearance and behaviour; the ages and appearance of others in whose company the complainant is found; the activities engaged in either by the complainant individually, or as part of a group. And the times, places, and other circumstances in which the complainant and her conduct are observed by the accused. The Court should ask whether, looking at those indicia, a reasonable person would believe that the complainant was fourteen years of age or more without further inquiry, and if not, what further steps a reasonable person would take in the circumstances to ascertain her age. Evidence as to the accused’s subjective state of mind is relevant but not conclusive because, as pointed out in R. v. Hayes at p.11, “[a]n accused may believe that he or she has taken all reasonable steps only to find that the trial judge or jury may find differently.

[382] In R. v. Chapman, 2016 ONCA 310, 130 O.R. (3d) 515, the respondent never explicitly asked the two complainants how old they were. There was a substantial age difference between the respondent, who was 40, and the complainants, who were 14 ½ and 15 ½ years old. The respondent had picked them up while they were hitchhiking. The complainants initiated a sexually-explicit conversation and claimed that they had just attended a college party and had missed their ride home. They also said that they had finished high school, and (according to the respondent) stated that they wanted to go somewhere warm and have fun. They admitted that they deliberately tried to present themselves as older than 16. The respondent, who acknowledged having sex with them, testified that he honestly believed that they were 17 or 18 years old. He submitted at trial that although he made no explicit inquiries, he had taken all reasonable steps to ascertain their ages.

[383] The trial judge in Chapman was mindful of the disparity in the ages of the respondent and the two complainants. Relying on R. v. K. (R.A.), [1996] N.B.J. No. 104, 106 C.C.C. (3d) 93 (C.A.), he stated that this factor is relevant in determining whether the steps taken are reasonable as “almost without exception, the greater the disparity in ages, the more inquiry will be required.” Nevertheless, based on the complainants’ demonstrated actions, demeanour, self-professed stated objectives, and their portrayal of themselves as older than their true ages, the respondent was not required to make further inquiries about their ages. He concluded that the Crown had failed to prove beyond a reasonable doubt that the respondent did not take all reasonable steps to ascertain the complainants’ ages and acquitted the respondent.

[384] In dismissing the Crown’s appeal, the Court found no reversible error in the trial judge’s conclusion and, at para. 50, stated:

Section 150.1(4) of the Code does not require that an accused make every possible inquiry to ascertain a complainant’s age in order to successfully mount a mistake of age defence. Nor do the established authorities suggest that an accused must always expressly question a complainant about his or her age, or otherwise seek and obtain conclusive proof of age, in order to avail himself or herself of the s. 150.1(4) defence. Rather, the section requires that all reasonable steps be taken to ascertain a complainant’s age. As the trial judge recognized, what is “reasonable” will vary, depending on the context and all the circumstances [emphasis in original].

[385] In R. v. Beaulieu, 2016 ONCJ 280, [2016] O.J. No 2580 (O.C.J.), there was a nine-year gap in the ages of the accused and the complainant. The accused was 24 and the complainant was 15 years old when they had sexual intercourse. The complainant had attended at the accused’s home with her girlfriend, Ms. Richardson, to buy marijuana from him. The accused testified that the complainant told him that she was 17 and that she looked like she was 17 or 18 years old. The complainant testified that she told the accused that she was 17 but when the accused found out from a friend that she was 15, she told him her real age. The complainant testified that she and the accused continued to have sex on a number of occasions after he learned that she was 15. The accused testified that he broke off the relationship when he learned that she was under the age of consent.

[386] The trial judge rejected the accused’s evidence that he honestly believed that the complainant was 16 years of age or older when he first had intercourse with her. The accused was not a credible witness. He was evasive throughout his testimony and his recollection of events was vague. In contrast, the evidence of the complainant, who was youthful in appearance, was consistent, logical, and unbiased. Given the evidence as a whole, the accused’s testimony did not raise a reasonable doubt.

[387] The trial judge found that even if the accused subjectively believed that the complainant was 16 years of age or older, the Crown had proved the objective element of s. 150.1(4) – that is, the Crown had established beyond a reasonable doubt that the accused did not take all reasonable steps to ascertain her true age. He had essentially taken no steps. At paras. 34-35 of his reasons, the trial judge stated:

Mr. Beaulieu was completely happy to accept the statement that Ms. M.W. was 17 years of age, and to look no further into that issue. A vague conversation about school, without even asking what grade she was in, does not constitute all reasonable steps. The fact that a teenager appears to be familiar with consuming alcohol and cannabis, and willing to have sex, does not constitute all reasonable inquiries into that teenager’s age. That is particularly true in this case, given the fact that Ms. M.W. was a stranger, youthful in appearance, and had been encountered in a place and situation which did not provide anything to verify her age.

There were enough red flags that a reasonable person would have asked some questions to attempt to verify her age, to look beyond the indication made by Ms. Richardson that Ms. M.W. was 17 years old. Mr. Beaulieu chose to do nothing, and not raise any issue. He provided the alcohol and drugs which made her intoxicated. I infer that the reason for that strategy was that he simply wanted to have sex with Ms. M.W., regardless of her age.

[388] The trial judge also rejected the accused’s evidence that he did not have sex with the complainant after he found that out she was 15. He accepted the complainant’s evidence that they had sex on multiple occasions after he learned her true age.

[389] In R. v. H.L., 2017 ONSC 6205, [2017] O.J. No. 5924, the accused was charged with sexual assault and sexual interference. The accused, age 21, had fellatio and sexual intercourse with the 14-year-old complainant, who functioned intellectually at the level of a 4 to 7 year old. At paras. 104 - 106, Harris J. reviewed the case law dealing with the issue of what constitutes “all reasonable steps.” The inquiry is highly fact specific. He also observed that generally speaking, the more objectively reasonable a belief as to age, the less onerous will be the reasonable steps expected of an accused. It would be wrong to conclude that asking age is, in every case, necessarily sufficient in light of a young person’s well-recognized motivation to mislead about their age. Again, it depends on the circumstances. Harris J. noted that H.L. believed that the complainant was 16 years old, which is on the cusp of illegal territory. In some circumstances, a purported age just over the legal limit warrants further explanation. In finding that H.L. did not take all reasonable steps and convicting him of the offences, Harris J. found that the external manifestation of the complainant’s intellectual disability was a clarion call or “red flag” that ought to have led him to further investigation.

Analysis and Findings

[390] K.A.’s evidence was problematic in a number of respects.

[391] In terms of her demeanour on the witness stand, K.A. was frequently argumentative and given to angry outbursts. Although the Crown and defence counsel were at all times polite and respectful when questioning her, K.A. did not hesitate to hurl insults at them. For example, at one point she told counsel, “Stop asking stupid questions. Go back and read the preliminary.” At another point, she told counsel, “You’re pretending to be a boss ass lawyer when you’re nothing.”

[392] K.A. was not shy about expressing her opinion with respect to the court proceedings. When the DVD-recording of her police interview was being played, she asserted that she “shouldn’t have to watch it” because she had already watched it several times. When questioned as to her evidence that she used Mr. Marshall’s phone to communicate with T.N. after the police apprehended T.N., (as opposed to her own phone, which she denied having), K.A. stated, “You know what? I’m going to lunch. I’m not doing this.” The court adjourned for lunch in order to give K.A. time to calm down before continuing with her testimony.

[393] There were a number of times when K.A. threatened to leave the closed-circuit television room where she was testifying. At other times, she made good on her threat and walked out of the room. On one such occasion, she was being questioned as to what she meant when she told Officer Heidgress that “they (referring to her mother and sister) aren’t racist but …” She also left the room after becoming irate when questioned as to where she was living between March 21, when her mother picked her up at Tim Hortons, and March 28, when she was interviewed by the police.

[394] Toward the end of her examination-in-chief, K.A. responded to many of the Crown’s questions by saying, “No answer” or by stating that she had “nothing to say.” Prior to counsel for Mr. Miron commencing her cross-examination, K.A. stated, “I have no answers for her.” Shortly after the cross-examination commenced, K.A. stated, “I’m done here. I’m not answering any more fucking questions.” When I inquired as to whether she would like to take a break and continue her evidence the following day, K.A. responded, “You won’t find me tomorrow unless you put me in a cell.” Despite her threat, K.A. did attend court the following morning.

[395] There were a number of other instances when K.A. refused to answer questions posed to her. For example, K.A. disagreed with the suggestion that her evidence in cross-examination by Mr. Miron’s lawyer was the first time that she ever told anyone that she did not consent to some of the sexual activity with Mr. Marshall. When asked to whom she had made this alleged earlier disclosure, K.A. refused to answer the question. The inference to be drawn is that she never made such a disclosure.

[396] K.A. was contemptuous of and openly defied the instructions given to her not to discuss the s. 276 application with her mother when she was served with the relevant documents. She testified that she did not care about those instructions and that she called her mother immediately after being served.

[397] In terms of the subject matter of the s. 276 application, I accept D.W.’s evidence with respect to what K.A. told her when she picked her up at Tim Hortons – namely, that after she left the apartment, Mr. Marshall and Mr. Miron called her back in from the hallway and then “fucked her in her ass.” K.A. also told her mother that “four other guys” came into the apartment and that Mr. Marshall and Mr. Miron “made her give rounds” to all of these males.

[398] K.A. agreed that she was never called back into the apartment after she left and that the sexual activities that her mother says she described to her never happened. However, K.A. denied telling her mother these things and accused her mother of lying or getting it all wrong. I am satisfied that K.A. made up these allegations and related them to her mother as her mother described them. K.A.’s denial that she said these things to her mother is not credible. K.A.’s motivation for fabricating the allegations was most likely to gain the sympathy of her mother and to put her in a more sympathetic light that might result in the CAS imposing less restrictive measures on her for having gone AWOL.

[399] Crown counsel submits that K.A. may have been under the influence of alcohol when she told her mother that she had been called back into the apartment and sexually assaulted by the two accused and four unknown males. Ms. Moskovitz noted that D.W. testified that she detected alcohol on K.A.’s breath and described K.A. as “not herself.”

[400] I find that K.A. was not under the influence of alcohol or drugs when she relayed these allegations to her mother. K.A. did not consume any drugs while she was at Mr. Marshall’s residence. There is no evidence that she consumed any alcohol after the police attended at 8:15 p.m., and she most likely stopped drinking well before that time. K.A. had no trouble hiding quickly under a bathroom sink to avoid detection by the police. After the police left, she played ignorant, asking Mr. Marshall and Mr. Miron “What the hell just happened?” She agreed that she knew exactly what had happened but chose not to tell the accused the truth. She testified, “Obviously I’m not going to tell them, ‘Oh, I’m a missing person.’” K.A. clearly had her wits about her at that time.

[401] K.A. recalled that Mr. Marshall had yelled at the police and that he continued to yell after they left. K.A. had the presence of mind to tell him to stop yelling as he was “gonna draw drama.”

[402] K.A.’s mother met K.A. at Tim Hortons just before 1:00 a.m. on March 21, which was almost five hours after the police left the apartment. D.W. testified that K.A. was limping. I question the reliability of her evidence in this regard. K.A. made no mention in her evidence of limping, or having difficulty walking to Tim Hortons from Mr. Marshall’s place. According to D.W., K.A. was speaking to her on the phone as she was walking. K.A. recalled passing by a police station on her way to Tim Hortons. After reaching Tim Hortons, she called M.M. and spoke to her for 15 minutes. She waited at Tim Hortons for almost two hours for her mother to arrive and obviously was not drinking during that period of time. It is most likely that any effects from K.A.’s consumption of alcohol earlier that day would have been minimal or non-existent by the time her mother arrived. I find that K.A. deliberately made up the false accusations about the two accused having “fucked [her] in the ass” and forcing her to perform fellatio on four unknown males.

[403] K.A. admitted that she lied to T.N. just prior to the preliminary inquiry when she told her in a text message that all the sexual activity with Mr. Miron took place after the police attended at the apartment. K.A.’s explanation as to why she lied to T.N. made no sense. She testified that she did not think that T.N. “needed all the information,” yet she chose to disclose other details of the alleged assaults to her. When asked again why she changed the timeline, K.A. refused to answer the question. She denied the suggestion that she did so because her allegations would be more believable if the sexual activity with Mr. Miron took place after the police had arrived and removed T.N. from the apartment.

[404] D.W. testified that K.A. was smart, but also described her as “below normal intelligence” and only able to read at a grade six level. In my view, K.A. presented as quite intelligent. There was certainly no indication during her testimony that she had any difficulty understanding the questions put to her, although she sometimes chose not to answer them. She was also quite savvy in terms of anticipating counsels’ lines of questioning during cross-examination. For example, as soon as defence counsel suggested to her that she told her mother about matters that she had not mentioned to the police, K.A. was immediately attuned to the fact that she was about to be questioned regarding the content of the s. 276 application and responded: “What do you mean by that? Are you talking about how my mom said that they called me back inside and I had to do rounds with four other guys? ‘Cause I know that’s exactly what you’re talking about.”

[405] At another point during her testimony, K.A. anticipated defence counsel’s intention to cross-examine her with respect to a particular passage from her police interview. She then proceeded to locate the passage in the 139-page transcript before counsel found it. Counsel had suggested to K.A. that she and Mr. Marshall had sex almost immediately after they went into his bedroom. K.A. corrected him, stating that it “wasn’t right then and there.” The cross-examination continued:

Q. Well, I thought you said it was. It was before T.N. came out of the bathroom?

A. Yes, we were in the room before she got out of the bathroom. Did I say we had sex right as soon as I went into the room? No, I did not. Do not put words in my mouth.

[406] While counsel was searching for the relevant excerpt from her police interview, K.A. found it and noted, “I’m already on that page.” She then pointed out that her statement to police was in line with her testimony – that is, she had not said that they had sex immediately upon entering the room.

[407] K.A. testified that she had a bad memory as a result of her use of drugs. She denied being under the influence of drugs while testifying, although she acknowledged that there was one day that she smoked a joint before coming to court.

Whether it was K.A or T.N. who Initiated Communication with Mr. Marshall and Set Up the Trip to his Apartment

[408] The position of the Crown is that it was T.N., as opposed to K.A., who contacted Mr. Marshall and made the arrangements to go to his apartment in Toronto. Ms. Moskovitz submits that Mr. Marshall’s evidence that K.A. contacted him on Facebook, exchanged text messages with him, spoke to him on the phone for 20 minutes, told him that she was 17, gave other false details about her background, sent him a flirtatious photograph of herself, and pressured him to send an Uber to pick her up, is not credible and should be rejected. She submits that such a conversation never took place and that T.N.’s evidence to the same effect – that is, that K.A. was texting Mr. Marshall and speaking to him on the phone while she and K.A. were at Tim Hortons – should also be rejected. Ms. Moskovitz submits that the only personal information that Mr. Marshall was given about K.A. was that she was 17, and that he may well have been told that after he had already had sex with her.

[409] Ms. Moskovitz asks the court to find that there was a pre-existing relationship between T.N. and Mr. Marshall on March 19, 2017, and that T.N. played the role of a pimp in arranging the meeting between Mr. Marshall and K.A. Although T.N. and Mr. Marshall developed a personal relationship after these events, the evidence, in my view, is insufficient to support a finding that they knew each other prior to that date. No evidence, such as text messages extracted from Mr. Marshall’s cell phone, was adduced to support the proposition that they had been in communication with each other before March 20