CR-19-50000449
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
IBRAHIM MOHAMED
Defendant
Michael Wilson and Brady Donohue, for the Crown
Cydney Israel, for the Defendant
HEARD: October 19-22, 2020
SPIES J.
REASONS FOR JUDGMENT
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.
Overview
1The defendant, Ibrahim Mohamed, is charged with sexual assault of S.S. with another person, namely his brother Hassan Mohamed, contrary to s. 272(2)(b) of the Criminal Code - Count 1; choking S.S. to overcome resistance to enable him to sexually assault her, contrary to s. 246(a) of the Criminal Code - Count 2; forcibly confining S.S. contrary to s. 279(2)(a) of the Criminal Code - Count 3; uttering a threat to cause death to S.S., contrary to s. 264.1(2)(a) of the Criminal Code - Count 4; and assaulting S.S. contrary to s. 266 of the Criminal Code – Count 5. Count 6, a charge of robbery, was withdrawn at the request of the Crown before Mr. Mohamed was arraigned. These offences are all alleged to have occurred inside S.S.’s two-bedroom apartment on [address of Complainant redacted], in the early morning hours of Saturday, November 3, 2018.
2Mr. Mohamed re-elected trial without a jury and pleaded not guilty to all of the charges.
3Hassan Mohamed has also been charged for his alleged role in the offences committed against S.S. The Crown proceeded with separate trials for the two defendants. Mr. Hassan Mohamed’s trial is scheduled to commence on November 16, 2020. I will refer to Hassan Mohamed by his first name in these Reasons to avoid confusion.
4In advance of the trial the Crown filed an Application Record to introduce hearsay evidence from Hassan in the event it was decided to call him as a Crown witness and given the nature of his relationship with his brother, he refused to testify or recanted the statement he made to police. That material was filed at the direction of the judge who conducted the pre-trial, even though the Crown did not know if the application would proceed. At the trial before me, the Crown had decided not to subpoena Hassan and so the application did not proceed. As I assured Mr. Mohamed, I disabused myself of the information provided in that application that I had reviewed in advance of the trial.
5The Crown called S.S. as a witness and with the cooperation of the Defence, an Agreed Statement of Facts (“ASF”) was filed to complete the Crown’s case. I appreciate the assistance of counsel in this regard which allowed me to focus on what was really in issue. With the consent of the Defence, S.S. testified from outside of the courtroom via closed circuit television with a support person from Victim Services with her. Mr. Mohamed testified on his own behalf.
The Issues
6In summary, S.S. testified that Mr. Mohamed sexually assaulted her three times and that Hassan did so twice. Mr. Wilson submitted during closing submissions that there was a third sexual assault by Hassan involving oral sex, but based on a careful review of my notes, S.S. did not give that evidence. Mr. Mohamed denied sexually assaulting S.S. or choking her for that purpose, but he did admit facts supporting findings of guilt on Counts 3 to 5 of the Indictment. He testified that on the one occasion on November 3rd, he had consensual sexual intercourse with S.S. and denied sexually assaulting her or choking her for that purpose. He also admitted that he attacked her twice because she would not tell him where certain guys lived that he believed had robbed Hassan.
7As is usually the case, the main issue in this matter concerns the reliability and credibility of the evidence of S.S. and Mr. Mohamed and an assessment of the other evidence filed by the Crown, which included photographs of S.S.’s injuries and the state of her apartment after the alleged assaults, surveillance video and the results of DNA analysis of both Mr. Mohamed and his brother Hassan, all of which were filed as part of the ASF.
The Evidence and Preliminary Findings of Fact
8The events that took place during the night of November 2nd and early on November 3rd, 2018, before S.S. invited Mr. Mohamed and his brother into her apartment are generally not in dispute. Once inside the apartment the evidence of S.S. and Mr. Mohamed is diametrically opposed. I have set out the sequence of events as best as I am able, combining the evidence of both S.S. and Mr. Mohamed and the video surveillance evidence. It is admitted that the video surveillance evidence is fair and accurate save that it is three minutes behind in real time, but that is not material to any of the issues I must decide. I will therefore use the times as stated on the video surveillance, as those were the times referred to by counsel during the course of the trial. S.S. testified that she had not been shown the video surveillance evidence before giving evidence at trial and this evidence was not challenged. This was also clear from her reaction to some of this evidence when it was shown to her.
9In some cases, I have made a preliminary assumption as to when a particular event occurred, but I will come back to the sequence of events when I make my findings of fact on the contentious issues. In this section of my Judgment I will make preliminary findings of fact where there is no doubt of that fact based on all of the uncontested evidence before me.
10As I refer to this evidence, I will include things that S.S. and Mr. Mohamed allege that Hassan said. Although no objection was taken, I appreciate this evidence is hearsay and refer to it only as part of the narrative and to explain why S.S. and Mr. Mohamed did certain things that they described in their evidence.
Visits to the Gucci’s Bar and the After-hours Bar
11On Friday, November 2nd, S.S.’s [#] children were with their father for the weekend. She had dinner in her apartment with a friend who was with her from about 8 p.m. to 11:30 p.m./midnight. During that time, she consumed the better part of a bottle of wine – she believed three glasses of wine. Immediately after her friend left, S.S. saw a text from her best friend N. H. suggesting that they go out. As a result, she asked her friend to come back so that he could drop her off at a bar she recalled was west of the 401, where she met N.H. and her sister. There she had a couple of drinks over the course of an hour or so. Thereafter they went back to N.H.’s apartment where they hung out for less than one-half hour before they decided to go out again. S.S. and N.H. took an Uber to a bar called Gucci’s, which S.S. testified was located in the Jane and Lawrence area.
12Mr. Mohamed testified he was living in the Gerrard and Jones area – I assume Gerrard Street East and Jones Avenue, at the time of these charges. He said that a few weeks earlier, Hassan had been robbed in the Jane and Lawrence area, which he said was close to the Weston Road area where he grew up. He was not there at the time and this robbery was bugging him, but he was not speaking about it. He did not know the name of the three guys who robbed his brother save that one was known as Jay Money. The only information he had was that they were wearing masks, he had a little bit of a description and after asking around, he learned that the guys came to the Jane and Lawrence area, but he had not been to this area for a while. He later testified that the only reason he came that night to the area was to look for these guys.
13Mr. Mohamed testified that after work on November 2nd, he and his brother Hassan bought a few beers and a bottle of Hennessey and went downtown to hang out and then to a Somalian restaurant where they were drinking for a few hours. They went to Gucci’s bar at around 1:15 a.m. where they ran into S.S Mr. Mohamed testified that they met through mutual friends when he lived in this area, that he had known S.S. for a few years and that they were friendly and had “hung out” before. S.S. testified that she thought she met Mr. Mohamed for the first time in 2016.
14There is no dispute that at Gucci’s bar, S.S. and N.H. ran into Mr. Mohamed by chance. S.S. testified that she had seen Mr. Mohamed before at community events or at a party that she attended and at Gucci’s bar and a bar next door. At no time prior had she ever planned to go out or meet him somewhere. According to Mr. Mohamed, at Gucci’s bar N.H., whom he knew, came over and then S.S. came over and said that she wanted to “chill with you guys”. He agreed that it was a chance encounter. S.S. gave Mr. Mohamed a hug and they had a brief exchange. Mr. Mohamed said that his brother was moving around the bar.
15S.S. testified that Mr. Mohamed told her he was at the bar with his brother and he invited her and N.H. to join them at an after-hours bar and that she and N.H. agreed to do so. Mr. Mohamed told them to let him know when they were ready to leave the Gucci’s bar. Mr. Mohamed testified that when he and his brother were leaving Gucci’s bar, to go to an after-hours bar, it was S.S. who told him that they wanted to join them. This is not a material dispute. In cross-examination, S.S. admitted that her memory of who suggested that they go to the after-hours bar together was fuzzy and that either Mr. Mohamed suggested they join him, or she asked if she could go with him.
16S.S. testified that she had never met Mr. Mohamed’s brother before and she did not know his name. She was not immediately introduced to him and did not see him drinking at Gucci’s bar. S.S. testified that she had a cigarette and over the course of a couple of hours she had one or two rum and coke drinks and she spent time dancing and catching up with friends she had not seen for a couple of months.
17When it was decided that they would leave Gucci’s bar, S.S. testified that Mr. Mohamed directed her to where his brother was in the bar. She said that his brother does look a little like him and she asked someone if he was Ibrahim’s brother to which he said “yes”. I should note here that there was no suggestion that S.S. was told what Mr. Mohamed’s brother’s name was or that she could be confused in her evidence in the sense that she confused what she alleges Mr. Mohamed said or did or his brother said or did. I note, based on my own observations that although facially they may look alike in that they are brothers, Mr. Mohamed is taller and heavier set than his brother Hassan. They are easy to distinguish from one another.
18There is no dispute that Hassan drove Mr. Mohamed, S.S. and N.H. to an after-hours bar and that when they arrived it was not yet open. S.S. testified that she did not know the location of this bar, but she thought it was in the Weston and Finch area. She thought that they arrived at around 3:00 a.m. and Mr. Mohamed testified that it was 3:00 to 3:30 a.m., about five to 10 minutes before it opened. S.S. also testified that the bar opened soon after they arrived. They both recall that Hassan left to go buy cigarettes.
19S.S. testified that the rest of them waited outside the bar and that while they were waiting for the bar to open, Mr. Mohamed was expressing some paranoia about being outside on the street, and he said that he: “did not want to be out here on the street”. She did not know what he was concerned about and she was not concerned about this, although she did testify that she was trying to calm him down and told him it would be OK to ease his fear and that they would be inside soon.
20Mr. Mohamed testified that they waited in the car while his brother went to buy cigarettes and that he had a quarter to half of the bottle of Hennessy left, so they just hung out drinking in the car. This was not put to S.S. and clearly on her evidence they were actually standing outside when she saw Mr. Mohamed looking around. Later in his evidence, when Mr. Mohamed testified about the fact that he was looking around, he did testify that he was outside smoking a cigarette so clearly the evidence that S.S. and Mr. Mohamed gave about the fact he was looking around and their discussion about that was once they were out of the car, waiting to go inside the after-hours bar.
21Mr. Mohamed admitted that while they were waiting outside the bar to get in, he was having a cigarette. I presume this is after his brother came back with cigarettes, as he testified that at that time a lot of people started showing up and he was looking around a bit for the guys that robbed his brother and he was a little nervous. He agreed that he might have looked paranoid and that he was thinking about the fact that he might encounter the guys who robbed his brother at the after-hours bar. Mr. Mohamed testified that his whole mindset was to look for these guys and he was frustrated and angry, although he denied he was on the “hunt” for them.
22Mr. Mohamed testified that he did not speak about this, but he did admit that S.S. asked him why he kept looking around and she asked him if he was looking for someone to which he said: “no not really”. She also kept asking him if he was OK and he told her that he was fine. He did not recall making a comment about not liking to be out on the street and he did not share with S.S. that he was looking for these guys and testified that at the time he had no reason to.
23Mr. Mohamed was cross-examined about why he did not tell S.S. that he was looking for the guys that robbed his brother. He said he did not do so because he did not want her to be scared, by telling her that some guys might come and there might be an issue. After two questions from Mr. Wilson, asking whether or not he “liked” S.S., Mr. Mohamed admitted that he did like her, and he did not want her thinking something was going to happen if she was with him. He was then asked a number of times if he cared about her feelings but was not responsive to the question, eventually stating: “why would I not care about her feelings?” A few minutes later in his evidence Mr. Mohamed testified that S.S. was a “very good friend”, but when Mr. Wilson referred to this answer, he quickly changed that to say they were friends and only when pressed that they were “good friends”.
24Mr. Mohamed also testified that at the beginning he did not know that S.S. even knew the guys who robbed his brother, but he did say that he thought she might assist him. He admitted that he knew S.S. frequented the bars where these guys hung out and that he thought that she might know them. Mr. Mohamed was again evasive at this point as to whether or not S.S. was a good friend of his and said that he did not think to ask her at Gucci’s bar about whether or not she knew these guys because they were all having fun and that his mind was not to keep looking for these guys. He was having fun and at the same time thinking that he might see them. When it was put to Mr. Mohamed that he had an opportunity to ask S.S. if she knew someone by the name of Jay Money when she was asking him whether he was OK outside the after-hours bar, Mr. Mohmed said that he did not want to “bring bad vibes” and that they were just having fun and that he did not think these girls knew who they were.
25Once they were inside the after-hours bar, S.S. testified that she had a couple of rum and coke drinks, smoked a cigarette and some marijuana – she bought it at the club for $10. According to S.S., Mr. Mohamed and his brother were “floating around” the bar and she would see them from time to time. She asked that they let her know when they were leaving as they were going to drive her and N.H. home. She admitted that at one point she was dancing with Mr. Mohamed.
26Mr. Mohamed testified that they were at the after-hours bar for at least two hours and that the “drinks just kept on coming” and he was smoking weed and dancing. Everything was “perfectly fine”. He did not run into the guys he was looking for.
27S.S. testified that she believes that they decided to leave the after-hours bar at about 5:00 a.m. Given, as I will come to, that they arrived at S.S.’s apartment at 6:41 a.m., they must have left the bar closer to 6:00 a.m. In any event, they discussed what they should do in the car as Hassan was driving and she suggested that they could go to her place. N.H. was going to sleep over at her place.
28Mr. Mohamed testified that he wanted to go home because he was tired, but Hassan asked him to stay and he agreed. There is no dispute that S.S. invited everyone to her apartment and that that is where they were headed.
29On the way they drove to a residential area and both Mr. Mohamed and S.S. testified that Hassan purchased a bottle of Crown Royal. Mr. Mohamed testified that one of the girls grabbed the bottle and they were taking a shot here and there in the car. S.S. was not asked about this. On the way, N.H. changed her mind and said that she wanted to go home. Hassan, who appeared to S.S. to know where N.H. lived, as he did not ask for directions and he dropped her off there. Mr. Mohamed confirmed that he and Hassan knew N.H. and that he had been to her house before. This did not cause S.S. to feel unsafe or change her mind about having Mr. Mohamed and his brother come to her apartment.
30Mr. Mohamed also recalled that they stopped at a gas station where Hassan purchased gas and he, Mr. Mohamed, purchased cigarettes and a charger for N.H.’s phone. He said that at the gas station he was trying to tell his brother to drop him off. He was tired and wanted to relax. His brother responded that he was a little too drunk to drive that far – I presume downtown where Mr. Mohamed was living at the time, and since Mr. Mohamed was not working the next day, Hassan urged him to stay and so he agreed to. He agreed that at this time he could have taken the TTC, a cab or an Uber to get home. S.S. made no mention of a stop at a gas station in her evidence in chief and was not asked about this.
Arrival at the S.S.’s apartment
31Based on the surveillance evidence I find that Hassan drove into the underground parking garage of S.S.’s apartment building at approximately 6:41 a.m. on the morning of November 3, 2018. S.S. testified that you needed a FOB to get into the parking garage and that you needed it to get out of the garage. This evidence was not challenged. They all took the elevator up to the 12th floor. S.S. testified that when they arrived at her apartment building, they went to the front lobby and then up the elevator. I find that this is not correct as based on the video evidence they drove into the underground parking garage and she confirmed that you would take the elevator from there.
32A video taken outside the elevator on the 12th floor shows the three of them in the hallway at about 6:49 a.m. Hassan was wearing a navy hoody with wide, white draw strings hanging down the front and dark navy or black track pants. As I will come to, S.S.’s recollection that he was wearing a white hoodie was incorrect. S.S. was in blue jeans and a jacket and Mr. Mohamed was wearing a big winter parka with a fur-trimmed hood. S.S. told police that underneath Mr. Mohamed was wearing a zip-up hoodie at the bar that was very baggy and that she told police she would never forget. As I will come to, she was correct about that memory.
33Mr. Mohamed testified that at this time he was “pretty drunk, falling around,” what he described as “sloppy drunk”. They can be seen talking in the hallway. Mr. Mohamed was clearly unsteady on his feet and lurched toward S.S. - it is not clear to what extent he was deliberately trying to embrace her, but she does appear to be holding him up as she began to back up and eventually motioned to Hassan to come with them. A bottle of what I find was the Crown Royal was in Mr. Mohamed’s left hand when he embraced S.S. They reached S.S.’s apartment, which was at the end of the hallway, at about 6:50 a.m. Her door was opposite the staircase. There is no dispute that all three of them then entered S.S.’s apartment.
34Photos of the inside of S.S.’s apartment are in evidence. The door to the apartment opens into a living area which contains an L-shaped couch and a TV. There is no table in front of the couch. There is a small round children’s table in a corner with three chairs, one of which is overturned. There was no evidence anyone sat on these chairs. From the living room on the right as you enter the apartment, is a hallway that leads on the left to the kitchen and on the right, the bathroom and S.S.’s bedroom and at the end of the hallway, her son’s bedroom. At the end and far right of the living room there is an entrance to a solarium, which is where S.S. testified she would smoke cigarettes. In the solarium there are three camp chairs opened up around a makeshift table.
35S.S. testified that she unlocked the door to her apartment and that once they were inside, she welcomed Mr. Mohamed and his brother to her apartment and offered them some food right away. She made some food for them by heating up the leftovers including pasta from dinner and cooking raw short ribs that she had in her fridge. During this time, she was going back and forth between the kitchen and the living room and to the solarium to smoke a cigarette. S.S. testified that Mr. Mohamed and his brother told her that they were not hungry and that they did not eat any of the food. She then put their two plates of food in the fridge and this is confirmed by a photograph taken of the inside of her fridge.
36S.S. also gave Mr. Mohamed and his brother some cups and she had some of the Crown Royal and believes they did as well. Three white Styrofoam cups can be seen in the living room in the photographs – two on the floor and one on the couch. She had a Play Station and showed Mr. Mohamed and his brother how to access YouTube and Netflix. She testified that if music was playing that she was probably dancing as well. She thought she could hear the music in the solarium if it was loud enough. Mr. Mohamed testified that when they arrived at S.S.’s apartment, S.S. grabbed a couple of cups and put them on the table, and she said that she was going to use the washroom to “freshen up” and she said she was going to change because her jeans were too tight. According to Mr. Mohamed, she changed in her room into a baati and black tights. He did not know the colour of the baati, but initially he said it was colourful, but then said he did not know, saying that he was pretty drunk.
37S.S. testified that she still had on jeans, a T-shirt and underwear with a menstrual pad as she was having her period and that she believed that she changed for the first time after the first alleged sexual assault by Mr. Mohamed that I will come to. S.S. was asked in cross-examination if she changed into a baati once they arrived at her apartment and she testified that she did not remember. She admitted that the light blue jeans on the floor of her bedroom cupboard looked like the jeans she wore to the bars and she admitted that she could have changed out of her jeans when she got home but she just did not remember.
38Mr. Mohamed testified that after S.S. changed, she asked if they wanted food – he was in the solarium - and he and his brother said no, but S.S. told them that she was making it anyway and she warmed up some food that she already had on the stove anyway. In cross-examination Mr. Mohamed denied that S.S. cooked anything new and insisted that she did not put any food on plates when she first offered them food. He remained firm on this even when pressed in cross-examination, but given he said he was in the solarium, I do not know how he would know one way or another whether or not the food was on plates. He testified that he told S.S. that he did not want any food because he was still drinking.
39Mr. Mohamed testified that YouTube was on, they were listening to music, smoking cigarettes in the solarium, what he described as S.S.’s “smoking room” and drinking for about an hour, although he testified a few minutes later that it was one-and-one-half to two hours. Mr. Mohamed testified that S.S. was dancing with him and sitting on his lap and dancing at the same time and that they were both flirting with each other. S.S. did not remember at all the suggestion that she was sitting on Mr. Mohamed and moving to the music while he was sitting on a chair. She was not asked in cross-examination if she was flirting with Mr. Mohamed.
40S.S. testified that the three of them were hanging out in her living room and listening to music. The only conversation that she recalled was casual. The next significant event that she recalled was that Mr. Mohamed was in the hallway and he motioned to her to come and asked if he could talk to her for a bit. She was curious as to what he had to say and leaned into him to hear. S.S. testified that Mr. Mohamed then brought her close to the entrance to her bedroom and she assumed that he wanted to tell her something that he did not want his brother to hear. It is at this point that she alleges the first sexual assault by Mr. Mohamed occurred.
The first alleged sexual assault by Mr. Mohamed
41S.S. testified that at the threshold to her room Mr. Mohamed put his hands on her, holding her by her upper arms. He tried to force her into her bedroom, and she resisted. This was when she “clued in” as to what his intention was. In cross-examination S.S. was asked about her statement to police when she was asked what Mr. Mohamed said to her. She told the officer that she could not remember but that it was “something along the lines of let me have sex with you” and that she did not remember his exact words. S.S. was not asked whether Mr. Mohamed said anything to her, but when her statement to police was put to her in cross-examination, S.S. repeated that she did not remember his exact words, but she recognized his intent. She was then asked if she remembered him saying any words and she testified that she did not remember verbatim what he was saying but she recognized his intent. She was then asked if it was possible that her memory was challenged because what was happening was something quite different because they were hugging and kissing. S.S. denied this and testified that her memory was challenged because this was not something she wanted to constantly remember.
42S.S. testified that the minute she resisted, Mr. Mohamed got aggressive and he “snapped,” and pushed her onto her bed - this came out of nowhere. When Mr. Mohamed pushed her onto her bed, he straddled her and “went at it”. It happened really fast. S.S. testified that she was struggling with Mr. Mohamed on the bed, trying to get up and she was fighting to get Mr. Mohamed off her. She said that she was doing anything she could to get Mr. Mohamed off her and she admitted that although she did not remember it, it makes sense and it is possible that she tried to scratch and hit him in vulnerable places like his eyes, face and penis. S.S. testified that she screamed for help to his brother, hoping he would help, but when Hassan came into the room, instead of helping her, he closed the door. She was still fighting Mr. Mohamed and was shocked and confused by this. In this moment of shock, Mr. Mohamed was able to get his right hand on her neck and Hassan helped him remove her “pants”. She was not asked in chief what she meant by pants, but she had testified that she thought she was wearing jeans.
43S.S. did not recall what Mr. Mohamed was wearing and she did not recall when he took his shirt off but at one point it was off, and she saw a tattoo on his chest that was not visible when he had a shirt on. She had never noticed it before when she saw Mr. Mohamed.
44S.S. testified that she was scared and struggling to breathe. She believes that at one point she “lost a little bit of consciousness like fainting” and that Mr. Mohamed then raped her vaginally. When Mr. Mohamed was “done” she got up to put on her pants and noticed that Mr. Mohamed’s brother was not there. She did not know when he left the room. S.S. testified that she then grabbed what she called a “sheet dress,” which is a long loose-fitting dress that she said was like a moo moo. Later in her evidence I learned that this type of dress is called a baati and is worn by Somalian women.
45S.S. testified that while Mr. Mohamed was sexually assaulting her a lot of what he said to her did not make any sense. She testified that he said: “I know about you” and she asked him why he was doing this to which Mr. Mohamed said: “you think you’re the shit,” and “I killed eight people for you”. S.S. asked him what he was talking about and she told him that she did not know what he was talking about. While he was speaking to her, S.S. said that he was looking at her, but she thought he was looking at someone else.
46S.S. was shown the photographs taken by police of her bedroom. She testified that her bed had been made up although possibly “not completely”. All that can be seen now on her bed are shreds of what is left of a thin white plastic mattress cover - virtually all of it is ripped off the bed, some of it hanging over the edge of the mattress, leaving only the mattress itself. S.S. testified this mattress cover was on her bed to prevent her daughter from wetting the bed as her daughter slept with her. She testified that the plastic mattress cover was all ripped because she was struggling during the sexual assault by Mr. Mohamed. I note there is a large piece of this mattress cover on the bedroom floor and virtually none of it on the bed.
47There are no sheets or blankets on S.S.’s bed. She identified a pink fitted sheet on the floor and a blue blanket next to it. She testified that these sheets were not how she left them. S.S. testified that where her underwear with a soiled menstrual pad is on the floor, next to her bed, is not where she would have left them, and she said that this was embarrassing.
Mr. Mohamed evidence about the alleged consensual intercourse
48Mr. Mohamed testified that it was S.S. who grabbed his hand and she took him into what he believed was her bedroom telling him that she wanted to talk to him. When asked what her bedroom looked like when they walked in, Mr. Mohamed testified that the lights were off. When asked if there was light from the hallway when the door was open, he said it was pretty dark and he had difficulty seeing what was in there although he could see clothes on the floor when he was closer to the door and he said the room was pretty messy.
49Mr. Mohamed was shown the photograph of the inside of S.S.’s bedroom and the blinds over her window which were closed but the photograph shows that they did not form a perfect seal – there were gaps. To this Mr. Mohamed repeated that it was pretty dark in the room. When it was put to Mr. Mohamed later in his evidence that there must have been enough light in the room for S.S. to see the tattoo on his chest, he testified that when they were leaving, and he was putting on his shirt, that when you open the door, the light from the hallway comes in. When it was pointed out that he had previously testified that with the door open you could not see much, Mr. Mohamed stated that they were drunk and feeling each other up and he queried whether you would think to look at the floor or look at what is on the wall.
50Mr. Mohamed testified that he believed there was one sheet on the bed and that he did not feel a bare mattress. As for the pieces of plastic he testified that it was ripped before he came and that they probably ripped it a bit more during sex. However, given his evidence that there was a sheet on the bed - presumably the sheet on the floor - that would have covered the mattress cover, Mr. Mohamed would not have been able to tell what the condition of the mattress cover was and for that matter whether there even was one. According to Mr. Mohamed, he and S.S. were kissing and hugging each other and had consensual, casual sex without any violence for about 20 minutes. He could not remember who took off whose clothes – he might have helped her and vice versa. They were both lying down and all of his clothes were on the floor, although he was pretty sure he still had his boxers on. Mr. Mohamed testified that he did not force S.S. to have sex with him. His brother was not in the room.
51They both got dressed afterwards. Mr. Mohamed testified that after he had consensual sex with S.S. she asked again if they wanted food and that this time, she had it on plates. He took one bite of food inside the kitchen and then put the plate back on the counter and told her he could not eat it because he was still drinking. S.S. then put the plate in the fridge. A few minutes later in cross-examination, Mr. Mohamed testified that he told S.S. to leave the food on the counter and he did not take a bite right away. He took a bite or two later after he had more to drink and eventually S.S. put the plate in the fridge.
52S.S. denied the suggestion that she had consensual sex with Mr. Mohamed or that she took him by the hand and led him to her bedroom, or that she went with him into her bedroom willingly while they were kissing and hugging, or that she removed her clothing willingly.
53Ms. Israel took S.S. to her statement to police where she stated that Mr. Mohamed took her by the hand and brought her to her room and she told him “no” and that she was not interested. She was then asked about her evidence in chief that he beckoned her to come to her room. S.S. testified that he was beckoning her to come, she was curious about what he wanted to tell her and that at one point he touched her physically to get her past the threshold to her room and he had to physically get her into the room. She admitted that her memory was fuzzy as to whether or not Mr. Mohamed beckoned her or took her hand. She agreed that it could have been one or the other but testified that she had no concern about this until he used force to get her into the room.
S.S.’s attempted escape from the apartment
54Although there is no issue that at 10:31 a.m. S.S. attempted to escape the apartment, there is an issue as to when this occurred and what preceded this event. S.S. testified that after this first sexual assault by Mr. Mohamed that she attempted to escape the apartment but failed. Mr. Mohamed’s evidence, as I will come to, is that S.S. did not attempt to escape until over an hour after the consensual intercourse and that she did so because he physically assaulted her. I have therefore dealt with the conflicting evidence below.
55S.S. testified that after Mr. Mohamed’s first sexual assault and after she put the baati on, she noticed that the bedroom door was open, and she tried to escape. She ran to her front door and took off the chain lock, but Mr. Mohamed caught up to her as she was trying to open the second lock and before she could open the door. He grabbed her hair and he bumped her head against the door, she thought it was from the pressure of catching up to her, and he dragged/pulled her by the hair back into her bedroom.
56S.S. was shown the surveillance video taken of the hallway outside of her apartment at about 10:31 a.m. She got very upset at this point and said that she did not know what that was and that she was “so confused”. She went on to say that it looked like she was trying to leave her house, and someone was dragging her back in. She testified that she saw a white baati but that she couldn’t really see what it was exactly. S.S. went on to say that she remembered trying to leave and that she could not get the door open. She had no memory of getting through the door and being pulled back in.
57As I will come to, Mr. Mohamed testified that S.S. tried to escape after he physically assaulted her the first time. The Crown’s position is that S.S. has the sequence of events wrong and that she attempted to escape after she was permitted to pray and had changed into a black dress.
58Ms. Israel submitted that at one point on the video you can see S.S.’s legs and they too are black suggesting that she was wearing black tights and a large dress and that this corroborates Mr. Mohamed’s evidence that she had changed into a baati and black tights after they arrived at the apartment. Mr. Wilson submitted that in the video you cannot see S.S.’s legs. It is his position that on her lower and upper body she was wearing something black and that there was a white flowing piece of clothing over top. He submitted that this is what S.S. put on for prayer and that she got the sequence wrong as to when she tried to escape - she did it after she changed for prayer.
59I have looked at the video surveillance several times both in court and during my deliberations, including slow motion and zooming in. She appears to be facing towards the door briefly before she is pulled back in. At one point her right arm shoots up and it is clear that she has something that is black and short-sleeved on her upper body. I do not see her legs at any point as they are covered by what appears to be a flowing black dress or robe, although at one point, I see her feet which are bare. What is very significant is that looking closely at the video there is a light white or grey blanket or sheet over her back. S.S. thought it was a white baati, but she was not shown a close up of this video nor was it slowed down for her. She was clearly wrong as this white piece of cloth is not a baati.
60There is no evidence of a second attempt to escape. I find that Mr. Wilson is correct that the only conclusion that fits the evidence is that S.S. attempted to escape the apartment after she put on clothing to pray. S.S. testified that she put on a short-sleeved black robe, which is what she wore to pray. She said that it looked like a baati but was not one in that it was more structured. She also put a sheet to cover her head almost like a hjab. S.S. testified that she put on a short-sleeved black robe, which is what she wore to pray. She was not asked what colour this sheet was.
61Having carefully considered what can be seen on this video and the evidence of S.S. as to what she changed into to pray, I find that she must have attempted to escape the apartment after she put on clothing to get ready to pray. I will come back to the significance of this.
The second alleged sexual assault by Mr. Mohamed
62S.S. testified that after she was pulled back into the apartment Mr. Mohamed dragged her into her bedroom. She did not remember where Hassan was. She testified that Mr. Mohamed sexually assaulted her again vaginally and this time it was much more violent, and he pinned her down really hard. He was choking her with his hands again and at one point he spun her around, so her back was to him and he penetrated her anus briefly. She was fighting very hard. He then flipped her back onto her back and entered her vaginally. She testified that she lost consciousness because she could not breathe at least twice and remembered “coming to” twice. While Mr. Mohamed was assaulting her, S.S. testified that he was telling her that she was going to die “today” and that while he was choking her, he said that he was going to kill her. S.S. testified that she thought she was going to die.
The first alleged sexual assault by Hassan
63S.S. testified that she remembered that when Mr. Mohamed was “finished” that his brother came in and he started to climb on top of her. She resisted and Mr. Mohamed stormed back in with his fists up to her head and said: “if you don’t fucking fuck him, I’m going to kill you”. As a result, she stopped resisting as she wanted to survive, and she let his brother “have his way vaginally”. She just remembered lying or sitting there. S.S. testified that Mr. Mohamed was yelling, huffing and puffing and that he was telling her she was going to die that day. She pleaded with him: “please don’t kill me”. S.S. testified that after this assault, Mr. Mohamed asked his brother to get his gun from the car. Hassan did not do so.
Mr. Mohamed’s evidence about his admitted physical assaults of S.S.
64Mr. Mohamed testified that after the casual sex with S.S. and taking a bite of food, he went to the solarium where he was smoking, drinking and listening to music. He also talked to Hassan who was in the living room on the couch playing something on iTunes. Mr. Mohamed testified that he then sat on the long side of the L-shaped couch in the living room and put his feet up. He then dozed off for 40 to 60 minutes on the couch. He did not know where his brother was.
65Mr. Mohamed testified that he woke up to S.S. tapping him on his foot and saying that he was a “party pooper” and asking him why he was sleeping. He told her that he was tired. He got up to use the washroom and then went to grab a drink from the solarium. S.S. was in the living room on the other side of the couch. S.S. then asked him why he looked so “spooked” earlier in the day and Mr. Mohamed testified that he told her that his brother was robbed a few weeks earlier and that he was looking for these guys, and that he did not know their names, but one was called “Jay Money”. He asked her if she knew these guys. He also testified that he was drunk and “half asleep” while they were talking back and forth.
66At first, according to Mr. Mohamed, S.S. said she did not know these guys. Mr. Mohamed testified that he then said to her that she went to the area a lot – most every weekend and that he saw her there all the time, that she did not have to lie to him and that she “must know these guys”. According to Mr. Mohamed, S.S. then told him that she knew them and said: “they are serious - they will kill you guys” Mr. Mohamed testified that S.S. almost made it seem like she knew them “like the back of her hand”. He agreed that by saying this S.S. was scared of these guys and wanted to be careful. He took it as S.S. not wanting to give him the information because she was scared of these guys.
67Mr. Mohamed testified that he got very angry and he “smacked her” with his right hand in an open position, first with his palm and then with the back of his hand and he grabbed her neck with his right hand and squeezed. He testified that he was angry because she had lied to him and she was hiding something from him. Mr. Mohamed admitted that he was choking S.S. and that this was dangerous and that it was possible she could go unconscious although he did not know if she lost consciousness. He was also shaking her and asking her why she was lying to him and he admitted that he grabbed her “pretty hard”. He also admitted that he was threatening S.S. that he was going to kill her unless she told him where they lived, and that she was dead and that he knew that she knew these guys.
68Mr. Mohamed testified that he did not know where his brother was, but Hassan got up and said: “what the fuck is going on” and Hassan broke it up for a second by separating them. Mr. Mohamed told his brother that S.S. knew the guys and while he was talking to his brother S.S. ran, attempting to leave the apartment. She got out of the door and Mr. Mohamed admitted that he pulled her back in by her hair, although he denied that he dragged her back in. He admitted that he then “smacked her” a few more times and grabbed her by the throat and told her that he would kill her unless she told him where these guys lived. He was grabbing her arms and shaking her back and forth and demanding that she tell him where they lived. In cross-examination Mr. Mohamed testified that S.S. was basically saying that she did not know where they lived, she just saw them in bars, but he did not believe her and felt that she was still lying because she had initially lied when she said that she did not know them. He admitted that S.S. got scared but he denied telling his brother to get a gun. His brother broke it up again and told him to “chill out” and calm down and have a smoke. Mr. Mohamed testified that he heard his brother ask S.S. if she was lying to his brother and if she knew where these guys lived.
69Mr. Mohamed testified that at this point he walked away and went to the solarium and sat down and had a cigarette and was drinking more. He was sitting there for a while and was frustrated as he did not know if S.S. knew or not, although he had a feeling that she knew. He testified that he did not know where Hassan and S.S. were while he was in the solarium. He wanted to leave but he stayed because his brother was saying that he was going to talk to S.S. to calm her down. He did not sleep again after this.
70Mr. Mohamed denied having sex with S.S. a second time or choking her in order to have sex or telling her that she had to fuck his brother, or he would kill her.
71S.S. denied hearing Mr. Mohamed asking her about a guy named Jay or Jay Money or about someone who had robbed Mr. Mohamed’s brother earlier. She had no recall of talking about this or overhearing any conversation about this. She had no recall of Mr. Mohamed being concerned about this outside the after-hours bar. S.S. also denied that Mr. Mohamed slept on the couch or that she tapped him to wake him up or that she had a conversation with him about Jay or Jay Money when he woke up. She also denied any discussion with Mr. Mohamed about them and that this occurred when he grabbed her neck and slapped her across the face. S.S. testified that Ms. Israel's suggestions made no sense and they never happened. She also said that Hassan never supported or helped her as suggested by Ms. Israel.
S.S. asks to pray
72S.S. testified that after the two sexual assaults by Mr. Mohamed and the one by his brother, she was pleading with Mr. Mohamed not to kill her. At this time, she asked Mr. Mohamed if she could pray. He agreed because he told her it would be her last day to live. To get ready to pray she performed an ablution in the bathroom although she had to keep the door open. She also testified at another point in her evidence that she was not allowed access to her cell phone. S.S. testified that she washed her hands, face and feet and wet the top of her head in the shower. She was stalling for time. She put on a short-sleeved black robe, which I have already described, which she testified is what she wore to pray. She then went to her son’s room as her room was a “disaster”. I took it from that that she would otherwise have prayed in her bedroom. S.S. identified her prayer mat on the floor of her son’s room in a photograph and it has a silhouette of a mosque, so I find that it was in fact her prayer mat. S.S. testified that it was the size of a yoga mat, but it was folded over at the bottom end. She was not asked about putting it down, but she did say that she stood on the folded part to pray for about for about 10 minutes or longer and that she prayed that Mr. Mohamed would not kill her.
73Mr. Mohamed testified that he did not remember S.S. praying or seeing her praying. He agreed that his two assaults on S.S. were one after the other and there was no opportunity for S.S. to pray in between them.
Mr. Mohamed leaves the apartment for about 20 minutes
74There is no dispute that Mr. Mohamed left the apartment for about 20 minutes. Based on the video surveillance evidence I find that Mr. Mohamed left the apartment at about 10:57 a.m., which was about 26 minutes after S.S. attempted to escape the apartment, and he returned at about 11:18 a.m.
75Mr. Mohamed testified that he told S.S. and his brother that he was leaving for a few minutes. He wanted to buy cigarettes and a sandwich from the Subway across the street from the apartment. According to Mr. Mohamed this occurred after the two physical assaults on S.S. Mr. Mohamed denied that he was confining S.S. when he left the apartment. He testified that he did not know if he took a key with him but if he did it was “something normal”. He was not sure how he got the keys or if they were on the counter. He was pretty drunk and did not remember if he locked the door. He later said that it makes sense that he locked the door because there was no one in the living room. Mr. Mohamed denied they were trying to confine S.S. to her apartment by locking her in.
76After Mr. Mohamed returned to the apartment, he testified that he did not “touch this girl at all” and he did not give any evidence that he even spoke to S.S. again. He said that he talked to his brother for a bit and he told his brother that he wanted to leave, although he then added that they chilled for another hour and a half. Mr. Mohamed had already testified however that at this point he just wanted to leave and that they left 40 to 60 minutes later – he was pretty drunk and was not sure of the time. According to Mr. Mohamed, his brother told him that he was going to talk to S.S. to calm her down, although I note Mr. Mohamed also testified that his brother was going to do this after his second assault on S.S. before he left the apartment to buy cigarettes.
77When Mr. Mohamed was cross-examined on why he did not simply leave the apartment when he left the apartment for cigarettes, he testified that his brother was his ride although he conceded that he could have taken TTC, a taxi or an Uber. He testified that he was still trying to find out information and that he was not trying to leave. Mr. Mohamed testified that he went to sit down in the solarium. He said that the bottle was still there, and he had a cigarette and some drinks. S.S. was in the room and his brother said that he had calmed her down. Again, then it makes no sense that he and his brother stayed.
78The video surveillance shows Mr. Mohamed backing out of the apartment and he stood at the apartment door for almost a minute. I find that the only reasonable inference to what I can observe at this time and when he returned, is that Mr. Mohamed had the key to the apartment and locked the door to the apartment. After taking the time to lock the door and pacing back and forth in the hallway outside the apartment, Mr. Mohamed walked down the hallway, presumably to the elevators. Mr. Mohamed denied he was pacing because he was agitated. He testified that maybe he thought he forgot something. S.S. recalled that Mr. Mohamed left the apartment to buy cigarettes. Hassan remained although she did not recall where he was in the apartment.
79The video surveillance evidence shows Mr. Mohamed back in the hallway outside S.S.’s apartment at 11:18 a.m. As he walked toward S.S.’s apartment, he had his hands in what appears to be the pockets of his parka. When Mr. Mohamed was shown this clip, he admitted that he did lock the door, but he did not remember if he took the key or not, but if he did it was “something normal”. He appears a little unsteady on his feet as he walked. Mr. Mohamed stood outside the door of the apartment for a few seconds and I find that he was using the key to gain entry to the apartment.
The third alleged sexual assault by Mr. Mohamed
80S.S. testified that as she was praying, Mr. Mohamed came into the room and started to lead her to her son’s bed, so she knew he wanted to have sex with her again. He was pushing her onto her son’s bed, and she did not resist as before because she was afraid that if she did, he would choke her, and he had already told her she was going to die. She wanted to stay alive. S.S. testified that she did ask him to please not do it on her son’s bed. He said no and told her that he was “going to fuck in your son’s bed”. He then proceeded to force her to have vaginal intercourse on her son’s bed.
81S.S. was shown a photograph of her son’s room. She said the bed might not have been made up perfectly, but that she was sure that the blanket was not hanging out over the edge as shown in the photograph. She testified that there was a pillowcase or flat sheet on the floor in front of the closet that matches the sheet and pillowcase on the bed, but she was not asked if this was where they were in the room before she went out the night before.
The second alleged sexual assault by Hassan
82S.S. testified that after Mr. Mohamed left her son’s room, Hassan came into the room and did the same thing in that he sexually assaulted her vaginally on her son’s bed.
The shower S.S. alleges Hassan forced her to take
83S.S. testified that after these two assaults in her son’s room, Hassan told her to get in the shower. She had a “feeling why”. She also wanted to get rid of their semen from her body. She knew that she had ejaculate inside and on her body, although she did not know from whom. Hassan stayed in the bathroom and put soap on her using a circular pom pom and lathered her up. S.S. was not sure where Mr. Mohamed was at this time and initially testified that she was not sure if he was in the bathroom. After her memory was refreshed from her evidence at the preliminary inquiry, she confirmed that Mr. Mohamed was not in the bathroom. After this S.S. testified that she put something clean on. In the photograph of the bathroom there is an orange slip and a purple bra on the floor, but there is no evidence of any significance about this.
84During the course of closing submissions Mr. Wilson submitted that there was a third sexual assault by Hassan when he demanded oral sex while he was scrubbing S.S. in the shower. I have reviewed my notes and S.S. did not give any evidence about this and so I do not accept this submission.
S.S. finds a knife
85S.S. testified that after she was forced to take a shower by Hassan, she found a knife and she put it to Hassan’s neck. She was not sure where she found it, but at this point they were in the hallway, I presume outside the bathroom. She did not know where Mr. Mohamed was. She did not cut Hassan and he took hold of the knife and took it from her hand. He told her that if Mr. Mohamed saw the knife that he would kill her and so she let go of the knife. Hassan put it away and to her knowledge he did not tell Mr. Mohamed about it.
86In cross-examination S.S.’s memory was refreshed from evidence that she gave at the preliminary inquiry and she confirmed that she went into the kitchen and got the knife. It was implied in questions by Ms. Israel that this occurred while Mr. Mohamed was out of the apartment and given how Hassan acted, S.S. could have escaped from the apartment. To this she responded that she was pretty sure that Mr. Mohamed had taken her key and that if Ms. Israel was suggesting that she had time to escape, that was true, but she was terrified.
87Given the sequence of S.S.’s evidence, she found the knife after Hassan forced her to take a shower, in which case Mr. Mohamed was in the apartment. In any event, given what S.S. alleges Mr. Mohamed did to her after she attempted to escape, I cannot fault S.S. for not making a second attempt to escape the apartment.
Hassan’s four trips to the garbage chute
88S.S. testified that next to her apartment was the garbage chute. The video surveillance evidence shows Hassan going to the room that contains the garbage chute four times. I will deal with this evidence all at once, as it is difficult to place it within the sequence as told by S.S., as she was not aware of the fact that Hassan was leaving the apartment.
(a) 9:32 a.m.
89S.S. was not asked about this portion of the surveillance video, but at about 9:32 a.m. Hassan can be seen coming out of her apartment with something in his left hand. I am certain it is Hassan, based on what he is wearing. Although both he and Mr. Mohamed were in dark clothing, Mr. Mohamed was wearing white running shoes which are very visible whenever he is seen outside the apartment. The item in Hassan’s hand is clearly a piece of cloth. He opened the door to the stairwell and went into the stairwell but a couple of seconds later he came back into the hallway and walked toward the camera into a room that S.S. testified led to the garbage chute. That evidence was not disputed. When Hassan exited this room, he had nothing in his hand. I find that Hassan must have thrown out whatever was in his hand. I am not able to determine what that was.
(b) 9:57 a.m.
90S.S. was shown video surveillance from 9:57 a.m. and she testified that the person in the hallway looked like Hassan and that it looked like he was carrying clothing – one of her baatis. She was shown the video again with it running much slower and zoomed in and she testified: “Oh 100% that if one of my baatis” and that she could tell this from the print. This evidence was not challenged. She testified that she had about five baatis at the time.
91Mr. Mohamed was shown this video and he testified that he did not think his brother had left the apartment. He testified that he had no clue why S.S. would throw out a baati. He said that he did not see any violence or any issue between S.S. and his brother at any time, but in reply he testified that he was not with them when he was in the solarium, which was a totally separate place, and he did not know what was going on while he was sleeping.
92It is significant that at this time and at the other times Hassan is seen leaving and then reentering the apartment after going to the room with the garbage chute, he did not have to unlock the door when he reentered the apartment. I find based on this evidence that the door to the apartment does not lock after it closes and that the key is needed to lock the door.
(c) 10:24 a.m.
93At 10:24 a.m. Hassan is seen on the video surveillance coming out of the apartment again and this time he went directly to the garbage room. This was only seven minutes before S.S. attempted to escape the apartment. He had an object in his hand that the Crown alleges was the bottle of Crown Royal. This clip was played slowly, and Mr. Wilson zoomed in on this item at my request during closing submissions and Ms. Israel did not take a contrary position. Based on what I am able to observe, I find that at this time Hassan had the Crown Royal bottle in his hand. Hassan came out of the garbage room without the bottle and so I find that he disposed of the bottle of Crown Royal at this time, which was presumably empty given he and Mr. Mohamed did not leave the apartment for some time thereafter. As such, based on the evidence before me Mr. Mohamed and Hassan would not have had any alcohol to drink after 10:24 a.m., apart from what may have been already poured in a cup, until they left the apartment at 12:50 p.m. a period of two hours and 26 minutes. Furthermore, Mr. Mohamed’s evidence that the bottle was still there when he returned at about 11:18 a.m. is not correct.
(d) 12:24 p.m.
94Hassan can be seen on the video surveillance coming out of the apartment again at about 12:24 p.m. with a small dark item in his hand. I am not able to determine what this item was but find that whatever it was, Hassan went into the garbage room and when he exited that room his hands were empty.
(e) 12:41 p.m.
95Hassan emerged from the apartment again at about 12:41 p.m. with what appears to be a small white item in his hand. Again, I am not able to determine what this item was. He went into the garbage room. When he exited a few seconds later it is not clear from the video surveillance that his hands were empty, but it is reasonable to infer that whatever he had in his possession was disposed of as that would be the only reason for going into this room.
The departure of Mr. Mohamed and Hassan from the apartment and the return of Hassan
96S.S. testified that when Mr. Mohamed returned, he and his brother let her have a cigarette with them in the solarium. They were saying “you’re not going to call the cops” and she told that them that of course she would not do that. She knew what violence they were capable of, so she was being “nice” but was asking them to leave. She testified that she still thought that they were going to kill her, so she was trying to gain their trust. She recalled Hassan telling her that they would leave so long as she did not call the cops. Hassan told her to go to sleep and so she went to her son’s room. She testified that Hassan laid down on the bed with her until she fell asleep. Her last memory of Mr. Mohamed that day was that he was in the solarium. S.S. testified that she slept most of Saturday. When she woke up, the two men were gone.
97When asked S.S. estimated that they were there for more than three hours, but that estimate is clearly wrong. Based on the surveillance videos that I will come to, I find that Mr. Mohamed and Hassan were in S.S.’s apartment for about six hours. S.S. believed that everything was fine for the first hour or two.
98Based on the video surveillance evidence, I find that Mr. Mohamed and his brother left S.S.’s apartment at about 12:50 p.m. This was two hours and 19 minutes after S.S. attempted to escape the apartment and about one-and-a-half hours after Mr. Mohamed returned to the apartment. They do not appear to be in any rush. The video surveillance of them outside the elevators shows Hassan holding a dark piece of clothing that Mr. Mohamed puts on underneath his parka before they go into the elevator. It is dark navy in colour, and I find it is a zippered sweater or sweatshirt that looks big and long on Mr. Mohamed. They exit the building by driving Hassan’s vehicle out of the underground parking garage at about 12:53 p.m.
99About 13 minutes later at about 1:06 p.m. what appears to be Hassan’s vehicle can be seen on the video surveillance parked in front of S.S.’s apartment building. I find that the person who exits the vehicle is Hassan based on his appearance. He is wearing the same clothing that he wore earlier. It is not possible to see if anyone else is in the vehicle. Hassan entered the front lobby and cannot be seen after he walked past the building directory until he emerged from the 10th floor stairwell at about 1:08 p.m. He went back into the stairwell and emerged from the 12th floor stairwell at 1:09 p.m. He went into S.S.’s apartment and was in the apartment for less than a minute before he left, going back down the stairs.
100Ms. Israel queried how would Mr. Mohamed and his brother know that they needed the FOB to exit the garage, but I find given the unchallenged evidence of S.S. that a FOB was needed to exit the garage that they must have taken S.S.’s FOB. It is therefore reasonable to infer that Hassan was bringing the FOB back. This evidence is neutral in that on Mr. Mohamed’s version of events S.S. could have allowed them to take the FOB and exit the building on the understanding they would return it, although that was never put to her. That is also unlikely as Hassan drove away off camera and only returned to the building some 13 minutes later. In any event I do not need to decide why Hassan returned to the apartment or what he did when he reentered S.S.’s apartment.
S.S.’s report to police and attendance at hospital
101S.S. testified that when she woke up, she looked for her glasses and her cell phone and she could not find either of these items. She put on clean clothes and went to a neighbour’s to use her phone. She got into an Uber but did not make it all the way to the station as the Uber stopped working. She had no phone and no money, so she got out and walked to the police station. She arrived during the evening of Saturday November 3, 2018 and attended the front desk of 12 Division of the Toronto Police Service to report the alleged assaults.
102S.S. spoke to police then but not for very long and they accompanied her to St. Joseph’s Hospital where she was examined by a registered nurse who conducted a sexual assault examination and prepared a sexual assault kit (“kit”). The kit included external and internal vaginal and anal swabs which were turned over to police and sent to the Centre for Forensic Sciences for forensic DNA analysis. S.S. testified that she was given something to calm her down which made her very sleepy. She did not say who gave this to her, but the only reasonable inference is that it was the sexual assault nurse or a doctor at the hospital. S.S. was taken back to the police station just before 2:00 a.m. Sunday November 4th but she was too tired to give a statement and a female cousin took her to her home where she was could sleep.
Evidence of injuries to S.S.
103I have no evidence as to whether any injuries to S.S. were noted by the sexual assault nurse, but photographs taken during the evening of November 3rd that are admitted to be accurate were shown to S.S.. Based on her unchallenged evidence and what can be seen in these photographs, I find that there was visible scratching and bruising to S.S.’s neck, where she alleges Mr. Mohamed was choking her and to a lesser extent on her face as she alleges that he was putting his hand on her face to keep her down as she was resisting. She believes that the scratching was caused by his fingernails when she tried to remove his hand and fingers. There are also photographs showing bruising and scratches to S.S.’s left arm. S.S. also testified that her neck was sore and that for days afterwards her vagina and anus were sore. In addition, she testified that on her chest there was a bite mark or scratches and that there was bruising and scratches on her upper torso and bruising to the inside of her thighs although no photo was introduced into evidence to show these injuries, but this evidence was not challenged.
104I find that although S.S. clearly suffered injuries, apart from the sore vagina and anus, given the nature of the injuries they are consistent with either the evidence of S.S. or Mr. Mohamed. They do not assist me in determining which version of the evidence is true.
S.S.’s statement to police
105On November 4, 2018, S.S. provided a video recorded statement to police in which she described in detail the events of November 3, 2018. S.S. admitted that no one rushed her when she gave her statement and that she was told that she could contact police if she remembered anything else and she told the police that she would do so. She watched her videotaped police statement before she gave evidence at the preliminary inquiry and she did not provide any new information to the Crown in advance of testifying. S.S. has worked in the past with women who have been sexually assaulted although that was not the case at the time of these alleged assaults. She agreed that traumatic events could affect memory of the events.
106As I will come to S.S. was cross-examined about a number of inconsistencies and omissions between her statement to police and her evidence at trial. For the most part it was not suggested that her evidence at trial had changed from her evidence at the preliminary inquiry, but prior consistency of course does not enhance her credibility. I state this only to explain why I have not mentioned this issue with respect to her evidence at the preliminary inquiry. Accordingly, S.S.’s condition when she gave her statement to police was explored by counsel. In cross-examination S.S. testified that she was still in “shock with everything” when she spoke to police and that the way in which she remembered events now is not how she remembered them there. She explained the fact that she did not tell police about Mr. Mohamed’s specific threat before Hassan allegedly sexually assaulted her the first time or that she had asked to pray or the fact she was in shock. She testified that in advance of the preliminary inquiry she did not contact police about these details because she believed that she had told police everything she remembered.
107In reply S.S. testified that she was physically and mentally exhausted when she gave her statement to police. She had slept but testified that she would not call it rest. She was still tired but no longer under the influence of any alcohol and was coherent. Emotionally she was a “little stressed out” because she had to try to remember everything that had happened a day and one-half earlier which was difficult – “it was a long night”. She added that it was not like one thing happened – so many things happened, and she was trying to remember everything that happened “without completely breaking down”.
108At the time S.S. gave her statement to police she knew Mr. Mohamed as Ibrahim but did not know his last name and she did not remember his brother’s name. When asked who else would know Ibrahim’s last name, she told police that she was scared to ask people because the people that would know him would be people who would consider him to be a friend and she was scared that it would “prompt him to run or prompt him and his brother to come and kill me” . S.S. did admit that she had asked her cousin and N.H., after giving her statement to police, who these guys were and what vehicle they drove, and N.H. told her Mr. Mohamed’s brother’s first name and the type of car he drove, and her cousin told her what nicknames Mr. Mohamed and his brother had. She did not get any other information about them from anyone else. S.S. testified that even though she told police that she did not want to ask friends for help, she spoke to her cousin and N.H. because she wanted to return to her home safely and be able to send her kids to school and that she wanted these men “caught”. She was really close to the two people she did speak to.
109On November 5, 2018 S.S. was taken through a photo lineup. I did not hear any evidence about this as identity was not disputed, but she was asked about her conversation with N.H. before the photo lineup and after giving her statement on November 4th.
The photographic evidence of the state of S.S.’s apartment
110After S.S. attended at the police station, officers attended at her apartment to “hold the scene”. Detective Constable Gendi from the Forensic Identification Unit also attended in order to investigate. He took photographs of the interior of the apartment that are admitted to be fair and accurate. There was no suggestion that S.S. had altered what can be seen in these photographs before she left the apartment to attend at the police station.
The DNA evidence
111The ASF at paras. 7-26 states the following with respect to the DNA evidence. I have highlighted those portions I find to be significant:
December 6, 2018 DNA Report "December Report"
On December 6, 2018 James Morrow, a biologist at the Centre for Forensic Science generated a biology report based on the swabs taken from the kit.
Semen was detected on the external genitalia swab, vaginal swab and anal swab taken from the sexual assault kit. S.S.'s DNA and two male DNA profiles were also generated.
March 4, 2019 DNA Report "March Report"
On March 4, 2019 Christian Taylor, a biologist at the Centre for Forensic Sciences generated a second biology report. The Centre for Forensic Sciences uses a numbered system and assigns DNA profiles a number. Hassan Mohamed's DNA profile was assigned CC100.
The purpose of the March Report was to compare Hassan Mohamed's DNA to the profiles generated in the December Report.
When Ms. Taylor compared Hassan Mohamed's DNA profile to the two male DNA profiles generated in the December Report, she concluded that Hassan Mohamed cannot be excluded as one of the two contributors with respect to the external genitalia swab, as well as the vaginal and anal swabs.
June 5, 2020 DNA Report "June Report"
On June 5, 2020 James Morrow, a biologist at the Centre for Forensic Sciences generated a biology report.
Ibrahim Mohamed’s DNA profile was assigned CDW-8583-1. The purpose of the June report was to compare the known DNA profile taken from Ibrahim Mohamed to the unknown male DNA profiles mentioned in the December Report.
For the purposes of his report CDW-8583-1 is Ibrahim Mohamed. The purpose of the June report was to compare Ibrahim Mohamed's DNA to the DNA profiles generated in the December 6, 2018 Report.
Ibrahim Mohamed could not be excluded as one of two male contributors with respect to the external genitalia swab, vaginal swab and anal swab.
September 22, 2020 "September Report"
On September 22, 2020 James Morrow, a biologist at the Centre for Forensic Sciences amended the March 4, 2019 report (Appendix B). The March Report said the DNA on the genital swab was 11 billion times more likely to originate from donor CC100 (Hasan Mohamed) and S.S. than if they originate form S.S. and an unknown person unrelated to CC100. The amended report states that it is only 10 billion times more likely.
Mr. Morrow concludes that these changes "do not have a significant impact on the overall conclusions reached in the [March] Report."
The Expertise of the Biologist
- There is no dispute that James Morrow and Christine Taylor are experts in the collection, identification and analysis of DNA and bodily fluids. …
The Limitations of DNA Analysis
All four reports collectively address the presence of bodily fluids/DNA, and whether the donors of the DNA contributor's samples can be excluded as contributors to the unknown DNA samples.
The Report(s) do not and cannot address how or when the DNA was deposited.
In the December 6, 2018, report, the presence of semen suggested is for the sample as a whole and may have originated from one or both males.
The presence of DNA on the anal swab could be explained by ejaculation in or around the anus of S.S. or could be explained by ejaculation in the vagina that has drained to the anal region.
112Ms. Israel submitted that based on paras. 23-26 of the ASF, it was possible that S.S. had consensual vaginal intercourse with Mr. Mohamed and that his semen drained from her vagina to the area of her anus and so the DNA Reports do not mean that there was necessarily anal intercourse. I agree with that submission.
113Ms. Israel also submitted that the DNA Reports do not necessarily establish that Hassan ejaculated inside S.S. and that there was no evidence of ejaculation by Hassan. Mr. Wilson disagreed and submitted that the swabs taken from S.S. were from her external genitalia, her vagina and her anus, not from her hands, face or lips. It is his position that there was no chance of innocent transference of Hassan’s DNA to S.S.’s external genitalia, her vagina and her anus and that this DNA evidence corroborates S.S.’s evidence that Hassan engaged in vaginal intercourse with her.
114I find, given that the forensic DNA comparison analysis determined that Hassan cannot be excluded as one of the two male profiles present in all three swabs taken from S.S., and that accordingly that Hassan did ejaculate during vaginal and/or anal intercourse with S.S.. The DNA evidence alone does not corroborate S.S.’s evidence that this was intercourse without her consent.
The consumption of alcohol by S.S. and Mr. Mohamed
115I have set out what evidence I do have of what S.S. recalled drinking at dinner, at Gucci’s Bar, the after-hours club and in her apartment. Her consumption of alcohol was explored somewhat in cross-examination and she admitted that she had had a lot of alcohol and that the consumption of alcohol allowed her to be friendlier. In terms of her sobriety, S.S. testified that she felt tipsy but felt more sober after she ate some of the food she had prepared. She testified that she still had a “level of consciousness” and admitted that she was inebriated and that her perception was possibly altered and that it was possible that she might take things the wrong way. When Ms. Israel put to her that she might forget the order of things she responded: “sure”. In that respect she was a very agreeable witness in cross-examination.
116I have also summarized the evidence that I do have of what Mr. Mohamed had to drink. He testified that he was “pretty drunk, falling around” what he described as “sloppy drunk”. S.S. testified that Mr. Mohamed was not inebriated when he got to her apartment in that he was not slurring his words or falling down or exhibiting what she would characterize as drunk. Ms. Israel then showed her the video surveillance of how he behaved in the hallway when they arrived at her apartment and she admitted that looking at the video he did seem to be “tipsy,” but she did not remember that at the time. She also admitted that although she had hugged Mr. Mohamed before, they had not interacted in this way before. S.S. admitted that without seeing this surveillance video she would still have thought that Mr. Mohamed was not that inebriated.
117I find that both S.S. and Mr. Mohamed were inebriated in the early morning hours of November 3rd but since they both essentially agree on all the material facts leading up to the time they arrived in S.S.’s apartment, it does not appear that their consumption of alcohol before they arrived at her apartment has had a material impact on their perception or memory of events.
118Once they were in the apartment the three of them continued to drink and consumed the contents of a large bottle of Crown Royal and only S.S. had very much to eat. I accept that this may have an impact on their perception and memory of events as submitted by Ms. Israel. However, it was not suggested that S.S. was so inebriated that she had consensual intercourse with Mr. Mohamed because she was less inhibited. As I will come to the theory of the Defence was quite different as to why she has allegedly fabricated these allegations against Mr. Mohamed. As for Mr. Mohamed he testified from time to time that he did not remember something because he was drunk, and I accept that could be true. He did not suggest in his evidence that any of his actions were fueled by his consumption of alcohol.
119In summary, I find that the consumption of alcohol by S.S. and Mr. Mohamed did not have a material impact on how they behaved at the relevant time. I will however consider whether or not it impacted their memory and perception of events and thus the reliability of their evidence as submitted by Ms. Israel, when I consider the issues before me.
Analysis
Assessment of the reliability and credibility of the witnesses
120I turn then to consider the reliability and credibility of S.S. and Mr. Mohamed. Both Ms. Israel and Mr. Wilson submitted that there were material internal and external inconsistencies in the evidence of S.S. and Mr. Mohamed. I accept, as the Court of Appeal stated in R. v. M.G., 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 (ONCA) at para. 23: “probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not”. As the court went on to state however that minor inconsistencies are normal and to be expected but “where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with the truth”. In this case S.S.’s evidence at trial was also challenged because of alleged material omissions when she gave her statement to police which raises different considerations.
121Demeanour as a way of assessing credibility is now considered to be a poor indicator of whether a witness is telling the truth. That said, I find it is helpful to consider how responsive a witness is to answering questions of opposing counsel and whether their demeanour changes in cross-examination. Accordingly, I will make some comments about what I observed about the demeanor of both S.S. and Mr. Mohamed as they testified as I did find it of some assistance in assessing the credibility of their evidence.
(a) S.S.
122Ms. Israel began her submission by stating that S.S. was one of the best Crown witnesses she has encountered in recent years. She stated that S.S. presented as bright, resolute and thoughtful and that she was clearly hurt and upset by this incident. Ms. Israel argued that this evening was saturated with alcohol consumption and that in itself is bound to have affected one’s ability to reliably recount the events with perfection. It is her position that since it is certain that Mr. Mohamed threatened, confined and assaulted S.S., that that would have affected her ability to reliably recount the events with perfection. She argued that a discussion of memory and perception is in order - perception being a real time experience while a memory is the replaying of past experience. In this case Ms. Israel submitted that S.S. received unexpected and unprovoked violence from someone she had welcomed into her home and extended hospitality to and she queried what that would do to influence the way she recounted the events of that evening. It is the Defence position that this changed S.S.’s memory of the evening from consensual sex into non-consensual sex with Mr. Mohamed. It was also her position that the admitted assaults by Mr. Mohamed gave S.S. an incentive to lie about the other assaults she testified to.
123Mr. Wilson also submitted that S.S. was one of the best witnesses he has seen and that she was authentic and genuine in every aspect. He submitted that she was not evasive, nor did she exaggerate in any way. She acknowledged when she could not remember and did her best when challenged. She fairly acknowledged the consumption of alcohol and marijuana and that it might impair her memory. She was also very fair, and he gave as an example S.S.’s evidence that when Mr. Mohamed’s head caused her head to hit the door when she attempted to escape that it was probably his momentum that caused this.
124I agree that S.S. presented as a thoughtful and very fair witness. I found her to be very careful in her responses and she made admissions without hesitation. I observed that once she was being cross-examined, S.S.’s demeanour did not change in any way. She was never evasive in answering Ms. Israel’s questions nor did she ever show any sign of hostility towards Ms. Israel or for that matter Mr. Mohamed or his brother. She was totally responsive to all questions in cross-examination and she did not exaggerate in any way. Furthermore, she did not come across as someone with an axe to grind. She was here to tell her story and she told it in a balanced and fair way. Mr. Wilson gave one example, and another would be S.S.’s evidence about the knife and the fact that she said that Hassan disarmed her and did not tell Mr. Mohamed about it despite the fact that she alleges that he too had sexually assaulted her. She would have no reason to say anything positive about Hassan.
125The only evidence that might suggest that S.S. still feels malice towards Mr. Mohamed to the extent that it might impact on her evidence, was the evidence about her cell phone. She told police when she reported these assaults that she knew she had her phone because she had plugged it in but that she could not find her phone. Presumably this is why Mr. Mohamed was also charged with robbery. S.S. testified that she even bought a new phone but that she found her old phone in March 2019 in a pink storage container in the solarium where she stored old schoolbooks and binders. She testified that it was not a place where she would put her phone and it was not where she left it.
126S.S. admitted that she did not tell police that she had found her phone, but she testified that she thought she had said something about it at the preliminary inquiry. When she read the transcript in preparation for testifying at trial, she realized that she had not said anything about finding her phone and so she called police and disclosed this in advance of trial.
127S.S. was cross-examined about the fact that she could have told Mr. Wilson about the fact that she had found her phone before the preliminary inquiry or at least when she gave evidence at the preliminary inquiry. I accept that S.S. could have told police or the Crown before she testified at the preliminary inquiry. However, I do not know that S.S. was even aware that this was an important fact or that Mr. Mohamed had been charged with robbery. She testified that it was possible she forgot she found it and that is believable. As for her failure to mention it at the preliminary inquiry, Ms. Israel did not take her to any part of the transcript where a question clearly invited that information. Without that I do not know if she was even asked about the phone when she testified at the preliminary inquiry. I therefore do not find that S.S. failed to advise police or the Crown that she had found her cell phone because she believed that this would hurt Mr. Mohamed. There is, therefore, no evidence or sign that S.S.’s evidence was impacted by ongoing malice for Mr. Mohamed and Hassan.
128Ms. Israel submitted that there were a number of inconsistencies between S.S.’s evidence at trial and what she told police in her statement and the fact that for the most part her evidence at trial was consistent with her evidence eight months later at the preliminary inquiry on July 2, 2019, does not enhance her credibility. I agree that prior consistent evidence at the preliminary inquiry does not enhance S.S.’s credibility, but the fact that most of the external inconsistencies in S.S.’s evidence result from difference from her statement to police raises a number of general questions. It is of course true that generally speaking it is reasonable to infer that her memory should have been better a day after the events as opposed to eight months later. That, however, ignores her state at the time she gave her statement to police.
129I have already reviewed the evidence S.S. gave about her state at the time she gave her statement to police, which was less than 24 hours removed from the allegations that she makes. She testified that she was in shock and that is credible even only on the admitted assaults by Mr. Mohamed. S.S. also said that she was physically and mentally exhausted when she gave her statement. She had gone to her cousin’s house to sleep after she left the police station after her sexual assault examination, but she testified it was not restful. That is also understandable. S.S. also testified that she had not been home and felt she could not go home and that her children’s lives were upended. No doubt that had an impact on her as well.
130Perhaps most important is that this is not the more typical case where a complainant alleges a single sexual assault. As S.S. put it, emotionally she was a “little stressed out” because she had to try to remember everything that had happened a day and one-half earlier which was difficult – “it was a long night”. She added that it was not like one thing happened - so many things happened, and she was trying to remember everything that happened “without completely breaking down”. In this case S.S. alleges five sexual assaults over a period of about six hours and she had been threatened with death that was so real that she had asked to pray because she thought she was going to die. If I accept her evidence, S.S. had endured a level of violence at the extreme end on the scale of sexual assault before she spoke to police.
131With this in mind, I turn to the inconsistencies in S.S.’s evidence relied upon by the Defence. In some cases, these are matters where S.S.’s evidence needed to be refreshed and/or she had forgotten a detail about the events she alleges occurred. They are as follows:
a) S.S. was quite sure that Hassan was wearing a white hoodie at Gucci’s bar and thereafter. In fact, there is no dispute that he was wearing a blue hoodie with wide white drawstrings. I do note that when the hood of that hoodie was down, the inside of it is what appears to be a white. Ms. Israel submitted that this error shows that the evidence of S.S. is unreliable. I disagree. This is not a material fact that S.S. remembered incorrectly, and it is significant that she did accurately remember what Mr. Mohamed was wearing under his parka, something that even he could not recall;
b) Ms. Israel relied on the fact S.S. could not remember Hassan's name as another reason why her evidence was unreliable, but I disagree. S.S. did not know Hassan before and if he was introduced by name to her, which I have no evidence about, it may have only been one time that she heard his name. As already stated, on her evidence she went to where she was told he was and did not ask for him by name but rather whether or not he was Ibrahim's brother. Furthermore, she was not cross-examined about the fact that she did not recall Hassan’s name;
c) S.S. was challenged in cross-examination on the fact that she testified that all of her conversation with Mr. Mohamed was casual and yet she said that he did not want to be seen outside the after-hours bar. In the same vein, Ms. Israel also submitted that S.S. testified that Mr. Mohamed was acting normally and yet she also testified that he was acting paranoid. Ms. Israel submitted that S.S. gave this evidence for the first time at the preliminary inquiry and that she never told police about this. S.S.’s response to this was that at the time Mr. Mohamed’s conduct did seem unusual but she did not take it seriously and it did not seem urgent or pressing. She agreed, however, that Mr. Mohamed was agitated, that she calmed him down and that this was unusual and strange for her interactions with him and that it was something she remembered. Although this may be a minor internal inconsistency in the evidence of S.S., given that Mr. Mohamed’s conduct did not overly concern her at the time, it is understandable that she did not remember this. Furthermore, I have no evidence as to questions S.S. was asked by police that ought to have elicited this information from her and so I cannot and do not conclude that this was a material omission when she gave her statement to police;
d) S.S. told police that when they arrived at her apartment, Hassan had parked across the street and she did not remember pulling her FOB out. When this was put to her at trial, she testified that she still did not remember pulling out her FOB. Once she was shown the video surveillance evidence for the first time, S.S. readily admitted that she was wrong and that in fact they drove into the underground parking garage and from there they could take an elevator to her floor and that they would not have had to go through the front lobby. At trial she still did not remember that they had done this. As Mr. Mohamed often stated, he could not recall something because he was drunk and of course as Ms. Israel submitted S.S. had also consumed a lot of alcohol. In any event, in my view, this is not a material fact that she forgot that puts into question the reliability of her evidence on important facts;
e) S.S. admitted that her memory was fuzzy as to whether or not Mr. Mohamed beckoned her to come into the hallway or he took her by the hand towards her bedroom. She readily agreed that it could have been one or the other but testified that she had no concern about this until he used force to get her into the room. I do not see that as a material inconsistency. In my view, this is the type of detail that quite reasonably S.S. might not recall;
f) In her evidence in chief S.S. did not testify that Mr. Mohamed had said anything about wanting to have sex with her, but it is important to note that she was not asked if he said anything. In her statement to police S.S. said that Mr. Mohamed said: “let me have sex”, but she made no reference to this at the preliminary inquiry or at trial. In cross-examination, when she was taken to her statement to police all S.S. could say was that she did not recall his exact words save that once he pushed her through the threshold, she knew what his intent was, and she resisted. Given that S.S. was not asked in chief whether or not Mr. Mohamed said anything, there is no inconsistency in her evidence. As for the fact that when she was asked by Ms. Israel what he said, the fact she could not recall his exact words is, in my view, the type of detail that quite reasonably S.S. might not recall. What she did remember clearly is that she went from being curious about what Mr. Mohamed wanted to tell her to realizing he wanted to have sex with her;
g) S.S. testified that Mr. Mohamed was not inebriated when he got to her apartment and yet the video surveillance shows him falling into her and he appears to be unsteady on his feet. When S.S. was shown this portion of the video, she readily conceded that he was inebriated and that certainly appears to be the case. In my view, since S.S. was also inebriated and given how readily she admitted that her recollection was wrong, I do not find that this error materially impacts her reliability as a witness;
h) S.S. could not remember at trial that she got the knife from the kitchen and she was not sure if Mr. Mohamed was present during the second shower until her memory was refreshed with her evidence from the preliminary inquiry. In my view, given that this trial occurred about two years after the incident in question, the fact that S.S. has forgotten these types of details is not important;
i) S.S. testified at the preliminary inquiry that after she went to a neighbour's apartment to use a phone, she called N.H. and N.H. called an Uber for her. In her statement to police she told police that she was going to go to N.H.’s house but when she called her, she sounded busy and so she hung up and left her neighbour’s house. She did not tell police that N.H. called her an Uber for her. In my view, this is not a material fact that she forgot that puts into question the reliability of her evidence on important facts;
j) When asked who else would know Ibrahim's last name, S.S. told police that she was scared to ask people because the people that would know him would be people who would consider him to be a friend and she was scared that it would "prompt him to run or prompt him and his brother to come and kill me". S.S.’s explanation that she gave to police for why she was reluctant to call people is credible and was not challenged. Ms. Israel argued that S.S. could have told police that they could talk to N.H. She suggested in her closing submissions that S.S. might have been afraid to do this because N.H. might have been critical of her because she was drunk. In my view, there is no basis for this as it was never put to S.S. that she was trying to hide from N.H. because she did not want to be criticized. This engages the twin myths. Furthermore, if S.S. wanted to keep N.H. out of it, why would she have told police she was there?
132Although I have not found the inconsistencies between the evidence of S.S. and her statement to police to be material, there are two important facts that S.S. testified to at trial that she did not report to police.
133The first omission which is not as significant as the second, is that S.S. told police that she went to the bathroom and peed and that she was sitting in her son’s room when Hassan came in and had sex with her, but she did not tell police that she asked to pray and took steps for ablution. When asked about this at trial, S.S. testified that she did not remember why she did not tell police about this but said that she did remember praying. I agree that there was clearly an opportunity for S.S. to tell police about this, but I also acknowledge that there were many hours of time that she was trying to recount to police and that during the last six hours of that period, based on her evidence, she was enduring multiple sexual assaults by two men. In any event, this was clearly an innocent omission because I have found that S.S. had changed into the clothing that she testified she did for the purpose of praying and that this can be seen during her attempt to escape and this corroborates her evidence that she did ask to and was permitted to pray. What is also significant is that her prayer mat was on the floor of her son’s room. She was not asked if she put it there at that time, but that is the only reasonable inference to be drawn from her evidence that she decided not to pray in her own room because it was a disaster. I find therefore that S.S. must have asked Mr. Mohamed to permit her to pray and that she prepared to and did pray as she testified to. The fact that she failed to mention this to police, in my view, does not negatively impact her credibility in any way - it was an innocent omission in a lengthy statement and is clearly true.
134What is the most significant omission in S.S.’s statement to police is that she did not tell them that Mr. Mohamed threatened her that if she did not have sex with his brother, he would kill her and that Hassan then forced her to have vaginal intercourse in her bedroom. Mr. Wilson conceded that this was a significant omission and I agree. As Ms. Israel pointed out, this evidence from S.S. is intrinsically linked to Count 1, although there would be no reason to think that S.S. would know this. When asked about this omission, S.S. admitted that she did not tell police about this threat and she testified that she did not know why she did not tell police this. She stated, however, that she remembered this being said by Mr. Mohamed and that this did happen. She also admitted that she did not tell police about the first time that she alleges that Hassan sexually assaulted her, but she did say that what she told police was in line and that details are missing, and that her sequence might be off. She remained firm on her evidence in chief about the threat by Mr. Mohamed and the fact that Hassan sexually assaulted her in her bedroom.
135I will consider the impact of these omissions on the reliability of S.S.’s evidence and her credibility when I come to considering whether the Crown has proven Counts 1 and 2 beyond a reasonable doubt.
136S.S. was also cross-examined that she failed to tell police that as part of the threat by Mr. Mohamed, he was balling up his fists and putting them by her head when he uttered this threat as she stated in her evidence in chief at trial, and that she made no mention of him threatening to punch her. At the preliminary inquiry she testified that when this threat was made Mr. Mohamed threatened to punch her in the head but made no mention of Mr. Mohamed balling up his fists. When this evidence was put to S.S., she testified that Mr. Mohamed had his hands closed and she demonstrated with a balled-up fist how he moved his hands in a circular motion. She said this evidence was not new but admitted that she did not mention this detail at the preliminary inquiry. She was firm that this threat was made after Mr. Mohamed had sexually assaulted her a second time after she tried to escape. I do not find this significant as demonstrating a balled-up fist while giving evidence is essentially the same as saying there was a threat that she would be punched.
137Finally, Ms. Israel argued that S.S.’s evidence was not reliable in many respects and she gave as an example the fact that the jeans she wore to the bar were on the floor of her closet, not near her bed and therefore her evidence Mr. Mohamed pulled her pants off can’t be true. It does seem likely, given S.S.’s admission, that the jeans on the floor of her closet are likely the jeans that she wore out, that she changed into a baati as Mr. Mohamed recalls. It is therefore possible that she was wrong in her recollection that Hassan helped Mr. Mohamed remove her pants. If Mr. Mohamed’s evidence is correct, however, and she was wearing tights, it is possible that she was referring to them although she was not asked this. In any case, this is not the kind of inconsistency that, in my view, is material given the evidence from S.S. as a whole. In the same vein she thought that they parked outside her building and entered though the lobby, which was also incorrect. She readily conceded her error when this was pointed out to her.
138Overall, I found S.S. to be a very compelling, reliable and credible witness.
(b) Mr. Mohamed
139Ms. Israel submitted that Mr. Mohamed was not nearly as sophisticated as S.S. but that he was equally resolute. Mr. Wilson submitted that Mr. Mohamed was argumentative and evasive throughout his testimony.
140In terms of Mr. Mohamed’s demeanour, he did give his evidence very quickly which suggests he was not making it up as he went, but this did result in some internal inconsistencies that I will come to. In addition, he was evasive at times in answering questions from Mr. Wilson.
141As Ms. Israel pointed out, it is important to note that Mr. Mohamed did make admissions against his interest. Most notably was his evidence that he physically assaulted S.S. twice, but of course that evidence did rebut the allegations made by S.S. that he sexually assaulted her. That said, he did fairly admit the violence of these admitted assaults, including that he smacked S.S. with an open hand and then back handed her and that he had his hand on her neck choking her, although after admitting what amounted to choking S.S., he did say that his grabbing her by the neck was not choking and it was only when pressed that he admitted the obvious, that he did choke S.S.. As I will come to, this type of thing happened often when Mr. Mohamed was being cross-examined. He would say one thing and then when his answer was put back to him, he would resile from it. I would say, however, that apart from the question of choking, in terms of his assaults Mr. Mohamed did not try to minimize what he did to her. It is also true that Mr. Mohamed admitted that what he did to S.S. was wrong. Furthermore, Mr. Mohamed made one admission against his interest, that he did not need to as part of his defence, namely that he was the one that pulled S.S. back into the apartment, but there too he refused to admit he was dragging her back in, which the video evidence certainly suggests he was doing. Certainly, he must have used a lot of force to get her back inside based on what can be seen on the video for the few seconds S.S. was struggling with him outside her apartment.
142Mr. Mohamed’s demeanour changed when he was cross-examined by Mr. Wilson and he was evasive on a number of occasions and this is important to my assessment of his credibility. For example, after two questions from Mr. Wilson, asking whether he “liked” S.S., Mr. Mohamed finally admitted that he did like her, and he did not want her thinking something was going to happen if she was with him. He was then asked a number of times if he cared about her feelings but was not responsive to the question, eventually stating: “why would I not care about her feelings?” A few minutes later in his evidence Mr. Mohamed testified that S.S. was a “very good friend”, but when Mr. Wilson referred to this in a subsequent question, he quickly changed that to say they were friends and only when pressed that they were “good friends”. Later in his evidence he tried to change “good friends” to just friends.
143Mr. Wilson submitted that he had to ask a number of questions as to when and where Mr. Mohamed took a bite of food and there was an argument about whether he took a bite and when, and yet it was a simple question according to his version of events. I do not believe that this is the case. I have summarized Mr. Mohamed’s evidence and he was somewhat inconsistent in cross-examination as to when he took a bite of food, but I do not find that inconsistency to be very material. I do find however that Mr. Mohamed’s insistence that S.S. had not put food on a plate, given that he was in the solarium and would not have known whether she had or not, was somewhat problematic as I do not know how he would know. I do not find this very important however.
144Mr. Wilson submitted that Mr. Mohamed continually portrayed himself as a passive participant. It was his evidence that it was S.S. and N.H. who wanted to go to the after-hours bar, that it was his brother who persuaded him to go to S.S.’s apartment, it was S.S. who grabbed him by the hand, it was S.S. who asked him later on what was bothering him, that he wanted to leave the apartment after his admitted assaults on S.S. and yet he stayed. I agree with Mr. Wilson’s submission but I do not know what inference I should draw from this save that Mr. Mohamed’s evidence that he did not want to stay out and was persuaded to stay by his brother does not make a lot of sense given his other evidence about having fun and for that reason not wanting to ask S.S. about Jay Money.
145Mr. Wilson submitted that Mr. Mohamed was also internally inconsistent. He pointed out that a crucial inconsistency was the lighting in S.S.’s bedroom. Originally Mr. Mohamed testified that it was so dark he could not see anything, but clearly based on the photograph of the blinds in the room, there was no tight seal and they would have let some light in from outside as it was daytime. I agree with Mr. Wilson that Mr. Mohamed testified it was too dark in S.S.’s bedroom so that he could avoid having to answer about the state of the room and in particular about the fact that the plastic mattress cover on her bed was shredded. This was also apparent when Mr. Mohamed was asked how S.S. saw his tattoo and he said that the door was open and there was light from the hallway. Previously he had denied that the open door allowed him to see inside the room. As Mr. Wilson submitted, Mr. Mohamed was caught in a significant inconsistency. I found a number of times Mr. Mohamed’s evidence would shift, creating an internal inconsistency. Many times, when these changes in evidence occurred it was because one version of his evidence satisfactorily answered a question asked by Mr. Wilson, but a different response was needed to answer a different question. This of course raises serious concerns about the credibility of all of Mr. Mohamed’s evidence.
146Another example of Mr. Mohamed’s evidence shifting was his reason for being out and going to Gucci’s bar. At first, he said he was eating, hanging out and chilling with his brother. In cross-examination however he testified that his whole mindset was to look for “these guys” and that was the only reason he was out and that he was frustrated and angry, although he denied he was on the “hunt” for them. Despite this Mr. Mohamed testified that he did not think to ask S.S. about these guys when they were at Gucci’s bar and then at the after-hours bar because he said that this was because everyone was having fun, he was having fun with his brother and his mind was not looking for them and he was not making “my whole thing around them”. He also testified that he did not believe S.S. and N.H. knew these guys as another reason for why he did not ask her earlier about them, and yet he gave evidence to the contrary when he tried to explain why he assaulted S.S. These inconsistencies are important as they go to the heart of Mr. Mohamed’s explanation for why he attacked S.S.
147Related to this is that Mr. Mohamed was internally inconsistent on the reason for his admitted assaults of S.S. As I have already said, he testified that he did not believe S.S. and N.H. knew the guys he was looking for when he was trying to justify why he did not ask them about them while they were out. As for the reason for his assault on S.S., however, he testified a number of times that he really did not believe that S.S. did not know these guys when that is what she told him when he first asked. If he really believed S.S. knew these guys, because as he said she partied in the area every weekend at the Gucci’s bar and others around it, then his reasons for not asking her about them at the very least by the time they were waiting outside the after-hours club are not believable, particularly given his evidence that this was the only reason he went out to this area in the first place. Despite this he did not ask a single question about the guys he was looking for of S.S. or N.H. and presumably would not have if, as he alleges, S.S. had not asked about why he was spooked at about 10:30 a.m. the next morning. Even if he did not feel he should do so at Gucci’s bar, there were ample opportunities outside at the after-hours bar, in the car on the way to S.S.’s apartment and while they were hanging out in her apartment, a period of about nine hours. His explanations for these inconsistencies fall short.
148Finally, Mr. Mohamed has a criminal record that is relevant to my assessment of his credibility either because they are convictions for crimes of dishonesty and/or show a failure to comply with court orders. His record include two convictions for failure to comply with a probation order in November 2002, theft under $5,000 and failure to comply with a probation order in October 2003, robbery in December 2004, a statutory release violation in June 2007, robbery and possession of property obtained by crime under $5,000, in October 2009, four convictions for theft under $5,000 and four convictions for fail to comply with a probation order in April 2018, theft under $5,000 in May 2017 and failure to comply with his recognizance and failure to attend court on the same day in May 2017.
149Overall then I have concerns about the credibility of Mr. Mohamed’s evidence. Mr. Wilson submitted that in addition, Mr. Mohamed’s evidence is not believable, and it does not accord with common sense. It is his position that the evidence is clear that a violent attack took place in S.S.’s bedroom, given the state of her bed, but Mr. Mohamed said that he did not violently attack her there. This is a submission I will come to.
Has the Crown proven the alleged incidents beyond a reasonable doubt?
(a) R. v. W.(D.)
150Since Mr. Mohamed testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 apply. I must acquit Mr. Mohamed if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence, which I do accept, I am convinced beyond a reasonable doubt of his guilt. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt: see R. v. C.L.Y., 2008 SCC 2, at paras. 7, 9; R. v. J.H.S., 2008 SCC 30, at para. 13.
151In considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of Mr. Mohamed, I am entitled to consider it in the context of all of the other evidence: see R. v. C.L.Y., at para. 6; R. v. Mends, 2007 ONCA 669, at para. 18 and R. v. Carriere (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.). However, I must remind myself that this is not a credibility contest: see R. v. J.H.S., at para. 9. W.(D.) prohibits me from concluding that the Crown has met its burden simply because I might decide to prefer the evidence of S.S. to that of Mr. Mohamed, see R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para. 5. See also R. v. Van, 2009 SCC 22, at para. 23. As I am faced with contradictory versions of what happened in this case, I would add that if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit: see R. v. H.(C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146, at p. 155 (BCCA).
(b) Has the Crown proven beyond a reasonable doubt that Mr. Mohamed sexually assaulted S.S.?
152I turn then to the first issue: has the Crown proven beyond a reasonable doubt that Mr. Mohamed sexually assaulted S.S.?
153I begin with the evidence of Mr. Mohamed, in the context of all of the evidence. I have set out a number of concerns that I have about his credibility. He was resolute in his denial that he sexually assaulted S.S., but Mr. Mohamed’s evasiveness in cross-examination is a real concern. Furthermore, the inconsistencies I have referred to in his evidence are very troubling especially those that relate to the lighting in S.S.’s bedroom at the time he says they had consensual intercourse. Most of all, however, is that Mr. Mohamed’s evidence is simply unbelievable for a number of reasons including the following.
154As I have already stated Mr. Mohamed’s evidence was clear that his only reason for joining his brother on the night in question was so that he could look for the guys who robbed his brother. He testified that he believed S.S. and N.H. did not know who these guys were when he needed to explain why he did not ask them about these guys when he had ample opportunity to do so at Gucci’s bar, outside and inside the after-hours bar, on the way to S.S.’s apartment and once he was there. On his evidence he would not have even asked her then but for her allegedly asking him again why he was spooked. Ms. Israel conceded that Mr. Mohamed wanted to know who these guys were but relies on the fact that he also said he wanted to relax and party and submitted that he was of two minds on a Friday night. I have referred to this issue as an inconsistency that I am concerned about and I repeat it here because it not only undermines Mr. Mohamed’s credibility as a witness but in addition, given his singular purpose in going out in the first place, his failure to ask S.S. about them for many hours while they were together makes no sense unless he truly believed she did not know who they were. However, in that case his admitted assaults make no sense.
155Despite Mr. Mohamed’s evidence that he did not believe S.S. knew the guys he was looking for, he would have me believe that when S.S. did ask him why he was spooked he asked her whether she knew these guys and he immediately believed she was lying when she said she did not know them because he felt that she must know them because she went to Gucci’s bar and other bars nearby where these guys would frequent.
156What is also unbelievable is that when on Mr. Mohamed’s evidence S.S. warned him that these guys were serious and might kill him that he would then viciously attack her for her supposed lie when clearly what she was saying was something to caution and protect him. Ms. Israel submitted that on his own evidence Mr. Mohamed has an anger management problem and it is true that his admitted response, given what he testified that he believed about S.S.’s knowledge of the men he was looking for and what he said she said, rose in an instant to a level of extreme violence, particularly given that it really was not provoked. I appreciate as Ms. Israel submitted, that S.S.’s evidence about Mr. Mohamed snapping for no reason also makes no sense but the violence she testified to that he exhibited during his sexual assault of her was provoked in the sense that she resisted him. Sadly, his violent conduct for that reason makes more sense.
157There are other reasons for why I do not believe Mr. Mohamed. Having found that S.S. had changed into different clothing so that she could pray and having found that she must have attempted to escape the apartment after she put on this clothing to get ready to pray, I find that her evidence that she asked Mr. Mohamed for permission to pray is likely true. I appreciate that she could have prayed while he says he was sleeping, but if everything was fine between her and Mr. Mohamed as he alleges, it makes no sense that she would simply have gone off on her own in her apartment and taken the steps to pray that she testified to, particularly as she testified that since she was menstruating she could not pray in the traditional sense. Having found that S.S. must have asked for permission to pray, Mr. Mohamed’s evidence that he did not recall this must be untrue.
158Ms. Israel submitted that I cannot ascribe the state of S.S.’s apartment and her bed to Mr. Mohamed given there was a period of time when Hassan was alone with her and gaps in the evidence when Mr. Mohamed was sleeping. There is no gap in the evidence, however, when I consider the evidence of S.S. She testified that when she had forced vaginal intercourse with Hassan on her bed that she had stopped resisting as she wanted to survive, and so she let him “have his way vaginally”. This evidence was not challenged and there is no reason to believe that this assault would have caused the shredding of the plastic mattress cover that clearly occurred and could only have occurred as a result of a violent struggle.
159I also find that Mr. Mohamed was trying to stay clear of the clear evidence that a violent struggle must have taken place on S.S.’s bed. As I have already referred to there was a significant inconsistency in his evidence about the lighting in the room. In addition, his evidence that the mattress cover was already ripped and might have ripped some more makes no sense given there was nothing left of it on the bed and there was a big piece on the floor. It seems highly unlikely, if not impossible, that even if there were any tears in the cover that it would have ended up torn right off the bed, along with the sheet and blanket as a result of the non-violent intercourse Mr. Mohamed testified to.
160Furthermore, Mr. Mohamed’s evidence makes no sense because he would not even be aware of this plastic mattress cover given his evidence that when he had consensual sex with S.S. there was a sheet on the bed. A sheet would feel very different than a plastic mattress cover and he also testified that he did not feel the actual mattress, so there is no way he would even have known a plastic mattress cover was even on the bed.
161I also find that Mr. Mohamed’s evidence that he and his brother remained at S.S.’s apartment for two hours and 20 minutes after her attempted escape makes no sense. He testified that his brother was going to speak to S.S. to calm her down before he left to buy cigarettes, but he gave the same reason for staying after he returned to the apartment about 20 minutes later. He stayed for almost half an hour after S.S.’s attempted escape and then left the apartment on his own to buy cigarettes and a sandwich. The Crown Royal bottle was thrown out by Hassan while he was out and so Mr. Mohamed’s evidence that the bottle was still there and that he had some drinks when he returned is false. Furthermore, there is no evidence that there would have been anything else to drink and no reason for him and his brother to remain, certainly for such a long period of time. There was definitely no reason for Mr. Mohamed to remain when he said he did not want to, although he was inconsistent on whether he was even trying to leave. In addition, the fact that he locked the door to S.S.’s apartment when he left is significant and could only have been to ensure she did not escape again.
162Ms. Israel submitted that Hassan’s trips to the garbage chute may or may not impact on Mr. Mohamed because we do not know what was in Hassan’s mind and whether he was acting on his own tossing things away. Mr. Wilson conceded that I cannot use the fact Hassan was disposing of items to find that he was doing so at the behest or direction of Mr. Mohamed. Nevertheless, he submitted that Hassan was getting rid of evidence, namely the baati and the bottle to avoid future detection of these two men. I have found that Hassan must have disposed of one of S.S.’s baatis and presumably the only reason for doing that is that it was one that she wore when she was sexually assaulted, although I agree with Ms. Israel that she has alleged that Hassan assaulted her in her bedroom as well after she had changed into a baati. As I have said, however, it is significant that Hassan threw out the bottle of Crown Royal while Mr. Mohamed was out to buy cigarettes. Apart from this I agree with Ms. Israel that this evidence does not impact on Mr. Mohamed.
163For all of these reasons I find that I do not believe Mr. Mohamed’s evidence that he only had consensual sex with S.S., nor do I believe his version of events about his physically assaulting her twice just before and after her attempted escape of the apartment. In addition, I find that Mr. Mohamed’s evidence does not raise a reasonable doubt with respect to his guilt with respect to Counts 1-5, and it does not raise a reasonable doubt in my mind.
164Turning to the evidence of S.S., I have already given my reasons for why overall, I found her to be a very compelling, reliable and credible witness. I believe that what she testified to is true. I do not accept Ms. Israel’s submission that because S.S. received unexpected and unprovoked violence from someone she had welcomed into her home and extended hospitality to, that this influenced the way she recounted the events of that evening, changing her memory of the evening from consensual sex into non-consensual sex with Mr. Mohamed. Given S.S.’s evidence of what occurred, there is no way that what happened was consensual and somehow misperceived by her. The only explanation for the main difference as to what occurred is that either Mr. Mohamed or S.S. is lying about all or part of what they say happened.
165This, however, is not a credibility contest and as I have already said, W.(D.) prohibits me from concluding that the Crown has met its burden simply because I might decide to prefer the evidence of S.S. to that of Mr. Mohamed.
166I agree with Ms. Israel that there are aspects of S.S.’s evidence that make no sense. She submitted that Mr. Mohamed’s evidence makes more sense about why he snapped and S.S.’s evidence about what she alleges he said during sex makes no sense unless he was right out of his mind. I cannot explain why Mr. Mohamed may have said what S.S. alleges while he was forcing her to have intercourse, but as I have already stated his reason for becoming violent makes more sense if he wanted to force intercourse and she was resisting him rather than as a result of the conversation he alleges that they had about Jay Money.
167Mr. Wilson submitted that the most crucial piece of evidence is the state of S.S.’s bed in her bedroom and in particular the fact that the plastic mattress cover is in shreds with a large piece of the cover and the sheet and blanket from the bed on the floor. He submitted that there is no gap in the evidence as I have credible and reliable evidence from S.S. that there were three sexual assaults on her bed and that the two by Mr. Mohamed were violent and consistent with the mattress cover ripping. I agree that a strong reasonable inference from this evidence is that there was a violent struggle on S.S.’s bed and that this caused the sheet and blanket to come off the bed and more importantly the mattress cover to essentially rip right off the bed in pieces. If I am going to consider this evidence as corroborating S.S.’s evidence, I must consider if there are any other reasonable inferences to draw from this evidence.
168I have already explained why I reject Mr. Mohamed’s evidence that the mattress cover was ripped before he came and that he and S.S. probably ripped it a bit more during the non-violent intercourse he testified occurred in her bed. Clearly his evidence of his violent assault of S.S. does not explain the state of her bed. I have found based on the DNA evidence that S.S. did have vaginal or anal intercourse with Hassan. This does not corroborate her evidence that it was not consensual, but it was not suggested to S.S. that any intercourse she had with Hassan was consensual and violent. Furthermore, it was never put to S.S. that her mattress cover was already torn or that the tears were caused by the sexual assault by Hassan which she testified she did not resist given the threat by Mr. Mohamed. It was her evidence that the mattress cover ripped because of her struggle with Mr. Mohamed and his violent sexual assaults on her bed. I find therefore that the condition of the mattress cover does corroborate S.S.’s evidence that this is where Mr. Mohamed violently sexually assaulted her twice.
169I have considered the fact that S.S.’s soiled sanitary napkin, still inside her underwear, on the floor of her bedroom is consistent with her evidence, but I agree with Ms. Israel that could be due to consensual sex with Mr. Mohamed and that notwithstanding what she would otherwise do she just left it there because she was inebriated.
170What is also important evidence that corroborates S.S.’s version of events is the fact that she changed into clothing so that she could pray. I have found that S.S. changed into the clothing she was going to wear to pray before she tried to escape the apartment at 10:31 a.m. I have also found that as a result, S.S.’s recollection was wrong as to when she tried to escape as it must not have been after the first sexual assault she alleges by Mr. Mohamed but rather on her evidence the two sexual assaults by Mr. Mohamed and the first sexual assault by Hassan must have occurred before she asked to pray. I do find that it is not possible that S.S. asked to pray because Mr. Mohamed had violently physically assaulted her as he testified to as he admitted that he attacked her twice in quick succession and that she could not have prayed in between. Accordingly, it is impossible that S.S. changed into clothing to pray after the first physical assault Mr. Mohamed said he committed. She had to have changed into this clothing before the assault he testified he committed, as there was no opportunity for her to do so between the two assaults.
171That brings me to the question of why S.S. decided she needed to pray while Mr. Mohamed and Hassan were still in the apartment. As I said in relation to one of my reasons for rejecting the evidence of Mr. Mohamed, if everything was fine between her and Mr. Mohamed as he alleges, it makes no sense that she would simply have gone off on her own in her apartment and taken the steps to pray that she testified to, particularly as she said that since she was menstruating she could not pray in the traditional sense. Given then that S.S. decided to pray while Mr. Mohamed and his brother were still in the apartment, I find that this decision corroborates her evidence that she had been sexually assaulted by Mr. Mohamed and he had threated to kill her. I accept her evidence she was praying for fear she was going to be killed.
172As I have already stated, Mr. Mohamed’s evidence as to why he remained at S.S.’s apartment for two hours and 20 minutes after her attempted escape makes no sense. What makes more sense is that in the period after S.S. attempted to escape after she prayed, is that as she testified to, Mr. Mohamed and his brother sexually assaulted her again, possibly before Mr. Mohamed left to buy cigarettes and that Hassan then forced her to take a shower and that they tried to calm her down and speak to her to ensure she would not call police while letting her have a cigarette and finally waiting until she fell asleep. I also find that this is consistent with either Hassan or Mr. Mohamed hiding S.S.’s cell phone. I do not accept Ms. Israel’s submission that maybe because she was drunk S.S. put the phone where she would not normally put it.
173The law is clear that the evidence of a complainant who alleges sexual assault does not need to be corroborated. In this case I have found that there is evidence that corroborates S.S.’s evidence. I appreciate that she was wrong about some facts, most significantly when in the sequence of events she attempted to escape the apartment. I have also found that there were things that she failed to tell police, most notably about the threat by Mr. Mohamed and the fact that she was sexually assaulted by Hassan in her bedroom after the first two sexual assaults by Mr. Mohamed. However, this is not a case where a complainant has been wrong about a significant aspect of a single sexual assault. When she went to give her statement to police, S.S. was not rested, was still in shock and she had endured five sexual assaults by two men she considered friends, in her own apartment and two of them were in her son’s bed and the sexual assaults by Mr. Mohamed included a level of violence that caused injury. The police wanted to know what had happened from the time she met Mr. Mohamed to the time they left which we know is a period of about 12 hours. Her two omissions were just that. They were not significant inconsistencies, and, in my view, that is an important distinction in this case. S.S. was being asked to relive the worst day of her life - as she put it; she was trying to remember everything that happened “without completely breaking down”. Given what she endured I do not believe that her failure when she spoke to police to tell them about the threat and the first assault by Hassan undermines her firm evidence at trial that this did occur. As for the other issues raised by Ms. Israel, in my view, given what S.S. had been through we cannot expect perfection. Despite the issues raised by Ms. Israel, I found she was a compelling witness. I not only believe her evidence but considered in the context of all of the evidence before me that I do accept, I find that I am satisfied beyond a reasonable doubt that Mr. Mohamed sexually assaulted S.S. three times as she testified to.
(c) Has the Crown proven beyond a reasonable doubt that Mr. Mohamed choked S.S. to enable him to sexually assault her?
174I turn then to the second issue: has the Crown proven beyond a reasonable doubt that Mr. Mohamed choked S.S. to enable him to sexually assault her?
175Having found that Mr. Mohamed sexually assaulted S.S. three times as she testified to, and given my findings accepting her evidence as to what occurred, I find that the Crown has proven beyond a reasonable doubt that as she testified to Mr. Mohamed choked her during the first two sexual assaults to the point where she found it difficult to breathe and actually went unconscious a number of times. Having rejected Mr. Mohamed’s explanation for why he choked S.S., the evidence of the injuries to her neck corroborates her evidence that she was choked by Mr. Mohamed so that he could force her to have vaginal and anal intercourse. For these reasons I find that the Crown has proven beyond a reasonable doubt that Mr. Mohamed is guilty of Count 2.
(d) Has the Crown proven beyond a reasonable doubt that Mr. Mohamed is guilty of Count 1?
176Count 1 charges Mr. Mohamed with sexual assault of S.S. with another person, namely his brother Hassan, contrary to s. 272(2)(b) of the Criminal Code. Section 272(1)(d) provides that: “every person commits an offence who, in committing a sexual assault … is a party to the offence with any other person”. I was not provided with any caselaw, but there could be no dispute that the hallmark of this offence is joint participation in a sexual assault. It may be committed by being the principal or an aider or abettor; see R. v. Edmonson, 2005 SKCA 51, (Sask. C.A.) leave to appeal refused 2005 CarswellSask 690 (S.C.C.).
177Mr. Wilson submitted that there were three ways to find Mr. Mohamed guilty of Count 1: 1) that Hassan assisted Mr. Mohamed in helping to get S.S.’s pants off so that Mr. Mohamed could sexually assault her; 2) Mr. Mohamed threated S.S. with death if she did not have sex with Hassan; and 3) both Mr. Mohamed and Hassan sexually assaulted S.S. as part of an ongoing sexual assault that was equivalent to a single transaction. Ms. Israel did not disagree with this legal position.
178I appreciate that there is some confusion as to what S.S. was wearing when she alleges that she called for help during Mr. Mohamed’s first sexual assault and that instead of helping her Hassan helped Mr. Mohamed remove her “pants”. That said I accept her evidence that she called for help and that Hassan in fact helped his brother commit the first sexual assault. I also appreciate that S.S. failed to tell police about the threat by Mr. Mohamed, that she testified to at trial, that if she did not let Hassan have sex with her, he would kill her. Notwithstanding these issues I have found S.S.’s evidence to be true.
179As I have already stated, having found that Mr. Mohamed sexually assaulted S.S. three times as she testified to, and given my findings accepting her evidence as to what occurred, I find that the Crown has proven beyond a reasonable doubt that as she testified to when she called for help during the first sexual assault by Mr. Mohamed that Hassan came into the room and helped Mr. Mohamed get her undressed. I also find that because of a threat from Mr. Mohamed S.S. did not resist Hassan having sex with her without her consent.
180As for the third possibility submitted by Mr. Wilson, in light of my findings I do not need to consider whether or not both Mr. Mohamed and Hassan sexually assaulted S.S. as part of an ongoing sexual assault that was equivalent to a single transaction.
181For these reasons I find that the Crown has satisfied me beyond a reasonable doubt that Mr. Mohamed is guilty of Count 1.
(e) Has the Crown proven beyond a reasonable doubt that Mr. Mohamed unlawfully confined S.S. – Count 3, uttered threats to kill S.S. – Count 4
182Having found that Mr. Mohamed sexually assaulted S.S. three times as she testified to, it is clear that Mr. Mohamed is also guilty of Counts 3 and, even on his own evidence. he admitted pulling S.S. back into the apartment when she tried to escape. I have also found that when he left to get cigarettes that he locked her in her apartment with Hassan. I also accept S.S.’s evidence that she was followed around while in the apartment and that she did not have access to her cell phone. For these reasons I find that the Crown has proven beyond a reasonable doubt that Mr. Mohamed unlawfully confined S.S. – Count 3.
183In addition, I find that the Crown has proven beyond a reasonable doubt that as S.S. testified to Mr. Mohamed threatened to kill her repeatedly and that she believed she would die that day, which is why she asked to pray. For these reasons I find that the Crown has proven beyond a reasonable doubt that Mr. Mohamed is guilty of Count 4.
(f) Has the Crown proven beyond a reasonable doubt that Mr. Mohamed assaulted S.S. – Count 5
184The Crown relies on the assaults of S.S. along with the sexual assaults. Although Mr. Mohamed admitted to physically assaulting S.S. twice, I have not accepted that evidence. The only independent assault of S.S. that she testified to is that Mr. Mohamed dragged her by force back into the apartment and then into her bedroom when she attempted to escape. Although Mr. Mohamed was not willing to admit that he dragged her back in, even on his own evidence he committed an assault of S.S. when he pulled her back into the apartment. Furthermore, there was a clear struggle, based on what can be seen on the video surveillance when S.S. is outside of her apartment momentarily.
185For these reasons I find that the Crown has proven beyond a reasonable doubt that Mr. Mohamed is guilty of Count 5.
Disposition
186Mr. Mohamed, for these reasons I have given I find you guilty of Counts 1, 2, 3, 4 and 5.
Spies J.
Released: November 9, 2020
Edited Reasons Released: November 13, 2020
CR-19-50000449
DATE: 20201109
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
IBRAHIM MOHAMED
Defendant
REASONS FOR JUDGMENT
Spies J.
Released: November 9, 2020