COURT FILE NO.: CR-19-10000444
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LATIFOU FASSASSI
Emma Evans, for the Crown
Joanne Griffiths, for Latifou Fassassi
HEARD: November 9, 10, 12, 13, 16 and 17, 2020
Reasons for judgment
P.J. Monahan J.
I. Overview
1Latifou Fassassi has been charged with two counts of sexual assault, contrary to s. 271 of the Criminal Code, and two counts of touching the body of a person under the age of 16 years for a sexual purpose, contrary to s. 151 of the Criminal Code. These offences are alleged to have occurred during the summer of 2018 in separate incidents involving two complainants who were 15 years old (the “Complainants” and, respectively, “Complainant One” and “Complainant Two”).
2Complainant One spent about a month at her older sister KB’s apartment in June and July 2018. Mr. Fassassi was a friend of KB’s who was also staying at her apartment at that time. It is alleged that Mr. Fassassi frequently sexually assaulted Complainant One over the course of the month that she was staying with KB.
3Towards the end of the summer, Complainant Two, a friend of Complainant One, spent two nights at KB’s apartment. By this time, Complainant One had returned to her home and was no longing staying with KB. Complainant Two alleges that she was sexually assaulted by Mr. Fassassi on the second night she was at the apartment.
4The Complainants separately reported the sexual assaults to their respective mothers in late September 2018. Each was taken by her mother to the police to provide a videotaped statement describing what had occurred. In early October 2018, Mr. Fassassi turned himself in to police and was charged.
5Mr. Fassassi denies that the assaults or sexual touching alleged by the Crown ever occurred.
II. Crown Case
6Six witnesses testified for the Crown. There was also an agreed statement of fact tendered as part of the Crown’s case.
7On consent, the Complainants testified by CCTV. Each adopted the contents of their individual video statements made to police in September 2018. On consent, each of those video statements was admitted as evidence pursuant to s. 715.1 of the Criminal Code.
8The other Crown witnesses were HB, the mother of Complainant One; KB, the sister of Complainant One; CB, the mother of Complainant Two; and Karla Wentzel, a Nurse Practitioner who conducted a physical examination of Complainant One following her report to the police.
a. Complainant One
i. Videotaped Statement
9Complainant One was 15 years old at the time of her videotaped statement to the police on September 22, 2018. She explained that in June 2018, shortly after she completed Grade 9, she began staying with her 26-year-old sister, KB, at her one-bedroom apartment in downtown Toronto. Complainant One said that she stayed with KB for about a month, assisting her sister by cleaning up the apartment and attending to chores.
10During the time that Complainant One stayed with KB, Mr. Fassassi was also staying there. Mr. Fassassi was a friend of KB’s, but they were not in a romantic relationship. Complainant One thought that Mr. Fassassi was about 32 years old. Complainant One indicated that there were others who would also spend the night at KB’s apartment while she was there. These included JM, Complainant One’s cousin (who Complainant One thought was about 19 years old), JM’s infant son, and Mercedes, who was Mr. Fassassi’s girlfriend at the time.
11Complainant One indicated that there was an open-door policy at the apartment, and a great deal of alcohol and marijuana was consumed by whomever was present. Most nights, people stayed up until 1 or 2 AM drinking, dancing, and playing loud music. KB would be drunk most nights and, after she fell asleep, was very difficult to awaken. Mr. Fassassi also drank alcohol, although Complainant One thought that he tended not to drink as much during the week since he had to get up early to go to his job as a superintendent. Complainant One did not drink any alcohol at the apartment.
12KB would sleep in her bedroom, while others spending the night at the apartment would sleep on couches in the living room or on the balcony. Sometimes Complainant One and Mr. Fassassi would sleep on the same couch, lying in opposite directions.
13Complainant One told police that one night, shortly after she began staying at KB’s apartment, she fell asleep on a sofa in the living room only to be awakened by someone fondling her breasts under her shirt and bra. She opened her eyes and saw that it was Mr. Fassassi. He told her to be quiet so as not to wake the others who were asleep in the living room. In addition to fondling her breasts, he reached inside her pants and touched her vagina.
14Following this initial assault, Complainant One stated that virtually every night she spent at KB’s apartment, Mr. Fassassi would wake her up and sexually assault her. He would frequently force her to perform fellatio on him, usually ejaculating onto a blue blanket that he would later bring to work to clean. Over the course of the month, he forced her to have sexual intercourse on three occasions, twice on the couch and once in the bathroom. Complainant One described the manner in which the various sexual assaults occurred in some detail.
15Complainant One indicated that there were usually other people asleep in the room where these assaults took place, including JM and Mercedes. Sometimes Mr. Fassassi would pause the assault if he thought that others were stirring, only to resume once he had ascertained that they were still asleep. Complainant One would frequently tell Mr. Fassassi to stop, but he would place his hand over her mouth so that she would not wake the others. The Complainant indicated that no one ever woke up during these assaults and the others were unaware of what was occurring.
16Some nights, Complainant One would sleep with KB in her bedroom. Mr. Fassassi would come into the bedroom and sexually assault Complainant One while KB, who had been drinking heavily, continued to sleep in the same bed.
17According to Complainant One, Mr. Fassassi would also try to get her to come to his workplace during the day so that he could assault her there. Mr. Fassassi would suggest to KB that Complainant One bring laundry to his workplace so that it could be cleaned, but the real reason would be to “come for my dick”. Complainant One refused to go to Mr. Fassassi’s workplace and refused his request to send him nude photos of herself.
18Some days, Mr. Fassassi would come home for lunch. Since he did not have a key fob to get into the building, KB would instruct Complainant One to go to the lobby and let Mr. Fassassi in. While they were together in the elevator, Mr. Fassassi would slap Complainant One on the buttocks or touch her breasts.
19Complainant One indicated that she never told anyone what was happening because she was afraid of Mr. Fassassi; she had seen him hit KB in the face on one occasion. Mr. Fassassi also threatened to report Complainant One to her mother because she was using her brother’s cell phone against her mother’s wishes. One night, when Complainant One was refusing to have sex with Mr. Fassassi, he woke KB up and complained that Complainant One was “giving him attitude”.
20Complainant One returned to her mother’s home sometime in July 2018. Thereafter, she refused to sleep over at her sister’s while Mr. Fassassi was staying there. The last time she saw Mr. Fassassi was during the Labour Day weekend, when she visited KB’s apartment during the day. Mr. Fassassi had slapped her buttocks and asked her to stay overnight, but she refused.
21Complainant One said that after she returned home from KB’s apartment, she had trouble sleeping. She was troubled by what had happened to her and was having bad dreams about it. She decided that, although she was really scared, she needed to tell someone, and so she reported the assaults to her mother.
ii. Evidence at Trial
22In her evidence in chief, Complainant One indicated that KB would drink every day and would be drunk on most days. When KB fell asleep after drinking heavily it was difficult to wake her up. Complainant One reported that Mr. Fassassi drank heavily on the weekends, but during the week he might have one drink and that would be it.
23Complainant One indicated that when Mr. Fassassi attempted to assault her in the living room, she sometimes went into her sister’s room to escape him. However, Complainant One was unable to wake her sister up. Mr. Fassassi would follow her into the bedroom and continue touching her breasts and vagina and asking her to have sex with him. Complainant One also repeated her earlier evidence from her videotaped statement to the effect that others who might be sleeping in the living room never woke up while the sexual assaults were taking place.
24Complainant One testified that she was afraid that Mr. Fassassi would hurt her if she told anyone about what was happening. She said that she decided to go back to her mother’s home in July 2018 because she believed it was the only way to stop the sexual assaults from occurring.
25Complainant One indicated that Complainant Two, a close friend of hers who lived outside of Toronto, came to stay with her at her mom’s later that summer. They both attended a youth camp for a couple of weeks in August 2018. Complainant One believes that Complainant Two slept over at KB’s apartment at some point during her visit. Complainant One does not remember whether she also slept at KB’s when Complainant Two slept there.
26Complainant One said that after reporting the sexual assaults to her mother and providing a statement to the police, she asked Complainant Two whether she had ever been touched by Mr. Fassassi. Complainant Two said no. Complainant One testified that she did not share any details of the alleged sexual assaults by Mr. Fassassi with Complainant Two, nor has Complainant Two ever provided her with any details of any alleged sexual assaults by Mr. Fassassi.
27On cross-examination, Complainant One agreed that when she was staying at her sister’s, Mr. Fassassi would often tell her to do chores. She did not like him telling her what to do, as she thought the only person who should give her instructions was her sister. Complainant One also agreed that from time to time Mr. Fassassi would complain to KB that she was “giving him attitude”. However, Complainant One denied that she had fabricated her evidence about the alleged assaults because she was angry over Mr. Fassassi telling her what to do.
28Complainant One indicated that on the first occasion Mr. Fassassi assaulted her, he had inserted his finger into her vagina. When it was pointed out to her that at the preliminary inquiry she had testified that Mr. Fassassi had not inserted his finger into her vagina during the first assault, she agreed that he had not done so on this occasion.
29Complainant One was also asked how often Mr. Fassassi had forced her to perform fellatio. She indicated that this had happened a lot. However, when it was mentioned to her that her evidence at the preliminary inquiry was that she had been forced to perform fellatio two or three times, she agreed that this had only taken place on two or three occasions.
30Complainant One testified that while she was staying at KB’s apartment, she was sexually assaulted by Mr. Fassassi almost every night, although the nature of the assaults would vary. When these assaults were occurring, someone else was usually sleeping in the same room. On some occasions another person might even be sleeping on the same sofa on which Complainant One was being assaulted by Mr. Fassassi. In addition, the light in the kitchen would often be left on at night. However, Complainant One maintained that, although the others in the room might sometimes stir (which would cause Mr. Fassassi to jump back from her), no one ever woke up.
31Complainant One was asked how loudly she would speak when she asked Mr. Fassassi to stop. She indicated that she would speak in a normal voice. Mr. Fassassi would put his hand over her mouth and say, “Shh” and “C’mon please” in a quiet voice.
32Complainant One was asked if she had ever discussed Mr. Fassassi with Complainant Two. She responded that when Complainant Two was staying with her in August 2018, she told Complainant Two that Mr. Fassassi was ugly, and she did not like him because he tried to boss her around. Prior to going to the police, Complainant One and Complainant Two did not have any other discussions about Mr. Fassassi. However, after going to the police, Complainant One indicated that she had asked Complainant Two whether Mr. Fassassi had touched her. Complainant Two said no. Complainant One did not tell her friend what had happened to her, although she does not remember whether she said that Mr. Fassassi had touched her.
iii. Agreed Statement of Fact
33An agreed statement of fact (ASF) was tendered as part of the Crown’s case. The ASF indicates that Complainant One was examined at the Hospital for Sick Children on September 24, 2018 by Nurse Practitioner Karla Wentzel. At the time of her examination, Complainant One told Ms. Wentzel that she had never been sexually active apart from the alleged incidents with Mr. Fassassi.
34The ASF also included an extract of the evidence provided by Complainant One during the preliminary hearing in this matter, held on May 30, 2019. In that extract, Complainant One indicated that the time of the alleged assaults by Mr. Fassassi was the first time she had seen a penis.
35It was agreed that there would be no evidence with respect to the sexual activity of Complainant One other than that referenced in the ASF.
b. HB, Complainant One’s Mother
36HB, Complainant One’s mother, testified that she had met Mr. Fassassi around the beginning of 2018. At that time, Mr. Fassassi was in a relationship with HB’s former daughter-in-law, RR. HB testified that, prior to becoming aware of these allegations, she had an “ok relationship” with Mr. Fassassi; they were not friends, but they got along. HB was aware that Mr. Fassassi was nicknamed “Voodoo”, but she called him by his first name, Latif. HB said that she did not approve of Mr. Fassassi’s relationship with RR, nor did she approve of Mr. Fassassi moving in with her daughter KB (which she believed took place in late May or early June 2018).
37HB testified that Complainant One had had a difficult time in Grade 9; Complainant One had struggled academically and been “giving attitude” to her teachers when they had asked her to do something. HB had also taken away Complainant One’s cell phone because she had not been following the rules of the house, such as getting up on time for school, doing chores, and generally respecting others. HB thought it would be good for Complainant One to spend some time with her older sister, KB. This led to the decision to have Complainant One stay at KB’s apartment once school ended in the middle of June 2018.
38HB indicated that after spending about a month at KB’s apartment, Complainant One returned home sometime in July 2018. When asked what prompted her return home, HB indicated that Complainant One had gotten into a fight with her cousin, JM, and that JM had bitten Complainant One. This incident caused HB to think to herself, “Enough is enough”. HB was also concerned that Complainant One was starting a counsellor in training (CIT) program in July and would need to get up early every day. HB thought it would be better to have Complainant One back home to ensure her regular attendance at the CIT program.
39HB testified that after returning home in July 2018, Complainant One did not want to sleep over at her sister KB’s apartment anymore. If Complainant One happened to spend some time at KB’s apartment during the day, she was insistent on returning home to her mother’s for the night.
40Complainant Two is one of Complainant One’s longtime friends, a then 15-year-old girl who had previously lived nearby but since moved out of town. Complainant Two came to stay at HB’s home for a couple of weeks in August 2018 so the girls could attend a summer camp together in Toronto. While she was in Toronto, Complainant Two spent a couple of nights at KB’s apartment. Complainant One refused to accompany Complainant Two to KB’s, which HB thought was unusual since the girls were normally inseparable.
41After Complainant One had returned home from her time at KB’s apartment, HB noticed that she seemed “out of sorts”. Complainant One was getting into fights with her siblings, swearing a lot, and was very loud when speaking on the telephone with her friends. HB thought this was unusual behaviour for Complainant One.
42On September 22, 2018, HB observed that Complainant One seemed troubled. She would gaze out of the front door or sit in the living room by herself crying. HB had never seen her daughter act like that. She asked Complainant One if there was anything wrong.
43HB testified that Complainant One was shaking and said she was scared and sad. HB asked Complainant One who had hurt her. At first, Complainant One would not say who it was, saying that she was afraid. She then told HB that Mr. Fassassi had touched her in inappropriate places.
44HB was distraught but tried to hold her emotions in check. She called KB and RR and warned them about what Complainant One had told her about Mr. Fassassi. She then took Complainant One to the police station to make a statement.
45While at the police station, HB received numerous phone calls and texts from Mr. Fassassi. In these texts, Mr. Fassassi said that he would never rape Complainant One and that he wished he had saved “the phone records”. He said he had never forced himself on anyone and that he would kill himself before this happened.
46After speaking with police, HB decided to call Complainant Two. Complainant Two’s mother, CB, answered the phone, and HB asked to speak to Complainant Two. CB put the phone on speaker so that she and Complainant Two could speak with HB at the same time; Complainant One was not present during the call. HB asked Complainant Two if anything inappropriate had happened when she stayed at KB’s apartment. At this point, Complainant Two dropped the phone on the floor. CB came back on the line to say that she would call her back.
47CB subsequently called HB back and said that Complainant Two had been touched inappropriately by Mr. Fassassi at KB’s apartment. HB and CB did not discuss any details, and HB told CB to take her daughter to the police.
48HB was asked if she knew whether the two Complainants had ever discussed what had happened to each of them among themselves. HB stated that for a substantial period, Complainant One was not even aware of allegations involving Complainant Two. However, after some time HB became concerned that Complainant One would experience a setback if she were not made aware of the alleged incidents involving Complainant Two. She therefore told her daughter that “something happened” between Mr. Fassassi and Complainant Two but did not provide details and told her daughter not to discuss the matter with Complainant Two.
49HB also stated that, on the advice of police, she never discussed any of the details of the sexual touching by Mr. Fassassi with her daughter. HB arranged for counselling for her daughter to help her deal with the after-effects of these assaults.
c. KB, Complainant One’s Sister
50KB testified that in June 2018 she and her mother thought that it would be a good idea for her sister, Complainant One, to spend some time at KB’s apartment. Complainant One began staying with KB around the middle of June.
51At that time, Mr. Fassassi was also staying with KB. KB had met Mr. Fassassi a few years previous and they had become friends. KB had given him the nickname “Voodoo”, and this was how she and many of her friends referred to Mr. Fassassi.
52Prior to moving in with KB, Mr. Fassassi had been living with RR, who had previously been married to one of KB’s brothers. However, at the end of May 2018, Mr. Fassassi had gotten into a dispute with RR and needed a place to live. KB agreed that he could stay with her until he had more permanent living arrangements.
53KB had an open-door policy and there were several others who slept at her apartment regularly. This included her cousin, JM, and Alex, one of KB’s female friends. KB also had a boyfriend who might sleep over with her in her bedroom. Mr. Fassassi’s girlfriend, Mercedes, would also sometimes stay at her place.
54When she was staying with KB, Complainant One would either sleep on one of the sofas in the living room or with KB in her bedroom (if KB’s boyfriend was not staying over). KB did not recall how often Complainant One slept in her bedroom as opposed to the living room.
55Mr. Fassassi would generally sleep on a sofa in the living room. When Complainant One slept in the living room, she sometimes shared a sofa with Mr. Fassassi.
56During the time that Complainant One stayed with her, KB thought that her sister’s relationship with Mr. Fassassi was normal. Complainant One and Mr. Fassassi would sometimes argue over the fact that Mr. Fassassi instructed her on household chores, almost as if he were her older brother. Sometimes Mr. Fassassi complained to KB that Complainant One was not listening to him. KB recalled one time when Mr. Fassassi had woken her up in the middle of the night to complain about this. When Mr. Fassassi raised such issues, KB would tell her sister to listen to him.
57KB recalled that Mr. Fassassi sometimes asked KB to have Complainant One bring laundry soap to his workplace so that he could do the household laundry in facilities there. However, Complainant One refused to go. On other occasions, Mr. Fassassi would come home from work for lunch. He did not have a key fob to get into her apartment building so KB would send Complainant One downstairs to let him in.
58KB acknowledged that she would frequently drink heavily and was often drunk. She would also smoke weed frequently. When she fell asleep after being drunk, there was “no waking her up.”
59KB stated that Mr. Fassassi was drinking every day during this time, although he was able to “play not drunk”. Mr. Fassassi would often take a flask to work and drink during the day. When he had been drinking heavily, Mr. Fassassi might fall asleep while sitting at the table and he would have to be put to bed by others. Sometimes after he had been drinking heavily, Mr. Fassassi would not remember what had happened the day before and others would need to remind him.
60One time, KB and Mr. Fassassi had an argument and he hit her. She attributed this to the fact that he was “super drunk” at the time.
61Mr. Fassassi had to get up early in the morning to go to his job as a superintendent. For a short period of time, he also worked in a restaurant in the evenings. Sometimes he would oversleep, and his alarm would go off in the morning in the living room. By this time, the alcohol would have gone out of her system and KB would hear the alarm. She would wake Mr. Fassassi up and might make him some food before he left for work.
62After about a month at her apartment, Complainant One returned to her mother’s house. KB recalled that Complainant One was adamant that she did not want to sleep over anymore.
63KB indicated that Complainant Two stayed overnight on two occasions toward the end of the summer. On one occasion, Complainant One came over to her place with Complainant Two. However, Complainant One decided not to stay and Complainant Two stayed over on her own. KB thought it was odd that Complainant One did not want to stay over since she and Complainant Two are best friends and normally always wanted to be together.
64On one of the nights when Complainant Two slept over, KB came out of her room late at night. Mr. Fassassi seemed startled, and he immediately packed up his things and left. KB thought this incident was odd.
65KB found out about the allegations against Mr. Fassassi when she received a telephone call in late September 2018 from her mother. A few moments later, she began receiving dozens of texts from Mr. Fassassi in which he denied having raped Complainant One. Mr. Fassassi’s texts also made numerous allegations against Complainant One, including that she had sent him flirtatious text messages. Mr. Fassassi said he would have saved these messages if Complainant One had not begged him to delete them. Mr. Fassassi also claimed that Complainant One had been calling him at work and harassing him. He threatened to kill himself and texted her a picture of a knife. KB indicated that she ignored these texts from Mr. Fassassi.
d. Karla Wentzel, Nurse Practitioner
66Karla Wentzel is employed as a nurse practitioner with the Suspected Child Abuse and Neglect unit at the Hospital for Sick Children. This unit provides medical assessments of children and youth up to the age of 18 where concerns of sexual abuse, assault, or neglect have been raised. Ms. Wentzel has been a nurse practitioner with that unit since 1999.
67Ms. Wentzel was tendered by the Crown as an expert in the identification, assessment, interpretation, nature, and causation of female genital injuries. A copy of her curriculum vitae was provided to the court and her extensive education and clinical experience was reviewed. She has been qualified to provide expert evidence before the courts of this province on approximately 10 prior occasions.
68Counsel for Mr. Fassassi agreed that Ms. Wentzel was qualified to give expert evidence on female genital injuries. Accordingly, she was accepted as an expert in the areas identified by the Crown.
69Ms. Wentzel testified that she examined Complainant One on September 24, 2018. She had been advised by the police that Complainant One reported having been sexually assaulted between June 25, 2018 and September 3, 2018 and that these assaults included intercourse, digital penetration, fondling her breasts, and fellatio. Ms. Wentzel also met briefly with Complainant One’s mother before commencing the examination. However, Ms. Wentzel met with Complainant One alone to take her medical history and perform the physical examination.
70As part of her physical examination, Ms. Wentzel examined Complainant One’s internal genitalia. Her most significant observation was the absence of hymen on the lower part of Complainant One’s vagina. This kind of injury to the hymen is unusual and is observed in less than 5% of cases where sexual abuse concerns have been raised.
71In Ms. Wentzel’s opinion, the absence of hymen on the lower part of Complainant One’s vagina was indicative of an injury caused by penetration, which had subsequently healed. Ms. Wentzel was of the view that the injury was consistent with sexual intercourse, or possibly digital penetration of the vagina. Based on Complainant One’s medical history, she was unaware of any other cause for the injury she observed. In her view, the injury to the hymen could not have been caused by normal, everyday activities.
72In cross-examination, Ms. Wentzel maintained that the injury she had observed could not have been caused by strenuous activities like sports or bike riding. There would have to be penetration of the vagina to cause the kind of injury that she had observed. Ms. Wentzel indicated that she could not identify the date on which the injury to Complainant One’s hymen had occurred. Nor could she identify the precise nature of the trauma which had caused the injury she observed.
e. Complainant Two
i. Videotaped Statement
73In her September 25, 2018 statement to police, Complainant Two indicated that she visited Complainant One, a longtime friend who lived in Toronto, in August 2018. She was 15 years old and had just completed Grade 10 at her local high school outside of Toronto.
74In the last week of her visit, Complainant Two stated that she spent a couple of nights at the apartment of KB, Complainant One’s older sister. Mr. Fassassi, a friend of KB’s, was staying there as well.
75On the first night she stayed at KB’s, nothing unusual happened. However, on the second night, after she fell asleep on a sofa in the living room, Complainant Two told police that she was awakened by someone touching her breasts under her shirt and bra. She opened her eyes and saw that it was Mr. Fassassi. He told her that he was sorry for waking her up like that.
76Complainant Two got up from the sofa, walked out onto the apartment balcony, and sat down on a chair, looking at her phone. Mr. Fassassi followed her onto the balcony and asked her if she was tired. She said she was. Mr. Fassassi brought her back inside and told her to lay down on the sofa. He took off her glasses and put her phone down.
77Mr. Fassassi then had a conversation with someone on his cell phone for a few minutes. He was walking around the living room during this call and Complainant Two did not know to whom he was speaking or what he was saying. KB was asleep in her bedroom with two younger children who were sleeping over that night and her bedroom door was closed.
78After Mr. Fassassi finished this telephone call, he came over to the couch where Complainant Two was lying and resumed fondling her breasts. He also began touching her pants in the area of her vagina. After a few moments, he told her to reach inside her pants and touch herself. She was scared and complied. When she removed her hand, he put his hand in her pants and began touching her vagina. He then took his penis out of his pants and forced her to perform fellatio. Eventually he ejaculated in her mouth.
79A few moments later, KB came out of her bedroom with the two young children who were spending the night. Mr. Fassassi quickly stood up and went out onto the balcony. KB and the two children went out onto the balcony with him. Complainant Two said she felt violated but she stayed on the couch and attempted to go back to sleep. After a few moments, Mr. Fassassi came back in, grabbed one of her breasts, and said see you tomorrow. He then left the apartment.
80Complainant Two said that she thought this assault had occurred on the Saturday evening of the Labour Day weekend. The next day she took a bus back to Complainant One’s home. She was later picked up and returned to her own home outside Toronto.
ii. Evidence at Trial
81Complainant Two indicated that the first time she went over to KB’s house, she was accompanied by Complainant One. On this occasion, she met Mr. Fassassi for the first time. Complainant One did not want to stay overnight and returned home. However, Complainant Two stayed overnight and slept on a sofa in the living room. Nothing unusual happened that night.
82Complainant Two went back to KB’s apartment a few days later, on the Saturday of the Labour Day weekend. Complainant Two brought two young girls with her, relatives of KB. The plan was for Complainant Two and the two young girls to sleep over at KB’s apartment. However, Complainant One did not accompany them.
83When Complainant Two got there, KB, Mr. Fassassi, and an adult female friend of KB’s were present. At some point in the evening, KB’s female friend left. After eating dinner, Complainant Two spent the evening with the two young girls watching TV. Eventually she fell asleep on the sofa in the living room. She thought it was still light out when she was falling asleep.
84Complainant Two described in some detail the manner in which the alleged assault by Mr. Fassassi took place. She described him awakening her from her sleep by touching her breasts under her clothing and bra. Although it was dark outside, there was light coming through the balcony window, which enabled her to see that there was no one else present in the room.
85Complainant Two got up and went out onto the balcony for a few minutes. She then returned to the living room and tried to fall asleep while Mr. Fassassi was speaking on his cell phone to an unknown third party. When he finished that conversation, Mr. Fassassi resumed touching Complainant Two sexually and eventually forced her to perform fellatio. Mr. Fassassi ejaculated into her mouth and was touching her breasts when he was interrupted by KB and the two young girls coming out of the bedroom. He went out onto the balcony for a few moments, before coming back inside and leaving the apartment.
86Complainant Two returned to Complainant One’s house the next day, which was the Sunday of the Labour Day weekend. She did not tell anyone what had happened to her the night before.
87Complainant Two said that towards the end of September, Complainant One’s mother, HB, called and asked to speak to her. HB told Complainant Two that Mr. Fassassi had touched Complainant One while she had been staying at KB’s apartment that past summer. HB asked Complainant Two whether Mr. Fassassi had touched her sexually. Complainant Two said that she initially lied and told HB that nothing had happened.
88After getting off the phone with HB, Complainant Two told her mother that Mr. Fassassi had in fact touched her sexually. However, she did not share the details of what had taken place. Her mother called HB back and informed her that Mr. Fassassi had touched Complainant Two sexually.
89Complainant Two was asked whether she and Complainant One had discussed Mr. Fassassi prior to reporting these alleged assaults to the police. She initially stated that she had not had any conversations with Complainant One about Mr. Fassassi prior to speaking to police. However, she was reminded of her evidence at the preliminary inquiry to the effect that Complainant One had told her that she thought Mr. Fassassi was ugly. Complainant Two agreed that such a conversation had occurred while she was staying at Complainant One’s house in the summer of 2018.
90Defence counsel suggested to Complainant Two that she had fabricated her allegations against Mr. Fassassi. Complainant Two insisted that she was assaulted by Mr. Fassassi and said she would not be wasting her time giving evidence if the incident had not occurred.
f. CB, Complainant Two’s Mother
91CB and her family lived in Toronto until 2011, when they moved to another Ontario community. CB’s daughter, Complainant Two, was best friends with Complainant One when they lived in Toronto, and the two girls had maintained their friendship even after Complainant Two moved away.
92Complainant Two and Complainant One attended a day camp in Toronto together for about three weeks in August 2018. Complainant Two stayed at Complainant One’s home during that time, although CB was also aware that her daughter had spent a couple of nights at KB’s apartment while she was in Toronto.
93CB recalled speaking to her daughter on her last night in Toronto, which she indicated was the Friday before the 2018 Labour Day weekend. During this call, CB learned that Complainant Two was planning to stay over at KB’s apartment that night. CB initially thought this was not a good idea and that her daughter should go back to HB’s home. However, after speaking with her daughter, she agreed that Complainant Two could spend the night at KB’s apartment.
94CB indicated that Complainant Two had returned home after completing day camp on the Saturday of the Labour Day weekend. She was positive that it was Saturday because one of her neighbours travelled to Toronto every second Saturday to visit a relative. After visiting her relative that Saturday, this neighbour picked up Complainant Two at HB’s house and brought her home.
95After Complainant Two returned home, CB noticed a change in her behaviour. She was quieter and not spending as much time socializing and hanging out with her sister and friends. CB also noticed that Complainant Two did not seem to be sleeping very well.
96Towards the end of September, CB got a call from HB, who asked if Complainant Two had seen or heard anything unusual during her visit to Toronto. She did not provide any specifics or ask about anyone in particular. HB said she was going to make a report to the police but did not explain why. CB does not believe that Mr. Fassassi’s name was mentioned during this first call. HB said she would call her back later.
97The next day, HB called back and told CB she wanted to speak to Complainant Two. CB put the phone on speaker so that both she and Complainant Two could speak with HB. HB asked Complainant Two if she had been touched inappropriately when she was in Toronto. CB said that Complainant Two initially denied having been touched inappropriately. However, after they got off the phone, Complainant Two began crying and told CB that she had been touched sexually by Mr. Fassassi.
98CB said she became upset and emotional and told her daughter that it was important to tell the truth. CB testified that she was shocked and angry and was almost yelling at her daughter. Complainant Two told her mother that she had been touched sexually by Mr. Fassassi but did not provide much detail. The next day, CB took Complainant Two to the police to provide a statement.
99CB said that she knew of Mr. Fassassi and may have met him some years previously. She knew him as Latif and did not know his last name. She was aware that Mr. Fassassi had been dating a woman who had previously been married to one of HB’s sons. She was also aware that Mr. Fassassi had two children. CB indicated that she had never previously spoken about Mr. Fassassi with her daughter.
III. Defence Case
a. Evidence in Chief
100Mr. Fassassi testified on his own behalf. He is currently 34 years old. He immigrated to Canada in 2004 and is a Landed Immigrant. He is not currently employed.
101Mr. Fassassi acknowledged that he has a minor criminal record in Canada, consisting of a failure to comply. This conviction was entered approximately ten years ago.
102He has two children, ages 10 and 5, both of whom live with their mother, Tiffany.
103Mr. Fassassi met KB in the fall of 2017. At that time, he was living with RR, who had previously been married to one of KB’s brothers. He and KB started hanging out, drinking and listening to music. KB gave him the nickname “Voodoo” and others began calling him that.
104Although Mr. Fassassi and KB became close friends, they were not involved romantically. They were almost like siblings and would sometimes refer to each other as brother and sister. KB assisted him in obtaining a court order permitting him access to his children during the day on weekends and for dinner one evening during the week.
105In late May 2018, around the time of his birthday, Mr. Fassassi and RR broke up and he started dating a woman named Mercedes. Mr. Fassassi needed a place to live and KB said he could stay at her place temporarily.
106In the summer of 2018, Mr. Fassassi was employed as a superintendent at an office building in Toronto. It took about 10 minutes by car or 20 minutes by bicycle to get from KB’s apartment to the building where he worked. He generally worked Monday to Friday from 6 AM to 4 PM. That summer, Mr. Fassassi also got a job as a cook at a restaurant in the Distillery District. He generally worked this second job from Tuesdays to Fridays starting around 6 PM and finishing between 10 PM and midnight.
107Mr. Fassassi said that there were a number of people staying off and on at KB’s apartment in the summer of 2018. This included KB’s boyfriend; KB’s cousin, JM, and JM’s infant son; Alex, an adult female friend of KB’s; and Mr. Fassassi’s girlfriend, Mercedes. KB’s 15-year-old sister, Complainant One, also stayed at the apartment for about a month.
108There was generally a lot of drinking and socializing going on at KB’s apartment that summer. Apart from Complainant One, who did not drink or use drugs, whoever happened to be there on a given day would drink, smoke weed, listen to music, and dance. There were a lot of noise complaints from the neighbours.
109There were no set sleeping arrangements in the apartment. KB had some couches in her living room and on the balcony. People might spend the night wherever they happened to be when they fell asleep or passed out from drinking.
110Mr. Fassassi tended to drink less during the week because he had to get up early for his job as a superintendent, but he would get drunk on the weekends. When Mr. Fassassi was drunk, he might fall asleep while sitting at the kitchen table. However, he did not black out, and he could remember what had happened when he woke up the next day.
111During the week, Mr. Fassassi was often the first person to go to bed, although he often stayed up until 3:30 or 4 AM. He might sleep through his alarm the next morning and KB would wake him up and make him some breakfast before he went to work.
112Mr. Fassassi would sometimes return to KB’s apartment for lunch. He might also call KB during the day and ask her to send someone to his office building with laundry soap so he could do the household laundry. However, he denied having specifically requested KB send Complainant One with the laundry soap.
113Mr. Fassassi recalled that Complainant One began staying at KB’s apartment sometime toward the end of June 2018. She had not done well at school that year and had been misbehaving at home, so her mother sent her to live with KB in the hopes that this would straighten her out.
114Mr. Fassassi said that he treated Complainant One like a little sister. Since she was the youngest person living at the apartment, he would tell her to wash dishes or clean. When he gave her such instructions, she would often get angry and speak to him rudely. Mr. Fassassi would tell Complainant One that she needed to listen to him, and he threatened to call her mother to complain.
115Sometimes Mr. Fassassi would sleep on the same couch as Complainant One. One night they had an argument; Mr. Fassassi became angry and swore at Complainant One. The next day, Complainant One apologized to Mr. Fassassi. After that incident, their relationship was more distant. Mr. Fassassi rarely spoke to Complainant One and pretty much just ignored her.
116Mr. Fassassi denied sexually touching Complainant One. He denied forcing her to have sexual intercourse or perform fellatio. He also denied touching her sexually while in the elevator or asking her to visit him at his workplace.
117Mr. Fassassi testified that he met Complainant Two briefly on one occasion. She was there when he came by KB’s apartment to grab a bag on his way to RR’s house. He did not pay much attention to Complainant Two and he denied touching her sexually in any way.
118At the end of the summer, Mr. Fassassi became concerned over the level of drinking at KB’s. He talked to RR about his concerns, as RR was “not a big alcohol person”. He decided to move back to RR’s apartment so that he could cut back on his drinking and get his life together.
b. Cross-Examination
119In cross-examination, Mr. Fassassi was asked about various statements he had made in a police interview he gave on October 4, 2018. In that interview, Mr. Fassassi told police that he had no reason to force himself on Complainant One because he could have sex with other girls. He also told police that he only had sex with women whom he loved, and he was not in love with Complainant One.
120At trial, Mr. Fassassi acknowledged that he was involved in a sexual relationship with Alex, a female friend of KB’s, in the summer of 2018. When he was asked whether he was in love with Alex, he replied that they had a friendship but were not “in love”. He also acknowledged that he had had sex with JM, a cousin of Complainant One and KB, in the summer of 2018. Mr. Fassassi said that he was not in love with JM either. They just had sex on one occasion and were not involved in a relationship; having sex with JM was “nothing out of the ordinary”.
121In the October 2018 interview, Mr. Fassassi also told the police that he was frequently drunk between May and July 2018. He said that he often could not remember what happened when he had been drinking.
122Mr. Fassassi was asked in cross-examination if this response was consistent with his evidence at trial that he was not drinking very much during the week while staying at KB’s, and that he never blacked out when drinking. Mr. Fassassi said that, because English is not his first language, he had trouble understanding what he was being asked by the officer in October 2018. He testified that he meant to say that he might have talked or drooled in his sleep, and that he had no memory of this when he woke up the next day. He denied that he would ever black out from drinking or be unable to remember what had happened when he had been drinking.
123Mr. Fassassi was also told during the October 2018 interview that police were in the process of obtaining surveillance video from the elevator in KB’s apartment building. The officer asked Mr. Fassassi whether that video would show him touching Complainant One inappropriately in the elevator. During the interview, Mr. Fassassi said that he did not know whether the surveillance video might show this.
124At trial, Mr. Fassassi was asked how his statement about the surveillance video during the police interview was consistent with his later evidence that he was certain he had never touched Complainant One inappropriately in the elevator. Mr. Fassassi replied that he had been frustrated by the way the officer was asking the question, since there was no way that he had ever touched Complainant One improperly in the elevator.
125Mr. Fassassi was also questioned about his relationship with KB. At trial, he testified that their relationship was fine up until the time Complainant One reported the alleged sexual assaults to the police. In fact, he had slept over at KB’s on a couple of nights in September 2018, after he had moved back in with RR. However, Mr. Fassassi had told police in his October 2018 statement that KB was jealous that he had moved back in with RR.
126In cross-examination, Mr. Fassassi was asked why he would have said that KB was jealous in the police interview if, in fact, their relationship had been fine up until that point. He testified that his comment about KB being jealous was “just a suggestion”, since he was in shock when speaking to the police and was trying to figure out what was going on. He denied that he was claiming KB had fabricated the allegations against him because of her jealousy about him moving back in with RR.
127In the police interview, Mr. Fassassi also stated that HB was angry with him because of an argument they had had about Tiffany, the mother of his children. This argument had taken place when Mr. Fassassi was delivering some furniture to HB. He had become angry with HB, but called her the next day to apologize.
128At trial, Mr. Fassassi was asked whether he was claiming that HB had fabricated the allegations against him because she was angry about this exchange. Mr. Fassassi explained that his statement to police about HB was “merely a suggestion”. He thought that this might have been a reason that she felt vindictive toward him.
129Mr. Fassassi was asked why he threatened to kill himself and texted a picture of a knife to KB when he first learned of the allegation that he had sexually assaulted Complainant One. He responded that he was in shock because he would never touch Complainant One inappropriately. He said that he did not intend to kill himself.
130Mr. Fassassi was also asked whether he was attempting to turn KB against Complainant One when he told her that Complainant One had sent him flirtatious text messages. Mr. Fassassi denied this and said he was just questioning why Complainant One would make these false allegations against him.
IV. Applicable Legal Principles
a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt
131The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. The presumption of innocence and the standard of proof beyond a reasonable doubt are important and necessary safeguards to ensure that no innocent person is convicted of an offence and wrongfully deprived of their liberty.
132Thus, Mr. Fassassi is presumed innocent of the charges brought against him and this presumption stays with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.
133A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in the trial. It is a doubt based on reason and common sense that arises logically from the evidence or absence of evidence. It is therefore not enough for me to believe that Mr. Fassassi is probably or likely guilty. In that circumstance, I am required to give the benefit of the doubt to Mr. Fassassi and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.
134I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all the evidence and be sure that Mr. Fassassi committed an offence with which he is charged before I can be satisfied of his guilt beyond a reasonable doubt.
b. Assessing Credibility
135Mr. Fassassi and the Complainants testified to two contradictory versions of events. Their evidence cannot stand together and, to reach a verdict in this case, I must assess the credibility of each. However, this task does not simply involve choosing whose version of events I prefer. The decisive question is whether, considering the evidence as a whole, the Crown has proven the guilt of the accused beyond a reasonable doubt on the specific charges alleged.
136The correct approach to cases like this is set out in R. v. W.(D.).1 The Supreme Court of Canada directs, first, that if I believe the evidence of Mr. Fassassi that he did not commit the offence with which he is charged, I must find him not guilty. Second, if I do not believe the testimony of Mr. Fassassi but his testimony leaves me with a reasonable doubt of his guilt regarding the offence charged, I must find him not guilty. Third, even if Mr. Fassassi’s testimony does not leave me with any reasonable doubt as to his guilt, I must still consider whether the evidence I do accept satisfies me of his guilt beyond a reasonable doubt.
V. Ruling on Crown’s Application to Have Evidence Considered Across Counts
137At the conclusion of the Crown’s case, the Crown applied to have the evidence of Complainant Two considered in determining whether the allegations in relation to Complainant One had been proven beyond a reasonable doubt, and vice versa. After hearing argument on the issue, I ruled that the evidence of each Complainant could be so considered, and that written reasons for that ruling would follow. These are my reasons.
a. General Exclusionary Rule
138It is well established that so-called “bad character” evidence cannot be used as circumstantial proof of conduct alleged in an indictment. That is, it is generally impermissible to allow an inference that an accused has the propensity or disposition to do the types of acts charged and is therefore guilty of the offence. The policy basis for this general exclusionary rule is that the potential prejudicial effect of such propensity evidence outweighs its probative value. If an accused is to be convicted, it must be because the Crown has proven the specific allegations of misconduct alleged beyond a reasonable doubt. As Doherty JA put it succinctly in R. v. Batte, “An accused must be tried for what he or she did and not for who he or she is.”2
b. Evidence Admissible Where Probative Value Exceeds Prejudicial Effect
139This general exclusionary rule is not absolute. Courts have recognized that an issue may arise in the trial of an offence to which the evidence of previous misconduct may be so highly relevant and cogent that its probative value outweighs any potential prejudice to the accused. To be admissible, however, it is necessary to conclude that the similarities between the alleged similar facts were such that “absent collaboration, it would be an affront to common sense to suggest that the similarities were due to coincidence.”3
140The seminal case on this issue is R. v. Handy, in which Binnie J emphasized that whether probative value exceeds prejudicial effect can only be determined in light of the purpose for which the evidence is offered.4 Probative value cannot be assessed in the abstract. The utility of evidence lies precisely in its ability to advance or refute a live issue at trial.
c. Assessing Probative Value
141In considering probative value, the key issue is the nexus between the similar fact evidence and the offences alleged. Factors connecting the similar facts to the circumstances set out in the charge may include: (i) proximity in time of the similar acts; (ii) similarity in detail to the charged conduct; (iii) number of occurrences of the similar acts; (iv) circumstances surrounding or relating to the similar acts; (v) distinctive features unifying the incidents; (vi) intervening events; and (vii) any other factor which would tend to support or rebut the underlying unity of the similar acts.5
142Cogency increases as the fact situation moves further to the specific end of the spectrum. The similar fact evidence should be admitted where “the pattern of circumstances in which an accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence … is so slight as to justify consideration of the similar fact evidence by the trier of fact.”6
143On the other hand, the apparent cogency of similar fact evidence can be rebutted by the presence of collusion between complainants. Collusion can arise from a deliberate agreement to concoct evidence as well as from communication among witnesses that has the effect, whether consciously or unconsciously, of colouring or tailoring the descriptions of the impugned events.7
144There must be something more than a mere allegation or opportunity for collaboration to render the similar fact evidence inadmissible. However, once there is some evidence of actual collusion or an “air of reality” to the allegations, the Crown has the persuasive legal burden to negate collusion. In such a case, the trial judge must be satisfied on a balance of probabilities that the evidence is not a product of concoction.8
d. Application to this Case
145As discussed above, it is essential to first determine the purpose for which the similar fact evidence is tendered. This depends upon the facts and offences alleged, and the defences advanced.
146In this case, the defence position is that the alleged sexual touching or interference never took place and, thus, both Complainants have fabricated their complaints. As such, the similar fact evidence is put forward by the Crown to refute any suggestion of fabrication and, generally, to bolster the Complainants’ credibility.
147I find that the evidence of the Complainants is highly probative of the issue of whether they have both fabricated their allegations. This follows from the substantial similarities between the accounts of Complainant One and Complainant Two in relation to Mr. Fassassi:
i. The alleged acts occurred close in time to one another, namely between the middle of June and the beginning of September 2018;
ii. Each Complainant was a 15-year-old girl sleeping over at KB’s apartment when the alleged acts occurred;
iii. Each Complainant provided a detailed description of the nature of the sexual assaults they alleged were committed by Mr. Fassassi;
iv. Each Complainant described falling asleep on a couch in the living room of KB’s apartment and being awoken by Mr. Fassassi assaulting her;
v. Each Complainant reported that the assaults began with Mr. Fassassi reaching under her shirt and bra and fondling their breasts; and
vi. Each Complainant alleged that Mr. Fassassi had forced them to perform fellatio.
148To be sure, there are differences between the evidence of the two Complainants. Whereas Complainant One alleged that Mr. Fassassi had assaulted her frequently over the course of a month, and that a number of these assaults had involved sexual intercourse, Complainant Two alleged a single assault that did not involve intercourse. The obvious explanation for these dissimilarities is that Complainant Two only slept over at KB’s apartment on two occasions, thereby limiting the opportunity for Mr. Fassassi to engage in the kind of conduct described by Complainant One.
149Given these substantial similarities, it is objectively improbable that two 15-year-old complainants could have independently fabricated these allegations. In the words of Binnie J in Handy, “[A]bsent collaboration, it would be an affront to common sense to suggest that the similarities [are] due to coincidence.”
150It remains to be considered if there is any evidence of collusion between the Complainants.
151Given that the Complainants are lifelong friends, there is a possibility that they could have discussed their allegations prior to going to the police. That said, there is no evidence that any such collusion occurred, and considerable evidence to the contrary.
152I note first that each Complainant testified that they had not spoken to the other about the alleged assaults prior to going to the police. Complainant One did state that after she had provided her statement, she asked Complainant Two whether Mr. Fassassi had touched her. Complainant Two told her that she had not been touched, and Complainant One said that she did not disclose anything further about Mr. Fassassi at that time.
153The Complainants’ evidence on this point is supported by their mothers, each of whom stated that her daughter was not aware of the specifics of the allegations involving the other Complainant. In fact, HB indicated that Complainant One was not even aware that Complainant Two had been assaulted until a substantial period of time after her report to the police.
154Also relevant on this issue is the fact that the mother of each Complainant independently observed changes in the behaviour of her daughter in September 2018, prior to the disclosure of these allegations. The mothers described their daughters as being troubled and having difficulty sleeping. Not only did each mother independently notice these changes, but others also made similar observations. For example, the family friend who drove Complainant Two back to her home the day after the alleged assault by Mr. Fassassi noticed that she seemed withdrawn and unusually quiet during the drive.
155I accept the evidence of HB and CB that the changes they observed in their daughters were genuine and real. This supports the inference that each of the Complainants was reacting in a similar but independent manner to the alleged assaults.
156The way these assaults were disclosed is also inconsistent with any suggestion of collusion. Each Complainant only shared what had happened to them after they were specifically questioned by their respective mother. Moreover, when Complainant Two was asked by HB if she had been inappropriately touched by Mr. Fassassi, she initially denied it. It was only after getting off the phone and breaking down that she told her mother what had happened. The obvious reluctance of each Complainant to disclose these incidents is inconsistent with the suggestion that they had surreptitiously agreed to fabricate the allegations.
157I therefore find that there is no air of reality to the suggestion that the Complainants colluded or somehow collaborated in making these allegations.
158Given the level of detail in each Complainant’s description, the similarity between their accounts, and the absence of any evidence of collusion between them, I find that the probative value of the similar fact evidence exceeds its potential prejudicial effect. I grant the Crown’s application to have the evidence of each Complainant considered in assessing whether the Crown has proven beyond a reasonable doubt the offences charged in relation to the other Complainant.
VI. Assessing Mr. Fassassi’s Evidence
159Mr. Fassassi was adamant in his denials that he had never sexually touched or assaulted either of the Complainants. Nevertheless, his evidence was characterized by numerous inconsistencies, contradictions, and implausible explanations.
160I would note, in particular, the following:
i. Mr. Fassassi told the police on October 4, 2018 that he had not sexually assaulted Complainant One because he only had sex with women he loved, and he was not in love with Complainant One. Yet at trial, he admitted that over the summer of 2018 he had sex with at least two other women (Alex, the friend of KB, and JM, KB’s cousin) even though he was not in love with either of them. When cross-examined on that point, Mr. Fassassi had no explanation for this inconsistency. I conclude that Mr. Fassassi was lying to the police when he told them he only had sex with women he loved in an effort to discredit the allegations made by Complainant One;
ii. Mr. Fassassi told police that he was drinking heavily between May and July 2018 and that he often blacked out. However, at trial he testified that he was not drinking heavily during this period and that he never blacked out from drinking. When asked to explain this inconsistency, he claimed that what he meant to say to the police in October 2018 was that he was talking in his sleep or drooling and would not remember this after he woke up. He attributed this miscommunication to the fact that English is not his first language.
I find this explanation entirely implausible. At the time he spoke with the police, Mr. Fassassi did not indicate that he was having any difficulty understanding what he was being asked. He quite clearly told the officer that he frequently blacked out from drinking, and he said the opposite at trial. These statements cannot both be true;
iii. In his evidence at trial, Mr. Fassassi maintained that there was absolutely no possibility that he had inappropriately touched Complainant One when he was in the elevator with her. Yet in his police interview, when asked if the surveillance video from the elevator would show him inappropriately touching Complainant One, Mr. Fassassi replied that he “did not know”.
When questioned about this inconsistency at trial, he claimed that he had been “frustrated” by the officer’s question, since he had never touched Complainant One in the elevator. If Mr. Fassassi were in fact frustrated by the question, it stands to reason that he would have simply told the officer that he did not touch Complainant One. I find Mr. Fassassi’s attempt to explain away the inconsistency to be implausible; he was simply hedging his answer to the police in October 2018 because he was concerned that the surveillance video would disclose him touching Complainant One;
iv. Mr. Fassassi testified at trial that his relationship with KB was fine up until the time that Complainant One reported the alleged sexual assaults to the police. However, in his October 2018 police interview, he claimed that KB was jealous over the fact that he had moved back in with RR. When questioned about this contradiction at trial, Mr. Fassassi testified that his statement to the police about KB being jealous was “just a suggestion”. In fact, I find that Mr. Fassassi was making up the “suggestion” about KB being jealous in an effort to persuade the police that KB had a motive to lie;
v. In his October 4, 2018 statement to police, Mr. Fassassi also suggested that HB had reason to lie about him because they had had an argument over his relationship with Tiffany (the mother of his children). Yet the evidence at trial was that there was no significant change in the relationship between Mr. Fassassi and HB in the weeks leading up to the disclosure of the allegations by Complainant One. For example, in Mr. Fassassi’s texts to HB on September 22, 2018, he referred to her as his “mama”.
I find that there was no animus or ill-will between Mr. Fassassi and HB prior to September 22, 2018. Mr. Fassassi falsely claimed that there was such animus because he believed this would discredit HB and, indirectly, Complainant One;
vi. When Mr. Fassassi first became aware of Complainant One’s allegations, he texted KB claiming Complainant One had sent him flirtatious texts and that he had rebuffed her advances. Mr. Fassassi told KB he had deleted Complainant One’s flirtatious texts because she had begged him to do so.
Yet in his evidence at trial, Mr. Fassassi did not repeat these claims about flirtatious texts from Complainant One. In fact, he said that he had largely ignored Complainant One while she was staying at KB’s apartment. Apart from instructing her to do chores, he claimed to have had limited interactions with her because he regarded her as a child.
For her part, Complainant One denies ever flirting with Mr. Fassassi or sending him flirtatious texts. To the contrary, her evidence is that Mr. Fassassi asked her to send him nude photos of herself, but she refused. Nor did KB ever observe any flirtatious behaviour on the part of Complainant One during the time she was staying at her apartment.
I find that Complainant One was not flirting with Mr. Fassassi and never sent any flirtatious texts to him. Mr. Fassassi fabricated these claims in an effort to convince KB that Complainant One was lying about him;
vii. In his texts to KB, Mr. Fassassi threatened to kill himself if she did not speak to him. He also texted her a picture of a knife. However, at trial he admitted that he had no intention of killing himself. I find that his threats to kill himself were simply a ruse intended to manipulate KB into speaking with him so that he could continue his efforts to discredit Complainant One.
161These examples are merely illustrative of the numerous inconsistencies, contradictions, and outright fabrications in Mr. Fassassi’s evidence. His attempts to explain away the inconsistencies and contradictions were implausible. Considered as a whole, I find his evidence to be incredible and unworthy of belief.
162I therefore reject the evidence of Mr. Fassassi and I find that his testimony does not leave me with a reasonable doubt of his guilt in relation to the offences charged.
VII. Assessing the Crown’s Case
163Even having rejected Mr. Fassassi’s evidence and finding that it does not leave me with a reasonable doubt, I must nevertheless determine whether, based on evidence which I do accept, the Crown has proven Mr. Fassassi guilty of the offences charged beyond a reasonable doubt.
a. Counts 1 and 2: Sexual Assault and Sexual Touching of Complainant One
164The analysis of counts 1 and 2 in the Indictment, which allege that Mr. Fassassi sexually assaulted and sexually touched Complainant One, turns on whether the Crown has proven beyond a reasonable doubt that the alleged touching and assaults actually occurred. If the Crown has so proven, then it necessarily follows that all the essential elements of these counts, both in respect of mens rea and actus reus, will have been established, resulting in findings of guilt. Alternatively, if the Crown has failed to prove beyond a reasonable doubt that the alleged assaults and touching of Complainant One occurred, then the result must be findings of not guilty on counts 1 and 2.
165Obviously, the key Crown witness in relation to these two counts is Complainant One.
166Complainant One testified in a straightforward and genuine manner. She provided detailed accounts of the way in which she was assaulted by Mr. Fassassi. Her evidence at trial was internally consistent, generally consistent with what she had told police on September 22, 2018, and consistent with the evidence of the other Crown witnesses.
167In cross-examination, defence counsel identified certain specific inconsistencies between Complainant One’s evidence at trial and aspects of her testimony at the preliminary inquiry. For example, in her trial evidence she initially claimed that Mr. Fassassi had inserted his finger into her vagina during the first assault, whereas at the preliminary inquiry she said he had not done so on that occasion. Further, in her trial evidence Complainant One said that Mr. Fassassi had forced her to perform fellatio “a lot”, whereas at the preliminary inquiry she said that she had been forced to perform fellatio two or three times. When asked about these inconsistencies, Complainant One acknowledged that her memory may have faded somewhat over the past two years and her evidence at the preliminary inquiry was likely correct.
168I find nothing troubling in this explanation. Given that she stayed at KB’s apartment for approximately a month, it is unreasonable to expect Complainant One to have a precise recollection of what occurred on specific days, or how many times over that month she was forced to perform fellatio. What is significant and material is that Complainant One’s evidence as to the nature of the assaults committed by Mr. Fassassi was consistent throughout the process. There was never any deviation in her claims that Mr. Fassassi had inserted his finger into her vagina during various assaults, as well as that he had forced her to perform fellatio on a number of occasions. In fact, Complainant One’s willingness to acknowledge that her memory may have faded and that her evidence at the preliminary inquiry was likely correct supports the inference that she was being candid and truthful in her evidence at trial.
169While there is no requirement that Complainant One’s evidence be corroborated, there is in fact significant evidence corroborating her account, which enhances her overall credibility.
170For example, HB noticed that after Complainant One returned home in July 2018, she was adamant about not sleeping over at KB’s apartment. HB specifically recalled an occasion in August 2018 when Complainant One was insistent on returning home for the night after visiting KB’s apartment during the day. HB also thought it was unusual that Complainant One did not accompany Complainant Two when the latter decided to sleep at KB’s apartment on the Labour Day weekend. These observations support Complainant One’s evidence that she was unwilling to sleep at KB’s apartment because she was fearful of further assaults by Mr. Fassassi.
171The evidence of Karla Wentzel, the nurse practitioner who examined Complainant One, also corroborates Complainant One’s evidence. Ms. Wentzel found evidence of trauma to Complainant One’s internal genitalia, which in her opinion was caused either by sexual intercourse or some other penetration of her vagina. The uncontradicted evidence is that Complainant One had not been sexually active prior to the summer of 2018. Nor is there evidence of any other penetration to her vagina that might have caused this injury, apart from the forced sexual intercourse alleged by Complainant One.
172By far the most significant corroborative evidence in relation to Complainant One is the evidence of Complainant Two. I have earlier outlined the substantial similarities between the allegations of the two Complainants. For the reasons described earlier, it is objectively improbable that two 15-year-old girls could have independently fabricated such broadly similar accounts.
173I further accept the evidence of both Complainants, as well as their mothers, that there was no collaboration or collusion between them. Each Complainant maintained that they had not discussed the details of the assaults they experienced with the other. This was confirmed by their mothers. In fact, HB stated that Complainant One was not even aware that Complainant Two had been assaulted by Mr. Fassassi until well after these allegations had been reported to the police.
174Nor did the Complainants have any reason to fabricate such allegations against Mr. Fassassi, either jointly or on their own. Mr. Fassassi claimed that Complainant One was angry with him because he had told her to do chores while she had been staying at KB’s apartment. He also referred to an argument that had taken place over sleeping arrangements on a couch. But Complainant One had returned home by the middle of July and had not been in regular contact with Mr. Fassassi for months. Even assuming she had been upset with Mr. Fassassi in July over having to do chores or over sleeping arrangements, it simply makes no sense for her to have waited until late September to concoct allegations of sexual assault as a way of getting back at him. As for Complainant Two, Mr. Fassassi admits that he had very limited contact with her and there is no reason whatsoever that she would have fabricated such serious allegations, either on her own or in concert with Complainant One.
175The only significant area of concern in relation to Complainant One’s evidence is that she acknowledges that there were others sleeping in the living room during the alleged assaults. How could Mr. Fassassi have engaged in such conduct, including sexual intercourse with Complainant One on more than one occasion, without waking the others? Moreover, why would Mr. Fassassi have risked discovery by assaulting Complainant One when others were sleeping nearby?
176Having considered these questions carefully, I regard it as significant that those sleeping over at KB’s apartment were consuming large amounts of alcohol and smoking marijuana. KB’s evidence was that she would generally pass out from drinking and smoking and that, once she passed out, “there would be no waking her up”. KB’s evidence was that the others sleeping at her apartment were usually partying and heavily intoxicated before falling asleep.
177Mr. Fassassi claimed that KB could in fact be awakened from her sleep since she would sometimes hear his alarm and come out of her room to wake him up. KB acknowledged this but indicated that by the next morning the alcohol would have worked its way out of her system. This allowed her to hear Mr. Fassassi’s alarm and come out of her bedroom to wake him up. She maintained that when heavily intoxicated she would pass out or fall asleep, at which point she would be “dead to the world”.
178I accept KB’s evidence that she and the others sleeping at her apartment were drinking heavily before falling asleep, which would have made it unlikely that they would have been awakened by the assaults described by Complainant One.
179Also relevant on this issue is Complainant One’s evidence that Mr. Fassassi was concerned with not waking the others in the living room during the assaults. Complainant One said that Mr. Fassassi would wait until everyone else was asleep before waking her up and assaulting her. He would cover her mouth, speak softly, and pause if he thought someone was waking up. He would only pull their clothing down part way, rather than remove it entirely, so that he could pull it back up quickly if anyone woke up. What this suggests is that Mr. Fassassi was aware of the risks of detection; he timed the assaults so that the others were unlikely to awaken, but chose to proceed nonetheless.
180Taking these various considerations into account, and considering the evidence as a whole, I find that the presence of others sleeping in the living room does not in itself raise a reasonable doubt as to whether the assaults actually occurred.
181Mr. Fassassi also argued that he did not have an opportunity to commit these assaults because he was working two jobs and would often not arrive home during the week until between 10 PM and midnight. When he got home, there would often be partying that would continue until the early morning hours. Yet even if this were so, he would still have had an opportunity to assault Complainant One by waiting until everyone else had fallen asleep.
182Considering the totality of the evidence, I find that there is no basis for the suggestion that Complainant One fabricated these allegations. Her evidence was internally and externally consistent and credible. There is also significant corroboration of her evidence. I accept her evidence and find that the Crown has met its burden of proving beyond a reasonable doubt that Mr. Fassassi sexually assaulted and touched Complainant One in the manner alleged.
183I therefore find Mr. Fassassi guilty of counts 1 and 2 in the Indictment.
b. Counts 4 and 5: Sexual Assault and Sexual Touching of Complainant Two
184As with counts 1 and 2, the issue in relation to counts 4 and 5 is whether the alleged touching and assaults actually occurred.
185The key Crown witness in relation to these two counts is Complainant Two.
186Complainant Two was a credible witness. She provided a detailed account of the alleged assault by Mr. Fassassi. Her evidence was internally consistent, and what she said at trial was essentially identical to what she had told police on September 25, 2018.
187A number of the potential concerns discussed in relation to Complainant One’s evidence simply do not arise in relation to Complainant Two. For example, Complainant Two’s evidence was that when she was woken up and assaulted by Mr. Fassassi, there was no one else sleeping in the living room. Mr. Fassassi did not dispute that aspect of her evidence since he simply claimed that he did not spend the night there. The point is that there is no evidence that anyone other than Complainant Two and Mr. Fassassi was sleeping in the living room on the relevant night, and thus there was no risk of waking anyone else during an assault.
188Nor was there any suggestion that Complainant Two had any animus or reason to fabricate her allegations against Mr. Fassassi. Both Complainant Two and Mr. Fassassi testified that they had met only a few days prior to the alleged assault. Mr. Fassassi had not instructed Complainant Two to do chores at the apartment. The uncontested evidence is that, apart from the alleged assault, there was nothing noteworthy about their interaction and certainly no conflict of any kind between them. Thus, Complainant Two had absolutely no reason whatsoever to falsely allege that Mr. Fassassi had assaulted her.
189One issue that did arise was whether Complainant Two was correct in her evidence that she had slept over at KB’s apartment on the Saturday night of the Labour Day weekend and that the assault had occurred that night. CB, Complainant Two’s mother, was quite certain that she had slept over on the Friday night and returned to her home outside Toronto on Saturday. Yet there is no dispute that Complainant Two did in fact sleep over at KB’s apartment one night on the 2018 Labour Day weekend. Thus, whether Complainant One slept there on Friday or Saturday is not material to the allegations. I find that the discrepancy between Complainant Two’s evidence and that of CB on this issue is minor, and not one that raises any concerns over credibility or reliability.
190There is also significant evidence corroborating Complainant Two’s account. For example, Complainant Two said that very soon after Mr. Fassassi had ejaculated into her mouth KB had come out of her bedroom, accompanied by the two small children who were spending the night there. Complainant Two said that this startled Mr. Fassassi and he quickly got up and went out onto the balcony. After a few moments he came back inside and left the apartment.
191KB recalled this incident. She found it unusual that Mr. Fassassi had gone out onto the balcony and then quickly left the apartment. Her evidence supported the description of Mr. Fassassi’s conduct provided by Complainant Two.
192Complainant Two’s evidence is also corroborated by that of Complainant One. I have already described the similarities between their accounts and explained why it is improbable that the Complainants could have independently fabricated such allegations. I have also explained why I have found that there was no collusion or collaboration between the Complainants. That analysis will not be repeated here.
193Complainant Two’s evidence is also corroborated by her mother and the family friend, both of whom observed changes in her behaviour in the days and weeks following her return from Toronto. Complainant Two seemed troubled and had difficulty sleeping. This is consistent with her evidence about the difficulties she was experiencing following the assault.
194Complainant Two was a credible witness whose evidence was internally and externally consistent. Her evidence is corroborated by that of other Crown witnesses. She had no motive of any kind to fabricate these allegations against Mr. Fassassi, a man she barely knew. I accept her evidence regarding the assaults and sexual touching by Mr. Fassassi.
195I therefore find Mr. Fassassi guilty of counts 4 and 5 in the Indictment.
VIII. Disposition
196I find Mr. Fassassi guilty of count 1 (sexual assault of Complainant One); count 2 (sexual touching of Complainant One); count 4 (sexual assault of Complainant Two); and count 5 (sexual touching of Complainant Two).9
Released: December 17, 2020
COURT FILE NO.: CR-19-10000444
DATE: 20201217
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LATIFOU FASSASSI
REASONS FOR JUDGMENT
P.J. Monahan J.
Released: December 17, 2020
Footnotes
- 1991 93 (SCC), [1991] 1 S.C.R. 742.
- (2000), 2000 5751 (ON CA), 49 O.R. (3rd) 321 (C.A.), at para. 100
- R. v. Handy, 2002 SCC 56, 2 S.C.R. 908 (“Handy”), at para. 41.
- Handy, at paras. 69-75.
- Handy, at para. 82.
- Handy, at para. 91.
- R. v. B.(C.), 2003 32894 (ON CA), [2003] O.J. No. 11 (C.A.), at para. 40.
- Handy, at para. 112.
- I note that the Indictment originally included a count 3. However, this count was duplicative of count 2 and was withdrawn by the Crown at the commencement of trial.