COURT FILE NO.: CrimJ(P) 968/18
DATE: 2020 02 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
H. Gluzman, Counsel for the Crown
- and -
SEAN HIRNAM
A. Kenawy, Counsel for the Accused
HEARD: December 16 to 20, 2019
REASONS FOR JUDGMENT
Dennison J.
INTRODUCTION
[1] Mr. Hirnam and A.G. knew each other in high school. They reconnected through social media. There is no dispute that on February 2, 2017, A.G. went to Mr. Hirnam’s house. A.G. met Mr. Hirnam’s parents and Mr. Hirnam and A.G. went downstairs to his bedroom. It is at that point that the evidence of A.G and Mr. Hirnam diverges significantly.
[2] A.G. testified that Mr. Hirnam was jealous and angry that she was going out to a nightclub the following evening to celebrate her birthday and whom she was going with. She turned away from him and was lying on the bed facing the wall. She testified that he said he was mad at her and was going to take it out on her. He then grabbed her by the neck, pushed her onto her stomach and penetrated her without her consent.
[3] Mr. Hirnam’s evidence was that they had a discussion about her doing cocaine and drinking at her birthday party. He agreed that she was lying on her side facing the wall. He stated that he did not know if she was upset or just tired, so he started to console her. He cuddled up to her and may have kissed her neck. He asked her to take off her pants. She pulled them down to her knees and they had consensual intercourse for five to eight minutes.
[4] The main issue at trial was whether the sexual activity was consensual. This requires a close examination of the credibility and reliability of both parties’ evidence.
THE EVIDENCE
A.G.’s Evidence
[5] A.G. attended the same high school as Mr. Hirnam. He was roughly two years older than her. She testified that they were friends during school hours but did not see each other outside of school. She stated that they also communicated through social media while at school. They lost touch after Mr. Hirnam graduated.
[6] In 2017, A.G. and Mr. Hirnam reconnected through social media. A.G. did not remember what platform they connected on and did not remember who initiated the contact. She did not recall what month they reconnected but thought that it was the end of December 2016 or January 2017. In cross-examination, it was suggested to A.G. that they reconnected on Tinder. She agreed that it was possible. She was shown some text messages that stated, “I didn’t think you’d swipe back.” She agreed that they were both on Tinder but did not recall if that was how they reconnected.
[7] A.G. stated that she was glad to reconnect with Mr. Hirnam. She first visited him at his house in January 2017 but did not recall the exact date. She drove to his house in the evening. He lived with his parents and had a bedroom in the basement with a bed against the wall.
[8] From January to February 2, 2017, A.G. visited Mr. Hirnam’s house between eight to ten times. She would drive to his house after work in the evenings. She stated that she enjoyed her time there. They also communicated regularly between visits via text.
[9] A.G. stated that she did not remember Mr. Hirnam expressing his view of their relationship to her, but she thought of him as a friend. After reviewing her statement to the police and refreshing her memory, she stated that prior to February 2, 2017, she found him to be clingy which she felt was a little odd because they had only been hanging out for a short period of time. She did not reciprocate his feelings and did not respond. She could not recall if he expressed his feelings more than once. In cross-examination, she stated that she understood that Mr. Hirnam wanted more than a friendship. She did not recall him telling her that he wanted to get back together with his ex-girlfriend. She did recall that he wanted his ex-girlfriend to get her things from his house.
[10] A.G. recalled Mr. Hirnam telling her his arm was sore. She did not recall him telling her that he injured it at the gym, that he went to the emergency room, or that he wore a sling. She agreed it would be normal to ask why his arm was sore, but that she may not have asked him if it did not seem like a big deal.
[11] On the evening of February 2, 2017, A.G. drove to Mr. Hirnam’s house. She recalled that he asked her to pick up a pizza because he was on a curfew.
[12] That evening, A.G. met Mr. Hirnam’s parents for the first time. They were in the kitchen and A.G. and Mr. Hirnam were standing at the side door. Mr. Hirnam introduced her to his parents and they then proceeded to the basement shortly thereafter.
[13] A.G. and Mr. Hirnam went downstairs to his bedroom and put on some music. They were sitting on the bed. At that point, they had a conversation about A.G.’s birthday party plans. She was excited to be celebrating her birthday with her friend S.B. the following night at a nightclub downtown. Mr. Hirnam was not happy with her plans and whom she was going to be with. A.G. knew Mr. Hirnam was not available to come to her party, so she did not invite him. She also told him that there was security at the club so she would be safe. She stated that she felt frustrated and that it seemed like their discussion was turning into an argument. She denied that they had a discussion about her going to the club and using cocaine.
[14] A.G. stated that at first she was seated, but when Mr. Hirnam came over, she moved over and laid down on the bed. He was sitting beside her. In her examination in-chief, A.G. stated that while they were on the bed, Mr. Hirnam tried to pull her pants down from the front of her waistband. She was able to pull her pants back up and told him that she did not want to have sex at that moment.
[15] In cross-examination, A.G. testified that Mr. Hirnam pulled her pants down by the top of her waistband, at the front to right side. At the preliminary inquiry, she said that he pulled her pants down from the front. In her statement to police, she told them and demonstrated to them how he pulled her pants down from the right side. At trial, the video of her statement to police was played. After being shown the tape, she agreed that she indicated that he pulled her pants down near the right side of her body. She still maintained it was her front side towards the side of her pants. She was asked if it would be impossible to pull her pants down from the right side and she did not agree. She also did not agree that the front and side were two different things, and stated it was the front side, not closer to the back.
[16] A.G. testified that after she told Mr. Hirnam she did not want to have sex, he said that he was mad at A.G. and was going to take it out on her. She said he sounded harsh and aggressive. She turned away from him and was lying on her left side facing the wall. Mr. Hirnam then shoved her onto her stomach, so her arms were underneath her. She stated that Mr. Hirnam’s arm was on her back, his hand was squeezing her neck, and she could not move her arms. He did not squeeze hard enough to prevent her from breathing, but it was forceful enough that she was scared. She said that Mr. Hirnam’s same arm was on her back. The other hand was free, but she did not know where it was. She could not recall where his legs were.
[17] While Mr. Hirnam’s hand was on A.G.’s neck, he pulled down her pants and inserted his penis inside her vagina. She testified that she did not consent to the intercourse. She stated that there was a bit of a struggle because she was not ready for his penis to go inside of her. Mr. Hirnam was not wearing a condom and she could not recall how long he was inside her. She did not recall the force he used but his hand remained on her neck throughout. She testified that it was painful and violating. She did not say anything because she was scared and did not want to make things worse than they already were.
[18] A.G. could not recall what hand Mr. Hirnam used to pin her down. She was shown her police statement in which she said she thought it was his left arm, but that did not assist in refreshing her memory.
[19] A.G. agreed in cross-examination that she could not have looked back at Mr. Hirnam when she was pinned on her stomach on the bed. At the preliminary inquiry, she said she looked back at him and described him as looking angry. She testified that she was not saying what she said was incorrect but explained that it happened a long time ago and she was extremely emotional during the preliminary hearing. She may have gotten flustered or nervous but stated that the things that she remembers now are the major events that took place that scar her to this day.
[20] A.G. could not recall if Mr. Hirnam was wearing any clothes when he pulled down her pants and underwear. She explained that his pants were off, but she did not know how or when they came off. Her pants were down between her ankles and knees.
[21] She testified that she did not cry in the house but cried as soon as she got into her car. She was shown her preliminary inquiry transcript where she said that she was crying when Mr. Hirnam put his penis inside of her. However, at trial, she did not remember crying.
[22] A.G. testified that Mr. Hirnam removed his penis from her vagina and told her to finish him off with oral sex. He was on his knees on the bed. She said no, but she did not recall what he said when she refused to give him oral sex. At that point, he was not wearing a condom. He had an erection, but he did not ejaculate.
[23] A.G. pulled up her pants and grabbed her jacket. She walked out of the house as quickly as she could while Mr. Hirnam followed her to the door. She did not remember if he put his pants back on. She did not say anything to him on the way to the door and could not recall if he said anything to her. She did not see his parents on the way out. She testified that she did not hug him, and he did not give her a kiss. She could not recall how long she was in the house or how long they were in the basement before she was sexually assaulted.
[24] When she got to the car, A.G. drove away and called her best friend S.B. She was in shock and did not know who else to call. She recalled that she had parked the car on the roadway and not the driveway.
[25] A.G. did not have any further contact with Mr. Hirnam. She testified that he texted her a few times, but she did not respond. She initially testified that she did not recall specifically what was in the text messages and stated that she did not retain them. She was shown the statement she gave to the police to refresh her memory and recalled that in his text messages, he apologized and wondered why she did not respond to any of his text messages. He asked if she was not responding because of what happened on February 2, 2017.
[26] A.G. attended the nightclub the following evening to celebrate her birthday. She testified that she felt overwhelmed, gross and confused.
[27] A.G. testified that she did not immediately go to the police because she was scared and was still processing everything. She ultimately went to the police with S.B. because she decided that it needed to be done.
[28] In cross-examination, A.G. agreed that she had a male friend, J., who she had a casual relationship with. She testified that this male was a friend but that sometimes a little extra happened. She did not tell J. about Mr. Hirnam but explained that it would not have mattered if J. knew.
S.B.s Evidence
[29] S.B. is friends with A.G. She had never met Mr. Hirnam outside of court.
[30] S.B. testified that she spoke to A.G. on February 2, 2017 after receiving an unexpected call from her between 10:30 p.m. and 11:30 p.m. A.G. was crying and hyperventilating, and no words were coming out. S.B. understood that A.G. was calling from her car. She was concerned and asked A.G. to pull her vehicle over. A.G. explained the reason she was crying and hyperventilating. S.B. agreed that it could have been around 9:30 p.m. when she received the call from A.G., as she told police, because it happened three years ago.
[31] S.B saw A.G. the next day. They had made previous plans to celebrate their birthdays together. They got ready to go out. S.B described A.G. as being a little held back, like she wanted to forget and celebrate the evening they had planned months ago. S.B. identified herself and A.G. in a photograph of them at the club.
[32] S.B. attended the police station with A.G. on February 6, 2017. She agreed that she never showed the police the call because she was never asked. She denied the suggestion that there was no call from A.G.
Mr. Hirnam’s Evidence
[33] Mr. Hirnam agreed that he knew A.G. from high school. He said their relationship was more of “hi and bye”. He agreed in cross-examination that they also communicated on Facebook outside of school.
[34] Mr. Hirnam testified that he and A.G. reconnected with each other on January 19, 2017 when he reached out to her on Tinder. He testified that he was surprised to see her on Tinder. He stated that a day or two after reconnecting, they exchanged phone numbers and started texting.
[35] Mr. Hirnam testified that on January 24, 2017, while bench-pressing at the gym, he tore the muscle between his left deltoid and pectoral muscles. He stated that he was not able to drive the car, so his cousin drove him home.
[36] Mr. Hirnam stated that he was in so much pain that he woke up in the middle of the night and had his mother take him to the hospital at around 2:00 a.m. He believed that he may have texted A.G. to tell her that he was in the emergency room.
[37] Mr. Hirnam testified that the doctors told him that it would take six to eight months to heal. He stated that he was prescribed anti-inflammatory pills and an immobilizer sling. He said he was able to move his arm in a couple of weeks, but that he lost strength in his left arm. He explained that if he moved his fingers, he would feel pain in his muscles, and that he could not grip. He stated that he would not have been able to grab someone’s neck. He also explained that the inflammation was so prominent that all he felt was heat.
[38] Mr. Hirnam testified that he wore the sling on and off for a couple of days and that he wore it in front of A.G. He said they never discussed the sling in person because they had texted about it.
[39] Mr. Hirnam’s medical records were made an exhibit on consent. These records show that a shoulder immobilizer was ordered for his left side. Mr. Hirnam agreed that there was nothing in the medical records that said it would take six to eight months to recover. The discharge diagnosis was tendinitis, and he agreed it did not say that there was a muscle tear. He also agreed it did not say that anti-inflammatory pills were prescribed. The records also noted “no swelling”. The medical notes further suggest that he was triaged at the emergency room at 10:32 a.m., but he agreed that he could not remember the exact timing.
[40] Prior to his arm injury, Mr. Hirnam worked for a window installation company. He testified that he quit as a result of his injury. He testified that he also worked with his mother at the dry cleaners doing back-room work including paying bills and emailing. He testified that he told A.G. this information.
[41] In cross-examination, Mr. Hirnam agreed that he had a conversation with someone on Feb 2, 2017 where he told that person he registered for a program at GoodLife Fitness to become a certified personal trainer. He agreed that the course was around February 26, 2017. He stated that he did not know if he was enrolled in the program or if he submitted his information but stated that he had not yet paid for it. He stated that he was prevented from taking the course because of his injury.
[42] Mr. Hirnam testified that January 26, 2017 was around the first time A.G. came over to his house. He agreed that she came over most nights after work.
[43] Mr. Hirnam stated that he told A.G. that he was not interested in getting into a relationship because he recently got out of one. Mr. Hirnam denied being clingy. In cross-examination, he testified that he wanted to get back together with his ex-girlfriend and A.G. knew this. He testified that A.G. also knew that he wanted his ex-girlfriend to get her stuff from his house. In examination in-chief, he stated that at that point, he did not want a relationship with anyone.
[44] Mr. Hirnam testified that A.G. told him about an abusive relationship that she had gotten out of with J. He said that A.G. never told him outright that she wanted a relationship with him, but based on the way she acted, he assumed that she likely did.
[45] On the evening of February 2, 2017, A.G. came over after 9:00 p.m. with a pizza that he asked her to bring. He met her at the side door, and she met his parents. They then proceeded to the basement.
[46] Once they got to the basement, Mr. Hirnam ate the pizza that A.G. brought. He recalled that A.G. mentioned her birthday party that was happening the next day. She also mentioned the party a couple of days prior to this over text. A.G. did not invite him, but he did not really care. He denied getting upset with her going to a nightclub. He agreed that he was on a curfew as a result of his criminal record. He stated that A.G. did not tell him that she was excited about the party nor did she seem excited. She looked tired. He agreed that A.G. told her there would be security at the nightclub.
[47] Mr. Hirnam said they talked about the fact that she was doing cocaine and drinking at her birthday and that would be the last night she would be doing that. He said he was not into that stuff and told her she should not do it. He believed that she was trying to convince him that she was giving up cocaine and drinking to be his potential girlfriend. A.G. also mentioned that she would call him during the night.
[48] After this conversation, A.G. lay down on the bed. Mr. Hirnam testified that he did not know if she was upset or if she was just tired. He was sitting on the side of the bed when she turned, faced the wall and curled up in the fetal position. He did not agree with the suggestion that the conversation turned into an argument and stated that A.G. did not say anything to let him know that she was mad or upset. He did not know if she was upset, but he started to console her and cuddle up beside her. Mr. Hirnam testified that he may have kissed A.G. on the neck.
[49] Mr. Hirnam then attempted to initiate sex by asking A.G. if she could take off her pants. He stated that A.G. pulled her pants down to her knees. At the same time, he took off his pants. He later clarified on cross-examination that he pulled his pants down to his knees. Mr. Hirnam then inserted his penis into A.G.’s vagina. The intercourse lasted for five to eight minutes and he ejaculated inside of her. He agreed that this was a “quickie”. He testified that she did not say no or cry, but that she moaned. She did not say that she wanted to have sex, did not touch him and did not say anything to him during this time.
[50] Mr. Hirnam denied having his arm on A.G.’s back or his hand on her neck. While he could not recall where his hand was, if it was on her, it was on her waist or her hip. He testified that there was no foreplay and disagreed that it was difficult to insert himself into her vagina. He also clarified that the only clothing that was off was their pants.
[51] Mr. Hirnam testified that he could not have done what A.G. said he did because of the injury to his left arm. He agreed that he was not wearing the sling that day, and agreed that depending on the clothing, he could get dressed and undressed using both hands. He stated that as long as he kept his arm down, he felt no pain. He also stated that it would be impossible for him to hold her down and pull her pants down at the same time.
[52] Mr. Hirnam explained that after they finished having sex, they got up and pulled up their pants. He did not believe that she had taken her jacket off and believed he was wearing a sweater. He told her that he would try to stay up until 12:00 a.m. to wish her a happy birthday and she said okay. They put on their clothes and walked up their stairs.
[53] He explained that at the top of the stairs, A.G. put on her shoes. They did not talk about anything when they went upstairs. Once upstairs, he opened the door, gave her a kiss and she left. She did not look upset, just tired, which she looked most times because she came over after work. In cross-examination, Mr. Hirnam said he could not recall if that is when she mentioned that she would call him from the nightclub.
[54] Mr. Hirnam agreed that after that evening, A.G. never called or texted him again and they never saw each other again. She also never called him on her birthday. Prior to that day, they spoke via text every day since they had reconnected. He testified that he texted her happy birthday, but that he never apologized to her.
[55] Mr. Hirnam agreed that he was arrested on February 6, 2017. He did not recall if he had to change into different clothing before going to the police station, but that he did put on a jacket. He agreed that he was not wearing his sling because he was sleeping, and that he did not put it on to go to the station. He agreed that he did not complain to the officer about pain.
Ms. F. Hirnam’s Evidence
[56] Ms. Hirnam is Mr. Hirnam’s mother. She stated that he hurt his arm around January 23, 2017. He was crying out in the night with pain, so she gave him some Tylenol and told him to hang on until the next morning.
[57] The next morning, she took him to the emergency room. She dropped him off before she went to work and picked him up from the hospital later on. He was still in a lot of pain and was wearing a sling. She recalled that he wore the sling for the first few days but could not recall if he was wearing it by February 2,2017. She agreed he was not wearing the sling on the date he was arrested.
[58] Ms. Hirnam testified that her son stopped working for the window company because he could not move his arm. Mr. Hirnam worked for her every now and then, but she did not push him because of his arm.
[59] Ms. Hirnam said she met A.G. once, but she could not recall the date. She recalled that Mr. Hirnam met her at the side door of the house, and she had a pizza in her hand. She introduced herself and they then proceeded to the basement. She believed they were in the basement for an hour or so. Ms. Hirnam saw A.G. leave, but A.G. could not see her because her back was towards Ms. Hirnam. She put on her shoes and Mr. Hirnam opened the door. She believed they kissed, and then A.G. left. In cross-examination, Ms. Hirnam said they gave each other a kiss, but admitted that she could not see A.G.’s face and could only see Mr. Hirnam’s face and lips.
[60] Ms. Hirnam recalled that she was upset when the police came to arrest her son, but she did not recall if her son comforted her before they left the house.
Rachel Moore’s Evidence
[61] Ms. Moore testified that she owned Skyline Windows and Doors. She stated that Mr. Hirnam worked for the company for three to four months and recalled that he stopped working because he had an injury to his arm. She stated that he stopped working in the middle to end of January 2017.
PC Perreault’s Evidence
[62] PC Perreault was the officer who arrested Mr. Hirnam at his residence on the evening of February 6, 2017. He testified in reply about his observations of Mr. Hirnam’s injury. PC Perreault stated that he arrived at Mr. Hirnam’s residence at approximately 11:44 p.m. Mr. Hirnam was in his pyjamas and wanted to change. Mr. Hirnam was cooperating, so the officer saw no issue with that. PC Perreault advised him to change into warm clothing because it was cold in the cells. PC Perreault also testified that he was trying to give Mr. Hirnam some privacy while he changed, but still had to ensure everything was safe. He testified that he saw Mr. Hirnam moving around fine, but he was not staring at him. When they went upstairs to leave, Mr. Hirnam’s mother was very upset, so PC Perreault told Mr. Hirnam to take care of her.
[63] Mr. Hirnam was taken to the police station. He did not complain of any medical injuries nor did the officer observe any medical injuries. PC Perreault was shown the booking video to refresh his memory with respect to the clothing that Mr. Hirnam put on. He stated that it looked like he was wearing a white shirt and a long-sleeved shirt, which was consistent with PC Perreault telling Mr. Hirnam to dress warm.
APPLICABLE LEGAL PRINCIPLES
[64] Mr. Hirnam, like all people charged with a criminal offence in Canada, is presumed innocent until proven guilty. The Crown must prove beyond a reasonable doubt that Mr. Hirnam is guilty of sexual assault. That burden of proof remains on the Crown throughout the trial. There is no onus on the accused to prove anything.
[65] The standard of proof beyond a reasonable doubt is exacting. It is more than probable or likely guilt and falls much closer to absolute certainty than it does to proof on a balance of probabilities. Ultimately, I may find the accused guilty only if I am sure that he committed the offence alleged.
[66] The Crown “is not required to prove or disprove beyond a reasonable doubt any single fact, or any item of evidence, unless that fact or item is an element of the offence or an element of a defence”: R. v. B.D., 2011 ONCA 51, at para. 96.
[67] To satisfy its burden, the Crown must prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea.
[68] The actus reus of sexual assault requires proof that there was intentional touching of a sexual nature in the absence of consent: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23. Consent is defined as the “voluntary agreement of the complainant to engage in the sexual activity in question”: Criminal Code, R.S.C., 1985, c. C-46, at s. 273.1(1). There is no consent where “the complainant expresses, by words or conduct, a lack of agreement to engage in the activity”: Criminal Code, at s. 273.1(2)(d).
[69] The actus reus focuses squarely on the complainant’s state of mind. The accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testified that she did not consent, and the trier of fact accepts that, then there was no consent and the actus reus is established: R. v. Barton, 2019 SCC 33, at para. 89: R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at para. 31.
[70] The mens rea of sexual assault requires proof beyond a reasonable doubt that the accused intended “to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”: Ewanchuk, at para. 42; Barton, at paras. 87-90. The Crown must therefore prove beyond a reasonable doubt that the accused intended to touch the complainant in a sexual manner without her consent.
[71] The mens rea focuses on the mental state of the accused. When considering the mens rea, consent means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in the sexual activity with the accused”: Ewanchuk, at para. 49. The issue to determine is whether the accused honestly believed that “the complainant effectively said ‘yes’ through her words and/or actions”: Ewanchuk, at para. 47.
[72] In this case, the complainant and accused provided very different accounts regarding whether the sexual intercourse was consensual. My function is not to choose between their evidence and decide which version of events I prefer. Rather, I must consider the evidence as a whole in determining whether the Crown has proven the charge beyond a reasonable doubt. This turns on an assessment of the credibility and reliability of the evidence of both the complainant and the accused and the other evidence introduced at trial.
[73] I am mindful of the need to avoid any assumptions and stereotypes as to how a sexual assault complainant should or does behave: R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218; R. v. A.B.A., 2019 ONCA 124. I must not make credibility findings based on my own understanding of common sense and logic because this may mask improper reliance on prejudicial generalizations. Further, it is important to remember that there is no rule on how a person who has been sexually assaulted will act after the incident or when and if they will complain about what occurred. There are many reasons why complainants often delay reporting. Therefore, in assessing the credibility of a sexual assault complainant, timing of the complaint is simply one factor to consider: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.
[74] I am also mindful to avoid any assumptions and stereotypes specifically about what a woman would or would not do in assessing the accused’s credibility: R. v. Cepic, 2019 ONCA 541, at para. 15.
[75] In this case, Mr. Hirnam testified. Accordingly, the important principles set out by the Supreme Court of Canada in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 apply. If I believe the evidence of the accused, I must acquit. If I do not believe the evidence of the accused, but am left with a reasonable doubt, I must acquit. If after careful consideration of all of the evidence, I am unable to decide who to believe, I must acquit: R. v. H. (C.W.) (1991), 1991 3956 (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.) at p. 16. Even if I am not left with a reasonable doubt by the evidence of the accused, I must ask whether, on the basis of the evidence that I do accept, I am satisfied that all of the elements of the offence have been proven beyond a reasonable doubt: W. (D.), at p. 758.
ANALYSIS
[76] The first key issue to determine is whether the Crown has proven beyond a reasonable doubt that A.G. did not consent to the sexual activity with Mr. Hirnam. The determination of this issue turns on a large extent on my credibility findings with respect to both the complainant and the accused.
[77] I found A.G.’s evidence to be generally credible, reliable and persuasive. Admittedly, there were details that she did not remember, but she did not try to guess or speculate in giving her answers. She was responsive to the questions put to her and appeared to be trying to testify to the best of her ability. Clearly, the passage of time had impacted her recollection of some details. She admitted facts that were potentially damaging to her credibility, including that she had used cocaine. She was also very anxious in her testimony and at times very emotional.
[78] I accept that there were several challenges made to her reliability and credibility during cross-examination. I have carefully reviewed her evidence and have considered all the alleged inconsistencies. In these reasons, I will deal with what appeared to be the most significant of the alleged inconsistencies. Ultimately, not withstanding the inconsistencies, I find A.G.’s evidence to be credible and reliable when considered along with the rest of the evidence.
[79] In contrast, I did not find Mr. Hirnam’s evidence to be credible. He exaggerated the extent of his arm injury. I also do not find that his description of how the events unfolded that evening to be plausible when considered with the other evidence. Moreover, even if I accepted his version of events, I am not left with a reasonable doubt that A.G. did not consent. Nor is there a basis to believe that Mr. Hirnam had an honest but mistaken belief that A.G. consented.
[80] Set out below are some specific examples to demonstrate why I found A.G. credible and reliable despite the thorough cross-examination by counsel and why I disbelieve Mr. Hirnam’s evidence.
[81] Having considered all of the evidence and my conclusions with respect to the credibility and reliability of the evidence, I am satisfied beyond a reasonable doubt that Mr. Hirnam sexually assaulted A.G.
a) Credibility Findings with Respect to A.G.
[82] Counsel for Mr. Hirnam submits that there are inconsistencies in A.G.’s evidence that make her evidence unbelievable and unreliable. He also submits that A.G. is not credible or reliable because she could not remember a number of details she was asked about, such as whether Mr. Hirnam used his left arm to hold her down. There were, however, other instances where she remembered particular details such as that she parked her car on the street and not the driveway and that Mr. Hirnam told her that he wanted his ex-girlfriend to pick up her things from his house.
[83] Counsel submits that A.G. tried to hide the manner in which she and Mr. Hirnam reconnected and her reluctance to accept that they reconnected on Tinder adversely impacts her credibility. In examination in-chief, A.G. stated that they reconnected through social media. She did not recall what application or who initiated the contact and agreed that she told police that they reconnected on Instagram. In cross-examination, A.G. was shown text messages from Mr. Hirnam’s phone that suggested that A.G. and Mr. Hirnam reconnected on Tinder around January 19, 2017. After being shown these texts, A.G. testified that she still did not remember if this was the way they first reconnected.
[84] Despite her reluctance, I do not find A.G.’s answer that she did not remember if Tinder was the way they reconnected to significantly impact her credibility. A.G. readily admitted that they reconnected on social media but could not recall what application. When she was shown the text, she readily admitted that it was a conversation between her and Mr. Hirnam. She also admitted that she was on Tinder and that they may have connected through Tinder. She simply could not remember on what application they first reconnected. I do not find that her evidence on this point relates to a material issue that fundamentally undermines her credibility. She also testified that she was happy to have reconnected with Mr. Hirnam and enjoyed the time she spent with him.
[85] A.G. also testified that she did not remember the exact date that she and Mr. Hirnam reconnected. She agreed with the suggestions put to her regarding the time frame and did not appear to be wanting to hide the date they reconnected. She stated it was a long time ago. Indeed, there was no real dispute between the parties that once they reconnected, she visited Mr. Hirnam at his residence eight to ten times before February 2, 2017. I do not find her failure to recall exactly when they reconnected to seriously undermine the credibility or reliability of her evidence. It was a minor point.
[86] Counsel for Mr. Hirnam also submits that A.G.’s answers to some questions suggest that she had a story that she wanted to stick to and did not want to answer anything that was outside of the story for fear it may expose a lie. For example, counsel points to the fact that A.G. was not prepared to admit that she was aware that Mr. Hirnam went to the emergency room for his arm injury. Counsel for Mr. Hirnam submits that her answer does not make sense given that A.G. and Mr. Hirnam talked every day. She also could not recall what Mr. Hirnam did for a living.
[87] I do not find that A.G.’s lack of memory about Mr. Hirnam telling her that he went to the emergency room or what he did for a living seriously undermines her credibility. A.G. testified that she did not remember Mr. Hirnam telling her that he went to the hospital, but she did remember that he had a sore arm. She stated that she may not have followed up on his arm if it did not seem like a big deal. I do not find her failure to remember details about Mr. Hirnam’s injury to seriously impact her credibility. By Mr. Hirnam’s own evidence, he wore the sling on and off after it was prescribed, although he also said he believed he wore it for three consecutive days when he first obtained it. Further, he testified that he went to the hospital on January 24, 2017 and stated that he first saw A.G. on January 26 or 27, 2017. Based on his evidence, he may very well have not been wearing the sling when he was with A.G. Therefore, her lack of memory on the details of his injury do not cause me significant concern in assessing her credibility and reliability.
[88] I also do not find A.G.’s credibility is seriously impacted by the fact that she did not retain the text messages from Mr. Hirnam where she stated he apologized. While Mr. Hirnam disagreed that he apologized, he agreed that he texted her after that evening and she did not text him again.
[89] There are three more significant inconsistencies that cause me greater concern with respect to A.G.’s evidence that I must address.
[90] First, there is an inconsistency regarding how Mr. Hirnam attempted to pull down A.G.’s pants. A.G. testified in-chief that Mr. Hirnam tried to pull her pants down from her waistband at the front, but that she told him no and pulled her pants back up while she was lying on her back. At the preliminary inquiry, she also stated that he tried to pull her pants down from the front. In her statement to the police, she showed the police how he tried pulled her pants down. Her hand was to her right side near her hip, slightly closer to her front than to her back. In cross-examination, she stated that he tried to pull her pants down from the front to side while she was lying on her right side. After being showed the tape of her statement, she stated that it was the front side. It was suggested to her that it could not have happened as she testified because she said she was lying on her right side. She disagreed and stated that he did not have to put his hand underneath her to try to pull down her pants and that there are different ways of lying on your right side.
[91] Given these inconsistencies, I do not find A.G.’s evidence on how Mr. Hirnam first attempted to pull her pants down to be reliable. However, for the following reasons, I do not find this inconsistency to fundamentally undermine her overall credibility. First, this was an unsuccessful attempt to pull down her pants. Second, while there is an inconsistency, A.G. was consistent in her testimony that she was laying on the bed when Mr. Hirnam unsuccessfully tried to pull her pants off at the waistband. She was also consistent that she told him that she did not want to have sex right now because their discussion was turning into a disagreement. While there is an inconsistency with respect to whether it was on her right side or the front of her pants this is not a situation where the witness’ description of how her pants were attempted to be pulled off went from front to back.
[92] Second, there is an inconsistency regarding whether A.G. turned around to look at Mr. Hirnam during the sexual intercourse. A.G. testified at trial that she did not look back at him and did not see his face during the sexual intercourse. She was then shown a transcript from the preliminary inquiry where she stated that she attempted to look back at him and she said he looked angry based on his facial expression.
[93] Third, there is an inconsistency regarding whether A.G. started crying during or after the sexual intercourse. A.G. testified at trial that the first time she cried was when she went to her car. At the preliminary inquiry, she was asked if she did anything at the point Mr. Hirnam put his penis inside her. A.G. testified that she was just crying. She agreed that this was something that she would have remembered because it was important. When testifying at trial, she stated that she did not remember crying.
[94] A.G. was directly asked if she was lying at trial or lying at the preliminary inquiry about these two inconsistencies. She explained that “it was a really long time ago and my emotions at the preliminary hearing were extremely high and I was flustered and nervous, and the things that I remember now are the major events that took place that scarred me to this day.” She then said that she wanted the court to disregard her evidence at the preliminary inquiry about looking back at Mr. Hirnam and to rely on her evidence at trial because that is what she remembers now and she does not remember that happening. She also stated that what stood out to her was how she felt and him inserting himself into her.
[95] I accept A.G.’s answer that she could not remember looking at Mr. Hirnam’s face or crying during the sexual intercourse when she testified at trial. She is not saying that it did not happen, but rather that this is what she remembers now. She readily admitted that she could be wrong about whether she looked at him or whether she cried, but she does not remember it now.
[96] Despite the inconsistencies between A.G.’s evidence at the preliminary inquiry and at trial, she was unshaken on the core aspects of the sexual assault. She did not wavier in her evidence that Mr. Hirnam tried to pull her pants down and she told him that she was not interested in sex at that time. She was consistent that the reason she was not interested in sex was because of the disagreement they were having. She was consistent about the nature of the disagreement. She explained how Mr. Hirnam rolled her onto her stomach after she was lying on her side facing the wall. She explained that he was angry with her and that he pulled her pants down and put his penis inside of her vagina. She was consistent that he had a hand on her neck and back. She described how it felt when he penetrated her and explained that she felt scared and did not want to make the situation worse, so she did nothing. A.G.’s evidence was also consistent with respect to what she did after the incident: she got up and left. As soon as she got to her car, she called her best friend because she was so upset.
[97] I accept S.B.’s evidence that she received an unexpected call from A.G. that evening. S.B. was unshaken in her evidence and testified in a straight forward and fair manner. S.B. explained that during the call, A.G. was crying, hyperventilating and no words were coming out. S.B. was sufficiently concerned that she asked A.G. to pull over her car. S.B. saw A.G. the following day and noted that A.G. was not herself and was a little held back.
[98] Evidence of a complainant’s post-event emotional state can provide confirmation of her testimony: R. v. J.A., 2010 ONCA 491, at paras. 17-18, rev’d on other grounds, 2011 SCC 17, [2011] 1 S.C.R. 628; R. v. J.V., 2007 ONCA 194, at para. 33. While I do not rely heavily on this evidence, in my view, it affords some confirmation of A.G.’s evidence with respect to what occurred that evening.
[99] S.B.’s evidence also confirmed A.G.’s evidence that they had planned to celebrate their birthdays for some time and were looking forward to it.
[100] Mr. Hirnam’s counsel seemed to suggest that A.G. had a motive to fabricate because she did not want another man, J., to become aware that she was seeing or being sexually active with Mr. Hirnam. I have three comments with respect to this evidence.
[101] First, I find that it is speculative to suggest that A.G.’s motive to fabricate the allegations of sexual assault is supported by the evidence. A.G. was forthright in answering questions about the nature of her relationship with J. I accept A.G.’s testimony that her relationship with J. was a casual friendship and as she volunteered that sometimes a “little extra stuff happened.” She stated that she was not in a relationship with him and that he was not her boyfriend. She did not tell J. about Mr. Hirnam and said that it would not have mattered if J. knew about Mr. Hirnam.
[102] Second, while counsel for Mr. Hirnam raised the issue of a possible motive for A.G. to fabricate her testimony, I am cognizant of the fact that there is no obligation on Mr. Hirnam to prove a motive to fabricate. The burden of proof remains on the Crown throughout the trial to prove the offence beyond a reasonable doubt.
[103] Third, the absence of evidence of a motive to fabricate, which appears to be the case here, does not mean that there is a proven lack of motive to fabricate. There are many reasons why people may accuse persons of committing crimes that may never be learned. Therefore, one cannot assume that if there is a lack of evidence to fabricate, then there is no motive to fabricate. The absence of evidence of a motive to fabricate is a neutral factor in assessing the complainant’s credibility: R. v. L.L., 2009 ONCA 413, at para. 44; R. v. Bartholomew, 2019 ONCA 377, at paras. 21-23, 25.
[104] Mr. Hirnam’s counsel asked many questions of A.G. that, in hindsight, were irrelevant and that I regret permitting to be asked.
[105] First, I do not find that the fact that A.G. did not scream out or fight back during the alleged incident adversely impacts her credibility. It is recognized that sexual assault complainants react in many different ways during and after a sexual assault. Some may scream or fight back while others may not: R. v. Kiss, 2018 ONCA 184, at para. 101.
[106] Second, I also do not find that A.G. going to a nightclub the following evening undermines her credibility with respect to the sexual assault. That event had been planned for a long time to celebrate her and S.B.’s birthdays. I also find that although A.G. did not report this matter to the police immediately, it does not adversely impact her credibility: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.
[107] Having carefully reflected on the evidence of A.G. as a whole, including the extensive cross-examination of A.G, as well as the other evidence introduced at trial, I find A.G. to be a credible and reliable witness. Even with the inconsistencies in her evidence, I find that she was unshaken on the core allegations that she did not consent to have sexual intercourse with Mr. Hirnam and that she told him she did not consent.
b) Credibility Findings with Respect to Mr. Hirnam
[108] I now turn to the evidence of Mr. Hirnam. He gave a very different description of what happened in the bedroom. His evidence was that the sexual activity was consensual and that he could not have committed the acts alleged by A.G.
[109] I do not accept Mr. Hirnam’s evidence that he was not physically able to commit the sexual assault as described by A.G. because of his arm injury, nor does his evidence leave me with a reasonable doubt about his ability to commit the sexual assault. I found that he exaggerated the extent of the injury and his ability to use his left arm.
[110] In his evidence in-chief, Mr. Hirnam testified that the pain was so unbearable that he had to leave his home in the middle of the night to go to the emergency room. However, his mother, Ms. Hirnam. and the medical records contradicted his evidence. Ms. Hirnam testified that her son was in pain and she told him to take a Tylenol. She drove him to the hospital in the morning before she went to work. The hospital records also indicate that he was triaged at 10:32 a.m. and diagnosed at 12:07 p.m. Based on the medical records, it appears that the hospital uses a 24-hour clock, which is consistent with Ms. Hirnam’s evidence regarding the timing of the visit to the hospital.
[111] Mr. Hirnam testified that he was prescribed anti-inflammatory pills by the hospital. However, there is no indication that he received any medication after attending the emergency room, pain-related or anti-inflammatory. There was also no indication of swelling, which contradicted Mr. Hirnam’s evidence that the inflammation was very prominent.
[112] Mr. Hirnam also testified that while working out at the gym, he felt a tear in his muscle connecting his deltoid and pectoral muscles. There is no diagnosis of a tear in the medical records. The medical diagnosis is tendinitis.
[113] While Mr. Hirnam was prescribed an immobilization sling, he was not using it on a regular basis by February 2, 2017. He explained that he wore the sling on and off for a couple of days but believed he wore it for three consecutive days when he first got it. Ms. Hirnam stated that she could not recall him wearing the sling on February 2, 2017.
[114] Mr. Hirnam also agreed that he told someone on February 2, 2017 that he had enrolled for a training course at GoodLife Fitness to become a certified personal trainer. He later stated that he could not take the course because of his injury.
[115] While I recognize that the arrest on February 6, 2017, was several days after the alleged sexual assault, it is worth noting that at that time, Mr. Hirnam was not wearing the sling and did not complain of any pain to the police. Nor did he seem to have any difficulty getting himself dressed to go to the police station based on PC Perreault’s evidence.
[116] The Crown submits that Mr. Hirnam is not credible for a number of other reasons. I disagree with the Crown’s submission that Mr. Hirnam tried to downplay the nature of his friendship with A.G. in high school to minimize his interest in her. He agreed that they were friends and that they said hi and bye to each other in school. A.G. agreed that they did not get together outside of the school setting. Mr. Hirnam also readily admitted that he initiated contact with A.G. on Tinder. I find that any discrepancy between how A.G. and Mr. Hirnam described their high school relationship was the result of semantics and not substance.
[117] I also want to address how I considered Mr. Hirnam’s criminal record that came to light as a result of a question that Mr. Hirnam’s counsel asked A.G. I agree that a Corbett application in a judge-alone trial has little value because the judge hearing the trial has to hear when and what the convictions were to determine its admissibility. Where an accused has a criminal record that is sought to be introduced, the primary focus should be on what relevance the criminal record has to the issues at trial: R. v. M.C., 2019 ONCA 502, at para. 60.
[118] I have determined that trial fairness does not require me to remove the criminal record from consideration. Mr. Hirnam’s criminal record and the sentence imposed were relevant in this case because A.G. testified that Mr. Hirnam asked her to bring over a pizza that evening and that he could not attend her birthday party because he was under a curfew. Questioning Mr. Hirnam about his criminal record and the sentence imposed was relevant in assessing A.G.’s credibility. However, I do not find that the nature of his previous convictions assists in assessing his credibility. These were not crimes of dishonesty or crimes contrary to the administration of justice. I am also cognizant of the fact that it would be improper to use the prior convictions to find that Mr. Hirnam would be more likely to commit the offence of sexual assault given the offences for which he was convicted.
[119] Aside from the credibility issues with respect to the extent of Mr. Hirnam’s injury, there are no other major inconsistencies in Mr. Hirnam’s testimony. Mr. Hirnam was not evasive in answering the questions put to him. His evidence was vague with respect to the details of what occurred that evening during the sexual intercourse. For example, he could not recall if A.G. told him she liked him. He “believed” he “may have kissed her” on the neck before asking her to take off her pants. He also could not recall where his hands were during intercourse. However, I do not find that his lack of memory of the details seriously undermines his credibility.
[120] Despite the lack of major inconsistencies in Mr. Hirnam’s evidence with respect to what happened that evening, when his evidence is weighed against the totality of evidence, including A.G.’s evidence, S.B.’s evidence and Ms. Hirnam’s evidence, I am not left with a reasonable doubt regarding the guilt of Mr. Hirnam: R. v. J.J.R.D., 2006 40088 (Ont. C.A.).
[121] I do not find Mr. Hirnam’s evidence to be believable or to raise a reasonable doubt when considered with the rest of the evidence, particularly A.G.’s evidence, but also S.B.’s evidence regarding how upset A.G. was after the incident and Mr. Hirnam’s admission that A.G. never texted or spoke to him again. On his evidence, after Mr. Hirnam and A.G. had a discussion, A.G. turned on her side. He did not know if she was upset with the conversation or if she was just tired. He started to console her and asked her to pull her pants down. He may have also put his hand on her side. Without any further conversation, he penetrated her.
[122] I also do not find that Ms. Hirnam’s evidence assists in raising a reasonable doubt about what occurred in the bedroom. She testified that she did not see A.G.’s face when Mr. Hirnam and A.G. came upstairs, yet she was adamant that they kissed each other. I do not accept her evidence on this point. If she could not see A.G.’s face, I do not understand how she could see them kiss each other.
[123] Even if I were prepared to accept Mr. Hirnam’s evidence, I am still satisfied beyond a reasonable doubt that there was no communicative consent. Consent means, “that the complainant had affirmatively communicated by words or conduct her agreement to engage in the particular sexual activity”: Barton, at para. 90; Ewanchuk, at para. 49. The belief that silence, passivity or ambiguous conduct constitutes consent is a mistake in law and provides no defence: Barton, at para. 98. In other words, it is an error in law, not fact, to assume that a sexual assault complainant means yes until she says no.
[124] A.G.’s conduct in pulling her pants down when requested did not amount to affirmative conduct that demonstrated her agreement to engage in sexual intercourse. Mr. Hirnam testified that he believed that A.G. was either upset or tired as she had turned her back away from him. He started to cuddle with her and may have kissed her neck. She was not kissing him, did not touch him with her hands, did not say that she wanted to have sex and did not say anything to him during this time. He then asked her to pull her pants down. Even accepting that she pulled her pants down, this conduct is ambiguous and it cannot be presumed that A.G. was consenting to sexual intercourse given all the circumstances.
[125] Lastly, although this issue was not raised before me, even if one characterizes that Mr. Hirnam made a mistake of fact, as opposed to a mistake of law, I find that the defence of honest but mistaken belief is not available to Mr. Hirnam because he took no reasonable steps to ascertain if A.G. was consenting. In the circumstances, where there was a possible disagreement between A.G. and Mr. Hirnam, and where A.G. turned away from him, it was objectively reasonable for Mr. Hirnam to make further inquiries before presuming that A.G. was consenting to sexual intercourse when she took her pants down as requested: Barton, at para. 104.
CONCLUSION
[126] I have carefully considered A.G.’s and Mr. Hirnam’s evidence as well as the other evidence called by the parties.
[127] I am satisfied beyond a reasonable doubt that A.G. did not consent to having sexual intercourse with Mr. Hirnam. I also am satisfied beyond a reasonable doubt that Mr. Hirnam knew that A.G. was not consenting. I not accept his evidence with respect to what occurred that evening nor does it create a reasonable doubt. Even if his evidence was accepted, his evidence does not raise a reasonable doubt that A.G. did not consent to sexual intercourse.
[128] Accordingly, I find Mr. Hirnam guilty of sexual assault.
Dennison J.
Released: February 13, 2020
COURT FILE NO.: CrimJ(P) 968/18
DATE: 2020 02 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SEAN HIRNAM
REASONS FOR JUDGMENT
Dennison J.
Released: February 13, 2020