ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARK HOLLAND
K. Matthews and S. Duffey, for the Crown
R. Barrs, for Mr. Holland
HEARD: January 6-10, 13-14, 2020.
REASONS FOR JUDGMENT
1In 2008 and for several years thereafter, Mark Holland was one of the most successful nightclub promoters in Toronto. The business he operated with a partner, Kleen Media, regularly promoted five different nightclubs on five different nights of the week. All became very popular and were often filled to capacity on the nights Kleen Media promoted them. Mr. Holland became a well known figure in Toronto’s nightclub scene.
2In 2016, Mr. Holland was charged with a sexual assault of which he was later acquitted. At the time he was charged, the police issued a press release outlining the charges and encouraging other complainants to come forward. Two women, N.K. and S.J., did so. Both alleged that Mr. Holland sexually assaulted them on different dates in 2008, one at a nightclub he promoted and the other at a party that took place immediately after closing time at another nightclub he promoted. As a result, Mr. Holland was charged with one count of sexual assault in relation to N.K. (Count 1) and one in relation to S.J. (Count 2).
3Both complainants testified that Mr. Holland sexually assaulted them. Mr. Holland testified and denied sexually assaulting either of them. The Crown has applied to have the evidence on each count admitted in relation to the other as similar fact evidence. Although N.K. and S.J. do not know each other, for reasons I will explain, I do not view their allegations to be sufficiently similar to warrant admission. As a result, the case turns entirely on an assessment of the credibility and the reliability of the two complainants individually as well as Mr. Holland.
4The following reasons explain why I am satisfied beyond a reasonable doubt that Mr. Holland is guilty on Count 1 but not Count 2.
I. EVIDENCE
A. Kleen Media
5Mark Holland and his partner, Sergio Sanatore, operated a nightclub promotion business called Kleen Media, which would be hired by nightclubs to promote them on specific nights of the week. Kleen Media would market the nightclub through social media and direct marketing to individuals on mailing lists they had compiled in an effort to have as many people as possible attend the club on the night in question. Kleen Media would also set up “VIP” areas in the club. Entire bottles of alcohol would be available in these areas, which were open to the patrons of the club by invitation only. Mr. Holland and Mr. Sanatore as well as an employee of theirs, Krista Lew, would be present at the club throughout the evening. At the end of the evening, Kleen Media would be remunerated by receiving a percentage of the cover charge and the gross alcohol sales for the evening.
6In 2008, Kleen Media was one of the most successful nightclub promotion businesses in Toronto. It had a permanent arrangement with five different nightclubs to promote them on specific nights of the week. Two of these are relevant to this case: a club called the Century Room on King Street West, which Kleen Media promoted on Thursdays, and a club called Lobby on Bloor Street West in the Yorkville area, which Kleen Media promoted on Wednesdays.
B. Count 1
(i) N.K.’s Attendance at the Century Room
7N.K. was 37 years old at the time of trial. She is employed as a researcher in a city outside of Ontario. In February 2008, N.K. was living and working in Toronto, having moved here in November 2007 after finishing university. At the time, she was an active participant in the nightclub scene and would go to clubs about three nights per week.
8N.K. testified that on Thursday, February 7, 2008, she and two friends, J.N. and L.C., went to a bar in Rosedale where N.K. consumed three or four glasses of wine over the course of about two hours. They then went to the Century Room, arriving there at around 11:00 p.m. or midnight. N.K. liked going to the Century Room, a popular nightclub, and had been there on five to seven previous occasions. L.C. testified and confirmed that she had gone to the bar in Rosedale with N.K. and J.N. and then to the Century Room. J.N. did not testify.
9According to N.K., after arriving at the Century Room, she and her friends were invited into the VIP area by either Mr. Holland or Mr. Sanatore. N.K. testified that she had met Mr. Holland 10 to 15 times previously and had him as a “Facebook friend”. She had seen him at bars many times. N.K. had met Mr. Holland’s girlfriend in the past and knew her to be a bartender, but did not recall her being at the Century Room that evening.
10N.K. testified that she was given vodka in the VIP room by either Mr. Holland or Mr. Sanatore. She believed that she consumed two shots of vodka, but acknowledged that there were bottles on the tables from which guests could help themselves. She described herself as being “intoxicated’ or “drunk” but not “blacked out or smashed.” She agreed that she had been drinking for up to six hours that evening, but denied having more than six drinks during that period. L.C. testified that she could not recall the state of N.K.’s sobriety that evening.
(ii) The Alleged Sexual Assault
11N.K. estimated that she was in the VIP area for about 45 minutes to an hour. At some point, Mr. Holland invited her to go on a “VIP tour” of the back of the club. According to N.K., she had been on a similar “VIP tour” a few weeks earlier at Lobby. She could not recall if that tour had been conducted by Mr. Holland, Mr. Sanatore or both of them. N.K. testified that she was sure that it was Mr. Holland who invited her on the tour at the Century Room and not Mr. Sanatore or anybody else. She agreed, however, that many men at the club that evening wore similar attire and had the same “look”.
12N.K. accepted the invitation to go on a tour and Mr. Holland escorted her through a door at the back of the club. Once through the door, there was a kitchen on the right and a staircase leading up on the left. Mr. Holland directed her up the staircase while walking behind her. They stopped on a landing or on the next floor. According to N.K., Mr. Holland grabbed her by the shoulder or the waist and began to kiss her neck or the side of her face. She “froze” as this was unexpected. He then pulled down her pants and penetrated her vagina from behind with what she believed was either his penis or a finger. N.K. agreed that when she went to the hospital four days later, she had said that she had been penetrated by a penis. Years later, she realized that she was not sure of this and that it could have been a finger.
13Upon being penetrated, N.K. immediately said something like “stop” or “no” and he stopped. She did not know if he stopped because of what she said or because there was the noise of footsteps on the staircase. N.K. estimated that the length of time between when she was first grabbed and when the penetration stopped was about 10 to 15 seconds.
14N.K. testified that she immediately returned to the main club area to find her friend, J.N. (L.C. had left by then). She was visibly upset and crying. She does not recall the exact details of what she told J.N., but recalls that she did tell her that Mr. Holland had “tried to sexually assault her” and that she needed to leave. N.K. and J.N. then left the club.
15In cross-examination, N.K. was confronted with a portion of a statement she had made to the police in 2016 in which she said that after getting home that evening, she was “thinking … like did I just cheat on … my boyfriend.” It was suggested to N.K. that the reason she believed she may have cheated on her boyfriend was that she could not recall what had happened on the stairwell because she had been intoxicated. N.K. denied the suggestion. She agreed, however, that at the time she did feel as if she had cheated on her boyfriend. In re-examination, she explained that she had felt that she had somehow been responsible for being sexually assaulted.
16According to N.K., the next day Mr. Holland sent her a message by text or Blackberry Messenger in which he said, “I’m sorry, you just looked so hot tonight.” N.K. did not preserve the message.
(iii) Disclosure of the Allegations Following the Incident
17N.K. testified that over the next few days, she told several people about being sexually assaulted by Mr. Holland, including L.C., her sister, her best friend, her boyfriend and a crisis counsellor. Four days after the incident, she went to the hospital to be tested for sexually transmitted diseases. The tests were negative. She did not undergo a “rape kit”, that is, the extraction of bodily fluids which can be DNA tested, because she had had multiple baths and showers by then. While she told the hospital staff that she had been sexually assaulted, she did not identify her assailant.
18N.K. explained that she did not report Mr. Holland to the police at the time for several reasons: she was afraid of him, she was afraid of being shunned by others in the nightclub scene and of being viewed as unprofessional by her workplace colleagues.
19L.C. testified that the day after going to the Century Room, J.N. sent her a text telling her to call N.K. because something had happened. L.C. contacted N.K. by telephone, but could not recall exactly when. She initially testified that she believed that it was within a day, but agreed in cross-examination that it could have been four days later.
20According to L.C., during the telephone conversation N.K. told her that she had been sexually assaulted by “Mark from Kleen Media.” Later, she testified that N.K. had also said “Mark Holland.” N.K. told L.C. that she and Mark were in the Century Room and went to another location where he ripped down her pants and assaulted her from behind while she was screaming, “What the fuck, stop, stop.” He did not stop until somebody approached the door of the room they were in. N.K. also told L.C. that she had been to the hospital and that a rape kit had been administered.
21L.C. described N.K.’s demeanour during the conversation as being “upset” rather than how she usually was, which was “happy, bubbly, upbeat.”
(iv) Disclosure to the Police
22In 2016, N.K.’s friend J.N. sent her a press release and some media reports that said that Mr. Holland had been charged with an unrelated sexual assault. N.K. testified that it occurred to her that Mr. Holland may have been victimizing other people, so she decided to report her own experience to the police.
C. Count 2
(i) S.J.’s Attendance at Lobby
23S.J. was 38 years old at the time of trial and had lived in Toronto for her entire life. In December 2008, she was 27 years old and employed as a server in a bar. She and her cousin, D.B., were also starting a business promoting nightclubs.
24On the evening of Tuesday, December 10, 2008, S.J. went to Lobby with D.B. and a friend, J.P. S.J. knew that Kleen Media was a successful business and the promoter at Lobby. She hoped to be able to persuade Kleen Media to promote an event together with her own company. She also wanted to drink and socialize.
25At the time, S.J. had never met Mr. Holland or Mr. Sanatore. She testified that she knew who Mr. Holland was and that he looked the same as he did at trial, only younger. Photographs taken at Lobby that evening show that Mr. Holland had a shaved head and was clean shaven. At trial, he had a full head of hair and a trimmed beard. S.J.’s cousin, D.B., had met Mr. Holland prior to that evening, but did not know him well.
26S.J. could not recall if she had been to any other establishment before going to Lobby and could not recall if she had had anything to drink prior to arriving. D.B. testified that they had probably consumed alcohol before going to Lobby.
27S.J. could not recall details of what she did at Lobby or who she spoke to, but she did have a memory of Mr. Holland and Mr. Sanatore being there. At one point, she spoke to Mr. Sanatore about the possibility of a partnership between their respective businesses. He was cordial, but ultimately gave her “a bit of a brush off.” S.J. did not speak to Mr. Holland while at Lobby, but did pose for a photograph while standing next to him. That photograph and several others taken that evening were made exhibits at trial.
28S.J. could not recall how much she drank at Lobby. She was not sober, nor was she intoxicated “to the point of not knowing what was going on.” D.B. could not recall how much S.J. drank. D.B. described her own level of intoxication at the time they left Lobby as being 4 on a scale of 1 to 10, with 1 being completely sober and 10 being “falling down.” She believed that S.J. was probably also a 4.
(ii) The Party at the Deslauriers Brothers’ Condominium
29At around the time Lobby was closing, two patrons of the bar known as the Deslauriers brothers invited a number of people, including S.J. and D.B., to a party at their nearby condominium. S.J. walked to the condominium with a group of people. She could not recall who was in the group, but did not recall Mr. Holland being there, although he arrived at the condominium later. S.J. knew who Mr. Holland’s girlfriend was, but did not recall seeing her at Lobby or at the condominium.
30S.J. testified that she may have been given a drink upon arriving at the condominium. Soon after arriving, one of the Deslauriers brothers led her and some other people on a tour of the condominium, which had three levels. The top level was a room with a glass dome ceiling that contained nothing but pillows which covered the entire floor. The main level had a kitchen, some bedrooms, and a deck on which there were two large hot tubs. There was also a lower level. During her examination in-chief, S.J. testified that she did not think she was shown the lower level on the tour, although she was not sure. In cross-examination, she was adamant that she was not shown the lower level on the tour.
31D.B. also described being given a tour of the condominium, including the lower level. She was not sure if S.J. was present during the tour.
32The Deslauriers brothers had a box containing a number of new bikinis in various sizes, each of which had their initials on them. These were provided to all of the women at the party for use in the hot tubs. S.J. changed into a bikini and got into one of the hot tubs together with several other people. She recalls there being a total of between five and 10 people in the hot tub.
(iii) The Alleged Sexual Assault
33S.J. testified that Mr. Holland was in the hot tub and sat next to her. She did not recall what he was wearing, but agreed that it made sense that he would have been wearing swimming trunks. He had a drink, which he offered to her saying, “Have a sip, have a sip.” She declined. According to her, she had only one drink while at the condominium as it was the end of the night and she wanted to sober up.
34S.J. tried to talk to Mr. Holland about her promotion business. He listened to her, but did not say much. She agreed that he “brushed her off.” After a while, S.J. noticed that everybody other than herself and Mr. Holland had left the hot tub. She testified that this made her uncomfortable as she “didn’t have a good feeling about him.” D.B. testified to seeing S.J. in the hot tub with Mr. Holland, but said that she did not see them alone in it.
35S.J. testified that she asked Mr. Holland if he had any cocaine. She explained that she did so because she wanted a way to get out of the hot tub, but also because she wanted some cocaine to sober up. Mr. Holland told her that he had some.
36According to S.J., Mr. Holland got out of the hot tub and went downstairs and she followed him. They entered a room in which there were several beds. Mr. Holland initially had his back to her and she thought that he was getting some cocaine. He then turned around and she saw that his penis was exposed. He hit her in the face with his penis and then pushed her down on the bed by the shoulders.
37S.J. testified that Mr. Holland either removed her bikini bottoms or pushed them to the side and penetrated her vagina with his penis. She said “no” several times and told him that she did not want to do this. He responded by saying, “Of course you do,” and continued to have intercourse with her. S.J. recalled telling him that she had a boyfriend, to which he responded that he had a girlfriend. She asked him why he was doing this and he replied, “Because you’re hot.” After five or 10 minutes, he stopped. S.J. did not know if he ejaculated or if he wore a condom.
38S.J. testified that her next memory was talking to her friend, J.P., and saying that she wanted to leave. She also recalled seeing her cousin sitting on the counter. By then, she was no longer wearing a bikini but could not recall when she changed. She does not know how much time passed between the assault and her next memory. D.B. recalled S.J. being distraught and saying that she wanted to leave. They then left and went to S.J.’s home. According to D.B., her and her cousin’s intoxication levels were a six out of 10 at the time they left.
(iv) Disclosure of the Allegations Following the Incident
39S.J. told D.B. that she had been sexually assaulted, although she could not recall if she did so the following day. She could not recall what details she had provided to D.B. D.B. testified that S.J. told her that Mark Holland had “taken advantage of her” and had raped her, but did not provide details. S.J. did not seek medical attention or go to the police.
(v) Disclosure to the Police
40S.J. reported the sexual assault to the police in 2016 after D.B. had told her about hearing on the news that Mr. Holland had been charged with a sexual assault. D.B. had also forwarded to her a link to a news article about the arrest.
(vi) S.J.’s Recollection of Mr. Holland’s Tattoos
41During her 2016 statement to the police, the interviewing officer, Det. Patel, asked S.J. whether she remembered anything distinctive about Mr. Holland:
DET. PATEL: Do you remember anything distinctive of him like marks, scars, tattoos, earrings [indiscernible]?
S.J.: Well, tattoos – but I – like distinct, no.
DET. PATEL: Sorry, did you say he had a tattoo?
S.J.: Pretty sure. I don’t know. I don’t remember. I know it was Mark though.
DET. PATEL: Okay.
S.J.: Like ….
DET. PATEL: Do you remember where the tattoo was – no?
S.J.: No.
DET. PATEL: Okay, okay. Anything else that …
S.J.: No.
DET. PATEL: … stands out about him?
S.J.: No.
At trial, S.J. testified that when she pictured the events of that evening in her head, she still does not recall seeing tattoos on Mr. Holland.
42The defence tendered a photograph of the front and back of Mr. Holland’s torso and there is no issue that he had the same tattoos now as he did in 2008. The tattoos cover the entirety of both arms from his wrists to his shoulder, his entire back from his waist to his neck, and the pectoral area of his chest from his collarbone to just above his nipples.
D. Defence Evidence
(i) Mr. Holland’s Business and Personal Life
43Mr. Holland was 42 years old at the time of trial and would have been 31or 32 in 2008. He and Mr. Sanatore started Kleen Media in 2005 and continued to operate it until 2016, when he had to discontinue operations due to negative publicity arising from the charges against him. Mr. Holland also owned a nightclub and a restaurant for a period of time after the timeframe of the allegations before the court. Kleen Media had several employees, including Kayla Lew, who worked there full-time.
44From 2007 until 2011 or 2012, Mr. Holland was in a relationship with Patrycja Kozdra. She resided with her parents in Mississauga but would stay at Mr. Holland’s apartment in Toronto approximately five days per week. Mr. Holland helped Ms. Kozdra get employment as a bartender at the Century Room and Lobby. She would work at each establishment on the nights that Kleen Media was promoting them.
45Although Kleen Media was a very successful promotion business, Mr. Holland denied that he had a lot of personal contact with people who would attend the clubs he promoted. According to him, most of the networking was done through Kleen Media employees because he was very particular about who he would give his personal contact information to. While he always attended the events he promoted, he would not initiate small talk with the club patrons. If any patrons said anything to him, he would listen and then try to move on. Mr. Sanatore was the “fun happy guy” while Mr. Holland took care of the operations and was in charge of the cash. Mr. Holland agreed that he would be personable with others, but was also sometimes “standoffish.”
46Ms. Lew also testified that Mr. Sanatore was more sociable than Mr. Holland. According to her, Mr. Holland was not well-liked in comparison to Mr. Sanatore. Ms. Kozdra gave similar evidence to the effect that Mr. Sanatore did most of the hosting.
47Mr. Holland testified that he met “thousands” of “girls” in the course of his work. For the most part he would not know who any of them were except for regular clients. According to him, the women who attended the nightclubs he worked at would “come and go” and for the most part, their goal was to “meet someone” and once they did so, they would stop frequenting the clubs.
48Mr. Holland agreed that many women at the nightclubs where he worked would show a sexual interest in him. However, he never reciprocated that interest because he was in a long-term relationship with Ms. Kozdra and also because he did not like to “shit where I eat”, which he explained meant that he did not like to mix the personal and professional aspects of his life.
(ii) Count 1
(a) The Century Room
49Kleen Media promoted the Century Room on Thursday nights. Ms. Kozdra worked at one of several bars at the Century Room and would be below the disc jockey’s booth and about 10 to 15 feet away from the Kleen Media VIP booth. Mr. Holland and Ms. Kozdra both testified to being able to see each other the entire time while working at the Century Room. According to Mr. Holland, he would remain at the booth for most of the evening and would only leave to check on the staff collecting cash at the front door or to use the bathroom. He tried to limit the number of times he used the bathroom in order to discourage his staff from taking frequent bathroom breaks. Ms. Lew testified that Mr. Holland only left the booth to use the bathroom.
50The VIP booth was where Mr. Holland’s best clients would be. Only high-paying male clients and attractive women would be invited into the booth, where there were open bottles of alcohol on the tables from which patrons could drink freely. Some people stayed in the booth for a short period while others stayed longer and spent time with Mr. Holland and the other patrons. According to Mr. Holland, “Inevitably, they’re looking for free alcohol and that’s why they want to be my friend. … If they’re a woman.”
51At the end of each evening at about 2:00 a.m., Mr. Holland would collect the cash owed to him from the cover charges collected at the door as well as his percentage of the bar sales. On a Thursday night at the Century Room, he would usually end up receiving $6000 to $8000, from which he would pay his staff. The remainder would be split with his partner. After this, he would usually go home together with Ms. Kozdra.
52Mr. Holland often saw people drink to the point of extreme intoxication at nightclubs, which he thought was “kind of sad.” Based on his experience in the industry, Mr. Holland was of the opinion that “75 to 90 percent of the time most women will overindulge in alcohol at these nightclubs as well as at Century Room.” He described many of them losing their handbags or becoming absent-minded.
(b) N.K.
53Mr. Holland testified that he did not know who N.K. was and had no recollection of ever meeting her, although he acknowledged that he may well have done so as he met many people in the course of his business. When he was first notified of the allegations made against him by N.K., he contacted a number of people he knew in an attempt to find out who she was. He learned that the Deslauriers brothers, who were among his best clients, knew her as she had lived in the same building as they did.
54Mr. Holland agreed that it was possible that N.K. had been in the promoter’s booth on February 7, 2008. He agreed that if she was, she would have had access to the bottles of alcohol on the table. He then added:
Girls could help themselves and they often would. They would free pour, they would even free pour into their mouth from the bottle. You know, I didn’t like that, but that’s what these girls would do. And I would see these girls get, like, horribly intoxicated. It’s sad to see how – how intoxicated these people are willing to get themselves.
55While the patrons consumed a lot of alcohol, Mr. Holland testified that he was “obviously very professional” and would only consume alcohol about three nights a week and never have more than one or two drinks.
56Mr. Holland unequivocally denied ever having sexual contact with N.K. He denied ever being on the staircase at the back of the club or even knowing that there was such a staircase.
(c) Mr. Holland’s Appearance
57According to Mr. Holland, most males at the Century Club dressed like he did in tight t-shirts. Most were muscular like him, clean shaven like him and had shaved heads like him. Most also had tattoos like him, although his tattoos were “very distinctive” and “very fashionable” because the tattoo artist who created them was “renowned.” Mr. Holland testified that it was not common for individuals to have tattoos as extensive as his.
58Mr. Holland also testified that there was a resemblance between himself and Mr. Sanatore. People would often mistake them for one another or would assume that they were brothers because they had the “same style” and because both used “Kleen” as a professional surname. He agreed that having his face on social media was a large part of Kleen Media’s brand.
(iii) Count 2
(a) Lobby
59Mr. Holland testified that Kleen Media was hired by Lobby in 2006. At that time, Lobby was struggling financially. After Kleen Media began promoting the club on Wednesday nights, “it turned out to be quite a well renowned Wednesday night for Yorkville and for Toronto.” Lobby became a “very popular hard to get into exclusive place for Toronto.” It became so popular that celebrities from the United States such as Jay-Z, Kanye West and Mark Wahlberg would attend it.
60The routine at Lobby on Wednesday nights was similar to that at the Century Room. Mr. Holland would remain in the VIP area most of the time. Ms. Kozdra worked as a bartender there and would be close to the VIP area. At the end of the night, Mr. Holland would collect the cash that was owed to Kleen Media, which was usually $4000 to $6000, after which he and Ms. Kozdra would usually go home.
61Mr. Holland identified himself in the photographs, including those in which he was standing next to S.J. Mr. Holland explained that Kleen Media hired a photographer to take photographs at the nightclubs he promoted. The photographs would be put onto Kleen Media’s website. Patrons would have the option of obtaining the photographs, which was a way for Kleen Media to collect client data.
62Although he was photographed standing next to S.J., Mr. Holland denied knowing her or having any recollection of ever meeting her. He explained that he was often photographed because “everybody that we didn’t know would obviously come and ask if they could have a photo with us because maybe they’ve seen us online and we were maybe hometown heroes or – or people they were inspired to meet or wanted to be like.”
(b) The Deslauriers Brothers
63The Deslauriers brothers were among Mr. Holland’s best customers because they usually attended Lobby on Wednesday nights and would spend a significant amount of money. He also considered them to be friends. The brothers usually had an “after-party” in their nearby condominium on Wednesdays after Lobby closed and would invite people who were at the club. They would always invite Mr. Holland. However, he rarely accepted the invitation because he did not “party hard”. He would go on occasion to appease the Deslauriers brothers. He estimated that he went to their parties a total of six to eight times over the course of three or four years. The Deslauriers brothers would be “pretty excited” if he made an appearance. If he went, he would shake clients’ hands, network, and then leave after 20 or 30 minutes. He denied ever using the hot tub. However, he testified that his partner, Mr. Sanatore, “definitely could have possibly gotten in the hot tub.”
64Mr. Holland initially testified that when he went to the Deslauriers brothers’ condominium, he would “usually” go with Ms. Kozdra. Later, he testified that he “always” went with her as she would have disapproved of him going without her. Ms. Kozdra testified that she went to the condominium with Mr. Holland three or four times and would stay for 15 or 20 minutes. She described the environment at the condominium as “pretty obnoxious” with people consuming alcohol and getting into the hot tub in their underclothes. According to her, it was not a place where she and Mr. Holland wanted to be.
(c) S.J.
65Mr. Holland had no recollection of meeting S.J. or having a conversation with her about working together. He testified that in any given week, around 10 people would ask him for a job as a promoter because working as one was a “fantasy of quite a few people.” He denied agreeing to provide her with cocaine, a substance he did not use. He unequivocally denied ever having any sexual contact with her.
II. LEGAL ISSUES
A. Similar Fact Application
(i) Overview
66The Crown applies to have the evidence of the two complainants admitted across the two counts in the indictment. The Crown submits that the evidence of each complainant supports the other’s evidence with respect to Mr. Holland’s identity as the perpetrator and with respect to the description of the actus reus of the offence.
67In a trial on a multi-count indictment, the ordinary rule is that the trier of fact must consider each count separately and reach a decision on each based only on the evidence that is relevant to and admissible on that count: R. v. T.C., 2019 ONCA 898, at para. 42. However, in some cases the evidence with respect to one count may be admissible in relation to another if the Crown can establish that the evidence should be admitted as similar fact evidence: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at paras. 51-52.
68Similar fact evidence is presumptively inadmissible. It will be admitted only where the Crown can establish on a balance of probabilities that the probative value of the evidence in relation to a particular issue outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.
(ii) The Issues in Question
69The probative value of the evidence “in relation to a particular issue” can of course only be assessed if that issue is identified: Handy, at paras. 69-75. In this case, the Crown submits that the similar fact evidence is probative in relation to (1) the complainants’ evidence as to the identity of the individual who sexually assaulted them; and (2) the complainants’ evidence with respect to the actus reus of the offence.
70As noted in Handy, at para. 74, “[t]he issues in question arise from the facts alleged in the charges and the defences that are advanced or reasonably anticipated.” In this case, the parties sensibly agreed that the similar fact application need not be determined until the end of the trial after all the evidence was heard and counsel have made their final submissions. As a result, in considering the issues in question, I need not concern myself with “reasonably anticipated” defences and can restrict my consideration to the defences that were actually advanced.
71It is clear from the cross-examinations and defence counsel’s final submissions that it is the defence position that Mr. Holland has no memory of meeting either complainant and did not meaningfully interact with, let alone sexually assault, either of them. In support of this position, defence counsel points to evidence of alcohol consumption on the part of both complainants as well as gaps and inconsistencies in their accounts. He submits that these support the inference that both were so heavily intoxicated at the relevant time that their memories of what transpired, including their memories of the identity of the perpetrator, are unreliable. While there was no formal admission as to the actus reus, the defence does not take any real issue with either complainant’s assertion that she was sexually assaulted. Rather, defence counsel’s position was that if either complainant was sexually assaulted, his client was not the perpetrator.
72Based on the defence position, it is clear that the complainants’ evidence as to identity is very much in issue and I must therefore assess the probative value of the similar fact evidence in relation to it. However, the complainants’ evidence as to the actus reus of the offence, while not the subject of any formal admission, has not been seriously contested. Where similar fact evidence relates to an issue that is not in dispute, the evidence has no probative value and that ends the similar fact analysis in relation to that issue: Handy, at para. 74.
(iii) The Required Degree of Similarity
73The degree of similarity which the Crown must establish to gain admission depends on the issue to which the evidence relates: Handy, at paras. 76-80. Similar fact evidence going to the issue of identification usually requires a high degree of similarity that is so unique as to constitute a “signature”: Arp, at para. 43. However, I agree with Crown counsel that the identification in this case is different than in Arp in that the similar fact evidence is not the sole or even the primary evidence of identification in relation to either count. Both complainants identified Mr. Holland as the perpetrator. As a result, the similar fact evidence is not being tendered as direct evidence of identification but, rather, as evidence buttressing the complainants’ evidence of identification. As a result, I accept that the degree of similarity required is far less than it would be in other cases and need not constitute a “signature.”
(iv) The Similarities in this Case
74While a high degree of similarity is not required in the context of this case, in my view the purported similarities relied on by the Crown in this case are more apparent than real. The Crown submits that the allegations of both complainants, which are proximate in time, bear the following similarities: (1) in both cases, Mr. Holland leveraged his status as a promoter to create an opportunity to commit the offence; (2) he provided each complainant with alcohol; (3) he led both to isolated locations under false pretences; (4) he failed to take any steps to ascertain consent; (5) both complainants alleged some form of vaginal penetration; and (6) he attempted to justify his actions to each complainant by describing her as “hot.” As I will explain, with the exception of leading the complainants to isolated locations under false pretences and the use of the adjective “hot”, most of these similarities are either not supported by the evidence or else are common features of many sexual assault allegations.
75With respect to leveraging his status as a promoter, N.K. testified that she agreed to go on a “VIP tour” with Mr. Holland. While she did not explicitly say so, it is reasonable to infer that she would not have done so but for his position as a promoter, so it could be argued that he leveraged his position. However, the same is not true for S.J. There is no evidence that Mr. Holland invited S.J. into the VIP area at Lobby or that he had invited her to the party at the condominium. While she clearly had an interest in him as a promoter because she wished to explore business opportunities with him, the evidence is that rather than leveraging his position, he made it clear to S.J. that he had no interest in any such business arrangement. S.J. testified that he showed no interest in her business proposal and gave her a “brush off”. Crown counsel submits that S.J. agreed to follow Mr. Holland to the lower level in the hopes of being able to pursue business discussions. However, S.J. gave no such evidence. Rather, she explained that her purpose in following Mr. Holland to the lower level was to obtain cocaine.
76The evidentiary support for the submission that Mr. Holland provided both complainants with alcohol is also lacking. While alcohol became available to N.K. once she was invited into the VIP area at the Century Room, she was unable to recall whether it was Mr. Holland or Mr. Sanatore who extended the invitation to her. There is no evidence that Mr. Holland directly offered her anything to drink or encouraged her to drink. With respect to S.J., the only evidence of Mr. Holland supplying alcohol to her is her testimony that he offered her a sip of his drink while in the hot tub.
77While both complainants testified that Mr. Holland did not take steps to ascertain consent prior to sexually assaulting them, failing to obtain consent is not only not unusual in sexual assault cases, it is an essential element of the offence. Similarly, the allegation of vaginal penetration does little to link the two sets of allegations. In many if not most cases, the Crown elects to proceed summarily in sexual assault cases that do not involve allegations of penetration. As a result, virtually every sexual assault case tried in this court involves such an allegation.
78What we are left with are the allegations that Mr. Holland led both complainants to secluded locations under false pretences and later justified his behaviour by referring to them as “hot”, an adjective that is by no means unusual. Even if one accepts that a lower degree of similarity is sufficient than in other identification cases, in my view the probative value of this evidence is minimal.
79In coming to this conclusion, I note that both allegations arise in the context of social situations centred on nightclubs where large amounts of alcohol are consumed. In particular, S.J. was at a party with numerous people who had been consuming alcohol for hours and where the environment appears to have been designed to encourage sexual activity between guests. In my experience as counsel and as a trial judge, sexual assaults are unfortunately not rare occurrences in these types of circumstances. I acknowledge that similar fact evidence can be admitted to show that an accused has a situation-specific propensity: Handy, at para. 90; T.C., at para. 60; R. v. Graham, 2015 ONCA 113, 330 O.A.C. 394, at para. 27. However, in situations where there may be other individuals with the same situation-specific propensity, the evidence loses its probative force, especially in relation to the issue of identity.
(v) Conclusion
80Similar fact evidence derives its probative force from the objective improbability of coincidence: Handy, at para. 76. In this case, the similar fact evidence is being tendered to support the complainants’ evidence of identification. Thus, the question that arises in this case is whether it would be objectively improbable that Mr. Holland sexually assaulted one complainant but that somebody else sexually assaulted the other. Given the differences in the complainants’ accounts, the fact that both were sexually assaulted in locations with a large number of intoxicated people, and the fact that the two incidents took place 10 months apart, the answer must be “no”. The evidence only has probative value if I use it to infer that Mr. Holland has a general propensity to sexually assault women. This I cannot do: Handy, at paras. 85-86.
81For the foregoing reasons, I conclude that the limited probative value of the similar fact evidence is outweighed by its prejudicial effect, even having regard to the fact that this matter is not being tried by a jury. The application to admit the evidence across counts is accordingly dismissed.
B. Prior Consistent Statements
82There was evidence that both complainants told somebody that they had been sexually assaulted soon after the event and both identified Mr. Holland as the perpetrator. This evidence came from each complainant as well as L.C., in the case of N.K., and D.B., in the case of S.J.
83Prior consistent statements of a witness are presumptively inadmissible: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36; R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; D.M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013), 17 Can. Crim. L. Rev. 181, at p. 182. However, the rule is subject to exceptions depending on the relevance, materiality and probative value of the evidence: R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 59.
84In this case, neither complainant made a report to the police until 2016 after learning of a police press release stating that Mr. Holland had been charged with an unrelated sexual assault. This raises a concern that the complainants are identifying Mr. Holland because of the press release rather than an independent recollection of his identity as the perpetrator. The evidence of the prior consistent statement, if accepted, rebuts any such suggestion and is therefore admissible for that limited purpose.
85The evidence is not admissible for the truth of the contents of the prior consistent statements, nor is the fact that either complainant identified Mr. Holland on prior occasions in any way corroborative of their testimony: Dinardo, at paras. 36, 40; Paciocco, at pp. 184-186.
C. Evidence of Other Charges
86I heard evidence that Mr. Holland was alleged to have sexually assaulted a model he was photographing but was later acquitted of this charge. This evidence was relevant to the narrative in that it explained why the police issued the press release which led to the complainants making their allegations. It is not admissible for any other purpose.
87Mr. Holland testified that he was acquitted of this charge because the trial judge believed him and did not believe the complainant. While Crown counsel argued that the trial judge’s reasons were “more nuanced” than that, it ultimately does not matter why Mr. Holland was acquitted because an acquittal is a “declaration of innocence for all purposes”: R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 87 C.C.C. (3d) 363 (Ont. C.A.), at p. 371; R. v. Akins (2002), 2002 CanLII 44926 (ON CA), 59 O.R. (3d) 546 (C.A.), at para. 17.
III. ANALYSIS
A. Relevant Legal Principles
(i) The Burden of Proof
88Mr. Holland is presumed innocent of the charges against him and cannot be convicted of them unless the Crown proves his guilt beyond a reasonable doubt. There is no onus on Mr. Holland to prove anything, least of all his innocence. Proof beyond a reasonable doubt is a high standard. It is far higher than proof of likely or probable guilt.
89During the course of his submissions, counsel for Mr. Holland raised a concern about allegations of sexual assault being treated as presumptively true and referred to the recent book by Professor Alan Dershowitz entitled Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo (New York: Hot Books Press, 2019). While there may be some people who treat such allegations as presumptively true in social media communications or elsewhere, such an approach clearly has no place in a criminal trial. There is no presumption that sexual assault complainants, or any other category of witness, are being truthful: R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, at para. 32; R. v. Nyznik, 2017 ONSC 4392, 350 C.C.C. (3d) 335, at paras. 15-16. Their evidence, like the evidence of any other witness, must be analysed rationally and objectively in the context of all of the other evidence heard in the particular case, having regard to the burden of proof. As a result, my approach in this case is the same as it would be in any criminal case. Mr. Holland is presumed innocent and will remain so unless and until the Crown has proven his guilt beyond a reasonable doubt.
(ii) Reasonable Doubt and the Assessment of Credibility and Reliability
90The determination of this case turns almost entirely on an assessment of the credibility and the reliability of the witnesses. N.K. and S.J. both testified that Mr. Holland sexually assaulted them. Mr. Holland testified that he did not. While other witnesses testified, none were able to give direct evidence with respect to the central issue.
91The correct approach to take in cases like this has been expressed in various ways. One well-known articulation is that set out in R. v. W.(D.)., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at para. 28. The trier of fact should first determine whether he or she believes the accused’s version of events when considered in the context of the evidence as a whole. If so, he is entitled to an acquittal. If not, the trier of fact should consider whether the accused's version of events, although not believed, raises a reasonable doubt. If so, he is again entitled to an acquittal. If not, the trier of fact must consider whether the remaining evidence proves the accused's guilt beyond a reasonable doubt. Then, and only then, can there be a conviction.
92The W.(D.) approach has been the subject of some criticism: R. v. Ryon, 2019 ABCA 36, 84 Alta. L.R. (6th) 1, at paras. 20-54; R. v. Achuil, 2019 ABCA 299, 92 Alta L.R. (6th) 270, at paras. 17-18. Clearly, the approach in W.(D.) is not intended to be a “magic incantation” that must be followed word-for-word: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13. Nor must the steps set out in W.(D.) necessarily be performed in any specific order: R. v. J.M., 2018 ONSC 344, at paras. 4-20. As well, the same approach applies to any exculpatory evidence, whether it comes from the accused or some other source: Ryon, at para. 29; R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 105-114.
93Whatever approach is taken, the important points which must be kept in mind are that: (1) the burden of proving the charge beyond a reasonable doubt remains on the Crown and never shifts; (2) the trier of fact is not to simply choose which version of events is preferred; (3) it is open to a trier of fact to conclude that he or she is unable to decide which version of events to believe; (4) even if the exculpatory version of events is not believed, the trier of fact must still consider whether it gives rise to a reasonable doubt; (5) rejection of the defence evidence does not automatically lead to a conviction or add to the Crown’s proof; and (6) there can be a conviction only where the evidence which the trier of fact accepts proves guilt beyond a reasonable doubt.
(iii) Demeanour
94In weighing the evidence of the witnesses, I have considered what I view to be objective measures of reliability, such as the plausibility of the evidence, whether it was internally and externally consistent, and the witnesses’ ability to recall events. I have assigned little, if any weight to the demeanour of the witnesses as it can be an unreliable indicator of credibility or reliability: R. v. C.C., 2018 ONSC 1262, at paras. 61-62.
B. Defence Evidence
(i) Overview
95Mr. Holland was testifying about events that took place in 2008. Not surprisingly, he did not have a specific recollection of the dates identified in the Indictment and could only testify as to his usual practices. I draw no adverse inference from this.
96Mr. Holland was able to give a detailed account of what he did recall. In his testimony, he gave a detailed general description of what took place at the Century Room and Lobby on the evenings that Kleen Media organized at those locations, as well as his role, the routines he followed and his behaviour.
97I listened carefully to Mr. Holland’s evidence as he gave it and have also reviewed a transcript of it. I note that there were several themes which he returned to several times in his testimony.
(ii) Alcohol Consumption by Women
98The first theme was that most women who attended the nightclubs he promoted would drink to excess. He testified that “75 to 90 percent of the time most women will overindulge in alcohol at these nightclubs” and would “generally be drunk.” Women would “inevitably … [be] looking for free alcohol.” He acknowledged that if N.K. had been invited into the VIP area at the Century Room, she would have had access to alcohol, but added that “girls … would free pour, they would even free pour into their mouths.” He went on that these “girls” would become “horribly intoxicated”, which he found to be “sad.” Some of these comments were gratuitous and not responsive to the question he was asked.
99I have no doubt that many people at the nightclubs Mr. Holland promoted drank significant amounts of alcohol and became intoxicated. However, I doubt that this was something that was particular to the female patrons of the clubs and found Mr. Holland’s repeated focus on women to be telling. A central part of Mr. Holland’s defence is the suggestion that both complainants were so intoxicated at the relevant time that neither is able to give reliable evidence, especially with respect to identity. Mr. Holland’s focus on alcohol consumption by women appears to be designed to support this aspect of his defence. It is, I find, exaggerated in order to support an inference that the complainants, like the majority of their sex, must have been highly intoxicated on the evenings in question.
100I should make it clear that I am not noting Mr. Holland’s focus on women to support a finding that he is a sexist or a misogynist. Whether he is or not, he is not on trial for his character, nor would it be appropriate for me to infer that because of his character, he is more likely to have committed a criminal offence. I simply find this part of his evidence to be contrived and exaggerated.
(iii) Similarity in Appearance
101Another theme Mr. Holland returned to more than once was his physical similarity to other individuals, particularly his partner, Mr. Sanatore. For example, Mr. Holland testified that while at the Century Room, he dressed in a certain way and that “pretty much that was the fashion for every male in that nightclub”. According to him, most of the males at the club were muscular like him, clean shaven like him, had shaved heads like him and wore tight t-shirts like him. Most also had tattoos like him, although Mr. Holland acknowledged that his tattoos were very distinctive.
102According to Mr. Holland, he and Mr. Sanatore would be mistaken for each other “all the time.” Mr. Holland also made a point of mentioning that Mr. Sanatore did not have a girlfriend and may have used the hot tub at the Deslauriers brothers’ condominium.
103This evidence was clearly intended to support the inference that the complainants were mistaken as to the identity of their assailants. While I have no doubt that many people sported similar styles, I find Mr. Holland’s assertion that most men at the Century Club were muscular, clean shaven, had shaved heads and wore tight t-shirts to be implausible.
104I have looked at the photographs of Mr. Holland and Mr. Sanatore that were taken at Lobby on December 10, 2008. While the photographs are small, I am able to tell that while Mr. Holland and Mr. Sanatore are somewhat similar in appearance, it is unlikely that anybody with more than a passing acquaintance of them would confuse the two.
105More importantly, I do not accept that Mr. Holland believes himself to be the least bit generic in appearance. On his own evidence, he was “highly regarded” and well-known in the Toronto nightclub scene and had very distinctive tattoos. I find his evidence with respect to his similarity in appearance to others to be disingenuous.
(iv) The Constant Presence of Mr. Holland’s Girlfriend
106Another theme of Mr. Holland’s testimony was the almost constant presence of Mr. Holland’s girlfriend while he was at the Century Room or visiting the Deslauriers brothers’ condominium. According to Mr. Holland, while at the Century Room, he and his girlfriend could “see each other the entire time”. He would never leave his table except to use the bathroom and occasionally to check the cash at the front door. Even then, he tried to limit the number of times he used the bathroom. Ms. Kozdra and Ms. Lew supported his evidence in this regard.
107Mr. Holland’s evidence with respect to Ms. Kozdra’s attendance at the Deslauriers brothers’ condominium was inconsistent. He initially testified that he would “usually” go with her to the condominium. Later, he was adamant that she would always go with him.
108This evidence appears to be designed to minimize Mr. Holland’s opportunity to sexually assault the complainants. There was really no reason for Mr. Holland to virtually confine himself to the promoter’s booth. It would have been in his interest to ensure that all of the patrons were having a good time, not only those in the VIP area. The photographs taken at Lobby show that Mr. Holland spent time with patrons outside of the VIP area and had his photograph taken with them. There is no reason why it would have been different at the Century Room. I do not accept Ms. Lew’s evidence for the same reason.
109I do not find Ms. Kozdra’s evidence to be reliable. Despite being stationed at the busiest bar at the Century Room, which was filled to its capacity of 550 people, she was reluctant to agree that she lost sight of Mr. Holland for any significant period of time. This is simply not plausible. As well, she steadfastly denied that Mr. Holland ever consumed any alcohol, something he himself admits.
(v) Minimal Contact With Patrons
110Mr. Holland minimized the amount of contact he had with patrons at the nightclubs. He testified that he was “very particular” about who he gave his personal contact information to and had only a “very small group” of friends. He would not initiate small talk with club patrons. If patrons initiated small talk with him, he would listen and then try to move on. He would not agree that part of his public persona was to appear as if he was a fun person. Rather, he could be “standoffish.” Nonetheless, he was popular and highly regarded in the community. While many women expressed sexual interest in him, he did not reciprocate this because he had a girlfriend and also because he was “picky” and did not like to “shit where I eat.”
111Mr. Holland’s evidence in this regard is, in my view, implausible. He was in the promotion and marketing business. His livelihood depended on the people who attended the bars being happy and having a good time. According to him, many of these patrons viewed him as a “hometown hero” and wanted to be photographed with him and to be like him. In these circumstances, it would make little sense for Mr. Holland to be as aloof and anti-social as he portrays himself to be. This evidence was clearly designed to make it appear unlikely that Mr. Holland would converse with or spend time with the complainants.
(vi) Conclusion
112The foregoing review makes it clear that Mr. Holland’s testimony did not reflect an attempt on his part to give a candid account of his best recollection. Rather, it was carefully contrived to portray him as a monogamous and industrious introvert who would be unlikely to commit the offences alleged against him. As a result, I cannot rely on Mr. Holland’s evidence. I do not accept it, nor does it leave me with a reasonable doubt.
113That, of course, does not end the matter. I must still consider the remainder of the evidence and determine whether it satisfies me of Mr. Holland’s guilt beyond a reasonable doubt.
C. Count 1
(i) N.K.’s Credibility
114I found N.K. to be a credible witness. She was responsive to the questions she was asked and readily acknowledged weaknesses in her account, such as her inability to discern whether she had been penetrated by her assailant’s finger or his penis. There were no significant inconsistencies in her testimony.
115There is no apparent motive for N.K. to falsely make these allegations against Mr. Holland so many years after the fact. She has had no contact with him for several years and was unlikely to ever see him again, having moved to another province where she is now married and pursuing a career. That said, I must exercise caution in relying on the absence of evidence of a motive to fabricate. I remind myself that there is no onus on Mr. Holland to establish a motive to fabricate and the fact that there is no apparent motive to fabricate does not mean that none exists, nor does it mean that the witness is telling the truth. It is but one factor to consider: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 93-95; R. v. L.L., 2009 ONCA 413, 244 C.C.C. (3d) 149, at paras. 44-48; R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. (3d) 449 (Ont. C.A.), at para. 121.
(ii) N.K.’s Reliability
116The defence position is that N.K. was so intoxicated on the night in question that her evidence is unreliable, particularly with respect to the identity of the person who had sexual contact with her. It was also suggested that her recollection of the sexual contact was also unreliable, although this was not the primary focus of the defence.
117N.K. acknowledges that she was intoxicated at the Century Room but denies that she was “blacked out or smashed.” She denies having more than six drinks over the space of six hours. It may be that her memory in this regard is inaccurate and that she had more than that. The real issue is whether she was so intoxicated that her identification of her assailant is unreliable.
118N.K. testified that she knew Mr. Holland and had met him 10 to 15 times previously. Furthermore, on his own evidence he was well known in the nightclub community. The person who assaulted her had taken her to a secluded part of the club to which only a few people, including Mr. Holland, had access. Based on these aspects of her evidence, I conclude that N.K. knew Mr. Holland and was in a position to recognize and identify him, notwithstanding her consumption of alcohol.
119Counsel for Mr. Holland pointed out that when N.K. was asked whether she actively engaged with the person who kissed her neck on the stairs, she said, “I don’t think so.” He submits that this lack of certainty shows that her memory is unclear. He also relies on the comment she made to the police about being concerned that she had cheated on her boyfriend. I do not view these as inconsistencies which detract from the reliability of her evidence with respect to identification. As N.K. explained, she was concerned that she had somehow been responsible for provoking the sexual assault. She was not.
120The defence also relies on inconsistencies between N.K.’s evidence and L.C.’s account of what N.K. told her a few days after the incident. L.C. testified that N.K. told her that she was screaming during the sexual assault and said, “what the fuck, stop, stop” while N.K. did not testify that she screamed, only that she said something like “no” or “stop.” In my view, this is not a material inconsistency. Either way, it is clear that N.K. expressed a lack of consent to her assailant. The fact that she, L.C. or both do not remember the exact words so many years later is hardly surprising. L.C. also testified that N.K. told her that she had undergone a “rape kit” at the hospital when N.K. had not done so. However, it is unclear what L.C. understood a “rape kit” to be. She may well have assumed that it referred to any visit to a hospital following a sexual assault.
(iii) The Police Press Release
121I must consider the fact that N.K. first made her allegations to the police after seeing a press release alleging another sexual assault by Mr. Holland. This raises a concern that she had identified him because of the press release and not because she remembers that he was the person who assaulted her. However, I accept L.C.’s evidence that a few days after the event, N.K. told her that she had been sexually assaulted by “Mark from Kleen Media.” As noted earlier, I am relying on this evidence only for the limited purpose of rebutting the suggestion that N.K.’s identification of Mr. Holland is the result of the press release.
(iv) Conclusion
122For all of these reasons, I am satisfied beyond a reasonable doubt of the accuracy and reliability of N.K.’s evidence that she was sexually assaulted from behind on a stairwell at the Century Room and that the person who assaulted her was Mr. Holland. She did not consent to this activity and clearly vocalized her lack of consent. I am satisfied of the accuracy of her evidence, including her evidence identifying Mr. Holland as her assailant, beyond a reasonable doubt.
D. Count 2
(i) S.J.’s Credibility
123I also found S.J. to be a credible witness. There were no significant internal inconsistencies in her evidence and she readily acknowledged the many gaps in her memory. Like N.K., there is no apparent motive for her to fabricate her allegations, although I treat this evidence with the same degree of caution as I did with respect to N.K.
124I accept that S.J. was sexually assaulted in the lower level of the condominium by a man she had been with in the hot tub. As with N.K., the real issue is the reliability of her identification of Mr. Holland as her assailant. Unlike N.K., S.J. had not met Mr. Holland previously, although she knew of him through social media and because of his involvement in the nightclub scene, in which she had an interest.
(ii) S.J.’s Reliability – The Tattoos
125Although S.J. acknowledged that there were several gaps in her memory, she was steadfast in her evidence that Mr. Holland was her assailant. Certainty, however, does not equate with reliability.
126According to S.J., she spent a period of time with her assailant in the hot tub. When S.J. was asked by the police whether she remembered anything distinctive on him like marks or tattoos, she responded, “Well, tattoos – but I – like distinct, no.” When specifically asked where he had a tattoo, she replied that she could not remember. S.J. maintained in her testimony that she could not picture any tattoos when recalling the events in the hot tub. She did not change her evidence even though she now knows that Mr. Holland has tattoos.
127Not only does Mr. Holland have tattoos, they cover his entire arms, shoulders, upper chest and back. They are distinctive and noticeable. I find it difficult to understand how anybody who spent time with Mr. Holland in a hot tub would not remember them. It may be that S.J. cannot recall them because she was, on her own admission, intoxicated. Or it may be that she cannot recall them because the passage of time has affected her memory. There may be other explanations for her inability to recall them. But one possible explanation, and one which I cannot discount, is that she does not recall them because the man she was with did not have them and was not Mr. Holland.
128I recognize that D.B. testified that S.J. identified Mr. Holland as her assailant a short while after the incident. However, I cannot and do not rely on that evidence for its truth. In any event, it does not answer my concern that S.J.’s identification of Mr. Holland as her assailant may have been mistaken. While D.B. testified to seeing Mr. Holland in the hot tub with S.J., her evidence was that she did so from a distance while in the kitchen with other people.
(iii) Conclusion
129To be clear, I have not concluded that S.J. is not a credible witness or that she was attempting to mislead the court. To the contrary, I find that she was doing her best to give honest and accurate testimony. Nor have I made a positive finding that her identification was mistaken. However, given the discrepancy I have identified when considered together with the fact that she had never met Mr. Holland before and was admittedly intoxicated, I am unable to rely on her identification to the requisite degree of certainty. I have a reasonable doubt as to its accuracy.
IV. DISPOSITION
130For the foregoing reasons, Mr. Holland is found guilty on Count 1 and not guilty on Count 2.
Justice P.A. Schreck
Released: February 7, 2020.