ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-20-115

DATE: 2021 02 12

BETWEEN:

HER MAJESTY THE QUEEN

S. Yu, for the Crown

– and –

OMAR INSHANALLY

C. Maciel, for the Accused

HEARD: January 18-21, 2021

REASONS FOR JUDGMENT

J.M. Woollcombe J.

Introduction

[1] The accused, Omar Inshanally, is charged with multiple offences in relation to the same complainant, D.H., all alleged to have occurred over the course of about a week in early November 2018. The two had met on October 27, 2018 and, at the time of the allegations, were in the first weeks of an intimate relationship. The accused is charged with:

• Sexual assault on D.H. on November 1, 2018;

• Sexual assault and assault on November 4, 2018;

• Forcible confinement and two counts of sexual assault on November 7, 2018.

[2] He pleaded not guilty to all counts and had a four day trial before me.

[3] Prior to the commencement of the evidence, the Crown brought a pre-trial motion to adduce similar fact evidence. That evidence consisted of evidence (by way of transcripts) that the accused had previously pleaded guilty to charges of assault and forcible confinement in relation to other women with whom he was in intimate relationships. At the close of the Crown’s case, I dismissed the Crown’s application, with reasons to follow. Those reasons are not part of this judgment and will be delivered separately.

[4] The only witness to testify at trial was the complainant. The case thus turns on the credibility and reliability of her evidence. Before considering her evidence, I remind myself of the important legal principles that apply to this case.

Legal Principles

[5] The accused, Mr. Inshanally, is presumed innocent of the charges he faces. The burden of proof is on the Crown. It is for the Crown to prove beyond a reasonable doubt that Mr. Inshanally is guilty of the offences charged. There is no onus on the accused to prove anything.

[6] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. I may find the accused guilty only if I am sure that he committed the offences alleged.

[7] There does not seem to be any issue between the parties as to what must be proven for the Crown to establish the offences charged.

[8] In order to prove sexual assault, the Crown must prove beyond a reasonable doubt both the actus reus and that the accused had the requisite mens rea.

[9] The actus reus of sexual assault requires proof of three elements: touching, the sexual nature of the contact and the absence of consent. The absence of consent is subjective and determined by reference to the complainant’s state of mind about the sexual touching at the time that it occurred. The only source of direct evidence as to the complainant’s state of mind is her evidence. However, it is important to assess the credibility of her evidence as to her state of mind in light of all of the evidence, including ambiguous conduct. The accused’s perception as to the complainant’s state of mind is not relevant: R. v. Ewanchuk, 1999 SCC 711 at paras. 25-30.

[10] Sexual assault is a general intent offence. To prove the mens rea, the Crown must prove that the accused intended to touch the complainant when he knew or was reckless or wilfully blind to a lack of consent on her part. The accused may challenge the Crown’s evidence by asserting an honest but mistaken belief in consent R. v. Ewanchuk, at paras. 41-42.

[11] Assault is proven be establishing that the accused applied force to the complainant, that she did not consent and that he knew that she did not consent.

[12] Proof of the offence of forcible confinement requires that the Crown establish that the accused intentionally confined the complainant without lawful authority.

[13] As I have indicated, this case turns on an assessment of the credibility and reliability of D.H. Credibility and reliability are different concepts. Credibility relates to sincerity and whether the complainant testified as to what she believes. Reliability relates to whether what she said was accurate.

[14] The complainant has been unequivocal in this case that she was sexually assaulted on multiple occasions, assaulted once when she was bitten on the lip and forcibly confined in the accused’s car. I recognize the need to scrutinize her evidence carefully in assessing her credibility and reliability. This is a case specific, multi-faceted exercise.

[15] It is important to avoid any assumptions and stereotypes as to how victims of sexual assault should or do behave: R. v. A.R.J.D., 2018 SCC 6; R. v. A.B.A., 2019 ONCA 124. Credibility findings are not to be made on the basis of my own understanding of “common sense and logic” as this may mask improper reliance on prejudicial generalizations.

[16] Further, it is critical to remember that there is no rule on how or when a person who has been sexually assaulted will complain about what occurred. There are many reasons why complainants often delay reporting - for hours, days, weeks, months or even years. In assessing the credibility of a complaint of sexual assault, therefore, timing of her complaint is simply one circumstance to consider: R. v. D.D., 2000 SCC 43 at para. 65. This is particularly important in this case where it is alleged by the complainant that after being sexually assaulted the first time, she continued to see the accused, to go in his car and to invite him into her home.

[17] I recognize the need to be cautious about reliance on the complainant’s demeanour in the witness stand. Demeanour alone cannot support a conviction if there are significant inconsistencies and conflicting evidence on the record. While demeanour evidence may be a factor in assessing the credibility of a witness, care must be placed on the reliance of this evidence: R. v. W.H., 2013 SCC 22 at para. 41; R. v. N.S., 2012 SCC 72 at para. 22. It is important that undue weight not be given to demeanour because of its “fallibility as a predictor of the accuracy of a witness’s testimony”: R. v. Hemsworth, 2016 ONCA 85 at para. 44.

[18] The law recognizes that one of the most effective means of assessing a witness’s credibility is to consider consistency between what the witness said when testifying and what that witness has said on other occasions. As the Court of Appeal observed in R. v. M.G., 1994 ONCA 8733, [1994] O.J. No. 2086 at para. 23; leave to appeal refused, [1994] S.C.C.A. 390:

23 Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

[19] Inconsistencies in a witness’s evidence vary in their nature and importance. Some relate to material issues, others to peripheral issues. Where an inconsistency is about a material event about which an honest witness is unlikely to be mistaken, that inconsistency may be indicative of “a carelessness in the truth about which the trier of fact should be concerned”: R. v. M.(A.), at para 13. Clearly, in this case, I must consider whether the complainant’s credibility has been undermined by her having given inconsistent statements and evidence about material issues. Her reliability and credibility can only be determined after considering the nature and extent of alleged inconsistencies.

[20] Finally, I observe that the accused did not testify. He was not required to do so and I draw no inference from his decision not to do so. To do otherwise would be to reverse the onus of proof. It is for the Crown to prove his guilt beyond a reasonable doubt and not for Mr. Inshanally to prove anything.

The Allegations

October 27, 2018: The Initial Meeting and November 1 trip to the mall

[21] The complainant, D.H., testified that she is now 44years old and has two children, ages 13 and 17. She works as a teacher for the Toronto District School Board.

[22] The complainant met the accused at a Halloween party in Rexdale on Saturday, October 27, 2018. She was there with friends and was having a good time. As the party was closing down, Mr. Inshanally approached her and began to talk to her. They had a friendly conversation in which he asked for her number. She eventually gave it to him.

[23] Later that night, as she was dropping her friends off, Mr. Inshanally called her a few times and asked her to text him when she got home. She did so. In the days after that, there was a lot of texting between them.

[24] D.H. next saw Mr. Inshanally on Thursday, November 1, 2018. She did not go to work. Instead, D.H. and Mr. Inshanally went out for breakfast and to the mall. She described it as “casual”. He picked her up and dropped her off after. They made plans to go for dinner at Jack Astor’s the next day.

[25] Ms. H. was cross-examined at length about the evidence she gave at the preliminary inquiry that on the evening of November 1, 2018, she and Mr. Inshanally had gone to Montana’s for a drink. She acknowledged having been confused about dates, but was unequivocal that she saw the accused on Thursday, November 1, 2018 for the mall visit only, and that it had been on Friday, November 2, 2018 that they went for dinner at Jack Astor’s. In re-examination, D.H. clarified that she and Mr. Inshanally had never gone to Montana’s, that they had only gone to Jack Astor’s and that it had been on the Friday night.

Friday, November 2, 2018: Dinner at Jack Astor’s and the alleged sexual assault at Loafer’s Lake

[26] The complainant testified about the events of Friday, November 2, 2018. Mr. Inshanally picked her up in his car and they drove to Jack Astor’s in Brampton, where they had planned to have dinner. The complainant described Mr. Inshanally as agitated and said that she wondered if he was upset with her. He kept telling her things like he did not want her seeing or talking to her ex-boyfriend. She described him as rude to the person at the restaurant who told them that there was a wait for a table. They had dinner and then returned to Mr. Inshanally’s car.

[27] D.H. anticipated that Mr. Inshanally would take her home. Instead, he drove her to a parking lot area near her home called Loafer’s Lake. He parked and they hung out. She said that as they were talking, he suggested that they go to the back seat of the car. She said that he wanted to have sex.

[28] During her examination-in-chief, D.H. testified that she told him that she did not want to have sex in the car and said, “let’s wait and do it somewhere else”, like at the house. He said no. She said that he took her pants off and had vaginal intercourse with her in the back seat of the car.

[29] Ms. H. testified that she did not want to have sexual intercourse and that while he was on her, she told him that she was uncomfortable because of the position she was in and told him to stop. She could not recall exactly what he said, but testified that he was trying to make it pleasurable for her and told her that she would enjoy it, but that this did not help. She said that he continued and that it did not last very long. When he stopped, she told him she wanted to go home. She testified that he apologized. Her unchallenged evidence was that he had not worn a condom. Asked whether the intercourse had hurt, she said that it had “a little”.

[30] The complainant was cross-examined about a number of aspects of her evidence about this incident.

[31] Ms. H. was cross-examined about the statements she had given to the police. She readily accepted that she had said what was contained in them and consistently adopted the contents of those statements as true.

[32] The complainant explained that she could not recall everything. She agreed that she had consented to initial kissing, but not to the intercourse. She also clarified that she was not looking for a relationship, but that she wanted to get to know Mr. Inshanally.

[33] She was asked about the fact that while she had testified in-chief to one non-consensual incident of sexual intercourse, in her police statement, she had described two incidents of sexual intercourse. In her police statements, the complainant told the police that there had been two instances of sexual intercourse, a position that she adopted under cross-examination. The defence position was that she told the police that the first time had been consensual. This seems to have been based on her statement that when they were in the backseat, “And we did have the first sexual encounter was [sic] yes I did let him have sex with me…But then the second time I said no”. The complainant also agreed that when she told the police about the first sexual intercourse, she said “He pushed it in me, and like I don’t know. Maybe it was just a reaction of trying to please him, and because you know wanting something to work out of this but now knowing where it’s going to go”.

[34] Ms. H. was asked about whether these portions of her police statement indicated that she had consented to the first incident sexual intercourse. She said that one of the reasons she had participated in the sexual activity was to try to please Mr. Inshanally. She did not agree, however, that there was an element of consent in her having said that she was trying to please him. Under re-examination, she clarified that when she said she had meant that she was trying to please him, she was doing so by doing what he wanted her to. She was clear that she had said no to both incidents of sex and not consented.

[35] Pressed about whether she had consented to the first intercourse, the complainant said all she had consented to was kissing and that she had been clear that she did not want to have intercourse at that location. Although counsel repeatedly tried to elicit her agreement that she had told police the first instance had been consensual, I cannot conclude that she D.H. agreed with this suggestion, though she did concede, ultimately, that she could not remember. Her evidence was that she said no to both incidents of sex, but that she felt more pressure the second time.

[36] Other aspects of her evidence were also challenged. In her evidence in chief, the complainant said that the sex was uncomfortable. She was asked about her statement to police, which she adopted as her evidence, and in which she said that the sex had caused her a lot of pain.

[37] The complainant testified that after the sexual intercourse, the accused apologized to her and said it would not happen again. He drove her home and dropped her off. She said that they had made plans for Saturday and that Mr. Inshanally asked her if that was still on. She said she would think about it.

November 3-4, 2018: Movie, Tropical Nights nightclub, the alleged assault and the alleged sexual assault in the complainant’s home

[38] D.H. testified that on Saturday, November 3, 2018, they went to a movie and then to a nightclub in Scarborough called Tropical Nights. Initially, they had a good time and each had a drink.

[39] D.H. testified that in the club, Mr. Inshanally made a comment to another woman that she found offensive. She told him it made her uncomfortable and that she wanted to go home. He said he was sorry and that it would not happen again.

[40] Under cross-examination, D.H. was reminded of her police statement in which she had said that after he made the awkward comment, “I just you know what I’m just going to ignore it. I’m just going to try to enjoy that evening. So we moved to a different spot. And then he said to me let’s go, and I said okay five more minutes”. She adopted this statement and conceded that her evidence in chief was not as accurate, that she had been trying to move on and enjoy the evening and that she did not initially storm out.

[41] D.H. said that when they got back into Mr. Inshanally’s car, he was in the driver’s seat and she was in the passenger seat. Before he drove, she said that he became very upset with her, leaned forward, grabbed her face and bit her lip. He also ripped her top. She thought that this occurred at about 12:00 or 12:30 a.m. She said that she was very scared and told him to get off. She said that he told her there was no blood and laughed and pushed her back. She told him it hurt.

[42] It was suggested to the complainant that the bite could have been Mr. Inshanally kissing her and that it got out of hand. She was unequivocal that he had leaned over and bitten her.

[43] D.H. testified that the accused took her home. She found it extremely scary on the way home because he was verbally abusive towards her. She said that he called her a “whore” and told her she was a bad mother. He also told her that he was going to crash his car with her in it. She testified that she told him to let her out and to drop her on the highway and that she could find her way home. She testified that he thought it was funny and laughed. He drove her towards her home.

[44] D.H. testified that before they got home, Mr. Inshanally grabbed her phone from her. She asked for it back. He said he would not give it back. When they got to her home, she said that they sat in the driveway for about half an hour with Mr. Inshanally refusing to return her phone to her and insulting her. It was close to 3:00 a.m. and she was physically and mentally exhausted.

[45] Mr. Inshanally told her that he needed to use the washroom. She told him to give her back her phone and that they could talk the next day. He insisted that he wanted to use her washroom. She resisted, saying that her children were in the house sleeping. Mr. Inshanally refused to give her the phone unless she let him in to use the washroom. She let him in.

[46] It was suggested to the complainant under cross-examination that if she had not wanted the accused in her house, and had really been afraid of him, she would not have let him in. While she agreed that she had not seen a weapon in his possession, she testified that she felt that she did not have a choice and that she felt scared and so reacted by agreeing to let him in.

[47] Once inside, Mr. Inshanally told her that he had not needed to use the washroom and wanted to see her house. She told him she was tired and to leave. She described him as “hounding” her to stay.

[48] She agreed that he could stay over and told him that he had to out by 7:00 a.m. the next morning. He agreed to sleep there. They went to her bedroom. There was no discussion about sexual intercourse. D.H. testified that Mr. Inshanally proceeded to have sexual intercourse with her without her consent on her bed in her bedroom.

[49] D.H. testified that she told Mr. Inshanally to stop but that he did not. She testified that she resisted by putting her hands on her chest and turning away from him. She had not been capable of pushing him away when he was on top of her. He did not use any protection. She testified that while he was having intercourse with her, she was feeling angry and scared because she saw a side of him that made her scared.

[50] D.H. was asked about her police statement in which she had said that after they were upstairs, and she had her pyjamas on, Mr. Inshanally had taken off his pants and that the two of them were kissing. She agreed that what she had told police was accurate. Asked whether the kissing was consensual, she could not recall. She ultimately agreed that if she had said they were kissing then that is what happened.

[51] Under re-examination, she clarified that she recalled saying and thinking that she did not want to engage in sexual intercourse.

[52] Ms. H. said that after the sexual intercourse, she knew that she did not want to see him again and knew she did not want anything to do with him. She did not tell him that, but testified that she thought he sensed this. She testified that he apologized before he left and told her that he knew that she was going to leave him and said he would be ok if she ended it.

[53] Ms. H. was asked about what appeared to be a What’s App message sent from her to Mr. Inshanally at 4:49 a.m. with “Media Omitted”. When it was suggested that she had sent a message, she was not sure. She testified that there would have been no reason to send a message at that time as they were together.

[54] Ms. H. testified that the accused texted her a lot after this, apologizing for what had happened. She said that she did not want to see him again.

[55] She was asked under cross-examination about What’s App messages that she sent later on that Sunday, November 4, 2018, after the accused had left. It was suggested to her that in those messages, she had told Mr. Inshanally about having been invited to a friend’s birthday on November 24th, that he had asked if she was taking him and she had responded that she would ask if she could. She also told him that her friend had asked about their date and that she had said that it was good and that they had gone to a movie and for a drink. Asked why she would have told a friend that the date was good, given what she had said happened, she explained that she did not want her friends to know what she was going through.

[56] It was suggested to Ms. H. that at the point of this exchange on the Sunday, Mr. Inshanally knew that she was breaking up with him. She was not sure, but said that she assumed that he did. It was then suggested to her that the What’s App exchange and discussion about making plans did not seem to reflect that there was a break-up coming. She said that she was still in fear and did not agree.

[57] Under re-examination, D.H. clarified that she continued to send friendly texts after the sexual assault following their Tropical Nights date because she did not want Mr. Inshanally to become upset or snap.

[58] She also said that they had talked about Diwali coming up. Diwali was on November 7, 2018. She said that Mr. Inshanally had mentioned going to Temple and she had agreed to go with him. She changed her mind and told him that she couldn’t go with him and he had said that was ok and that he had to work. She said that he asked if he could come by for some sweets and that she told him he could come, and she would give him sweets in the driveway.

The November 7, 2018 Diwali visit to the complainant’s home and alleged sexual assaults and forcible confinement

[59] D.H. was cross-examined about the transcript of What’s App messages between her and Mr. Inshanally on November 7, 2018. More specifically, she was asked about a message she appears to have sent at 2:25 p.m. saying, “That’s for your family”, immediately after a previous message at 2:25 which says “Media omitted”. She agreed that she had sent a picture to him. It appears that he responded, “Thanks baby girl ♥♥♥ you’re the most special thing that ever came into my life” She replied with a kissing emoji.

[60] D.H. testified that on Diwali, Mr. Inshanally was supposed to come by her place at 7:00 p.m. for sweets. She said that he showed up at about 5:30 or 6:00 p.m. and called her from the driveway and wanted to come inside. She told him to wait and he said he was coming to the door. He asked to come in and she testified that she invited him in.

[61] She was asked why, if she had decided that the relationship was over, she would have agreed to see Mr. Inshanally at all on Diwali. She was also asked why, if she had been scared by Mr. Inshanally on the Saturday night, she would have invited him over for dinner on Diwali. She was clear that she had not invited him for dinner, that he had said he was going to drop by and that it was supposed to be later on for sweets. She was referred to a passage in her police statement in which it was suggested that she had told the police that she had invited him over. She denied that her statement to the police implied that she had invited him for dinner. She conceded, however, that when he came to the door uninvited, she had invited him in.

[62] Once he was inside, Ms. H. testified that her kids were there, met Mr. Inshanally and that he sat on the couch. She said she did not hear the conversation between her kids and the accused as she was going back and forth between the kitchen and living room. She said that Mr. Inshanally ate. She did not know if her kids had eaten and said they had not done so with her there.

[63] She said that they talked for a bit and that Mr. Inshanally came to the kitchen and asked her why she wanted to end things and what he had done. She said that he raised the subject of them breaking up and that she did not want to discuss it with him He told her he had bought a book, was learning to manage his anger, was going to change and wanted them to work. She said that she kept telling him the she did not want to talk about it and gave him some food so that he would go.

[64] Ms. H. was cross-examined about the details she provided to the police respecting what had happened with Mr. Inshanally and her kids and their meal before they went upstairs. She agreed that she had told the police that she asked him if wanted to eat, that he did and that she had given him food. She agreed that he ate and that she then got the kids to eat. She also told police that after that, he sat on the couch for a bit and said “let’s go upstairs” and she said “okay”. She agreed that this was what had happened. It was then suggested to her that the interaction before they went upstairs was longer than she had testified about in chief and that there was more time with her kids around and with Mr. Inshanally on the couch. She disagreed and said that it was only brief and clarified that she and Mr. Inshanally had not eaten with her kids. She acknowledged that she could not recall exactly the way she served the food or served the accused.

[65] D.H. was clear that after Mr. Inshanally raised the topic of the break up, she wanted him to be calm so that her kids would not hear anything. She said that at some point, she decided that the living room was not a safe place for them to talk. Mr. Inshanally then told her that he would not leave until he had sex with her twice. She said that she was nervous and scared and did not know how to handle this. Challenged as to why they would have gone to the bedroom if she felt she needed a safe space,. D.H. testified that she felt that there was nowhere else to go to talk to him and he suggested the bedroom. When asked if the purpose was to talk or for sex, she agreed that she was not sure. She was unequivocal that she felt threatened, though she acknowledged that he did not threaten the kids or threaten her such that she had to run away.

[66] They went up to her room between 6:00 and 6:30 p.m. and sat on the bed and talked. Ms. H. said that Mr. Inshanally did most of the talking and asked her over and over why she wanted to leave him and what he did wrong. He told her that she had to have sex with him. She said that she was frustrated and upset and that that he was frustrated with her. She said that she had sex so that he would leave and that he insisted that they were going to do it twice.

[67] D.H. testified that he had sexual intercourse with her once. He got off her and then did it again. She described the first incident as quick and did not think he had ejaculated. The second time was about two minutes later. She was adamant that she did not consent.

[68] Ms. H. was cross-examined about the description of these two incidents of sexual intercourse that she had described to the police. In her statement, she said that after the first act of intercourse, she had gone to the washroom and started to put one leg of her tights back on. She told police that Mr. Inshanally said to her “that’s not the deal,” and that the deal was that they have sex twice. While she did not recall this, she accepted having said it and that it was true. It was suggested to her that during this period of time, she could have gone downstairs and called the police or called for help. She said that she was feeling fearful and did not think about it at the time.

[69] Asked about any conversation, D.H. said that she kept telling him to stop and that she was not liking it. She said that she was crying and telling him to get off and that he told her that this was how it had to be. She testified to being afraid to make noise and scare her kids. She wanted it over with and wanted him to leave her home. She described herself as scared, worried and tense. Her fear was because of what he had done on the Saturday and a concern about him attacking her again. She was also confused because she felt that the only way to get rid of him was to do this.

[70] Ms. H. was repeatedly challenged about whether her fear of the accused was genuine and whether her assertion about having sex only because of that fear and in order to get him to leave was truthful. She agreed she had not been threatened with harm, but said that she felt indirectly threatened by Mr. Inshanally. She also testified about the fact on the previous Saturday night as they drove home from Tropical Nights, he had said in the car that he was going to cause an accident and injure her.

[71] After the sexual intercourse, Ms. H. told Mr. Inshanally that she wanted him to leave. They went downstairs. He told her that there were pictures and texts that needed to be cleared off their phones before he would leave. She said that she was going to do that and he said that he would as well. He told her that his phone was in the car. They were each going to clear their own phones and he told her to come to his car. She agreed. He left and went outside. She said that she told her kids she was going to the car, grabbed her coat and went out to his car.

[72] The complainant was cross-examined as to why, in light of the experiences the Saturday night before, she would have agreed to get into the accused’s car. She said explained that she was fearful about what he would do if she did not comply with his request.

[73] Once in the car, Ms. H. said that Mr. Inshanally started it and that the lights indicated that it was out of gas. He suggested going to the gas station before clearing their phones, and she agreed to do so. She said that there was a gas station five minutes away at Hurontario and Sandalwood and that he drove there. She was asked under cross-examination why, if she was so fearful, she had not told her kids she was leaving. She explained that she was afraid that Mr. Inshanally would take her phone away if she took it out.

[74] They got to the gas station at about 7:45 p.m. Ms. H. was cross-examined at length about what happened at the gas station. She said that Mr. Inshanally asked her to go inside and tell the man to charge them for $60 of gas. He pumped the gas and then went inside to pay.

[75] She was referred to her statement in which she told police that Mr. Inshanally gave her $60 and told her to pay for the gas. She told the police that she went to pay as he was pumping the gas. The man inside told her it was $50 and not $60 so she told the accused. She said that Mr. Inshanally was yelling at her to get a car wash and when she told the man who worked there he wanted a car wash, he said $60 wasn’t enough, so she left the accused with the employee and went back to the car. She agreed that this was an accurate description of what happened.

[76] It was suggested to the complainant that her evidence about the accused going in to pay was different from what she had told the police. While she agreed that there was a difference, she was unequivocal that she had been asked to request a car wash, that it was not her decision to get one and that she had expected to leave after the tank was filled.

[77] After filling the tank, Mr. Inshanally went through the car wash. She asked him why and told him that she wanted to leave. She recalled him asking her over and over why she was doing this to him and leaving him, He told her that he loved her. She said that during the car wash, they continued to have a discussion about breaking up and that he continued to verbally abuse her.

[78] Ms. H. was cross-examined about what appears to have been a What’s App message sent from her phone to the accused’s at 7:54 p.m. that evening of November 7. The only information on the document produced by defence is the time, the fact that it appears to be from her phone to his and “Media omitted”. Ms. H. agreed that the sender appeared to be her number but said that she could not recall what, if anything, she sent. She testified that she did not recall sending anything to the accused and suggested that it could be a file that was deleted. She did not agree that she had sent anything to Mr. Inshanally during that time as she did not recall taking out her phone. While counsel repeatedly suggested that it was strange for her to have sent a message to Mr. Inshanally during an argument, she did not agree that the fact that there was a message suggested that they were not having an argument

[79] Ms. H. said that as he drove out of the gas station, Mr. Inshanally turned right, rather than left, which was the direction back to her home. She asked him where he was going and he told her they were going for a drive. She said that she wanted him to turn around and take her home but he drove south on Hurontario. He said that they needed to go for a drive and that she could not just leave him. Again, she said that he verbally abused her, calling her a “whore” and insulting her and her kids and the kind of mother that she was. She told him that she needed to get out and tried to open the passenger door. He grabbed her arm and screamed at her to stop. She said that at one point, she opened the door and that while it was ajar, he pulled it shut and pulled her. She said he had ripped her watch and bracelet off her left hand.

[80] The complainant described a car ride in which she was pleading to be dropped off. She testified that she recalled that they were close to James Snow Parkway and that she saw a sign for it before he drove onto the highway. Her evidence was that Mr. Inshanally drove her onto the highway and that she was screaming and crying and was really scared. She recalled him telling her he was going to crash the car and pleading with him not to and to let her go home. She described them driving east on Highway 401 and said that at one point he told her he was going to drop her in Ajax. She recalled he had exited at Black Creek, turned around and then gone back west on Highway 401 to the 410, and north towards her home. She agreed that she had previously said, albeit mistakenly, that they exited at Yonge Street. Her evidence was that for the duration of the car ride, she was begging to go home.

[81] As they got close to her home, Ms. H. said that Mr. Inshanally drove the car back to the parking lot at Loafer’s Lane where they had been before on Friday, November 2nd. While there, a security car drove by and he then drove back to her house.

[82] The complainant was reminded of her police statement in which she had said that on the way to Loafer’s Lane, Mr. Inshanally offered to get her a steeped tea at Tom Horton’s, which she declined. She agreed that had happened. She also told police that when he had pulled into the lot, he “literally got on top of me”. It was suggested to her in cross-examination that she had described to the police an “intimate session” and the two of them being startled by the security guard. She did not agree. While she agreed that she had not mentioned the seat being down in chief, she agreed that it could have been.

[83] The defence position that Ms. H. went willingly to the gas station and then decided to go with the accused to Loafer’s Lane to hang out and that things there became intimate until they were surprised by a security guard was put to the complainant. She did not agree.

[84] From Loafer’s Lane, they returned to Ms. H.’s home. Back in her driveway, Mr. Inshanally told her he was clearing all of their messages from his phone. She said she was doing the same. She said that her daughter texted her, asked where she was and that she showed that text to Mr. Inshanally. She felt that at that point, he backed off a little.

[85] When she was about to leave the car, Ms. H. said that Mr. Inshanally jumped on her. She asked what he was doing and started to cry. She described him having covered her with his body and face. He pulled her pants halfway down and “started to put his hands in my privates”. She described him as having his hands inside her pants but not inside her underwear, and felt he was about to go in her underwear. She thought he wanted to kiss her and said that she turned away. She described him as on top of her in the passenger seat. She was crying. As she started to scream, he got off her and ran into her home.

[86] Ms. H. was cross-examined about her description of what happened to police. In her statement, she said that Mr. Inshanally told her that he was going to put her car seat back because he wanted to kiss her one last time, and that he then moved over to her side and put himself on her, put his hands on her vaginal area and started to kiss her. She agreed that she had been accurate in her description to police and adopted it. It was suggested to her that her evidence was inconsistent because she had said in chief that he had unexpectedly jumped on her whereas she had told police that he had explained that he wanted to kiss her. She testified that she recalled him jumping on her out of nowhere and that he did not kiss her right away. She was asked why she consented to the kissing if she was in fear. She could not recall if she consented to the kiss request

[87] She was also cross-examined about the inconsistency between having told police that he put his hands on the outside of her pants, not directly in them, and her testimony that they were inside her pants. She adopted her statement that his hands had not been in her pants. She did not agree that when he was on top of her it was possible he touched her crotch area with something other than his hands, although she conceded that it is possible she could not see what part of his body touched her.

[88] Under re-examination, D.H. was asked if she could explain the fact that in her evidence in chief she said that Mr. Inshanally touched her inside her pants and under cross-examination, she said it had been over her pants. She testified that she recalled being touched, but not if it was over or under her pants. She was clear that she felt his hand touching her.

[89] Ms. H. said that once inside, she locked her door and checked on her kids. She was crying and shaking. She said that Mr. Inshanally called her and told her he could not move his car and that it was stuck. She told him she was not coming out and to call a tow truck. She said he pulled his car out and said to her that he was letting her go because she had kids.

[90] Ms. H. was cross-examined as to why she had not called the police once she was inside. She explained in re-examination that her mind had not been clear and that she did not actually think about calling the police as her primary concern was getting him out of her house. She said that she was not sure what to do and kept telling herself that it was her or asking herself if she had done something wrong.

Communications between the accused and complainant

[91] Over the two weeks that the complainant and accused knew each other, she said that they did not text a lot, and that he preferred to speak on the phone, whereas she preferred to text. She said that she always needed to find time to speak to him when he called and if she didn’t, that he became upset and asked why she had not called him.

[92] In terms of discussing their relationship, D.H. said that she told Mr. Inshanally that she had an ex- boyfriend and that she was still getting over that relationship and did not want to rush into anything with him and wanted to take things slowly. She testified that this upset him and that he wanted to know if she was speaking to her ex and did not believe her when she said she was not.

The complainant’s disclosure

[93] D.H. testified that the day after Diwali, while at work, she spoke with a co-worker, whom she described as her best friend. She was encouraged to go to the police. She provided videotaped police statements on November 8, 2018 and again on November 9, 2018.

The complainant’s response to the defence theory

[94] The complainant was cross-examined as to whether she was, at the time she gave her police statement, in a relationship with a person named Kumz. She was asked about having told police that Kumz was her boyfriend. She was very clear that he was an ex-boyfriend and that they had broken up. Her evidence was that she may have mistakenly referred to him to the police as her boyfriend and that they were not together. It was suggested to her that they were back together and that this was the reason that she wanted a restraining order and wanted Mr. Inshanally out of her life. She was unequivocal that this was not the case.

The Crown’s count to count similar fact application

[95] In addition to seeking to adduce as similar fact evidence the accused’s prior guilty pleas respecting violence on intimate partners, the Crown also brought an application to allow the evidence of the complainant to be used across counts as similar act evidence on the basis of R. v. D.S.F (1999), 1999 ONCA 3704, 132 C.C.C. (3d) 97 (Ont.C.A.).

[96] This is not a case in which I understand that Crown to be seeking to rely on the similar facts of one episode to support the allegation of another episode. Nor is it a case in which the Crown seeks to adduce extrinsic evidence of other disreputable conduct. The evidence relied upon as similar act evidence in this case is, of course, properly admissible in its own right given the allegations before the court.

[97] The Crown submits that the evidence is really relevant to the narrative provided by the complainant and to assist in understanding why she was scared and tense on the night of the Diwali incident, in view of what had happened after Tropical Nights.

[98] In this case, all of the evidence that the Crown seeks considered on each count was admitted as part of the trial. The entire context of the relationship has been adduced and is admissible to determine the credibility and reliability of the complainant on each count. I agree with the Crown that if I accept the complainant’s evidence as to what happened after the Tropical Nights evening, this may be relevant to her state of mind on November 7, 2018. More specifically, if I accept her evidence that she was bitten, verbally abused and then sexually assaulted in the early hours of November 4, 2018, this may be considered this in assessing her state of mind and whether she was fearful of Mr. Inshanally on November 7, 2018. It does not make it more likely that she was sexually assaulted on the later date. If accepted, it is just relevant, as all of her evidence about their relationship is, to understanding her state of mind.

Analysis

[99] Generally, the defence position is that the complainant’s version of events is not credible or believable. The defence submits that the assault and forcible confinement have not been proven beyond a reasonable doubt and that the complainant in fact consented to all of her sexual activity with the accused.

[100] The Crown submits that the complainant was credible. While he agrees that there are areas in which she has memory gaps or in which she gave inconsistent evidence, overall, he says I should find her evidence on the critical issues reliable. The Crown submits that many of the arguments advanced by the defence as to why the complainant should not be believed are based on myths and stereotypes about how victims of sexual assault do or should conduct themselves. The Crown submits that the complainant has described a unique and unusual set of circumstances that occurred over the period that she knew the accused and that her evidence was believable. He invites me to find the accused guilty on all counts.

[101] I found the complainant to be a very credible witness. I say that for the following reasons:

• She testified in a manner that was clear and straight-forward. She candidly acknowledged that there were details and things she did not recall. She provided explanations as to what she was thinking and why she had said and done what she had;

• There were moments in the complainant’s evidence where it was obvious that she felt emotional and upset by talking about what had happened, particularly the intimate details My perception was that her emotions were genuine and in no way contrived or exaggerated. While I am mindful about the need to approach demeanour evidence with caution, to the extent that I consider hers, it spoke to the sincerity of her evidence;

• At the end of her evidence, when the complainant was asked why she had not contacted the police, she explained that she kept asking herself whether this was her or whether she had done something wrong. This evidence seemed to me to capture her general insecurity and to be a very honest response that explained what one might otherwise wonder about;

• While the complainant appeared frustrated to me by the end of a long cross-examination, I do not accept the defence submission that her general demeanour and attitude towards the defence were defensive. To the contrary, when passages of her police statement were put to her, she always accepted that they were accurate. To the extent that there were inconsistencies between what she had said before and her evidence at trial, she acknowledged the differences and usually offered an explanation;

• The complainant never sought to denigrate the accused. In my view, her evidence revealed the accused to be a conniving and manipulative person who sought to control the complainant. He insisted that she tell him where she was, wanted to speak to her regularly on the phone and was suspicious that she was communicating with her ex-boyfriend. When he wanted into the complainant’s home on November 4 after Tropical Nights, he took her phone and refused to give it back. He then feigned needing to use her washroom as a ruse to gain entry into her home. When he wanted to extend his time with her on Diwali, he told her he needed to go to the gas station, although he must have known earlier in the evening that his gas was low. At the gas station, he used the car wash to prolong his time with her. Even at the end of that evening, he tried to get back into her home on the pretext of his car not working. Yet, the complainant never used such words as manipulative or controlling to describe him, apt as they are. Instead, she gave her evidence in a manner that I thought was balanced and more than fair to Mr. Inshanally.

[102] I accept that there were numerous areas of inconsistency highlighted during the complainant’s cross-examination. As I consider each of the incidents, while I will not address every area of inconsistency, I will review those that seemed the most significant and the impact that I found them to have on the reliability of Ms. H.’s evidence.

[103] There was, as I have summarized, extensive cross-examination of the complainant. It lasted about a full court day, spanning over two days. While she appeared, by the end, to be tired of answering questions and responding to suggestions, for the most part I thought she was calm, coherent and patient.

[104] Before turning to the specific allegations, I make some general observations and comments about the complainant’s cross-examination.

[105] First, much was made of the fact that the complainant has given conflicting and inconsistent evidence about what happened on what days, including whether she and the accused went to Montana’s. I accept the complainant’s evidence that she was confused at the preliminary inquiry and said she had been at Montana’s rather than Jack Astor’s. I also accept her evidence that she has been confused about the days on which, as between Thursday and Friday, they had the mall visit and the trip to Jack Astor’s. By the end of her testimony, I found she had explained the inconsistencies in a way that was rational, logical and made sense. It is clear to me that the mall date was on November 1, that Jack Astor’s was on November 2 and that Tropical Nights was the evening of November 3 and early morning of November 4.

[106] Further, as counsel agreed during their submissions, nothing should be made of the fact that the indictment charges the Loafer’s Lane sexual assault as being on or about November 1, when in fact her evidence puts this on November 2. Similarly, nothing turns on the fact that the assault and sexual assault said to have occurred after Tropical Nights are charged as being on or about November 3 and in fact are alleged to have occurred early on November 4. The date of the offences is not, in the circumstances of this case, an essential element of the offences.

[107] Second, independent of whether he committed the criminal offences alleged, I accept the complainant’s evidence that the accused’s words and conduct instilled fear in her, as they were no doubt intended to do. Her response, which I accept, was to try to keep him calm and not do things to anger him or exacerbate the situation. There was unchallenged evidence that he berated her, criticized her and threatened to crash his car with her in it. This caused her to be fearful of him. Further, he did things like taking her phone after Tropical Nights, causing her to be afraid to take her phone out to seek assistance.

Count 1

[108] In respect of the incident at Loafer’s Lake, the most troubling aspect of the complainant’s evidence is that she did not, during her examination in chief, testify either that she had engaged in consensual kissing or describe that there had been two acts of sexual intercourse.

[109] I accept that the complainant failed in her evidence in chief to mention the consensual kissing that she admits took place. I do not know why that is. I do know that she was not asked in chief whether there had been any kissing before the sexual intercourse. She did, as soon as her statement was put to her, readily agree that kissing had taken place, a fact that I find increases the reliability of her testimony. I make no adverse finding against her in these circumstances from her failure to mention the kissing in chief.

[110] I cannot conclude from this omission during her evidence in chief that there is any basis to find that the complainant fabricated her evidence about not consenting to the sexual intercourse. Consent to kissing certainly does not mean consent to sexual intercourse. To the contrary, the complainant admitted, against her interest, that she got into the back seat of the car and that she knew that the accused wanted to have sexual intercourse.

[111] In respect of the complainant’s failure to testify in chief that there had been two instances of non-consensual sexual intercourse, rather than one, I do not find this to be particularly significant. She was never asked in chief how many instances of intercourse there had been. For her, it seemed to me that it was the fact that there was intercourse at that location at all that was significant. In that regard, she was unequivocal that this was not what she wanted and that she told him that she did not want to have sexual intercourse with him in that location.

[112] I recognize that in her police statement, the complainant spoke about trying to please the accused, which could, depending on the context, indicate she consented to what they were doing. However, she offered an explanation for what she said. She explained that this, for her, meant doing what Mr. Inshanally wanted. I found this explanation persuasive and accept it. I do not find that pleasing Mr. Inshanally meant that the complainant consented to sexual intercourse with him.

[113] The complainant was also inconsistent about whether the intercourse could fairly be described as merely uncomfortable or painful. While I recognize the difference, I see this as an issue of degree and not a matter on which anything turns.

[114] Having considered the entirety of the complainant’s evidence, it seems to me from that it is possible that she consented to the first act of sexual intercourse as she ultimately agreed that she did not remember if she had. I could not tell if this was because she had been worn down by the cross-examination or genuinely did not remember. I cannot be sure that there was no consent from her to that first act.

[115] However, I find that the evidence is irrefutable that the complainant did not consent to the second act. She said no, she told the accused to stop, he did not do so and he engaged in non-consensual sexual intercourse with her knowing that she was not consenting. I accept her evidence that he apologized after.

[116] There is no dispute that there was sexual activity at Loafer’s Lake. The issue is whether the Crown has proven that the complainant did not consent. I am satisfied beyond a reasonable doubt that she did not consent. On that basis, he will be found guilty of count 1.

Counts 2 and 3

[117] In respect of the Tropical Nights evening, again, I acknowledge that there were a number of inconsistencies in the complainant’s evidence.

[118] For instance, she was inconsistent between her evidence in chief and police statement as to how she reacted when the accused said something in the lounge that upset her. While I certainly appreciate the inconsistency, in my view it relates to a minor and peripheral issue upon which nothing turns.

[119] Once they were in the car, the complainant described the accused as very upset with her and as having grabbed her face and bit her lip. This is the assault alleged in count 2. The suggestion was made to the complainant that this could have been an aggressive kiss. She firmly rejected this suggestion.

[120] The complainant was not really challenged about this allegation.

[121] I am satisfied beyond a reasonable doubt that Mr. Inshanally was angry at the complainant because she had expressed displeasure about the way he spoke to another woman in the lounge. He used violence on her to express his anger. I accept her evidence about what occurred. I am persuaded beyond a reasonable doubt that he bit her as she described. He will be found guilty on count 2.

[122] Count 3 is the sexual assault alleged to have occurred back at the complainant’s home. The complainant’s description of the accused insulting her on the way home and grabbing her phone was not really disputed. Nor was her evidence that he told her he needed to use her washroom as a ruse to gain entry into her home. I find that the accused was angry with the complainant and that he manipulated her, scared her and lied to her in order to gain access to her home. I also accept that her decision to permit him to stay over, when it is clear that this was what he wanted, made sense as it was a way for her to end the evening. Her evidence about what happened before they went inside and when she agreed for Mr. Inshanally to stay over was logical, consistent and her responses made sense to me in light of the events of the evening that I find had already taken place.

[123] I accept that the complainant did not testify, in chief, to there having been consensual kissing upstairs. She had mentioned kissing in her police statement. While initially under cross-examination she said she did not recall if it had been consensual, she did agree that her statement to police had been accurate and that if it said they had been kissing, it was true. In other words, she accepted that this part of their sexual activity had been consensual.

[124] I do not see this omission as relevant to the issue of whether the complainant consented to the sexual intercourse. Consenting to kissing does not mean consenting to sexual intercourse. On the issue of whether she consented to the sexual intercourse, she was unequivocal and unchallenged. Mr. Inshanally had sexual intercourse with her knowing that she was not consenting. He will be convicted on count 3.

[125] In reaching this conclusion, I have considered carefully the messages that were sent by the complainant to Mr. Inshanally on What’s App and how, if at all, they affect her credibility.

[126] She seemed to have no recollection of having sent a message to him at 4:49 a.m.. Her evidence that she would have had no need to send him a message made sense to me, given that he was in her home. There is no evidence about what was included in that message. I infer nothing from it.

[127] The messages sent by the complainant later that day do suggest that she had not ended her relationship with Mr. Inshanally as she planned to do. They appear friendly and suggest that she was thinking of including him in her plans and in her life in the future. While they might appear to contradict her view that she was planning to end things with him and did not want to continue their relationship, she explained in re-examination that she felt after that night that she needed to keep calm and “keep things in place”. She testified that she did not want to upset Mr. Inshanally or cause him to react or snap in any way. I accept this explanation. Given his violent reaction of biting her in the car and then forcing sexual intercourse on her, I accept her explanation for continuing to appear friendly to him, even if that was not how she felt internally.

Counts 4, 5, and 6

[128] In my view, the complainant’s responses to questions she was asked under cross-examination about her text messages with the accused prior to his visit to her home on Diwali were troubling. She appeared not to want to acknowledge having sent the messages that came from her phone. She claimed to have no memory of whether she had sent a photograph of food and told him it was for her family. She did agree, however, that she sent him a kissing emoji. There would seem to me to be no real reason for the complainant to have sought to distance herself from these messages.

[129] I am not prepared to draw any conclusion about the complainant’s credibility from her answers under cross-examination about this. I accept that she did not recall sending these messages, though she agreed that she had sent the kissing emoji. I am not persuaded that much can be inferred from the exchanges before me about her credibility generally or the credibility of her evidence about what happened that day and the fact that she did not consent to the sexual intercourse.

[130] There was extensive cross-examination of the complainant on the circumstances that led to her inviting Mr. Inshanally into her home on Diwali. She was unequivocal that she had not invited him for dinner and that her plan was only to give him sweets. She was candid, however, that when he asked to come in, she permitted him to do so. Her evidence that she was fearful of him, that her children were there and that she thought it made sense to try to keep him calm and not escalate things, in the context of how their relationship had evolved over the previous week, made sense. I accept it. I accept her explanation that she did not expect Mr. Inshanally would force her to go upstairs and have sexual intercourse with him.

[131] Under prolonged cross-examination as to what happened before they went upstairs and why she had agreed to do so, the complainant agreed, ultimately that she had agreed to go upstairs with Mr. Inshanally. She did not, however, agree that she had done so for sexual intercourse. It was suggested to her that she did not have a genuine fear of Mr. Inshanally and that it made no sense to go upstairs to talk. I accept the complainant’s evidence that she did not want to engage in a discussion or argument with the accused about their relationship where there was potential for her children to hear. I also accept that she was fearful of the accused turning on her. He had told her that he knew that she wanted to end things and I accept that by saying things such as that he had bought a book and was going to change, that he was trying, once again, to manipulate her to maintain a relationship with him. Her decision to go upstairs, while clearly unwise, was not without a reasonable basis.

[132] I also accept the complainant’s evidence as to what happened once they were upstairs. She was unshaken that he had insisted that they have sexual intercourse twice and that he told her he would leave after. This is a somewhat unusual feature and struck me as a surprising demand for him to have made. She was sure that this is what happened. She described him begging her not to end the relationship, and being frustrated by his begging. Given the way she had described him acting over the week, this had a real ring of truth.

[133] D.H. described, in a persuasive manner, Mr. Inshanally’s demand that there be two incidents of sexual intercourse and that he then proceeded to have intercourse with her twice. I found her explanation for not calling the police - that she was afraid and never thought about it – to be credible and logical, given her situation. While her evidence about the precise chronology of events varied slightly, I found it was only respecting very peripheral details that would have been unimportant to D.H.

[134] Overall, I found the complainant to be consistent and unshaken that she did not consent to the two instances of sexual intercourse that took place shortly after 6:00 or 6:30 p.m. that evening. Although she did not consent, and told him to “take it and go”, she explained that she was telling him to get off and was crying. After the first incident, he pushed her back onto the bed for a second incident. She acquiesced so that he would leave and said to him after that he got what he wanted and was to leave.

[135] I am persuaded beyond a reasonable doubt that this sexual intercourse took place as D.H. described. She was fearful, worried and tense. She did not consent and he knew that. The accused must be convicted on count 4.

[136] The complainant’s description of Mr. Inshanally then insisting that they go to his car to erase all of the communications between them is consistent with the manipulative way he had tried, up to this point, to prolong his time with her even when he knew she did not want to be with him. I find that he knew at the point that she did not want to be with him. He appears to have been unable or unwilling to accept this and so used the trip to his car, where his phone was, to manipulate the complainant into his car. He continued this approach by saying that they needed to go to a gas station.

[137] The complainant was cross-examined at length about what happened at the gas station and how they came to use the car wash. There were, I accept, minor discrepancies in her evidence that I find relate to unimportant and largely irrelevant details. That said, I accept that she did not want to be there and that it was his idea, not hers, to go through the car wash. I accept that she wanted to go home and be away from Mr. Inshanally. He was not prepared to let her end things.

[138] In respect of the message that appears to have been sent by the complainant to Mr. Inshanally at 7:54 p.m. that evening, where the only record before me is of a communication and “Media Omitted”, the complainant’s evidence was that she did not recall sending him the message. She suggested that this could have been them deleting messages. She refused to accept that, on her timeline, this would have been around the time they were at the gas station or car wash. The defence position was that the sending of a message by her to him suggests that they were not having an argument. She did not agree.

[139] I am not persuaded that, even though I accept that she likely sent something to him at 7:54 p.m. that evening, much can be made from this about what was going on between them at the time. There is no evidence as to what was sent. I cannot draw from the fact that something was likely sent that things were not unfolding as she described at the gas station.

[140] After they finished at the car wash, I find that Mr. Inshanally decided not to drive the complainant home and, instead, took her on a drive elsewhere. It is clear that they ended up on Highway 401 going east towards Toronto. The complainant may be correct or may be mistaken as to whether they were ever in the area of James Snow Parkway. Had they been in this area, it would certainly not have been in the way she described. She seemed to me to have been confused about precisely what streets they passed and used. I find this confusion completely understandable.

[141] The complainant described the accused berating her and scaring her as he drove her around. She was fearful and desperate to escape. She seems to have been on roads with which she was not particularly familiar. Her concern was with getting home. I found her evidence describing what happened in the car to have been believable.

[142] I accept that the complainant was challenged by the defence about having given inconsistent testimony with respect to the stop they made on the way home at Loafer’s Lake. In chief, she described the security guard being there and failed to mention that the seat might have been down. She did not, however, agree that there had been a consensual intimate time between them. I find she was clear that there was no consensual sexual activity at this time and accept that evidence.

[143] Forcible confinement requires that the accused intentionally confine the complainant without lawful authority. On the basis of her evidence as to what happened in the car after they left the gas station, I find the accused guilty on count 5.

[144] The final sexual assault is alleged to have happened in the car upon their return to the complainant’s home. Once again, the accused appears to have been unwilling to accept that the complainant did not want to be with him and wanted things to end. This is evident by her testimony that he told her he wanted one final kiss and by his conduct after she went inside when he told her, falsely and clearly with the intention of manipulating her further, that his car would not operate.

[145] The complainant’s evidence that she was sexually touched by the accused in this period was very credible. She described herself as upset and crying as the accused tried to kiss her, to get on top of her and put his hand on her vaginal area.

[146] I appreciate that the complainant was not consistent with respect to whether Mr. Inshanally jumped on her or whether he told her first that he wanted to give her a final kiss, though she readily agreed that her police statement had been accurate. I see this as a minor detail. She was also inconsistent with respect to whether his hand was over or under her pants and underwear. In the end, I thought she was measured, not suggesting his hand had been inside her pants. I thought her concession in re-examination that she recalled being touched but could not remember if it was over or under her pants, and that her mind had not been clear at the time given everything that had happened, revealed her to be fair and careful about her evidence. I believe her.

[147] The complainant also revealed herself to be measured and fair when she was cross-examined about whether she had seen the accused’s hands on her vaginal area. When it was suggested to her that with him on top, she would not have been able to actually see his hands, she admitted that it was possible that she could not see what part of him touched her crotch area. But she did not think it was possible that some other part of his body had touched her vagina and was certain that she felt something there.

[148] Despite her agreement that she might have kissed the accused, the complainant’s evidence as a whole satisfies me beyond a reasonable doubt that while they were in the car, Mr. Inshanally touched her vaginal area with his hand over her clothing without her consent. On this basis, he is guilty of count 6.

Conclusion

[149] I find the accused guilty on each of the six counts charged.

Woollcombe J.

Released: February 12, 2021

COURT FILE NO.: CR-20-115

DATE: 2021 02 12

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

OMAR INSHANALLY

REASONS FOR JUDGMENT

Woollcombe J.

Released: February 12, 2021