COURT FILE NO.: CR-18-7000424-0000

DATE: 20210721

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GEORGE ZIGOMANIS

Accused

Monica Gharabaway, for the Crown

George Zigomanis: in person

HEARD: October 5 - 8, 13 and 15, November 2 – 3, and February 1 – 5, 9, 16 - 19, and April 1, 6, 7, and 9, and April 29, May 26, and July 21, 2021.

B.A. Allen J.

REASONS FOR DECISION

TEMPORARY SUSPENSION OF THE COURT

[1] This application was heard and decided during the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations, effective March 16, 2020. It has been decided that cases involving urgent matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or videoconference.

[2] The parties agreed to the trial proceeding by videoconference. A registrar and court monitor were present in a courtroom to maintain the court record. The judge, witnesses and, counsel attended remotely by videoconference. Witnesses testified under affirmation to tell the truth. Materials were delivered and filed with the court by e-mail and shared over Zoom.

MR. ZIGOMANIS’S REPRESENTATION

[3] The accused, George Zigomanis, was charged on February 9, 2017, with two counts of sexual assault on the complainant, SC, alleged to have been committed on January 31/February 1, 2017, at his condo unit at Queen Quay East in Toronto. Mr. Zigomanis was age 50 at the time of the incident. He is currently age 55.

[4] Mr. Zigomanis was self-represented for most of the trial which commenced on October 5, 2020. This was the second trial date to be scheduled, the original date adjourned due to Mr. Zigomanis’s health issues. Originally, defence counsel, Elliott Willischick, was appointed under s. 486.3 of the Criminal Code only to cross-examine SC. The court and the Crown were informed on the morning of October 5^th that Mr. Willischick was retained to represent Mr. Zigomanis for the trial at large. Mr. Willischick cross-examined SC and the Crown’s only other witness, the concierge of the building where Mr. Zigomanis resided.

[5] Over the weekend of October 10^th, Mr. Willischick informed the court and the Crown by e-mail that he was going to apply to be removed as counsel of record due to a breakdown in his relationship with Mr. Zigomanis. On October 13^th, I granted Mr. Willischick’s application. Mr. Zigomanis called a defence and besides himself called a police officer and a friend of SC as witnesses.

EVIDENCE NOT IN DISPUTE

[6] SC, age 36 at the time of the offence, was employed as a registered pharmacology technician. She resided in Oshawa. Mr. Zigomanis was self-employed as a consultant when the alleged sexual assault occurred. He and SC connected first on January 22, 2017 on the popular dating App, Plenty of Fish (“POF”). Their first contact was via messages on the POF App.

[7] Mr. Zigomanis provided fabricated information about himself on his POF. For instance, he stated that he was 47 years of age when he was age 50 at the time. He indicated that his children were over age 18 when he has no children. He indicated his astrological sign was Virgo when it was actually Pisces. He suggested he had pets when he did not.

[8] Mr. Zigomanis also posted photos of himself on the POF site that looked decidedly different than he does in his mugshot taken at the time of his arrest in February 2017. The photos, taken two years before his arrest, depicted him in gym attire and on a beach in beach attire, in which Mr. Zigomanis concedes he is younger, tanned, thinner and, more fit.

[9] SC testified she was married early in life and has three children. Her marriage ended and she was just getting back into the dating scene when she met Mr. Zigomanis. That was her first time on POF. Mr. Zigomanis testified that when he went on POF he was looking for a long-term relationship, a life partner. He had not been involved in a serious relationship for some time.

[10] SC and Mr. Zigomanis next communicated on January 30^th. They began communicating by cellphone. They agreed they enjoyed each other’s conversations which they both described as filled with humour, witticisms and playfulness.

[11] On January 31^st, while on the phone with Mr. Zigomanis, SC arrived at the parking lot of a gym where she intended to work out that evening. She changed her mind about the gym and decided to go Mr. Zigomanis’s condo instead. SC went home and changed her clothes and packed a bag of clothes for a meeting at work the next day. She told Mr. Zigomanis she had a work-related meeting the next day in North York, the most important meeting of her career. SC proposed that if it got too late, she could crash on his couch and leave for her meeting from his place.

[12] SC and Mr. Zigomanis gave different accounts of the impetus for SC deciding to go to Mr. Zigomanis’s place, which I will deal with later. But they agree that they were speaking on the phone for hours before she arrived. While she was driving from Oshawa, Mr. Zigomanis told SC that the concierge of the building would provide a parking pass when she arrived, assist her with parking in the underground parking garage, and accompany her to Mr. Zigomanis’s condo. The concierge did assist her as requested.

[13] SC found Mr. Zigomanis’s condo door ajar when she arrived. When she entered, Mr. Zigomanis was in the unit. The apartment was illuminated by candles but there is a dispute as to whether the condo was otherwise in darkness.

[14] Both testified they each had a small amount of alcohol that evening. They agree that SC commented about the décor and his possessions in his condo and that they went to the underground garage to get a DMX

[15] From this point in the evidence, SC’s and Mr. Zigomanis’s accounts diverge in significant ways.

CREDIBILITY AND R. v. W. (D.) PRINCIPLES

[16] The burden is on the Crown to prove beyond a reasonable doubt Mr. Zigomanis’s guilt of the two sexual assaults. Mr. Zigomanis called a defence to counter the allegations. This is a classic “he-say-she-say” case.

[17] The Supreme Court of Canada has developed a well-known framework for triers of fact to assess reasonable doubt when the accused testifies:

• First, if you believe the evidence of the accused, obviously you must acquit.

• Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

• Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, based on the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[R. v. W. (D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.)]

[18] In determining who to believe, it is not for the court to simply compare the Crown’s version of the evidence with that of the defence and choose between them. That would improperly burden Mr. Zigomanis with proof of his innocence. The burden throughout remains with the Crown. The court in R. v. Dinardo made the following observation:

In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt.

[R. v. Dinardo, [2008] 1 S.C.R. 788, 2008 SCC 24, at para. 23, (S.C.C)]

[19] The trier of fact must also be mindful that they are not required to accept defence evidence in full in order to acquit: [R. v. W. (D.)].

[20] As the Supreme Court of Canada observed in R. v. Gagnon:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, at paras. 20 – 21, (S.C.C.)]

[21] The burden on the trial judge is not be alive to and to have considered all of the evidence, or to have answered each and every argument of counsel: R. v. Dinardo, at para. [30].

EVIDENCE IN DISPUTE

Evidence Leading Up to What Occurred at the Condo

SC’s Evidence

[22] SC testified she thought Mr. Zigomanis was being evasive, not forthcoming in their cellphone conversations. She said she could not clearly see his face in the photos he sent her. She described their conversations as being completely dominated by his stories, that she did not say much. She just listened.

[23] SC’s evidence was that Mr. Zigomanis implored her to meet him that evening because he would be going out of town the next day and did not know when he was going to return. She indicated she did not feel comfortable about going to his place. SC told him about her plans to go to the gym that evening and about the important work meeting the next day.

[24] SC said she was “not in a rush to meet him”. Her evidence was that Mr. Zigomanis became “adamant” and “very domineering” about her coming as soon as possible to meet him showing little regard for what she wanted to do. SC said that for about 45 minutes while she was parked in the parking lot of the gym, he tried to persuade her. She said she could not get him off the phone.

[25] Under cross-examination, SC was asked whether she thought a domineering contact was a good prospect for a date. She responded it was only in retrospect that she realized it was not a good idea to meet such a person. SC testified that he spoke like a celebrity, was entertaining, and that attracted her. She said she felt “intrigued” enough by him over the phone that she decided to meet him. She said she did not actually go to see him against her will but rather it was the case that “he had the ability to shift her will”. SC “relented” because of his “high-pressure salesman pitch”. She described him as very persuasive and manipulative.

[26] According to SC, Mr. Zigomanis told her he travelled a lot, giving her the impression he was very important. SC told him she was an art enthusiast and said that Mr. Zigomanis impressed her that he had interesting art at his condo. SC said he described his condo as a large loft and wanted her to help him decide where to hang the art. He told her he enjoyed entertaining his many friends at his condo. He asked her what she wanted to drink, and she told him wine. There was no discussion about having sex.

[27] SC’s evidence was that there was no discussion about her spending the night. She said he however implied that if they “hit it off”, “connected in conversation about the art” and it got late, she could crash on his couch. SC went home to change her clothes and pack clothing for the meeting “just in case.” On cross-examination, she said she did not have safety concerns about sleeping over. She was only concerned about her comfort sleeping on a couch.

[28] SC said Mr. Zigomanis kept her on the phone during the entire trip from Oshawa to his condo. During the call, Mr. Zigomanis gave his address and directions to his condo building and told her the concierge would assist her with parking and take her to the condo.

[29] There is video footage of SC’s arrival at the foyer and lobby of the building. When SC arrived, the concierge buzzed her in. He directed her to the garage and as to where to park. She said he gave her an overnight sticker for her car and said he would meet her in the garage. SC said she thought that “odd” because she had not requested an overnight sticker. She concluded that being given the sticker was building policy. She indicated it was about 11:30 p.m. at the time.

[30] Video footage shows the concierge and SC on the elevator. Mr. Zigomanis remained on the phone with her until she got on the elevator. When they reached the destination on the 6^th floor, SC left the elevator without the concierge and approached the door of the condo unit. She described the condo as being only 800 sq. ft, with low ceilings, not like the large loft with high ceilings Mr. Zigomanis had described.

Mr. Zigomanis’s Evidence

[31] It will become clear that Mr. Zigomanis’s evidence in the material areas diverges entirely from that of SC.

[32] Mr. Zigomanis was self-represented during his defence. Throughout Mr. Zigomanis’s testimony, he referred to many statements made to him by SC. This is hearsay evidence which I do not accept for its truth. The statements are a necessary component of Mr. Zigomanis’s narrative, of his view of SC’s state of mind and important to making sense of his testimony and his state of mind in his encounter with SC: [R. v. Starr 2000 SCC 40, [2000] 2 SCR 144; R. v. Fair, 1993 3384 (ON CA)].

[33] When Mr. Zigomanis saw SC’s profile on POF he found her photo attractive. He thought her comments seemed intelligent, fun-loving and, humorous. He enjoyed her sarcasm. He said they made each other laugh. They exchanged messages and cellphone numbers. Mr. Zigomanis sent her photos of himself.

[34] Mr. Zigomanis pointed to a phone bill entered as an exhibit. The purpose was to establish that the first phone call between them, just before she left for his place, started at 7:36 p.m. and ended at 9:40 p.m. on January 31^st.

[35] Mr. Zigomanis started speaking to her at 9:40 p.m. while she was parked at the gym parking lot. His evidence was that SC spoke on a plethora of topics. He testified that SC did almost all the talking. He estimated they had talked for about two hours in that conversation.

[36] Mr. Zigomanis testified she told him she lived in Oshawa and asked him where he lived. He told her he lived in Toronto in a condo on Queen’s Quay. He stated that she excitedly commented that he must be doing quite well to live at Queen’s Quay. He said he did not answer that question because he did not like to talk about money.

[37] Mr. Zigomanis insisted it was SC’s idea to go to his place that night. His evidence was persistent and adamant about that.

[38] Mr. Zigomanis said while he was on the phone with her, he heard some noise on her end and asked what was happening. SC told him she had driven home. She said she was changing her clothes because she changed her mind about going to the gym. SC told him about her important meeting the next day and that she was packing her clothes for her meeting in case he agreed that she could go to his place. Mr. Zigomanis told the court he was surprised when SC said she was hoping they could meet that night.

[39] Mr. Zigomanis said he was speechless. He asked her why she wanted to spend the night when she had such an important meeting the next morning. He said he regretted not saying “no” to her. All he could do to communicate his reluctance was to repeat his query about preparation for her meeting the next day. Mr. Zigomanis testified that SC responded, “I can B.S. my way through anything. And I need to blow some steam off.” He indicated she said something to the effect of, “Don’t be such a ninny. Come on let me come over. We’ll have a drink.”

[40] Mr. Zigomanis said he was disconcerted. He did not want to meet her so soon. He felt they should have more conversations on the phone perhaps, meetings for drinks or dinners to get to know each other better. He testified he did not know how to communicate his feeling that things were moving too fast. Mr. Zigomanis did not feel that this was the way to start the long-term relationship he was seeking.

[41] Mr. Zigomanis had his health issues on his mind and the support he was hoping to get from a future significant other. He testified that he suffered from medical and physical disabilities that created extra angst about SC coming to his place.

[42] Mr. Zigomanis filed medical evidence to support his testimony. In December 2015, he suffered a bad fall and underwent several surgeries on his right leg. Post-surgery, he received physiotherapy and home care. The injury impacted his knee and the bones in his calf and ankle which required the implant of a metal rod and screws. He stated that his ankle is constantly swollen and painful. From January 31, 2017, until the present, he has suffered from severe debilitating pain which inhibits ambulation, standing for lengthy periods and, restricts other physical maneuvers like bending and kneeling.

[43] Mr. Zigomanis filed an x-ray showing the rod and screws in his leg. He also took photos of his right leg with his cellphone during his testimony which he filed in evidence. The photos show pronounced scarring from the surgery extending from his knee to his ankle. There is visible distortion in the shape of his leg and a noticeably swollen right ankle. Mr. Zigomanis emphasized that the photos illustrate the condition of his leg and ankle on January 31, 2017.

[44] In 2016, Mr. Zigomanis contracted C-Difficile while in hospital for his leg. He presented ambulance and hospital records of his condition and treatment. This is a contagious bacterial infection that afflicts the gastrointestinal tract causing persistent painful bouts of diarrhea, often unexpected and explosive, and hemorrhoids. Mr. Zigomanis testified that certain foods and beverages aggravate the condition. On several occasions, he was hospitalized with such attacks and was prescribed strong antibiotics. Mr. Zigomanis continued to suffer from this diarrhea in January 2017. He indicated the C-Difficile had cleared by July 2016 but some symptoms like diarrhea persisted.

[45] Although he expressed embarrassment and reluctance to disclose this to strangers in a public forum, Mr. Zigomanis also told the court he suffers from impotence which results in difficulty achieving an erection.

[46] Mr. Zigomanis testified he had an unexpected bout of painful explosive diarrhea on the morning of January 31, 2017, and said he never knows when or if it will recur. He had his health on his mind when he relented and allowed SC to come to his condo. Mr. Zigomanis testified he had to be cautious to avoid exerting himself that night and had to restrict what he ate and drank to prevent an attack.

[47] Mr. Zigomanis was not expecting company that evening. He testified he had dishes in the sink and tidying and cleaning to do because he was having a guest. SC was on her way to his place and he was bedeviled by the limited time to prepare. He said even though he regretted SC coming, he still wanted to be hospitable towards her at his home. He rushed around and became over-heated.

[48] Mr. Zigomanis prepared an arrangement of items, condiments, cheeses, crackers, chocolates on a charcuterie board. The board bore his first and last names in large print. The importance of that fact will become clear later in the decision. He filed a photo of the board in evidence. He placed on the kitchen counter a bottle of white wine and a bottle of Grand Marnier.

[49] Mr. Zigomanis testified his condo was a small, one-bedroom unit. He denied saying he lived in a large loft. He filed a floor plan layout of his unit. He stated that the distance from the windows and patio door where he was standing from the door when SC entered was 25 ft 8 in.

Inside the Condo

SC’s Evidence

Before the Alleged Sexual Assaults

[50] SC described the condo as being dark. She said Mr. Zigomanis was standing on the far end of the condo in front of the windows. All the lights were off. She testified that the only illumination was “dozens of candles”. SC said she found it strange that he had candles lit. She said she just “assumed” it was Mr. Zigomanis standing at the window because she could not see him very well. It appeared to her as though he was hiding his appearance from her.

[51] On cross-examination, defence counsel asked whether she saw the darkness in the condo as a red flag, whether she thought she should leave. SC responded that she only realized this looking back. But at the time she only got a “gut feeling” that she should go no further. But she stayed anyway. She said she did not leave because she concluded that she was just nervous about being in the dating world and she was “just doubting herself”.

[52] SC testified that she remained inside at the door of his condo for about one hour before she moved into the unit. She testified she assumed Mr. Zigomanis did not want her to be close to him. She said as she walked toward him, he said he felt uncomfortable. SC said a couple of times she turned on the bathroom light so she could see him and the surroundings better. She testified each time, he turned the light off.

[53] SC said Mr. Zigomanis signaled while he was standing at the windows to tell her there was a glass of white already poured for her. She said he did not pour the wine in front of her. She said the glass was half-full. She began to sip the wine slowly

[54] SC said she spent some time trying to figure out what was going on with Mr. Zigomanis. She described him in disparaging terms. She portrayed him as a “strange” person, querying whether “maybe something was wrong with him”. She called him “different”, “eclectic”. She described the “dozens” of lighted candles as “strange”, “almost ritualistic”, pondering to herself how it would have taken forever to light them.

[55] SC spoke of discrepancies in how Mr. Zigomanis portrayed himself in his POF profile and their conversations as compared to how things were when she saw him in person. He was not acting as confidently as he did over the phone. She said that he had given her the impression he was someone like a powerful producer of an R&B band and that because of his celebrity status he opted to be low profile.

[56] SC said he did not look like the photos he sent her. She said he did not seem as tall or athletic as he said he was. He appeared “older”, “shrunken” with “poor posture”. SC pointed to some personal information on his profile that Mr. Zigomanis admitted to her was not true: that he had children over age 18 when he had no children; that he was a Virgo when he was actually a Pisces; and that he had cats which he did not.

[57] SC was very critical of Mr. Zigomanis’s condo and some of its contents. She was critical of the small size of the condo. She spoke of Mr. Zigomanis’s claim to own interesting art which she said he told her he wanted her to assist him with displaying. She testified she saw some dollar store quality 5 in by 3 in canvasses in the bathroom she thought he had painted on himself and other dollar store quality paintings in the condo that she thought are worth only about $10.00.

[58] SC testified that Mr. Zigomanis said he enjoyed the rap band DMX which she told him she also liked. He mentioned that he had a DMX CD in his car in the underground garage and he asked her to go with him to retrieve the CD. She said he insisted that she take her wine with her. SC contended that she did not want to go with him, but he insisted, and she relented.

[59] SC said he seemed more comfortable with her at this point. SC testified that Mr. Zigomanis strangely insisted that she wear a pair of his shoes to the garage, which she refused to do, which she said he was not happy with. There is video footage of Mr. Zigomanis and SC walking to his car in the underground garage. SC’s evidence is that about one and a half hours passed between the time she entered Mr. Zigomanis’s condo unit and when they went to the garage.

[60] SC testified that the first time she saw Mr. Zigomanis clearly was when they went into the hallway and elevator to go to the garage. She knew at this point she was not attracted to him romantically. On cross-examination, defence counsel asked why she did not leave, given her gut feeling and that she was not attracted to him. She responded that she was distracted by his insistence that she wear his shoes and take her wine with her.

[61] SC testified that Mr. Zigomanis’s demeanor changed after they left his condo. She watched him intrigued by what she regarded as his “bizarre behaviours.” She said that he first appeared “sullen”, “soft-spoken”, “trying to sound smart” and “trying to watch what he was saying” and he transformed into someone “like a thug”. He looked taller and “walked with a swagger”. He began speaking differently, using more slang, swearing, and speaking more assertively.

[62] SC said she only drank about two glasses of wine the entire evening and Mr. Zigomanis did not drink much either. She had consumed no drugs and saw no evidence of him consuming drugs that evening. She had not consumed any intoxicants before she arrived at his condo.

[63] SC testified that from the garage Mr. Zigomanis walked her to the lobby instead of returning to his place. She thought he was looking for cameras, “that he was parading her”. She said he tried to take her to the auditorium, but the door was locked. They returned to the condo after about 10 minutes.

[64] SC said when they returned to the condo, she went to the bathroom. Her evidence was that when she exited the bathroom, she felt strange like her mind had shifted. She said, “something hit her hard and fast.” She said it did not feel like alcohol. She did not know what it was. SC felt like the room was tilted and like she was not walking properly.

[65] SC said Mr. Zigomanis was standing in front of her when she exited the bathroom. She testified that he said in an “excited”, “anticipatory” voice, “Are we really going to do this?” She said she did not know what he meant. She tried to talk but slurred her words. She started to giggle at herself and then he began kissing her. SC said she did not want him to kiss her and closed her eyes so she would not have to see it. She felt like “all the lights in her brain had gone out.”

[66] SC testified that the next thing she remembered was standing in Mr. Zigomanis’s bedroom naked and did not know how she got there. She did not know how she became undressed. Mr. Zigomanis was standing, himself clothed, between her and the door. When she realized she was naked in his bedroom she panicked. SC yelled asking where her clothes were. SC was angry and testified Mr. Zigomanis looked shocked and stepped back from her. She testified Mr. Zigomanis showed her where her clothes were, folded neatly on the floor in the corner.

[67] SC testified she got dressed quickly. She testified that he blocked her from leaving the bedroom. He grabbed her shoulders and told her to calm down, that he was going to give her space. He was not going to let her leave in the state she was in. He said he would leave her alone and let her sleep on the couch. SC said she did not feel capable of leaving.

The Alleged Sexual Assaults

[68] SC said her next memory after being told she could sleep on the couch was that she was naked in Mr. Zigomanis’s bed. He was naked on top of her having vaginal sexual intercourse. She did not know how she got there. She said she felt paralyzed and weak and could not talk. She just lay there while he was having sex with her. SC testified Mr. Zigomanis next withdrew his penis from her vagina and began fumbling with a condom moaning and groaning trying to keep the condom on. She said his penis was not very erect.

[69] SC testified he then got off her and said something like, “Forget it.” She recalls panicking and not being able to talk. He then tried to have sex without a condom without asking her whether she consented. She was scared for her safety, about contracting an STD from a man she did not know. SC said that two or three times she tried to get away by pushing back from him while he was trying to re-insert his penis. She could not talk. He succeeded in inserting his penis into her vagina. SC said she felt repulsed. All she could remember him saying in an aggressive voice was, “You keep pushing me out.”

[70] SC testified he next “commanded her” to perform oral sex on him. When she refused, he used his hand to aggressively force her head on and off his penis against her will.

[71] SC testified she did not recall falling to sleep. Her next memory was of her cellphone alarm going off at about 7:00 a.m. She said after turning off the alarm, she went back to sleep because as she said, “I wasn’t really with it.” She woke up a couple of hours later feeling very confused with Mr. Zigomanis in the bed beside her. She said he turned to her and said he wanted to have sex again. She said she did not want to do that.

[72] SC said that Mr. Zigomanis then got on his knees while she was in a fetal position. He turned her on her back and “opened my knees and told me to shut up.” She said she thought he was going for vaginal sex again, but he attempted anal sex. At this point, she said she was trying to figure out how to get out of the situation. SC said she feared that because of the way “he threw me around like a ragdoll that he was going to hurt me.”

[73] Both Mr. Zigomanis and SC similarly estimated each other’s weights at the time, SC, around 125 lbs, and Mr. Zigomanis around 225 lbs.

[74] On cross-examination, defence counsel put to SC that she first mentioned the anal sex attempt in November 2019 around the time of the first adjourned trial date. He queried why she did not tell anyone about that before. Defence counsel suggested that forced anal sex is a significant violation and queried why she did not tell the police or the Crown much earlier. She responded that she did not recall that incident until November 2019 and did not mention it because the trial did not go forward at that time.

[75] SC testified Mr. Zigomanis grew angry as he also shouted commands for her to suck his nipples and pull his hair. Mr. Zigomanis again ordered her to perform oral sex on him. SC kept her eyes closed and complied because she thought he would let her go if she did not resist. She believed Mr. Zigomanis got angry because he thought she did not do a good job. She recalled he also performed oral sex on her against her will. The abuse stopped, she testified, because he lost his erection and gave up.

[76] SC testified that Mr. Zigomanis did not want her to leave. So, she exaggerated the importance of her meeting that morning to persuade him to allow her to go. For 20 – 25 minutes, she tried to persuade him. Eventually, she was able to leave.

Mr. Zigomanis’s Evidence

Hours of Conversation

[77] Mr. Zigomanis estimated based on the 11:18 p.m. time stamp on the parking pass that SC entered his apartment at about midnight. He explained that the route from the garage to the elevator that leads to his condo is not straightforward. He testified it took her some time to park her car and to go from the garage to the elevator and up to his condo. He said he sent the photo of himself and his ex-girlfriend before she entered his condo. His cellphone bill shows that he sent that photo at 11:59 p.m.

[78] Mr. Zigomanis testified that by the time SC arrived at the building his ankle was throbbing. And he was apprehensive about another diarrhea attack. Mr. Zigomanis’s evidence was that the apartment was not dark. He said SC should not have been surprised at seeing lit candles because it was her idea.

[79] According to Mr. Zigomanis, SC asked him if he had candles because she liked candles. She expressed surprise when he told her he too liked candles and that he had some he could light. She told him that impressed her, a man who could appreciate candles as if that was a rarity. So, one of the further tasks Mr. Zigomanis had to perform was to light the 10 candles on a large candelabra he had in his living room. This required bending and stretching which he found painful to his right leg and ankle. He presented a photo of the candelabra in evidence.

[80] Mr. Zigomanis’s evidence was that the condo was not dark. He said in addition to the light from the candles on the candelabra, he also lit some tea lights in the kitchen, turned on the light on his stove and the light in his bathroom shower. He also pointed out there are spotlights outside trained on the condominium building towers in his complex which shine through the 12 ft high windows in his condo unit illuminating it so that it is never dark even when the lights are out.

[81] On cross-examination, the Crown challenged him suggesting that lighting the candles which he did not tell SC about in advance was his idea. He denied her suggestion that the condo was dark and repeated his evidence about the lighting conditions.

[82] Mr. Zigomanis contradicted SC’s evidence that she could not see what he looked like until they went into the hallway and elevator. He said SC entered and removed her boots and jacket. When SC arrived, Mr. Zigomanis was standing outside on the patio trying to relax and cool off from having rushed around preparing for the evening. He contended they were immediately in close proximity after she entered, close enough for her to hug him and to stand next to him looking down at the view outside. He invited her to the kitchen where the bottles of wine and Grand Marnier were.

[83] According to Mr. Zigomanis, there was no one-hour period where SC stood at the door. SC’s account did not include approaching Mr. Zigomanis shortly after she arrived. Mr. Zigomanis said he was not trying to avoid her. Contrary to the Crown’s suggestion, he insisted he did not pour a glass of wine for SC before she arrived. And he said, moreover, he did not pour her wine at all that evening. She did that herself.

[84] SC then asked him if he would join her in a glass of wine. Mr. Zigomanis testified that after SC poured herself a glass of wine, she began walking toward him to the window saying, “I finally get to see the view.” He said he preferred something sweet. So, he had a snifter of Grand Marnier while still on the balcony cooling off.

[85] Mr. Zigomanis testified they smiled at each other, sipped their drinks, and said, “cheers.” He testified that SC then, with wine in her right hand, took her left hand and put it above his waist. She remarked at how beautiful the scenery was and said, “This is beautiful. I wonder how it looks in the morning?” Mr. Zigomanis said she then turned and gave him a friendly hug and said, “I like it here. You keep impressing me. You are a cool all-around guy.” Mr. Zigomanis testified he enjoyed SC’s friendly humour and their witty banter.

[86] According to Mr. Zigomanis, about one and a half hours after she arrived at the condo, SC queried whether he could play some music. SC never mentioned this in her evidence. He was agreeable saying he loved music and had a great collection on his computer. Her preference was R&B and so was his.

[87] Mr. Zigomanis played R&B music and she began to dance alone. SC never mentioned dancing in her account. She asked him to dance with her. Mr. Zigomanis testified he felt uncomfortable about dancing because of his hemorrhoids and swollen ankle. But he began to dance about 2 ft from her, and she asked him to come closer. He testified that she was a good dancer. She looped her fingers into the belt loops of his jeans and pulled him closer. He said he was humoured by some of her “goofy” dance moves. Mr. Zigomanis and SC then moved back to the window. Looking at the skyline, she remarked that he was so lucky because lots of people are attracted to the area and come there for walks because it is so beautiful. Mr. Zigomanis said SC then topped up her wine a bit.

[88] Mr. Zigomanis described how SC moved about the condo complimenting his decorating skills. She commented on statues in a cabinet, his expresso machine, his umbrella stand, his wall hangings. SC asked about two orange canvasses on the wall near the cabinet. He told her they were cheap things that cost him about $4.00 at a dollar store that he put up to add colour. Mr. Zigomanis said he never told her he had interesting art for her to view. He said he owned nothing he would call wall art.

[89] SC then asked Mr. Zigomanis if would like to dance again. Mr. Zigomanis began to dance with little movement because his ankle was throbbing, and he was getting exhausted. He tried to keep dancing a further 10 to 15 minutes. But he said he had to sit down. He testified that she joined him on the couch. Mr. Zigomanis said that SC then gently placed her left hand on his neck and kissed him gently on the cheek. SC did not mention kissing Mr. Zigomanis on the couch after dancing. She did not mention being on the couch with him at all except when she got dressed after finding herself naked in the bedroom.

[90] Mr. Zigomanis said he put his head down after she kissed him. She asked what was wrong. He told the court he thought things were moving too quickly and that in other circumstances the affection would have been more than welcomed. He said he was concerned about his health issues and the limitations on his physical and sexual capacity. Mr. Zigomanis did not want to put himself in a position to embarrass himself and compromise his chance to meet a life partner. He did not want to explain his C-Difficile, impotence or, physical injuries. So, he just told her he had a lot on his mind.

[91] Mr. Zigomanis said the first time SC saw his right leg was when he showed the cellphone photos at trial. She never saw his legs that night, the pronounced scarring and disfigured shape of his leg. She also knew nothing of his impotence, C-Difficile, and related symptoms until trial.

[92] Mr. Zigomanis said he was relieved she did not ask him to elaborate. SC backed off a bit and smiled. Mr. Zigomanis testified she stretched out comfortably on the couch. He said she drank her wine slowly which was a relief to him. He stated that “She seemed more comfortable being there than I was having her there”. Mr. Zigomanis offered SC something to eat. He thought this would also slow down her moves to kiss him.

[93] SC exclaimed that he was “fancy” to a have charcuterie board with his name on it. In her evidence, SC did not speak of seeing his name on the board. According to Mr. Zigomanis, she pronounced his surname and he corrected her pronunciation. She indicated she was a picky eater. She found dill pickles in his fridge which she began to munch on. Mr. Zigomanis found a package of rice cakes and she indicated she liked those as well.

[94] According to Mr. Zigomanis, SC was very curious about him having rice cakes. She began to quiz him about this. Mr. Zigomanis’s evidence was that at this stage in their rendezvous, he was introduced to a different and not too pleasant side of her personality.

[95] Mr. Zigomanis’s evidence was that he told SC that some months earlier he found the package of rice cakes rolling along a grocery store parking lot. He was approached by a woman who introduced herself as Brooklyn and told him that she had dropped the rice cakes. They had a friendly exchange and she told him he could keep the rice cakes. She gave him her name and phone number and asked him to call her some time.

[96] To Mr. Zigomanis’s surprise, SC began interrogating him. He said she grew angry and said, “You fucking gave me rice cakes from another chick that rolled through a parking lot”. He said he became very uncomfortable and did not know what to say. He told her he wiped the package off. SC then asked him what happened with the woman. He responded nothing, to which she retorted, “How long did you date her?” Mr. Zigomanis told her he never saw her after that. SC then asked if the woman was pretty to which he said she was pretty, but he never called her. He tried to allay her anger by telling her she was also pretty. Mr. Zigomanis testified that SC then said angrily, “You never fucked her?”

[97] On cross-examination, defence counsel asked SC whether she knew the backstory to the rice cakes. She denied Mr. Zigomanis told her. Defence counsel summarized the story and her alleged reaction to the woman. She still denied knowing anything about that.

[98] Mr. Zigomanis testified he does not like confrontation and arguments. He preferred to joke around, so he grew quiet. He said he felt cornered in his own home. Mr. Zigomanis said SC did not stop her angry tirade.

[99] SC then asked about the woman on the beach with him in the photo he sent her. He told her it was a woman from his past who was special to him but they both had moved on with their lives. Mr. Zigomanis said she continued to “hound him”, asking if he still loved her. Talk of Mr. Zigomanis’s ex-girlfriend was not mentioned in SC’s evidence. He pointed out to SC that he did not ask about her past. SC said that was fair and her mood softened again.

[100] Mr. Zigomanis grew tired and went to the window for some air. SC topped up her wine and joined him at the window, he said, as if nothing happened. He stated that he felt “down” and sat down on a chair near the patio because he did not want to sit beside her. It was between 2:00 a.m. and 2:15 a.m. at that time. Mr. Zigomanis testified that he felt he should ask her to leave. SC walked over to him and stared at him. She breathed on him and said, “pickle breath”. They both laughed and the mood lightened. Mr. Zigomanis said he had a little more wine and started to feel a gurgle in his stomach.

[101] SC then asked Mr. Zigomanis to stand up which caused him to ask why. He stood up and she hugged him. He felt she was apologizing for her behaviour and he felt a little better about her. He felt that her mood had switched from day to night and back again. Later in the morning, she began speaking about her past and he realized why she behaved as she did but also that they did not share common past experiences.

[102] Mr. Zigomanis put on some music and she got up and danced alone. SC asked him to join her. He got up and danced slowly. She again put her fingers into the belt loops and pulled him closer to her. He felt she was going to kiss him again and he put his head down. She put her forehead to his and said quietly, “I don’t want to talk about that shit anymore.” She kissed him again.

[103] Mr. Zigomanis said, as with the other kisses, he never initiated that kiss. No incident of dancing and kissing was part of SC’s evidence, except the kiss she said he did outside the washroom. Mr. Zigomanis testified, however, that he welcomed the kiss because he said it felt sincere like an apologetic, caring kiss rather than more intimate like her earlier one. He told the court he wanted someone to be caring not intimate at this point because he knew he would only disappoint before they got to know each other.

[104] Mr. Zigomanis started to feel uncomfortable because of his hemorrhoids and sore ankle and said he had to sit down. So, they again sat on the couch. They sat and talked for about 45 minutes and she moved close and cuddled him, putting her head on his shoulder, which he said he enjoyed.

[105] SC initiated a conversation about travel. They agreed it would be nice to travel with someone. Mr. Zigomanis testified that when he said he could not travel because money was tight, she acted as though she did not believe him. He said her conversation kept leading back to money which he told the court he did not like to talk about. SC then began to talk with admiration about Sugar Beach at the lake near his condo building and suggested maybe they could go there sometime.

[106] SC did not mention any conversations on the couch between herself and Mr. Zigomanis.

[107] On cross-examination, Crown counsel grilled Mr. Zigomanis about his attempts to impress SC with his wealth and power and how he dominated their conversations with boasting about himself. Mr. Zigomanis testified it was SC who dominated the conversations while he remained quiet at times. He said he got the impression she was interviewing him, checking boxes, one question following the next. It was becoming exhausting.

[108] Mr. Zigomanis pointed out that SC commented with awe about the condo complex on the lake as she drove to his building. Mr. Zigomanis insisted that it seemed by her questions, comments, and observations that SC thought he was more important, more financially endowed than he was. He said her focus on money and material things saddened him. SC did not know he was renting his condo. He described himself to the court as a simple and financially challenged person who did not find it proper to speak of money and material possessions.

[109] Mr. Zigomanis began to think that if there were no further outbursts of jealousy, he might want to see her again. They talked on the couch this time for over one hour. Mr. Zigomanis said he began to think about his wish to have a life partner. He thought that might be possible with SC or that at least that they could be good friends. SC again got up alone and amused Mr. Zigomanis with more “goofy” dancing.

[110] On cross-examination, SC was asked about dancing with Mr. Zigomanis. She said she did not recall this. She said she just had “a faint memory” of him “pulling on my arms”.

[111] Mr. Zigomanis gave some background to going to the garage to get his DMX CD and what happened when they returned to the condo. His evidence differs widely from that of SC. SC’s evidence about going to get the DMX CD was devoid of context.

[112] Going to get the DMX CD appears to have arisen from their dancing and talking about music. Mr. Zigomanis said SC named some rap artists and asked if he liked them and he said he did. She asked him about DMX, and he said he had a DMX CD in his car.

[113] It was SC who insisted they go to his car to get the CD. He said he did not know why she wanted to do this but later began to understand why. Mr. Zigomanis said they could go later. They continued to talk on the couch for some time and SC then brought up going to the garage to get the DMX CD. His ankle was throbbing, but he conceded.

[114] In contrast to the Crown’s suggestion that Mr. Zigomanis tried to force her to wear his shoes to go downstairs, he testified that he had an extra pair of new, smaller-sized flip flops and offered that she could wear them rather than having to go to the trouble of putting on her boots. Mr. Zigomanis contended that he did not insist that she wear his shoes.

[115] The Crown also challenged Mr. Zigomanis that he had poured SC’s wine and insisted she take it with her to the garage. Mr. Zigomanis denied this repeating that he never poured her wine and did not insist she take her wine with her.

[116] They went down to the garage and he retrieved the CD. SC spoke with surprise about the modest car he drove. She exclaimed that she thought he would have a more “haughty taughty”, “fancy” car. He responded that he likes his car and it gets him where he has to go.

[117] When they got onto the elevator to go back to his condo at about 2:00 a.m., SC commented that the condo had a lot of great amenities. Mr. Zigomanis was puzzled about that because he never told her about the amenities. He thought she must have found that out from the internet. It was SC who opened the elevator on the second floor and insisted they go see the amenities. Mr. Zigomanis said it was late and told her all the amenities are closed.

[118] Mr. Zigomanis testified it was SC who asked to walk around the second floor. It was about 2:00 am. It was so she could see the auditorium, the billiards room, and theatre which Mr. Zigomanis was able to show her were all locked. On Mr. Zigomanis’s evidence, he did not take her to the second floor to “parade her” in front of cameras, as she suggested in her testimony.

[119] They got back to the condo. She asked Mr. Zigomanis to put the DMX CD into his computer and he did. Mr. Zigomanis testified that DMX rap is not dance music. SC just stood there. They laughed. It was clear to SC she could not dance to DMX. It was at this point that Mr. Zigomanis believed that going to get the DMX CD was just a pretext for her to investigate the amenities and get a look at his car.

[120] They both sat on the couch and began talking about travel and other topics. She complimented him on his personality, his clothing style. She spoke about her personality, how she does not like “to play games”, and about how she disdained living in Oshawa. They spoke of their friends. They stayed on the couch talking for a further half-hour. SC suggested that they dance again and despite his ankle pain, Mr. Zigomanis got up and danced again. Mr. Zigomanis said he was exhausted and she seemed energetic.

No Sexual Assaults

[121] The Crown put to Mr. Zigomanis that SC went to the washroom after returning from the garage and she came out in an intoxicated-like state. The suggestion was that he had poured her wine, insisted she take it to the garage, and that led to her intoxicated state. It was after that point that SC unwittingly found herself in bed with Mr. Zigomanis where he sexually assaulted her as she described in her testimony.

[122] This is a critical point of departure in SC’s and Mr. Zigomanis’s evidence.

[123] Mr. Zigomanis testified that after talking for hours on the couch, SC stood and walked into the bedroom. She asked Mr. Zigomanis to join her to lie on the bed and talk. He responded that he was comfortable on the couch and did not want to lie on the bed because he would fall asleep. Mr. Zigomanis said SC responded, “Oh, come on. Don’t be a pansy.” She took Mr. Zigomanis’s hand and he eventually joined her on the bed.

[124] Mr. Zigomanis testified he was sitting up and she was lying down on the bed. They remained fully clothed. They had a conversation about many different topics about their lives, especially unfortunate parts of SC’s personal life. They seemed to be getting to know each other better. In Mr. Zigomanis’s view, they were on good terms.

[125] Mr. Zigomanis insisted they always remained fully clothed so she never saw the swelling in his ankle and the noticeable scars and disfiguration on his right leg and knee. His evidence is that it would be impossible to avoid seeing this if he was naked. All she could see of his body throughout the entire night was his feet and arms because he had removed his shoes and had on a short-sleeved shirt. Mr. Zigomanis insisted he could have never engaged in the sexual activities because of his sexual performance issues and the fact that what SC alleged would have required kneeling and bending and lifting her body to flip her over to attempt anal sex.

[126] They both got up from the bed and sat on the couch again. Mr. Zigomanis observed that it was growing bright out and inquired about her preparation for her meeting. He offered her breakfast and she declined. She decided to change her clothes for her meeting when she arrived at work. They got onto the elevator together. Mr. Zigomanis said he told her he was glad to have met her.

After the Alleged Offences

SC’s Evidence

[127] SC testified that she left the condo on February 1^st at about10:00 a.m. relieved but confused. She said she does not recall Mr. Zigomanis accompanying her downstairs.

[128] On examination-in-chief, SC was shown a video recording of herself and Mr. Zigomanis leaving the elevator and entering the garage on the morning of February 1^st. SC said she recognized him and herself did but did not recognize the area the video captured. She said she had no memory of her leaving and cannot explain why Mr. Zigomanis put his hand on her shoulder. She was panicking and did not know what was happening. SC’s view was that Mr. Zigomanis putting his hand on her shoulder was an act of control.

[129] On cross-examination, defence counsel showed SC the video footage again. He pointed out that when Mr. Zigomanis placed his hand on her shoulder, she looked back and smiled at him. Defence counsel put to her that there is no indication that she was fearful or unhappy. SC responded that she often smiles when she is nervous. She rejected his suggestion that she is smiling because none of her allegations are true.

[130] At about 10:30 a.m. that morning, SC picked up a colleague to attend her meeting at11:00 a.m. at a hospital. SC testified she cleaned up and changed her clothes in the washroom of the hospital. She said she attended the meeting and remained quiet, trying to act normal.

[131] SC testified she texted Mr. Zigomanis when he was on her way home from work on February 1^st to ask him his last name. She testified that he did not disclose his name and she felt embarrassed that he had unprotected sex with her and she did not even know his name. She said she could not go to the police or tell anyone if she did not know his last name. SC contends he made fun of her saying his name is carved on his charcuterie board. But he did not give his last name at this point. SC said she was confused and asked Mr. Zigomanis what had happened the night before.

[132] Defence counsel put to SC that the first time she mentioned needing his last name to go to the police was at trial. She agreed, saying at trial was the first time she described “the emotional thinking behind her needing his name”.

[133] Furthering that point, defence counsel referred to the preliminary inquiry where SC testified that she had not decided the purpose for wanting Mr. Zigomanis’s name, that she did not say she felt stupid about not having his name until afterward. At trial, SC agreed that was the case. The defence’s further suggestion was that Mr. Zigomanis was telling the truth when he said she saw his name on the charcuterie board and that he told her his name more than once. She denied seeing his name.

[134] SC testified that on February 1^st Mr. Zigomanis called her and asked her to come to his condo again. She said he told her he wanted to make love to her. SC responded that she did not want to return to his condo for fear he would sexually assault her again. She decided however it would be all right to go to a movie with him. She denied knowing whether it was she or Mr. Zigomanis who suggested the movie. In any case, she said she did not want to be alone with him. SC explained she was having trouble remembering what happened the night before. She said her goal in seeing him again was to get his last name. She thought she would get more information from him in a public place.

[135] SC agreed with defence counsel’s suggestion that she at no time confronted Mr. Zigomanis about the sexual assaults. She said she was afraid to do this. She said she never truly realized what had happened to her until she woke up the next morning. She did not know how or why it happened and she became depressed.

[136] Defence counsel queried the seeming contradiction between SC saying she did not know what had happened to her and her evidence that she feared going to his place. The point defence was making was that she might have been confused about what happened but was not so confused that she did not realize it was a bad idea to go to his place. SC responded she was just trying to “undo” what happened, “to stick up for myself”, to avoid going to his place, “getting some of my power back.”

[137] About going to the movies, it is SC’s evidence that Mr. Zigomanis told her at 5:54 p.m. that he was leaving his home. She spoke to Mr. Zigomanis over the phone as she was driving to Toronto to meet him. SC said, in the end, she did not go to meet him. She said she began questioning what was driving her “to go back into the lion’s den”.

[138] SC testified Mr. Zigomanis dominated the conversation, talking manipulatively, fast, in circles, constantly changing the subject. She found this confusing. According to SC, he told her he did not want to go to the movies and repeated that he wanted her to make love to her. So, halfway to Toronto, she decided to turn back. She said he was trying to “control her autonomy” and she needed to regain control of herself.

[139] SC testified Mr. Zigomanis continued to talk to her on the phone after she returned home. She said she told him she would not speak to him unless he told her his last name. She said he hung up and that is the last time she spoke to him.

[140] On cross-examination, defence counsel queried again whether SC ever questioned Mr. Zigomanis about her allegations. She responded that she said nothing because she thought if she did, he would not tell her his last name or give her information about what had happened. SC repeated that she would be embarrassed and feel stupid if she went to her friend and the police and did not know her abuser’s last name.

[141] Defence counsel asked SC whether she thought it was a good idea to try to meet up again with a man who had sexually assaulted her. She responded that was the only idea she had at the time. Defence counsel put to SC that she would surely know that she had sufficient information to go to the police, his first name, address, condo unit number She responded that she did not appreciate that until she went to the police.

[142] SC said in the end Mr. Zigomanis told her nothing about what had occurred the night she was at his condo. She went to work on Thursday, February 2^nd and, began to think more clearly about what happened. On Friday, February 3^rd, she went to the hospital and had blood and urine tests done and called her girlfriend later that day and told her what happened to her. SC told her girlfriend she just wanted to put it behind her. The forensic testing turned up nothing of evidentiary value. SC said she thought about other victims and decided to go to the Durham police and then to the Toronto police on February 7^th to give a statement.

[143] SC denied the defence’s suggestion that she was originally excited to meet Mr. Zigomanis because she thought he was a celebrity, a wealthy man. She denied his suggestion that her interest in Mr. Zigomanis continued throughout the evening at his condo. She denied the suggestion that beyond kissing, he did nothing to her that night.

[144] SC rejected the defence’s suggestion that she wanted sex that evening. The defence suggested, and she denied, that she felt duped by the inconsistencies in his POF profile and the failed expectations of his condo. SC denied that she was finally fed up and disillusioned with the prospects around Mr. Zigomanis and her frustration peaked when he suggested using free coupons for the movies. She turned around and went back to Oshawa and never spoke to him again.

Mr. Zigomanis’s Evidence

[145] About leaving the condo in the morning, Mr. Zigomanis testified that SC asked him to walk her out and they got on the elevator together. His evidence is that they left each other amicably. He points to the video footage that shows him and SC entering the door of the garage with SC smiling openly. SC continues to smile as they went into the garage, Mr. Zigomanis with his hand on her shoulder. He testified that she asked him if he was going to call her.

[146] Mr. Zigomanis referred to copies of the texts from SC’s cellphone and a redacted bill for his cellphone that he put in evidence.

[147] Mr. Zigomanis called SC on February 1^st and they had one conversation lasting just under one hour and another lasting over one hour. She asked Mr. Zigomanis to talk to her until she arrived at his place. His evidence was that they had light-hearted exchanges until 3:20 p.m. He thought it strange that she sent voice mails asking him for his last name. He found this strange since he had told her his last name more than once and showed her the charcuterie board inscribed with his name.

[148] According to Mr. Zigomanis, at 5:54 p.m. on February 1^st, SC, without notice to him, texted him telling him she was leaving her home. To Mr. Zigomanis’s surprise, SC told him she was coming to see him. According to Mr. Zigomanis, at the condo the night before SC had told him she like the movie La La Land. She told him she wanted to go with him to see that movie. It was her idea to go to a movie.

[149] Mr. Zigomanis testified he did not call SC to manipulate her to come to his place so he could make love to her. Mr. Zigomanis insisted that he told her he was exhausted and wanted to sleep. His version of the phone conversation was that he eventually gave in to her strong will to go to the movies. He said he again gave in to pressure to do something he did not want to do. He said without showering he put on some clothes with a plan to go with her.

[150] Mr. Zigomanis told SC he was conferencing her in on a call to Cineplex to see if the movie was showing in Toronto. His cellphone bill shows a conference call to Cineplex at 6:25 p.m. on February 1^st. Mr. Zigomanis told her he had Cineplex courtesy VIP passes, copies of which he filed in evidence, which they could use. The call ended and Mr. Zigomanis called her back and they spoke for about an hour and a half. Mr. Zigomanis insisted they use the VIP passes because he did not want to pay for a movie he did not want to see.

[151] Mr. Zigomanis contended that SC “freaked out” again and said, “Are you fucking kidding me, using coupons on our first date!” He told her he thought that meant they were not going to the movie. She responded that she had already turned around and was heading back to Oshawa. Mr. Zigomanis and SC never spoke again.

[152] SC testified she did not recall the conversation about the coupons or the call to Cineplex.

[153] Mr. Zigomanis testified he thought SC might have felt rejected so he thought he would give it a few days for her to “cool off” and then call her. He thought there was a possibility they could have a relationship since through his conversations with her he got to understand her problems and she was apologetic for freaking out at his condo.

[154] Mr. Zigomanis’s cellphone records show that he left voice mail messages on SC’s phone, two messages on February 5^th, and one on each of February 6^th and 7^th. It was between Mr. Zigomanis’s two calls on February 5^th that SC texted him and said she would not speak to him until he tells her his last name.

[155] The Crown filed in evidence audio recordings of the voicemails Mr. Zigomanis left on SC’s cellphone. The tenor of his calls was friendly, but earnest. Mr. Zigomanis feared the possibility that he might lose the opportunity to have a relationship with someone he liked.

[156] The gist of the calls was Mr. Zigomanis expressing how well he thought he and SC connected, or as he said, “vibed” when they were together. He told her he thought they understood each other’s backgrounds and really “got each other”. He expressed puzzlement at why she would not return his calls. Mr. Zigomanis also expressed surprise at SC saying she did not know his last name because she saw it carved on his charcuterie board and he had told her verbally at least three times. Mr. Zigomanis told her she was “a real catch” and said he would “give her space” so she could assess what she thought of him. SC never answered any of his calls.

[157] In one of the calls, Mr. Zigomanis said he just got back from Brooklyn and is back in Toronto. The Crown suggested in cross-examination that this contradicted his evidence that he did not say he had to travel as a way to urge SC to come to his place on January 31^st and supported SC’s evidence that he used that as a motivator to coax her to his place. Mr. Zigomanis denied he said Brooklyn, the city in New York, but rather said he just got back from “Brooklyn’s”, the woman in the rice cake story, which he testified he said to SC as a joke. He said he just misspoke when he left the “s” off of “Brooklyn”.

ANALYSIS

Impressions of SC’s Evidence

[158] Looking at SC’s evidence there is an evident disparity in how she presented her evidence. On one hand, she presented as an opinionated, articulate, and intelligent witness. Not at all submissive. While, on the other hand, logic and reason seemed to elude her in critical aspects of her testimony especially in important areas of credibility and where uncomplimentary images of her emerged. Important is the evidence she gave about the period before the alleged sexual assaults.

[159] I must make the point here that no one aspect of SC’s evidence leads me to my conclusion on the credibility of her allegations. It is the accumulation of her evidence in the context of all the evidence before the court that informs my disbelief of her allegations.

[160] On her memory, speaking strictly of the period before the alleged sexual assaults, SC had a good memory, for instance, of some trivial details of their very lengthy cellphone conversations. She also offered graphic descriptors of details of things she found unbecoming about Mr. Zigomanis. But she had a poor or non-existent memory of things and conversations that were unflattering to herself or that challenged her version of events.

[161] There were also hours-long gaps in details in her overall narrative of what happened during the hours before the alleged assaults. Intoxication is not an explanation. SC’s and Mr. Zigomanis’s evidence is in accord that SC drank very little wine over the 10 hours at the condo. She testified she did not consume any type of intoxicant before she arrived at his condo.

[162] I find it difficult to reconcile SC’s evidence that she was uncomfortable with Mr. Zigomanis’s manipulative and aggressive approach over the phone and the fact that despite this she decided in the late evening to go to his condo. Again, SC certainly did not strike me as a meek person. Quite the contrary.

[163] It is important to point out here that this is not a case where there is a question of a victim of sexual assault being cynically blamed for being so foolhardy to risk going to a stranger’s place late at night. This is because, as will be seen, my ultimate decision is that Mr. Zigomanis did not sexually assault SC.

[164] SC had an opportunity to change her mind when she arrived at the condo. On her evidence, the condo unit was dark, except for “the dozens” of lit candles, when she arrived which she described as bizarre, ritualistic. And Mr. Zigomanis did not come forward and greet her. SC could scarcely see him standing on the other side of the room. If these things are true, this should have been a big red flag. She could not tell what he looked like although she was able to describe him as “older”, “shrunken” with “poor posture”.

[165] Together with other aspects of SC’s account that I find questionable, I find equally incredible SC’s evidence that she had only “a gut feeling” and only realized in retrospect that she should not move further into the condo. SC’s decision to remain, I find, is one of the instances in which SC seemed to abandon her intelligence and reason. Or she simply was not telling the truth about her skepticism of Mr. Zigomanis and the circumstances she met at his condo. I think the latter is true.

[166] I believe Mr. Zigomanis that his condo was illuminated when SC arrived. I do not accept there were “dozens” of candles lit in the condo. But I rather believe Mr. Zigomanis’s evidence that he lit the 10 candles on his candelabra, a photo of which he presented in evidence. I also accept his evidence that there was additional lighting from the tea lights and stove light in the kitchen, the shower light from his bathroom, and the illumination from the spotlights outside the building that streamed through the windows of the condo.

[167] It does not make sense that Mr. Zigomanis would allow SC to come to his home and then try to hide from her. I accept he was standing on the patio to get some cool air after rushing to clean the condo for an unexpected visitor.

[168] What I see is not only did SC drag Mr. Zigomanis’s life into the criminal justice system with her allegations, she gratuitously attempted to portray him as possibly “having something wrong with him”, that “trying to sound smart”, “having bad posture”, as “ being weird”, “scary”, “shrunken”, “eclectic, “thug-like”, in sum, depicting him as a strange and spooky kind of guy, which, by the way, does not comport with my observations of his demeanor at trial.

Impressions of Mr. Zigomanis’s Evidence

[169] Mr. Zigomanis admitted that he entered misleading biographical information on his POF profile. He testified, as did SC, that before he met her, he admitted the truth about the misleading information. It makes sense that he did this when he realized she was coming to his condo that night. She would discover he did not have cats or children. While she might not discover his age and astrological sign, I believe he admitted the truth of those things too.

[170] Mr. Zigomanis explained that he put untrue information on his profile to prevent identity theft. I am not so sure about the validity of that explanation. I rather find, looking at his bold and confident presentation as a witness, that he embellished his profile to create a more expansive image of himself. I understand this is a common reality with internet dating. Whatever the reason for the misinformation, in the overall scheme of his evidence, I do not find this to have a material effect on Mr. Zigomanis’s credibility as a whole.

[171] I found Mr. Zigomanis at times to be overly repetitive and persistent in giving evidence in areas I cautioned him were not germane to the issues at trial. But I attribute that to his rather garrulous nature and to being unrepresented and understandably unfamiliar with the law of evidence and court procedure. This does not detract from his credibility. It is not hard to imagine Mr. Zigomanis felt like he was in the fight of his life to avoid penal consequences and the stigma attached to a sexual offender convicted of drugging a vulnerable woman he lured to his home over a dating site.

[172] I found Mr. Zigomanis had a remarkable memory for details of an incident that occurred four years ago. He testified that after he was arrested, he made detailed notes of his memories of what happened before, after, and during the incident. He said reviewing the notes multiple times assisted him in giving evidence at trial.

[173] I have no reason to disbelieve that. There were often months and weeks of delay between continuances on this trial. Mr. Zigomanis gave consistent evidence when his testimony from a previous sitting overlapped with a subsequent sitting. It is not controversial to say that some people are rewarded with exceptional graphic memories of experiences especially of things that are momentous in their lives such as being charged with a serious offence like sexual assault.

[174] It may be that Mr. Zigomanis filled in some blanks with details that were not exactly his memory from the past. Even if this were the case, when I view his evidence on a whole, in the totality of the evidence I received at trial, I find any occasions where Mr. Zigomanis might have augmented his evidence or was not entirely truthful did not overwhelm my overall favourable impression of his credibility.

[175] On the facts of who coaxed whom, or whose idea it was for SC to go Mr. Zigomanis’s condo, I accept that SC urged Mr. Zigomanis to allow this against his better judgment. He felt she was moving too fast. He wanted to get to know her better through phone calls or meetings over coffee. I believe his medical and physical limitations would make him reticent especially given the lateness of the hour and the romantic expectations SC might have. Mr. Zigomanis testified credibly about this.

[176] I do not accept SC’s evidence that Mr. Zigomanis was domineering and manipulative and overtook her will in conversations. My observation is that they had equally strong and commanding personalities. They were equally outspoken, articulate and confident as witnesses.

[177] There is some agreement between Mr. Zigomanis and SC. They agree about the nature of their connection as it developed over the phone in their initial conversations. They agree that on the whole, they enjoyed each other’s conversations over POF messages and on the phone before they met at his condo. They seemed to have similar senses of humour and tastes in some things and generally found each other amusing and witty.

[178] I was struck by how charitably Mr. Zigomanis spoke about SC. He was unrepresented so his account in-chief was not circumscribed by a lawyer to what would be relevant to talk about. And yet, Mr. Zigomanis did not rush to divulge the irrelevant, less than complimentary and unfortunate details SC confided in him that night about her life. He promised that during his testimony he would not make gratuitously disparaging remarks about her. And he kept to his word.

[179] This was despite the false allegations, the spectre of prison, the name-calling and insulting depictions he listened to her pour out in her testimony. Quite remarkably, Mr. Zigomanis responded with expressions of empathy and understanding of the sad and unfortunate experiences SC shared with him which he graciously did not share with the court. He even gave flattering testimony, complimenting her personality, her dancing, her looks. That strikes a chord in favour of his credibility and character and against SC’s uncharitable portrayals of him.

At the Condo

[180] I conclude looking at the evidence as a whole, for reasons I set out below, that I do not accept that Mr. Zigomanis sexually assaulted SC.

[181] In arriving at that determination, I am mindful of the cautions voiced by courts on the need to guard against stereotypic thinking in assessing the credibility of sexual assault victims. It is a well-entrenched precept that sexual assault victims must not be held up against an idealized standard of conduct. There is no sacrosanct rule on how such persons will conduct themselves. Courts have rejected, as impermissible stereotypical bias, adverse credibility findings based on such conduct as a failure to make a timely complaint, a failure to demonstrate avoidance behaviour or a change in behaviour. That conduct must not be the subject of any presumptive adverse inference: [R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at paras. 63 – 65, (S.C.C.)].

[182] As well, courts have recognized that victims of sexual trauma frequently encounter memory problems that affect their memories of details of the experience. Gaps in memory must not be presumed to be an indicator of a failure in credibility: [R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, at para. 29, (S.C.C.) and M. (K.) v. M. (H.), 1992 31 (SCC), [1992] 3 S.C.R. 6 (S.C.C.)].

[183] Since I do not find there was a sexual assault in this case my conclusions in otherwise prohibited areas are not the subject of stereotypical thinking. That is to say, the conclusions I draw, particularly on SC’s behaviour after the January 31^st encounter, such as her lack of detail about the evening, her delayed disclosure to the police, her delayed visit to her physician, her delay in reporting anal intercourse, her subsequent plan to meet up with Mr. Zigomanis, and her never raising the sexual assault with him, in the circumstances of this case, are permissible areas to address and, in the totality the evidence, only part of my overall assessment of her credibility.

[184] Following are my conclusions on SC’s testimony.

[185] SC was at the condo for some 10 hours, from 12:00 midnight to 10:00 a.m. on January 31^st /February 1^st. However, she offered what I saw as a scarcity of facts about what occurred while she was there.

[186] On her evidence, a red flag that ought reasonably to have signaled danger was SC’s claim that Mr. Zigomanis offered her a ready-poured glass of white wine. SC had an opportunity not to take the risk of consuming a drink from a stranger especially when she already had her suspicions. I do not think SC’s intelligence would have allowed her to drink that wine given her discomfort with Mr. Zigomanis’s alleged aggressive manipulation, the eerie darkness of his condo, and his reluctance to greet her at the door. I believe that Mr. Zigomanis invited SC to pour her own wine and that she went to the kitchen and did just that.

[187] SC’s evidence was that she stood at the door and did not enter the living area of the condo for an hour. She said she was uncomfortable about being there. She was not a captive in his condo. She was free to leave. The obvious question is, why would SC remain standing at the door for so long instead of leaving?

[188] SC indicated, as Mr. Zigomanis did, that he had furnished a charcuterie board of finger foods for them to enjoy and that they engaged in a conversation about the foods they liked and disliked. SC indicated she did look around the condo and comment on some of his décor. She also spoke of going to the garage with Mr. Zigomanis at his insistence to get his DMX CD. She said he insisted that she wear his shoes and take her wine with her. She also spoke of being paraded around the second floor of the building after coming up from the garage.

[189] I do not believe Mr. Zigomanis tried to force her to wear his shoes. Mr. Zigomanis’s feet, I am sure, are much larger than SC’s. It makes sense that he might ask her if she would like to wear flip-flops so she would not have to put on her boots. SC’s evidence makes no sense except as a further attempt to gratuitously add to the picture of Mr. Zigomanis being “weird” and “creepy”, a man, perhaps, capable of sexual assault. Nor do I believe Mr. Zigomanis forced her to take her wine to the garage, nor that he paraded her around the second floor at 2:00 a.m. Those things simply make no sense. Paraded her for whom at 2:00 a.m.? Mr. Zigomanis’s description of those events is more reasonable.

[190] It was after returning from the garage with the DMX CD and going to the washroom that SC said she lost control of herself and was sexually assaulted.

[191] SC’s evidence is that she walked out of the washroom in a strange unbalanced state and that she ended up naked in the bedroom unaware of how that happened. She said she quickly got dressed and lay on the couch. She next woke and found Mr. Zigomanis having non-consensual vaginal intercourse with her on the bed and later in the morning attempting non-consensual anal sex. She also said he forced her to perform fellatio and performed non-consensual oral sex on her.

[192] Mr. Zigomanis’s evidence was that a lot of things happened that consumed the time he was with her at his condo that did not include him sexually assaulting her.

[193] Before I move on, it is important to address an important aspect of Mr. Zigomanis’s defence - his physical and medical conditions.

[194] As noted earlier, he provided medical reports, an x-ray, and a recent photograph of his right leg as evidence of the surgery he underwent in December 2015. The surgery involved inserting hardware and left a prominent scar extending from his knee to his ankle, a swollen ankle, and a physically disfigured right leg. He underwent physiotherapy but said that in January 2017 and to the present, he suffers functional limitations to bending his leg and kneeling and a swollen and throbbing right ankle. I find no reason to disbelieve him. I accept that evidence and find those conditions could reasonably pose barriers to an intimate liaison with a woman.

[195] Mr. Zigomanis also provided medical evidence of a diagnosis and hospitalizations for C-Difficile in January 2016. The condition had cleared by July 2017, but he said he continued to suffer from unpredictable onsets of diarrhea. He testified he had a bout of diarrhea on the morning of January 31^st which understandably concerned him with the prospect of entertaining a woman the evening.

[196] Mr. Zigomanis also expressed some embarrassment to admit in a public forum to strangers that he also suffers from sexual impotence. I have no reason to doubt this although he provided no medical evidence of this condition. This would pose an obvious concern where there are romantic expectations.

[197] Mr. Zigomanis’s evidence was that he and SC had lengthy conversations and movements around the condo that consumed the time they were together on January 31^st/February 1^st. I find it difficult to accept that SC’s description of what occurred covered the 10 hours. There are major unaccounted for gaps in time even before her alleged departure from the washroom in a drugged state. SC was not intoxicated before the washroom episode because she had very little wine. So, unaccounted for gaps in time before the episode cannot be explained by intoxication. It makes more sense that a substantial part of the 10 hours was taken up with the types of actions and conversations described by Mr. Zigomanis.

[198] Given both Mr. Zigomanis’s and SC’s gifts of gab as demonstrated in their lengthy phone conversations before she arrived at the condo, it stands to reason that the lively conversations continued at the condo. Over the phone, they joked, talked about their POF profiles, spoke of common interests and personal tastes, and preferences in many areas of life. It makes sense that they would have continued with their conversations. It makes no sense that Mr. Zigomanis would remain at a distance from SC in the shadows for an hour after she arrived avoiding her, barely communicating with her.

[199] SC’s evidence is that she did not have an opportunity to see what Mr. Zigomanis looked like until they later went downstairs to the garage for the DMX CD because he had been hiding in the darkness. It was at that point that she said she knew she was not attracted to him. Among other concerns with this area of SC’s evidence, I question why she did not opt to leave at that point especially given the bizarre circumstances she said she walked in on.

[200] SC provided no context for the evidence about the DMX CD. That evidence seemed to come out of nowhere in her testimony. I think what makes sense is the context provided by Mr. Zigomanis that he and SC, among many topics in their lengthy conversations, compared musical tastes. Adding to the background is that Mr. Zigomanis played music throughout the night. He and SC danced to Mr. Zigomanis’s discomfort given his sore and swollen right ankle.

[201] Mr. Zigomanis and SC sat on the couch and talked at length comparing various music genres including rap music and DMX came up as a favourite of both of them. SC kissed him on the cheek a few times which worried Mr. Zigomanis because of his medical conditions. He felt she was moving too fast. I believe when Mr. Zigomanis said he did not have DMX music in his condo and told her he had a DMX CD in his car that they went to the garage to get it.

[202] When asked in cross-examination whether she danced with Mr. Zigomanis she responded she just had “a faint memory” of him “pulling on my arms”. SC had a small quantity of wine and yet she could not recall dancing when her memory before the alleged sexual assault was clear about many of the details she chose to recount. It was apparent that SC did not want to give the impression that she and Mr. Zigomanis enjoyed themselves during the evening. I find this just adds to the dubious quality of her account of what happened at the condo.

[203] In addition to talking about music, before and between dancing and walking together around the condo discussing some of its contents, I believe, as Mr. Zigomanis said, that he and SC spoke about their tastes in art and décor, about Mr. Zigomanis’s travel experiences and SC’s desire to travel, their favourite sports teams, features of the Queens Quay area, their backgrounds, recreational and sports activities and their favourite movies.

[204] Mr. Zigomanis said that he continued to be concerned throughout about the lateness of the hour and that SC had not prepared for her meeting. He was growing exhausted. But as it got later and later, he did not want to ask her to leave, to drive all the way to Oshawa. I believe that Mr. Zigomanis and SC spent hours in the living room and kitchen areas involved in the conversations and activities Mr. Zigomanis described. This occupied a major portion of their time.

[205] Mr. Zigomanis’s evidence is that they continued their discussions in the bedroom. I have no reason to doubt Mr. Zigomanis’s version of how it was that they ended up in the bedroom given my many misgivings about SC’s evidence.

[206] It is Mr. Zigomanis’s evidence that it was SC’s idea to go into the bedroom to lie on the bed and continue talking. Mr. Zigomanis initially told SC that if he laid on the bed, he would fall asleep. He said SC mocked him. I believe SC pressed him and he relented in joining her in the bedroom. He said he had trepidation that SC was moving too fast given his fears about his physical and sexual limitations.

[207] Important to my decision is that SC did not mention in her testimony seeing the manifestly visible disfiguration in Mr. Zigomanis’s leg and his swollen ankle. I find this notable given her flare for the colourful in otherwise invoking unflattering descriptors of Mr. Zigomanis. In any event, I accept as reasonable that his leg condition would prevent him from engaging in the forms of sexual activity SC described. This greatly adds to my doubt about the allegations.

[208] Compounding this is that I have no reason to disbelieve Mr. Zigomanis about being impotent which would present an obvious barrier to sexual activity. He was not at all enthusiastic about mentioning this in a public forum. I also have no reason to disbelieve that he feared an embarrassing bout of diarrhea. This is also not information one would normally rush to say in public forum. It is also believable that Mr. Zigomanis would not want to tell SC about his health issues given they had just met and he was hoping to initiate a relationship.

[209] I believe that SC initiated kisses and hugs on the couch and while dancing which Mr. Zigomanis grew nervous about because of his health. I find this is the extent of any activity that might be construed as having a sexual element to it.

[210] I believe that after talking for some time as daylight broke Mr. Zigomanis and SC retired back to the couch. SC refused breakfast and at about 10:00 a.m. she decided to leave. He accompanied her on the elevator down to the underground garage. I find the video recording of the area outside the elevator depicts what it appears to depict and that is that Mr. Zigomanis and SC were on friendly terms when they exited the elevator.

[211] Mr. Zigomanis had his hand on her shoulder as SC turned and openly smiled back at him. She was not rushing to get away from him. In context, this tells me that contrary to her evidence that the video shows her fear and Mr. Zigomanis’s control, it actually shows the opposite. SC seems quite pleased as she walked into the garage to her car.

After the Evening at the Condo

[212] Also, raising doubt about SC’s account is that on February 1^st after her work meeting, she called Mr. Zigomanis. They spoke on the phone for nearly an hour. After a few hours, they spoke again by cellphone. SC sent a text asking for his last name.

[213] I do not believe SC’s evidence that she called him because she did not know what had happened the night before and she hoped he would tell her. I do not accept that Mr. Zigomanis asked her to come back to his condo so he could make love to her. I believe his evidence that he had not slept, was very tired and reasonably did not want company or to go out.

[214] What is puzzling is why SC would be fearful of returning to his condo when her evidence was that she did not know what happened there. She said she called him to find this out.

[215] On cross-examination, SC was asked why she would contact someone who had sexually assaulted her. SC replied that she was just trying to “undo” what happened, “to stick up for myself” and not go to his place, “getting some of my power back.” This is not credible evidence since I do not believe she was sexually assaulted. This is not post-trauma sentiment.

[216] The telephone conversation moved to talk about going to a movie. SC said it was Mr. Zigomanis’s idea to go to the movie and she agreed to go only because of Mr. Zigomanis’s manipulative urging.

[217] I believe Mr. Zigomanis’s evidence that it was her idea to go to the show because she spoke at length at the condo about wanting to see La La Land, which is the movie she suggested they go to see. At 5:54 p.m., without warning, she announced to Mr. Zigomanis by text that she was on her way to Toronto to meet him for the movie. They continued talking on the phone for some time. He made a three-way call between them and Cineplex for which he produced the phone record.

[218] The conversation broke down when Mr. Zigomanis suggested they could use complimentary passes to go to Cineplex. SC testified she did not recall being on the phone with Cineplex which I find difficult to believe given her keen interest in movies and her detailed memory about other things. This is not a post-trauma memory issue but rather evidence that I find goes to her lack of credibility.

[219] Mr. Zigomanis’s evidence is that SC grew very angry at the idea of using complimentary passes on a first date. Eventually, the call which lasted over two hours ended at 8:08 p.m. and they never spoke on the phone again. I find it difficult to accept that SC would speak on the phone, especially for such a duration, with someone who had sexually assaulted her. I point out again, in the context of my other findings, that this is not post-trauma conduct but rather is further support for her not being a victim of sexual assault.

[220] Also fatal to SC’s credibility is her admission that at no point in any of their conversations did SC raise the sexual assaults with Mr. Zigomanis. Her explanation of this made no sense to me. She stated that she did not accuse him of sexual assault because she was afraid to. She also said she wanted his last name and for him to tell her what happened at the condo and she thought he would not give her this information if she raised the sexual assault.

[221] I cannot begin to unpack the illogic of that explanation. All I can reasonably conclude is that this is more evidence that her allegations against Mr. Zigomanis are false. This is not post- trauma conduct but rather is more support for my belief she was not sexually assaulted.

[222] On the issue of Mr. Zigomanis’s last name, I believe SC was shown his name on the charcuterie board and that he told her his last name more than once. I accept the possibility that she did not remember his last name. However, it is the reason she said she needed the name that casts doubt on her evidence. Her evidence was that she wanted the name so she could go to the police because she would be ashamed to report the sexual assault without the name of the man who attacked her. SC testified she did not realize until her police interview that she could have obtained his last name from the information she already had.

[223] I find that rather absurd. SC is intelligent enough to know that she and the police could easily obtain his last name from his first name, address, suite number, from the concierge. SC’s evidence in this area also adds to my disbelief of her allegations.

[224] After waiting five days until February 5^th, Mr. Zigomanis left four voicemails on SC’s phone beseeching her to call him back, complimenting her personality, telling her they were suited for each other and that she should give them a chance. I find this is not the behaviour of a man who had sexually assaulted a woman in the demeaning and aggressive manner SC describes. Common sense dictates that a man in that situation would more likely try to avoid the woman.

[225] Regarding the telephone messages, I listened to them. I did hear Mr. Zigomanis say he just got back to Toronto “from Brooklyn”. He contended he meant Brooklyn, the woman he met. I do not believe in the context of those messages that he was referring to the Brooklyn of rice cakes fame. Perhaps, he was trying to impress SC about travelling to New York. Whatever the reason for the misrepresentation, I do not find it has any impact on Mr. Zigomanis’s overall credibility on the material aspects of his evidence.

[226] Adding to my doubt about SC’s allegations is that it was not until trial that she first mentioned Mr. Zigomanis attempting anal sex. She did not recall this. Again, I raise this from the standpoint that there was no sexual assault. She did not report that to the police during her interview on September 7^th because it did not happen. So, this is not a post-trauma memory or an embarrassment issue. I think she raised this further more intrusive form of abuse at trial as a way to enhance the severity of her false claim of sexual assault.

CONCLUSION

[227] I believe what I have before me is a situation where a man and woman connected as strangers on a dating site and ended up spending 10 hours together in the man’s condo suite. A lonely man looking for companionship. Perhaps, a woman looking for a relationship to enhance her material wellbeing. They told widely divergent accounts of what happened while in each other’s company at the condo and during communications after their encounter. The question before me was whether SC’s version of the rendezvous alleging two sexual assaults, considered in the context of the evidence on a whole, proved beyond a reasonable doubt that Mr. Zigomanis committed the offences.

[228] I find the Crown has not been able to assemble facts to satisfy its burden. There are areas in SC’s evidence that raise significant credibility issues and aspects in Mr. Zigomanis’s evidence that raise substantial facts that point away from guilt.

[229] Motive to fabricate does not have to be proven. A motive can sometimes help with an understanding of what has played out before the court.

[230] Were I to venture to assign a motive for SC making false allegations, I would rest on my belief that SC had higher expectations of Mr. Zigomanis and his lifestyle than he delivered. Her expectation was fuelled in part by the rather elevated image he created of himself in his profile and her mistaken assumptions about his financial status which she drew from his confident manner and the picturesque lakeside condo complex where he lived. She was also impressed by his intelligence and their common interests.

[231] It seems she was disappointed and slighted by her unsatisfactory encounter with Mr. Zigomanis. I think she was further rebuffed by his idea of using free tickets to go to the show on their first date instead of spending money on her. By any measure, it is an extreme reaction to lodge such devastating allegations against someone for those reasons. But this may be what happened in this case. When all is said I am certain of one thing. SC concocted an elaborate web of deceit against a man she did not know, throwing his life onto a protracted path of despair and turmoil as he anxiously awaited his fate in this trial.

[232] I pause to also comment on Mr. Zigomanis’s evidence about SC’s “freak out” episodes over the rice cakes, over Brooklyn and his ex-girlfriend. There is no question that if true this would, to say the least, be curious behaviour by a woman who had just met a man over the internet.

[233] I must say however that I found Mr. Zigomanis testified credibly and consistently about this. I look at his evidence in this area from the perspective of his overall posture toward SC during his testimony. His practice was to steer away from slights and negative portrayals in response to her insults. From that viewpoint, I can see no good or worthwhile purpose for Mr. Zigomanis to concoct such extraordinary scenarios if they did not occur. As strange as it might seem, SC’s anger about other women in Mr. Zigomanis’s life may have added impetus to her decision to accuse him of sexual assault. This may well be one of those situations where truth is stranger than fiction.

[234] Mr. Zigomanis represented himself in this difficult proceeding. If this gives him any solace, I think he did a commendable job presenting his defence by himself. He experienced several bouts with emergency hospital attendances which delayed the trial but everyone persevered and the trial was finally completed. The trial proceeded over some 24 days with multiple adjournments and spanned over eight months. Under the conditions of the pandemic, the trial proceeded entirely remotely by Zoom. This presented many technological challenges especially for a self-represented litigant participating from his home.

[235] I cannot close without extending much gratitude to Crown Counsel, Monica Gharabaway and D.C. Jason Ferreira, for Crown counsel’s fair-minded generosity in assisting Mr. Zigomanis by sharing all of his documentary evidence with the court from her office by Zoom, and for the officer’s efficient assistance with facilitating the gathering of considerable evidence during the trial.

VERDICT

In the result, I find George Zigomanis not guilty on count 1 and count 2 on the indictment and acquittals will be entered accordingly.

Allen J.

Released: July 21, 2021

COURT FILE NO.: CR-18-7000424-0000

DATE: 20210721

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GEORGE ZIGOMANIS

Accused

REASONS FOR JUDGMENT

Allen J.

Released: July 21, 2021