Her Majesty the Queen v. Shannon Rodrigues, 2021 ONSC 8169

COURT FILE NO.: CR-21-10000138-0000

DATE: 20211210

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHANNON RODRIGUES

Accused

Amanda Nash, for the Crown

Ryan Handlarski, for the Accused

HEARD: July 5 – July 9, July 14, 2021; September 8 and 9, October 15 and December 10, 2021.

Allen J.

REASONS FOR JUDGMENT

PUBLICATION RESTRICTION NOTICE

An Order restricting publication in this proceeding was made under section 486.4 of the Criminal Code. Any information that could identify the Complainant shall not be published in any document, broadcast or transmission.

PRE-TRIAL APPLICATIONS

1The accused, Shannon Rodrigues, is charged under s. 271 of the Criminal Code with one count of sexual assault on MS. It is alleged that Mr. Rodrigues sexually assaulted MS in the early hours of April 30, 2016 at Mr. Rodrigues’s friend’s, ST’s apartment at 69 Lynn Williams St., in Liberty Village, an apartment building community in Toronto. MS reported the sexual assault to the police on May 7, 2020.

2The trial commenced without the court being aware there were admissibility issues to be decided. No materials had been filed. It came to be that the parties had believed the admissibility issues were on consent. There are several issues. To avoid a lengthy adjournment, I requested the parties file materials and I heard the applications on the second morning of the trial. I made brief determinations with reasons to follow.

Prior Consistent Statements

3The Crown and the defence both brought applications on prior consistent statements.

4Prior consistent statements are a form of hearsay and for that reason are unreliable. As such, prior consistent statements are presumptively inadmissible. They cannot be admitted for the truth of their contents. Such statements are a form of self-serving oath-helping that have no value to the evidence. The danger in such evidence is that it is prone to the inference of trustworthiness for being consistently repeated: R v Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para 36, (S.C.C.); R v Khan, 2017 ONCA 114, 2017, 136 O.R. (3d) 520, at para. 41, (Ont. C.A.); aff’d 1990 77 (S.C.C.), [1990]. 2 S.C.R. 531(S.C.C.)

5An exception to the admissibility of a prior consistent statement is in its use to rebut an allegation of recent fabrication. A prior consistent statement may also be admitted as an exception when advanced as narrative or evidence of a person’s mind frame or emotional state following an incident: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5 – 7, (S.C.C.).

6The Crown seeks admissibility of two statements by MS, one to ST and the other to DM made immediately following the alleged sexual assault. Both persons were at the apartment the night the incident occurred but did not witness it. Fuller details related to the circumstances of the statements are set out below in the body of my decision.

7In the circumstances, I accept the statements for the fact they were made and not for the truth of their contents. The fact that the statements were made close in time to the alleged sexual assault rendered MS’s conduct in making them a natural part of her narrative. For the same reason, I admit the statements as evidence reflective of MS’s state of mind at the time she made them.

8The defence seeks admissibility of a prior consistent statement by Mr. Rodrigues as a spontaneous statement made upon arrest or in response to an allegation. The Crown did not contest this application.

9A prior consistent statement admitted under that exception can be used for showing the accused’s reaction when first confronted or arrested: R. v. Edgar, 2010 ONCA 529, at para. 41, (Ont. C.A.). The spontaneity of the reaction lends credibility to the accused’s denial because of the restricted opportunity for fabrication. The spontaneity of an accused’s statement gives it probative value and justifies admission on the view that a spontaneous statement is more likely to be a true reflection of the individual’s honest reaction to the allegation: R. v. Liard, 2015 ONCA 414, at para. 62, (Ont. C.A.). The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent: [R. v. Khan, at p. 207]

10The evidence the defence seeks to admit is statements Mr. Rodrigues made to ST and OC after being told of MS’s accusation of him being handsy with her and making her uncomfortable. ST and OC were also present but not witnesses to the incident.

11Mr. Rodrigues instantly denied the allegation to ST in the presence of OC at the apartment. OC saw confusion and anger in Mr. Rodrigues’s reaction. Shortly after leaving the apartment, during a 25-minute drive to Oakville in OC’s car, Mr. Rodrigues again, confused and angry, after thinking over the evening, again denied he engaged in the conduct he was accused of.

12I admit the statements Mr. Rodrigues made to ST and OC, not for the truth of their contents, but rather as evidence of Mr. Rodrigues’s spontaneous emotional denial in response to the accusation. I find Mr. Rodrigues’s statement to OC in the car, while not strictly contemporaneous, was a continuation of the concern expressed in the spontaneous statement he made to ST at the condo.

Prior Discreditable Conduct

13There is a further application by the Crown to admit evidence of prior discreditable conduct by Mr. Rodrigues that the Crown submits was of a sexual nature.

14This evidence is presumptively inadmissible as tending to show a disposition or propensity to commit the offence alleged. To be permissible the prior conduct must be so similar in nature to the offence before the court as to assist with filling a gap in proof: R. v. Handy, 2002 SCC 56, [2002] 2 SCR 908, at para. 91, (S.C.C.). Otherwise, the evidence may lead to biased reasoning against the accused. The danger is that the prejudicial effect of this evidence outweighs its probative value: R. v. Handy, at para. 134. It is the Crown’s burden to show the prior conduct is sufficiently similar to the offence alleged such that it has probative value in relation to the allegation before the court.

15The prior conduct involves Mr. Rodrigues placing his arm on DM’s waist while they were sleeping beside each other with others on a sofa at ST’s apartment. Further details of the incident are set out in my decision.

16I find that the prior conduct on its face might be interpreted as prior discreditable conduct. However, looked at closely the conduct related to DM is in no material way similar to the conduct alleged by MS. MS alleges that Mr. Rodrigues unzipped and pulled down his pants and grasped MS’s hand while she slept and moved it up and down on his erect penis.

17I find the Crown did not discharge its burden to show that the prior conduct evidence is so compelling in its similarity that it should be admitted as disposition evidence. I admit the evidence only as DM’s part of the narrative of what occurred at ST’s apartment that evening.

A MATTER IN THIS CASE

18There is an issue in this case about an undated, unsigned typewritten letter Mr. Rodrigues received on March 5, 2021at his home.

19The sender refers to the criminal case against Mr. Rodrigues and demands $25,000.00 in exchange for the sender refusing to testify against him. The letter states in part, “msg me at ms______ at ig”. I placed the blank space after the “s” in place of the remainder of the letters in the complainant’s surname. At trial, MS confirmed this to be her Instagram handle and that “ig” is a short form for Instagram. MS unequivocally denies she was the author of that letter and denies sending it.

BACKGROUNDS OF TRIAL WITNESSES

MS

20MS was age 31 at the time of trial. She attended Wilfrid Laurier University, in Waterloo, Ontario where she studied psychology and political science. She completed four years of a five-year program. She then attended George Brown College in Toronto where she studied legal office administration. She is currently employed at a retirement home providing for the daily needs of residents. In April 2016, she was employed at Eaton Centre at American Eagle, a clothing retail store.

21Defence counsel cross-examined MS about the circumstances of her life before she made the allegation against Mr. Rodrigues, particularly centering on her employment and financial status. The defence raised that line of questioning to establish a motive to extort Mr. Rodrigues.

22MS testified that in April 2016 she was employed at American Eagle earning about $45,000.00 per year. Defence counsel put to her that just before she went to the police, she filed a lawsuit against Sun Life Assurance Company for long-term employment disability benefits and that she was on sick leave in February 2020 when she commenced the lawsuit. MS had received disability benefits for a period before they were terminated.

23MS first tried to avoid admitting she sued the insurance company. She tried to limit or frame her involvement with the insurance company to just talks to mediate the issue of benefit entitlement. After strenuous questioning about this, she eventually conceded that she has sued Sun Life.

24On further cross-examination, MS admitted she had received no income from February 2019 to February 2020 and that this continued after she filed the lawsuit up to May 2020 when she made the allegation against Mr. Rodrigues. Defence counsel put to MS that she was in financial need when she went to the police, that she had received no income for 16 months.

25MS denied this insisting her financial circumstances had nothing to do with her complaint to the police. She strongly denied the suggestion that she made the complaint with a plan to extort money.

26Defence counsel also put to MS that she had student debt when she made the complaint because she had attended Wilfrid Laurier University for four years and attended George Brown College thereafter. Counsel asked whether she owed $25,000.00, the amount demanded in the March 5, 2021 letter, which she denied. MS indicated she had been paying her student debt by working throughout her attendance at Wilfrid Laurier and that she paid out-of-pocket for attendance at George Brown.

27Defence counsel then asked MS how much she owed in student debt. She indicated she did not know; she did not keep track. When pressed, she estimated the debt might be between $10,000.00 and $14,000.00. She repeated that she knew nothing about the letter. She testified she learned about it from Crown counsel.

28MS testified she was living with her sister in Orillia continuously from November 2019 and in February/March 2021 when the March 5, 2021 letter was mailed to Mr. Rodrigues. She moved to Orillia in November 2019 to take care of her sister’s children. She moved from there in early May 2021 and currently lives in Chesley, Ontario.

Mr. Rodrigues

29Mr. Rodrigues was age 30 at the time of trial. He was in medical school when the alleged incident occurred. He started medical school at McMaster University in Hamilton, Ontario in 2013 and graduated in 2017. After taking a year off, Mr. Rodrigues entered the residency program at the University of Western Ontario in London, Ontario.

30Mr. Rodrigues testified that April 29, 2016 was a very memorable day for him. That day he had an exit interview at the end of his anesthesiology rotation which led to a positive assessment of his performance and a change in his plans for his medical career. His original plan was to practice family medicine. In his fourth year, he changed his specialization to the much-coveted and competitive area of anesthesiology. This required being successful in changing his electives late in the program and being accepted into that area of medicine. Memories of the interview and what happened later that day and evening, he said, have remained clear in his mind.

31Mr. Rodrigues was accepted into the anesthesiology residency program at McMaster University. At the time of trial, he was in the fourth year of a five-year residency which he will complete in the summer of 2022.

32Mr. Rodrigues testified that given where he stood in his career and his excitement at the prospect of being accepted into his desired area of specialization, he would never do anything so detrimental to his career as to sexually assault a vulnerable sleeping woman. He insisted he would never be so foolish as to unzip his pants and expose his erect penis in close quarters with others who could easily witness this.

33Mr. Rodrigues stated that if convicted, he will not be able to practise medicine, especially if convicted of a serious crime like sexual assault. He indicated that a criminal charge alone is detrimental to his career. He indicated there is an entry on the public register on the College of Physicians and Surgeons (“the CPSO”) website, the governing body for the medical profession in Ontario, that cautions that Mr. Rodrigues is charged with sexual assault. Members of the general public can access this information.

DM, OC and RK

34DM, who testified for the Crown, was age 29 at the time of trial. She obtained a Bachelor of Arts. At the time of trial, she worked as an education experience coordinator at Brain Station, an alternative school in Toronto. In April 2016 at the time of the incident, she worked at Vice Media.

35OC, called by the defence, was 31 years of age at the time of trial. He works as a project manager, and as Mr. Rodrigues stated, has been Mr. Rodrigues’s friend for ten years.

36RK, also called by the defence, was 30 years old at trial. He is employed with the financial department of Hello Fresh, a meal delivery company.

BEFORE THE INCIDENT

37On the evening of April 29th, Mr. Rodrigues, ST and OC met at ST’s apartment. Mr. Rodrigues and OC arrived together in OC’s car between 8:30 and 9:00 that evening. They stayed at the apartment chatting and drinking before they left for a bar in downtown Toronto. Mr. Rodrigues drank about one or two beers at the apartment.

38The three of them left the apartment at about 10:00 p.m. to 10:30 p.m. by taxi or Uber. They met another friend, Karim Khalil, at the Ballroom bar where they stayed for about one-and-a-half to two hours. Mr. Rodrigues bought a round of beers. He believes he drank two beers at that bar. The four men then went to another bar near Liberty Village called the Local where they stayed for about one-and-a-half to two hours where Mr. Rodrigues drank one or two more beers. Mr. Rodrigues, ST and OC then walked to a shawarma take-out restaurant in Liberty Village where OC bought food for the three of them.

39Mr. Rodrigues produced his Visa credit card bills for the Ballroom and the Local that show charges of $27.60 and $37.30 respectively. His evidence is that the bills indicate he bought a round of drinks at each bar amounting to three or four drinks at each bar. He estimated that he drank altogether two to four beers at the bars.

40The three returned to ST’s condo.

41OC confirmed Mr. Rodrigues’s evidence that they arrived together at ST’s condo at about 8:00 p.m. He estimated that he drank about two to three beers at the condo before they left for a bar in downtown Toronto. He stated that after the passage of five years, he did not recall the name of the bar and did not have Mr. Rodrigues’s recollection that they went to the second bar in Liberty Village. He did not have a credit card bill to prompt his memory because he did not pay for drinks. He estimated he had one to two beers. However, he presented his Visa bill which shows that he purchased shawarma in Liberty Village and ordered pizza.

42The three men arrived at ST’s condo at about 2:00 a.m. to 2:30 a.m. The plan was for OC to leave his car at ST’s and for Mr. Rodrigues and OC to crash at ST’s. Mr. Rodrigues and OC testified it was a common practice for ST’s friends to crash at his place after a night of drinking. Mr. Rodrigues indicated they had done that about 20 to 30 times. Once at the apartment they played music and chatted.

43ST indicated that shortly after they arrived at his apartment he was texting with MS and she said she and her roommate, DM, were interested in coming over to ST’s. ST and MS were known to have an on-again, off-again romantic relationship. It is not clear the status of their relationship on April 29th/30th, but they were still friends. MS and DM lived within a very short walking distance in the same apartment building complex in Liberty Village.

44MS testified she and DM had hung out at their apartment with other friends from about 9:00 p.m. to about 2:00 a.m. MS testified she had about two or three glasses of wine before she went to ST’s. She indicated she was not intoxicated, just “a little buzzed”. MS had been texting ST throughout the evening. She and DM decided around 2 a.m. to go to ST’s. DM stated that she did not know how much she drank before she arrived at ST’s. But she knew she was drunk. When MS and DM arrived, ST, OC and Mr. Rodrigues were hanging out. Casual chat and music at ST’s went on for one to two hours.

45Mr. Rodrigues’s view of his level of intoxication was also that he was “buzzed”. Both MS and DM believed they did not drink any more alcohol at ST’s. DM’s view was that MS was drunk, but not “crazy drunk” and that Mr. Rodrigues was at the higher end of the intoxication spectrum, but “not completely intoxicated”. MS testified she thought Mr. Rodrigues appeared “a little drunk”.

46OC said he did not have any drinks after returning to ST’s. OC’s evidence was that he was not intoxicated and did not believe Mr. Rodrigues was either given they drank over a five to six-hour period and had eaten.

47The bottom line on MS’s and Mr. Rodrigues’s states appears to be that both were somewhat inebriated but not totally drunk.

RELATIONSHIPS AMONG THE PERSONS INVOLVED

48The nature of the five people’s relationships is a factor in this case.

49MS first met ST, DM and OC at the Osheaga music festival in Montreal in the summer of 2015. She met Mr. Rodrigues for the first time as part of that group at the festival. MS indicated she was only a casual acquaintance of Mr. Rodrigues and had not had any direct conversations with him before April 30, 2016.

50DM had met MS in passing at the festival. They were only casual acquaintances before April 2016 when she needed a roommate and invited MS to move in with her. MS and DM had a falling out, for reasons unrelated to the matter before the court, and MS moved out of the apartment in April 2017. DM has had no contact with MS since then.

51DM knew Mr. Rodrigues because he had been a best friend of her husband, RK for about 10 years. She first met RK in 2013 and married him in 2019. It was in 2013 that she met Mr. Rodrigues. Her husband and Mr. Rodrigues remain friends until the present. RK testified he met MS at the 2015 Osheaga Festival. RK testified he remained connected with MS for about two years until 2017.

52Mr. Rodrigues has been friends with ST and OC for about ten years. They have gotten together as they did on April 29th many times over the years. OC was acquainted with MS, as they had mutual friends, but he was not close to her. Mr. Rodrigues indicated he might have run into her a few times at previous gatherings. But he had not spoken to her before April 30th.

THE INCIDENT

The Sleeping Arrangement

53The sleeping arrangement in ST’s apartment is also an important factor.

54The apartment is approximately 500 to 600 sq. ft. It is a junior one-bedroom comprising a living area combined with the dining area. There is a kitchen off the dining area, a hallway and a bathroom. The bedroom is adjacent to the living area separated by a frosted sliding glass door. The living area has an L-shaped sectional sofa that can be re-arranged into various configurations. The left side of the sofa is about three to four ft. from the bedroom area. There was an ottoman or coffee table in front of the sofa with a television against the wall behind the ottoman/coffee table.

55MS and DM decided not to return to their apartment but rather to crash at ST’s. Mr. Rodrigues and OC had previously planned to sleep over at ST’s.

56MS’s evidence was that everyone except ST fell asleep on the sofa in the same spots where they were sitting and chatting, OC falling asleep first. MS’s evidence was that she fell asleep on the left side of the sofa closest to the bedroom; Mr. Rodrigues fell asleep next to her on her right; DM to the right of him; and OC fell asleep furthest to the right, next to the windows.

57MS testified that the sofa remained in the L-shape and that OC, who is 6 ft. 5 in. tall, slept on the area of the sofa that protruded forward into the L-shape. Her evidence was that everyone else slept basically sitting up to OC’s left. MS was shown a photo of the sofa reconfigured into a rectangular shape. She denied that the sofa was arranged that way for the four to sleep.

58Mr. Rodrigues’s, DM’s and OC’s evidence concurred on the configuration of the sofa at the time the four fell asleep.

59All three were familiar with the sofa being re-arranged for people to sleep over. They testified that on April 30th the sofa was reconfigured to the rectangular shape to allow room for the four to sleep. Mr. Rodrigues and OC testified that to avoid travelling back to Oakville after a night out, they had on many occasions slept side-by-side on the rectangular-shaped sofa when they crashed at the apartment.

60Mr. Rodrigues, OC and DM testified that because of OC’s height, the optimal way for him to fit on the sofa to sleep had been for the sofa to be in the rectangular configuration allowing him to stretch out along the back of the sofa with his head toward the windows and his feet toward the bedroom. That way only his feet dangled over the edge of the sofa. DM’s evidence about the sleeping arrangements conformed to that of Mr. Rodrigues and OC. They testified everyone slept on the sofa in a rectangular configuration with their heads toward the windows. OC was at the back of the sofa, with DM next to him; Mr. Rodrigues, next to DM; with MS on Mr. Rodrigues’s other side at the edge of the sofa closest to the television.

61MS’s evidence accords with that of Mr. Rodrigues and DM’s only in terms of the order of the four persons’ places on the sofa but not in terms of the sofa configuration or the physical postures of the four on the sofa.

Accounts of What Occurred at the Apartment

MS’s Account

62MS’s evidence is that she fell asleep sitting up leaning a little to her left side facing toward the other people on the sofa. Her left hand was beneath her body. She believes she fell asleep shortly after OC fell asleep. She testified she was awakened at about 5:00 a.m. as it was getting light out.

63MS was sleeping to Mr. Rodrigues’s left facing him. She woke up to her hand being used on Mr. Rodrigues’s penis. He was holding his right hand on top of hers and moving her hand up and down on his erect penis. When she woke, she saw his pants unzipped and his pants completely pulled down. He was on his back mostly sitting up on the sofa beside her. MS testified they said nothing to each other.

64MS stated that she pulled her hand away and rolled over to face the bedroom to her left. Her evidence is that after she rolled over, Mr. Rodrigues moved closer to her and began cuddling up to her, and continued to grab a hold of her left hand. He was trying to use her left hand on his penis. She said he did not succeed because she got off the sofa. She went to the washroom to wash her hands. She said he did not ejaculate. MS noticed that everyone else appeared to be asleep.

65MS then went into ST’s bedroom to tell him what happened. She said she needed to talk to a friend. She testified that she told ST all of the details of what Mr. Rodrigues did. As discussed earlier, this is a prior consistent statement that I accept as part of the chronology of what occurred and as evidence of MS’s frame of mind after the incident.

66MS stated that she left the apartment with DM at about 6:30 a.m., ten to 15 minutes after speaking to ST. This is contrary to DM’s evidence, which itself was not specific, that they left between 8:00 a.m. and 12:00 p.m., and contrary to Mr. Rodrigues’s and OC’s testimonies, that they left just after 9:00 a.m.

67MS and DM walked to their apartment. MS testified she also gave DM the details of what happened. This too is a prior consistent statement accepted as narrative of the chronology of events and evidence of MS’s state of mind.

68MS’s account of what she told DM is contrary to DM’s evidence that MS only told her that Mr. Rodrigues tried to cuddle up to her and it made her uncomfortable. DM was not certain whether MS told her Mr. Rodrigues was “handsy” with her. According to DM, MS did not go into any details with her. DM further testified that she told MS that Mr. Rodrigues had tried something similar with her that night and then she laughed and told MS it was not a big deal.

69On re-examination, Crown counsel sought to admit e-mails that passed between MS and ST around noon of April 30th. There were two purposes for this request: to rebut the allegation of recent fabrication and to challenge the suggestion Crown counsel submits was implicit in defence counsel’s cross-examination that MS’s allegation had changed from claiming Mr. Rodrigues was handsy with her to that he forced her to do a hand job.

70I denied the Crown’s motion. The defence did not advance an allegation of recent fabrication. To contest that would not be a use to which the emails could be put. Further, the defence did not make the suggestion through his cross-examination that MS had changed her allegation. He did not raise that question with her. It was in the record before the court that other witnesses had indicated that on April 30th MS had complained that Mr. Rodrigues was handsy with her. Questions with respect to that evidence were appropriately put to MS on cross-examination.

71MS testified she never spoke to Mr. Rodrigues after April 30th.

Mr. Rodrigues’s, DM’s and OC’s Accounts

72I allowed DM’s evidence about what happened between Mr. Rodrigues and her for the purposes of narrative and chronology and not against Mr. Rodrigues as propensity or discreditable conduct evidence.

73OC testified that after he fell asleep, he did not hear or see anything. The next thing he recalled is waking up at about 8:30 a.m. and observing that MS and DM had left the condo. He recounted that with the four sleeping on the sofa, it was uncomfortable because they were squeezed together shoulder-to-shoulder.

74Mr. Rodrigues testified that it was either he or DM who rearranged the sofa into the rectangular shape because they had done that previously. It is an easy thing to do.

75Mr. Rodrigues’s evidence was that when all four of them were lying down, they were tightly squeezed. He was very uncomfortable. He said there would be less room if anyone slept on their backs, shoulder-to-shoulder than if people slept on their sides. He decided to sleep on his right side, facing DM, whom he knew, rather than face MS, whom he did not know.

76DM testified that Mr. Rodrigues moved in close to her and tried to cuddle her. She was on her side facing OC. She stated Mr. Rodrigues placed his hand at her waist and hip area. She said she was not comfortable with that. She moved away and pushed him off. She stated that he did not touch her again for the rest of the night.

77Again, I do not accept DM’s evidence of Mr. Rodrigues’s conduct in this area as prior discreditable conduct. But rather admit it as a part of DM’s narrative about the evening.

78Mr. Rodrigues explained that it was difficult to know where to place his arms when sleeping on his side close to DM. He conceded that he put his arm around DM, and she brushed it off. He said he then turned over on his left side facing MS who was facing away from him. He stated that he fell asleep within ten minutes of turning over. Within minutes of falling asleep, he felt MS leave the sofa. He was not aware of where she went.

79As noted earlier, Mr. Rodrigues’s evidence is that after MS left the sofa, OC, DM and he remained on the sofa until about 9:00 a.m. Within 15 minutes of them waking, DM and MS left the apartment, again, contrary to MS’s evidence that she and DM departed at 6:30 a.m.

80As referred to above, Mr. Rodrigues made utterances to ST and OC in which he expressed surprise and denied being handsy with MS. I do not accept the utterances for the truth but rather as spontaneous expressions of Mr. Rodrigues’s state of mind at the time.

81Minutes after the two women left, ST came out of his bedroom, and similar to DM’s evidence, ST disclosed that MS had told him that Mr. Rodrigues had been “handsy” with her and made her feel uncomfortable. Mr. Rodrigues testified that “handsy” was the precise word ST used. He replied that it “absolutely did not happen”, and he did not know what ST was talking about. According to Mr. Rodrigues, ST did not tell him when, during the evening or under what circumstances, he was alleged to have been “handsy” with MS.

82Mr. Rodrigues had no idea that the accusation referred to something that is alleged to have happened when they were asleep on the sofa. Mr. Rodrigues testified that he would not define a “hand job” and taking advantage of a woman when she is sleeping as simply being “handsy”.

83OC was present. Mr. Rodrigues looked at OC and OC shrugged his shoulders. OC testified he heard ST tell Mr. Rodrigues, “M_______S______ claimed you were handsy last night” and heard Mr. Rodrigues immediately say, “No”. Mr. Rodrigues appeared to OC to be confused and surprised.

84Mr. Rodrigues and OC left the apartment to return to Oakville in OC’s car at about 9:30 a.m., moments after the comment by ST. OC confirmed Mr. Rodrigues’s evidence that after he woke up at around 8:30 a.m., ST left his room and told Mr. Rodrigues that MS had told him Mr. Rodrigues had been handsy with her. Mr. Rodrigues heard this, as OC recounts, Mr. Rodrigues looked puzzled and confused.

85Like Mr. Rodrigues’s evidence, OC testified that during their ride back to Oakville, Mr. Rodrigues was confused about what MS was talking about and why she would make such an allegation. Both OC and Mr. Rodrigues indicated they did not know when during the evening Mr. Rodrigues was alleged to have committed that act. OC never heard about the handsy allegation again.

POST-INCIDENT

Osheaga 2016

86Mr. Rodrigues and MS went to the Osheaga festival in Montreal during the civic holiday weekend in August 2016, which was four months after the incident. DM did not attend. It is the defence’s position that MS continued to associate socially with Mr. Rodrigues after the incident and was in his company at the festival. This, the defence contends, is evidence that she was not trying to avoid him after the incident and that she is not being truthful when she says otherwise.

87Mr. Rodrigues’s and MS’s evidence diverge on the extent to which they were in each other’s company on the festival weekend.

88MS testified she attended with her friend group. She drove up with friends and stayed at an Airbnb they rented. Her group did not include Mr. Rodrigues or anyone from his friend group. Mr. Rodrigues’s friend group drove up separately and rented a separate Airbnb. Mr. Rodrigues was in the same friend group with ST, OC, RK (DM’s then estranged boyfriend who became her husband). In terms of her relationship with ST at the time, MS indicated she continued to hang out with him as friends. She said she had spoken to ST about the festival before they attended. But said she did not arrange meeting up with Mr. Rodrigues at the festival.

89There are several photos tendered in evidence that depict Mr. Rodrigues, ST and MS at the festival among a crowd of many other young people. In each photo taken in evidence, MS is not sitting with Mr. Rodrigues. But is rather a few feet from where he is situated.

90MS contended that she just “ran into” Mr. Rodrigues at the festival but did not speak to him. She believed they avoided each other. Thousands of people attend the festival. There are multiple stages set up for musical performances for people to choose from.

91Defence counsel showed photos of groups of attendees where Mr. Rodrigues and MS were depicted in the crowd. In each photo, they were sitting several feet apart which, in MS’s view, supports her evidence that she was not in direct company with Mr. Rodrigues. RK testified he took photos at the festival and MS’s presence with Mr. Rodrigues and his friends is depicted in the photos.

92MS insisted there were no plans for the two friend groups to get together. She said she only made plans to meet with ST. She agreed that she went to a party on the second night at Mr. Rodrigues’s Airbnb and that she spent the night in a room with ST. But she did not believe Mr. Rodrigues was there that evening. She also said she did not believe Mr. Rodrigues was present when the groups went to bars in the evenings.

93Mr. Rodrigues gives a different account. OC’s and RK’s evidence also differs from that of MS.

94Mr. Rodrigues’s view, like the others, was that MS and ST were dating at the time of the 2016 festival. He said he fully expected to see MS during the weekend because ST and MS were texting and planning to meet.

95At the festival was the first time Mr. Rodrigues had seen MS since the April 30th gathering. Mr. Rodrigues dealt with MS’s handsy allegation by deciding to look past it. He said it was awkward because ST was one of his best friends and he was dating MS. He did not want to ruin the weekend by raising that issue. OC had not heard about the handsy accusation since April 30th and had no expectation of and saw no awkwardness between Mr. Rodrigues and MS.

96At that time, of course, the more serious details of the allegation MS brought to the police were not known. Mr. Rodrigues asserted that if he had known the precise details of the allegation, he would not have wanted to be anywhere near MS.

97Mr. Rodrigues’s, OC’s and RK’s evidence is that MS did not try to avoid Mr. Rodrigues. Each contend that MS spent nearly the entire weekend together with her friend group in the company of Mr. Rodrigues’s friend group which included the three men and others. The two friend groups stuck together the entire weekend. MS went to Mr. Rodrigues’s Airbnb with her friend group. Her friend group went to bars with Mr. Rodrigues’s friend group. Consistent with MS, Mr. Rodrigues said MS spent a night with ST at his Airbnb. Also contrary to MS’s evidence, MS hung out with hers and Mr. Rodrigues’s friend groups at the concert throughout the festival.

Background to MS’s Complaint

98MS stated she did not know what avenues to take. She first contacted the CPSO.

99MS testified that what motivated her complaint at the time was that in March 2020 Mr. Rodrigues’s name came up as a suggested social media friend on Instagram. She explained that Instagram offers suggestions of people you are not Instagram friends with but who are Instagram friends with Instagram friends of yours. MS testified she did not reach out to Mr. Rodrigues on social media. She said has never been Instagram friends with Mr. Rodrigues and does not know his Instagram account name.

100When Mr. Rodrigues’s name came up, MS said she clicked on his Instagram account and his biographical information at the top of the page indicated he was an anesthesiology resident. This was the first time she knew he was pursuing that specialization. She testified that at the time of the incident she was aware he was in medical school. But she was unaware of the area of medicine he was pursuing.

101MS said knowledge of his career path made her uncomfortable given what he had done to her. Given the experience of being assaulted in her sleep, MS stated she was concerned about Mr. Rodrigues being in a profession dealing with patients medically induced to unconsciousness. So, on May 4, 2020, she reached out to the CPSO by email. She testified she did this because she wanted the proper authority to know what Mr. Rodrigues was capable of and had done to her. The CPSO took no action at the time because Mr. Rodrigues was not licensed to practise medicine at the time of the incident.

102MS thought going to the police was her only option. She contacted the Toronto Police in early May 2020 by first sending an email to make a general inquiry about reporting a sexual assault. On May 4th, two officers, Officers Figliarz and Syed, came to her home. She gave a brief statement which they noted in their memo books. MS then made a sworn videotaped complaint to Det. Hall on May 7, 2020.

The Letter

MS’s Evidence

103As noted earlier, Mr. Rodrigues received a letter in the mail at his parents’ home where he lived. Almost a year after Mr. Rodrigues was charged and four months before trial, on March 5, 2021, he retrieved the letter from the community mailbox across the street from his home.

104Following are the full contents of the letter:

To Shannon Rodrigues

This is my second time trying to reach you. You are not completely innocent in this situation so let’s try to resolve this matter as adults and be done with it. If you pay me $25,000 I will refuse to testify when the time comes and the charge against you will be dropped. As an anesthesiologist, you make hundreds of thousands of dollars. I think this amount is reasonable and will be far less then [sic] what you will pay for lawyers [sic] fees at the end of all of this. I am guessing you blocked me on facebook [sic] and Instagram because I am not able to find you anymore… If you want this to be done, you can unblock me and msg me at ms_______ on ig [sic]. We can sort out a discrete way to transfer the money. If you are not on board with this, I will see you in court. Note that I will deny writing this and used gloves while handling it so if you don’t want to proceed this way, this won’t hurt my case.

105There is no return address, date or signature on the letter.

106MS was shown a picture of the envelope and the March 5, 2021 letter. She read the letter before the court and denied she wrote it and to knowing who wrote it. The first time MS saw the picture of the letter was just before the trial on June 21, 2021. She confirmed the ms ________ is her Instagram handle. MS stated that before she saw the envelope, she did not know Mr. Rodrigues’s address in Oakville.

107At 8:45 a.m., on May 20, 2021, Halton Police officers attended MS’s sister’s home in Orillia. MS spoke on the phone to the police officers. She testified that the police did not inform her as to why they were at her sister’s home. She stated that the first time she knew about the letter was when she spoke briefly at 3:54 p.m., on May 20, 2021, to Det. Martyn of the Halton Police. The officer did not provide her with any details.

108MS said she was concerned that Det. Martyn did not give her a formal warning or caution about obtaining legal advice before she answered his questions. She testified that she reached out and had a conference call with Toronto Police Officer Tsikas (the officer in charge of the sexual assault investigation), Maia Corrigan (her victim/witness support person), and Crown counsel, Ms. Nash. MS testified she was upset about the letter. She denied sending it and having anything to do with what is stated in the letter.

109Defence counsel cross-examined MS on why she was concerned about not receiving rights to counsel and caution from Det. Martyn, questioning why she would be concerned about that when she was not charged with a crime. She responded that she was not aware of the rules around criminal charges.

110Defence counsel further put to MS that she was upset about the knock on her sister’s door; that she was upset in her telephone call with Det. Martyn on May 20th which occurred after the police had gone to her sister’s house. She was concerned that she had told the officer where she lived, that she was living with her sister in Orillia. MS denied telling Det. Martyn where she lived. The implication is that the deposit location for the letter might be discovered as being Orillia where she resided with her sister.

111Defence counsel suggested that MS realized she might have incriminated herself by providing her address and hence the concern about her rights. MS agreed she had not been charged but denied she was concerned about her rights because she thought she had incriminated herself. MS again denied disclosing her address.

112Defence counsel then read out Det. Martyn’s memo notes where he speaks of a three-minute phone call with MS on May 20th, at 3:54 p.m. He notes that MS told him she lived with her sister in South West Chesley, not Orillia, at the time the letter was mailed to Mr. Rodrigues. Det. Martyn testified that it was an error for him to indicate an address in South West Chesley instead of Orillia stating he was aware that earlier that day officers had knocked on the sister’s door where MS was living in Orillia. The suggestion from the note is that the police would investigate whether Orillia was the deposit location.

113The Crown filed two supplementary reports by Det. Martyn where he provides more detail about the investigation of the letter.

114MS then changed her response saying that she did not recall telling Det. Martyn that she was living with her sister when the letter was sent.

115MS’s further evidence is that she never looked up Mr. Rodrigues on social media. Defence counsel also cross-examined her on that claim. MS said it was at Det. Hall’s request during the police interview that she provided Mr. Rodrigues’s date of birth. Defence counsel questioned how MS knew Mr. Rodrigues’s date of birth if she did not look him up. In support of her earlier contention, she responded that she did not look up the date of birth before Det. Hall asked her for it at the interview on May 7, 2021.

116In answer to the query whether that means she provided the date of birth after her police statement, MS responded that she gave the date of birth during the police interview. That gave rise to a further defence request for her to explain how that happened. MS responded that she searched his Facebook account during the interview using her cellphone and found his date of birth at that time.

117Defence counsel then challenged MS and reminded her that earlier in her evidence she denied she had ever looked Mr. Rodrigues up on Facebook. Defence counsel then played the audio portion of the transcript of MS’s police statement where MS is asked for and provides Mr. Rodrigues’s date of birth.

118Listening to that portion of the audio recording of the interview, when the officer asked for the date of birth, MS states: “I found this on social media because he has a lot of detail on his profile and it wasn’t private and so his date of birth is September 20, 1990.” Defence counsel then pointed out that MS used the past tense suggesting she already had the information, had looked it up previously. The recording reveals that she instantly provided the information without hesitation or saying she first had to look it up.

119Defence counsel further put to MS that she had also looked up Mr. Rodrigues’s home address when she searched him on social media. He challenged her that seeing his address on the envelope at trial was not the first time she saw his address. MS denied this as well. She denied writing the letter.

120In-chief, defence counsel had shown Mr. Rodrigues a Facebook invitation to a party at his parents’ home where he lived at the time. It contains the address where the March 5, 2021 letter was received. Mr. Rodrigues said the invitation was posted on his account in July 2009 and remains posted there until the present. He indicated he was naïve about privacy back then and that after he learned about the allegations in May 2020, he tightened his privacy settings. He testified the invitation was accessible before May 2020. He further stated that to his knowledge the invitation was not private before he tightened the settings although it was written as an invitation to his friends.

121On May 7, 2020, MS told Det. Hall in her police statement: “I found this on social media because he has a lot of detail on his profile and it wasn’t private and so his date of birth is September 20, 1990.” This accords with Mr. Rodrigues’s evidence about privacy on his Facebook account before the allegations arose.

122MS did not make a statement to the police about the letter. Defence counsel also cross-examined MS about being asked to make a statement to the police about the letter. She testified that no one asked her to make a statement. In answer to the question as to whether Det. Tsikas asked her to make a statement, she specifically denied being asked by him to do so. She was evasive giving unresponsive answers about swearing an affidavit instead of answering the question about being asked to make a statement. MS said instead of giving a statement she swore an affidavit denying writing the letter.

123MS stated that Det. Tsikas told her the Halton Police were investigating the letter and that he was not involved. She also testified that she was told not to give a statement at that time and that she should obtain independent legal advice.

124Defence counsel then produced a series of emails from Det. Tsikas to MS and MS’s lawyer, Hedley Thompson, dated in June 2021, which reveal the officer’s efforts to find out whether MS would be willing to make a statement. The defence called Det. Tsikas to confirm he sent the emails. In an initial email, Officer Tsikas states that MS is not compelled to give a statement and that she should seek independent legal advice. He goes on to say once she receives advice, he should be advised “asap” about whether MS will be giving a statement.

125When asked the direct question as to whether she is suggesting she did not receive or see those communications, MS hesitated. She then responded she cannot say whether she saw them all. But she said she recalls the last one defence counsel read out in court.

126MS is not on trial here. This is not to question MS’s entitlement to refuse to make a statement to the police. The issue is MS’s denial that Det. Tsikas asked for a statement and why she denied that he requested one.

127The Crown relied on evidence from the Toronto Police Forensic Identification Service to establish that MS did not send the letter. There were no fingerprints or DNA from MS on the letter or envelope. There was unidentified male DNA and five fingerprints found to be deposited by Mr. Rodrigues. To date, the male DNA has not been processed or assigned to a particular person.

Mr. Rodrigues’s Evidence

128Mr. Rodrigues testified about something he found unusual about the postage stamp. He stated that he noticed the stamp on the front of the envelope did not have a postal marking on it. That was unusual because the mail he receives at his home almost invariably has postage stamps with markings on them. He said he could count on one hand the number of times, over the many years the family lived at the home, that his family had received mail with unmarked stamps.

129Mr. Rodrigues said he recalled this because over the years his father would ask the family to look for unmarked stamps so they could be reused. The family would do that. Mr. Rodrigues indicated that this is why he is aware of the rarity of finding unmarked stamps. He indicated it is now known that this is not legal, and the family no longer does this. It was, therefore, noteworthy to receive mail with an unmarked postage stamp.

130Mr. Rodrigues also indicated there were orange markings on the back of the envelope which he believed read “APR 27”. The back of the envelope says in orange print “FE 27 M”. Those markings appear to be dates stamped by the postal service at some point during the postal handling process. The envelope is addressed on the front to Mr. Rodrigues at his home address where he lived with his parents in Oakville. There is no return address on either the front or back of the envelope.

131Mr. Rodrigues called Halton Police and gave the letter to them and made a sworn statement. The police indicated they were going to investigate the matter. The police requested a DNA sample to rule him out, which Mr. Rodrigues provided on the same day.

132Mr. Rodrigues decided to retain a private investigator, Ronald Gillies, who is an ex-police officer to investigate the circumstances of mail in Orillia. Mr. Gillies testified he had no knowledge of the broader context of the case. He just followed the instructions given by defence counsel and conducted the investigation.

133On April 28, 2021, Mr. Gillies mailed two letters (“letter A” and “letter B”) to Mr. Rodrigues’s address in Oakville from separate mailboxes in Orillia near 122 North St. East where MS lived with her sister when the letter was posted. On July 13, 2021, Mr. Gillies mailed a third letter (“letter C”) from another mailbox in Orillia. Each of the three envelopes contained a piece of paper where Mr. Gillies had written location A, location B and location C on the respective pieces of paper. Mr. Rodrigues received the letters.

134Mr. Rodrigues testified that the stamp on letter A had a marking through it the same as the mail that regularly arrives at Mr. Rodrigues’s home. The stamp on the second letter had no marking on it. Mr. Rodrigues testified that the back of envelope A had an orange marking that reads “AP 29 M.” The orange markings on the back of letter B also reads “AP 29 M.” The third envelope was sent after Mr. Rodrigues had testified. So, there is no evidence of what marking if any was on that stamp when Mr. Rodrigues received it.

LEGAL PRINCIPLES

135This is essentially a “he-say-she-say” case although it is somewhat atypical in the fact that others were present and in close proximity sleeping on the sofa when the alleged incident occurred. But Mr. Rodrigues and MS are the only persons who witnessed what happened between them as they slept side-by-side.

136Well-entrenched principles guide trier of fact assessments of reasonable doubt when the accused’s evidence conflicts with that of the Crown.

• 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.)]

137R. v. W.(D.) goes on to say it is an error in dealing with conflicting evidence to prefer one version of events over the other. To prefer one testimony over another has the effect of reversing the onus onto the accused. Where credibility is the central issue, the trial judge must direct their attention 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 their guilt: R. v. Dinardo, at para. 23.

138Credibility evaluations are not simple exercises:

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.)

139I will forecast my conclusion at this point.

140Considering Mr. Rodrigues’s evidence in the context of all the evidence I received, for reasons that follow, I am satisfied beyond a reasonable doubt that Mr. Rodrigues did not commit a sexual assault on MS.

141In a nutshell, I found Mr. Rodrigues’s evidence was next to unassailable on cross-examination. The Crown was not successful in any material way to unseat his version of what occurred in the early morning hours of April 30, 2016 at ST’s condo. Mr. Rodrigues’s evidence, together with that of the other witnesses and the host of problems with MS’s evidence raise sufficient doubt in my mind about his guilt.

142In arriving at my credibility findings, I considered that OC and RK are longtime friends of Mr. Rodrigues which could prompt partiality toward their friend. I observed on the contrary their evidence to be forthright and in accord with other evidence. OC’s evidence was consistent with that of Crown witness DM. I saw no evidence of bias in favour of their friend.

143A conviction for a sexual assault requires proof beyond reasonable doubt that the accused with intent committed an act of touching of another person, conduct of a sexual nature, done without consent: Criminal Code, s. 271; R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330 (S.C.C.). There is no dispute that if accepted MS’s allegation would meet the legal requirements of a sexual assault.

144I am aware of the judicial cautions against stereotypical thinking in assessing the credibility of sexual assault victims. I am mindful that courts must reject adverse credibility findings based on impermissible stereotypical findings, conduct such as delay in making a complaint or failure to show avoidance behaviour or to display a behaviour change: R. v. Seaboyer; R. v. Gayme, 1991 76 (SCC), [1991] 2 S.C.R. 577; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at paras. 63 – 65, (S.C.C.). Also commonly accepted is that victims of sexual trauma often encounter memory problems that can affect their recall of the details of the experience. With a sexual assault case, it must not be inferred that gaps in memory are 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.).

145Since I do not accept on the whole of the evidence that Mr. Rodrigues sexually assaulted MS, caution about myths and stereotypes need not inform the assessment of MS’s conduct because I see her behaviour from the perspective of her not being a victim of sexual assault.

ANALYSIS

General Observations

146Mr. Rodrigues’s evidence had many badges of trustworthiness. It had a quality of genuineness that is easier to explain by practical example than by a few words. He spoke straightforwardly and candidly about the evening of April 29th/30th and the surrounding circumstances. His spontaneous denials and other evidence were believable. His evidence was internally consistent and consistent with the evidence of other witnesses and other evidence presented at trial.

147There is a multitude of credibility problems with MS’s evidence. My conclusion that I do not believe MS’s account is not founded on a singular aspect of her evidence. Nor is it based on stereotypical assessments of her conduct. I viewed my cumulative impression of her evidence in the context of all the evidence that accrued as the trial progressed. What I observed were mounting areas of dishonesty and both internal and external inconsistencies in critical areas of her evidence that increasingly raised doubts about the truthfulness of her allegation.

Credibility Determinations

Configuration of the Sofa

148I start with evidence on the configuration of the sofa and what happened on the sofa. The configuration goes to the reasonableness of Mr. Rodrigues’s evidence about the sleeping arrangement on the sofa. His evidence is that the sofa was in a rectangular configuration when OC, DM, he and MS fell asleep. DM testified for the Crown. The rectangular configuration is supported by everyone but MS.

149For many reasons, it is more reasonable to believe that the sofa was in the rectangular configuration. The most obvious reason is the sheer size of OC, his 6 ft. 5 in. frame. With the rectangular configuration, OC would be able to stretch out along the longest dimension of the sofa so that only his feet dangled over the edge. OC confirmed this in his testimony.

150MS’s evidence that the four of them fell asleep sitting on the sofa and remained that way does not make sense. Mr. Rodrigues and OC had slept at ST’s many times and knew the practicality and ease with which the sofa could be reconfigured to accommodate OC’s height. DM also testified about being aware of the sofa being reconfigured for people to sleep over.

151MS possibly forgot how the sofa was configured that night. But I find that unlikely. On her evidence, she was not inebriated that evening. She recalled the sleeping order. She recalled who went to sleep first – first, ST, then OC, then herself. She remembered the details of what she said Mr. Rodrigues did. Further, she related her experience as a memorable occurrence in her life. It makes more sense that she recalled the configuration of the sofa and, for some reason, perhaps known only to herself, she decided not to tell the truth about that.

152MS’s evidence in this area, not alone, but together with other areas of her testimony contributed to raising reasonable doubt about her allegation.

Sleeping Arrangements and Conduct of Mr. Rodrigues

153Mr. Rodrigues testified, as did DM and OC, that the four of them were packed tightly on the sofa with little room to maneuvre, especially if one slept on one’s back. It was very uncomfortable. Mr. Rodrigues said it was difficult to know where to place his arms. He testified that he slept between DM and MS, with MS at the front edge of the sofa. He slept on his side facing DM’s back instead of on his other side because he was a longtime friend of DM and he did not know MS.

154Mr. Rodrigues readily admitted to putting his left arm around DM’s waist for comfort. This accords with DM’s evidence although she described it as cuddling. I find his admission adds to his credibility. He might have denied evidence of any conduct of touching a woman while she was asleep; conduct that could have a sexual connotation. Mr. Rodrigues agreed with DM that she brushed his arm off of her and that he complied with her wishes. DM’s evidence supports Mr. Rodrigues’s that he did not touch her again.

155I found compelling Mr. Rodrigues’s testimony that it would be more than foolhardy to engage in the conduct he is accused of. Unzipping his pants and taking out his erect penis in close company with two other people, his good friends, who could easily witness this, he said, would be unthinkable. ST is also a close friend of Mr. Rodrigues, and MS was an off-and-on girlfriend of ST, who was sleeping nearby behind frosted glass. He said he would never betray his friend in that way. All points well-made.

156Mr. Rodrigues insisted he would never sexually assault MS under those or any conditions. Moreover, Mr. Rodrigues pointed out that to behave that way would be out of keeping with his optimistic frame of mind having learned that day of a possible exciting career advancement in anesthesiology.

157It is not hard to accept given his prospective career move to anesthesiology that Mr. Rodrigues would not risk his future that way. I believe Mr. Rodrigues turned over facing MS’s back and did not sexually assault her.

158I considered what happened at the condo in the broader context of my conclusions in other areas of the evidence.

Post-Incident - MS’s Proximity to Mr. Rodrigues at Osheaga 2016

159Of the five who slept at ST’s apartment on April 30th, everyone except DM attended the Osheaga festival four months later in August. MS and Mr. Rodrigues were in separate friend groups and stayed at separate Airbnbs. MS testified she only “ran into” Mr. Rodrigues at the festival. She avoided him. She admitted to going out once in the evening with Mr. Rodrigues’s friend group and staying at Mr. Rodrigues’s Airbnb with ST one evening. She said she did not think Mr. Rodrigues was present on either of those occasions.

160MS relies on the photos at the festival that show a few feet of distance between her and Mr. Rodrigues. As with all photos, they only capture the moment in time when they are taken. Alone they do not establish MS avoided Mr. Rodrigues.

161MS’s evidence is in direct contrast to the testimony of Mr. Rodrigues, OC and RK. Their evidence was that MS and her friend group hung out with their friend group, including Mr. Rodrigues, nearly the entire weekend. Their evidence was that MS was dating ST at the time. The other witnesses contend MS visited and slept over at their Airbnb. She attended the festival and went on evenings to bars with Mr. Rodrigues’s friend group.

162Since I do not believe Mr. Rodrigues sexually assaulted MS, and there is no other evidence from MS about any other problems with Mr. Rodrigues, I see no reason why she would avoid him. I do not believe it was a case of MS just “running into” Mr. Rodrigues. I have no reason to disbelieve the other witnesses who say MS spent nearly the entire weekend in the company of Mr. Rodrigues and his friend group.

163The fact of not avoiding Mr. Rodrigues does not figure into my assessment of her credibility on the sexual assault. The credibility issue here is with the fact of her dishonesty about not avoiding him. I believe MS concocted her evidence about avoiding Mr. Rodrigues to imply that she did this because he sexually assaulted her. The dishonesty in this area adds another dimension to my doubt of Mr. Rodrigues’s guilt.

MS’s Complaints

164MS delayed four years in going to the police. She explained she decided to report the sexual assault when, in March 2020, Instagram invited her to befriend him. She says she clicked on Mr. Rodrigues’s account and saw he was an anesthesiology resident.

165At first blush, a complaint against a soon-to-be anesthesiologist for sexually assaulting a woman in her sleep appears laudable. Again, delay in itself is not a reason to disbelieve MS. It is the reason she gave for the delay in coming forward to disclose that raises a credibility issue. MS’s evidence suggests a moral calling after learning of Mr. Rodrigues’s pursuit of a career involving unconscious patients. However, when all is said that rationale has only superficial appeal. The delay takes on a different complexion viewed in the context of MS’s many and varied credibility issues.

166MS first spoke to the police on May 4, 2020, and made a formal sworn statement about the sexual assault to Det. Hall on May 7, 2020. On cross-examination, MS maintained she never looked Mr. Rodrigues up on social media. During the interview, Det. Hall asked MS for Mr. Rodrigues’s date of birth and she provided it. This is another area of MS’s evidence where I find she was dishonest.

167To recap, defence counsel put to MS that she had testified she never looked Mr. Rodrigues up on social media. She maintained she did not look him up on Facebook before the police interview. Defence counsel persisted in questioning her. MS hesitated then contended she looked him up with her cellphone during the interview. Defence counsel then played the relevant audio portion of the interview where MS instantly told the officer, in the past tense, that she found Mr. Rodrigues’s date of birth on his Facebook profile.

168MS’s answer to this contradictory evidence is problematic for her. She recanted her previous evidence responding that she did not know if she found the information before or during the interview.

169I believe MS looked Mr. Rodrigues up on social media before the police interview. It appears she did not want it known that she had her own interest in finding out about Mr. Rodrigues before the police inquired about him on May 7, 2020. She did admit to looking him up two months earlier in March on Instagram. Perhaps, it was around that time that she also looked him up on Facebook.

170Once again MS did not tell the truth. This also contributed to my mounting doubt about Mr. Rodrigues’s guilt.

Investigation of the Letter

171The Crown takes the position that the letter is simply a distraction, a red herring. I disagree. I cannot ignore the letter when considering credibility. The letter is not irrelevant. It is not tangential to the matters before the court. It points directly at the central issue of the allegation against Mr. Rodrigues. The evidence the defence called particularly in relation to MS’s motive, her place of residence and her responses to that evidence is problematic for MS. This figures as an additional feature in the growing pattern of her failing credibility.

172Det. Martyn of the Halton Police spoke to MS about the investigation of the March 5, 2021 letter. MS spoke to him on the phone on May 22, 2021, at 3:54 p.m., several hours after the police attended at her sister’s home that morning at 122 North Street East in Orillia.

173To recap, defence counsel put to MS that she told Det. Martyn that she lived with her sister in Orillia. MS adamantly denied this. MS was upset during the call. Defence counsel suggested MS was upset because she realized she might have incriminated herself by providing her address, and hence, the concern about her rights. MS again denied disclosing her address. The implication here is that the deposit location for the letter might be discovered by the police to be in Orillia where MS lived with her sister.

174Defence counsel then read out in court Det. Martyn’s memo notes for the phone call. Det. Martyn speaks of a three-minute phone call with MS on May 20th at 3:54 p.m. He notes that MS told him she lived with her sister in “South West Chesley” at the time the letter was mailed to Mr. Rodrigues. Det. Martyn indicated he mistakenly wrote the South West Chesley address rather than the sister’s address in Orillia. I accept that was an inadvertence, an error, since Det. Martyn was aware that two police officers had attended at the Orillia residence earlier that morning. I believe MS did tell Det. Martyn her home address with her sister.

175It follows that the police would investigate whether Orillia, where MS was residing with her sister in February/March 2021when the letter was posted, was the deposit location.

176MS again was not truthful in this area of her evidence. MS changed her response saying she did not recall telling Det. Martyn that she was living with her sister when the letter was sent.

177This adds yet another level of doubt about the veracity of her allegation against Mr. Rodrigues.

MS’s Evidence Regarding a Police Statement about the Letter

178Mr. Rodrigues provided a statement to the police and a DNA sample. To date, MS has provided neither. Nor is she obligated to. She is not on trial here. She faces no charges. The fact that MS did not accede to providing these things I do not regard in any way as a strike against her credibility.

179The credibility question here is as to why MS denied she was asked whether she would give a statement. MS denied under cross-examination that she was asked to make a statement to the police in relation to the investigation of the letter. She insisted that no one asked her. She specifically denied Det. Tsikas asked her. MS was again evasive and unresponsive in answering questions in this area.

180Defence counsel challenged MS by referring to a series of emails from Det. Tsikas to her and her lawyer dated in June 2021. The emails establish that Det. Tsikas was earnest in asking to be advised whether she would be providing a statement. Even when confronted with the emails, MS would not relent and admit the police requested a statement. She answered unresponsively that she could not say whether she saw all of the emails.

181Again, this is an important area of the evidence where MS’s evidence fell far short of being honest.

MS’s Financial Situation

182MS was evasive when cross-examined about her student loan debt, her employment leave and her litigation against Sun Life. This line of questioning goes to a motive to extort Mr. Rodrigues. When first asked MS would not admit the size of her debt. She said she did not keep track even though she said she continuously paid it. She finally admitted she owed between $10,000.00 and $14,000.00.

183When asked about the litigation against Sun Life, MS was evasive. She would not admit to the lawsuit. MS acted like she did not know what defence counsel was talking about. The reality is that litigation does not come cheap. Common sense says MS would have to be conscious of that expense especially at a time when she was without income.

184Under strenuous questioning, MS eventually admitted to the lawsuit and that her long-term disability benefits, related to her employment with American Eagle, had been terminated and she was litigating reinstatement. Defence counsel further challenged MS that from the time her benefits ceased, and the March 5th letter was sent, she had been without income for 16 months. It took dogged questioning before MS would admit this.

185This is not to impugn MS for her lawsuit. She is entitled to advance a claim if she believes she has been wrongfully denied entitlement. It is the evasiveness in acknowledging the existence of the lawsuit that is at issue. Dishonesty in this area adds another building block of doubt about the truthfulness of MS’s allegation.

The Source of the Letter

186Then there is the evidence about the source of the March 5, 2021 letter. My view is that the source of the letter would reasonably either be MS or Mr. Rodrigues. No evidence before the court and no reasonable or competing inference suggests that anyone else would have an interest in sending such a letter. But one thing is certain. Someone wrote and sent the letter.

187Leaving aside for the moment my view of Mr. Rodrigues’s guilt, and considering him hypothetically as a source of the letter, it is possible if he did sexually assault MS, that sending the letter to himself could make it appear that MS sent it. And if I were to believe that it could create doubt about his guilt.

188Realistically though I cannot imagine a third party. To my mind the more likely source of the letter is MS. She would stand to gain financially if she succeeded in her plan to extract money from Mr. Rodrigues. She had been without income for 16 months leading up to the date Mr. Rodrigues received the letter and she was dishonest about this. MS had a student loan debt that was sizeable particularly for an unemployed person. MS was not forthright in admitting this. Her disability benefits were terminated. She was embroiled in a lawsuit to regain her benefits about which she was also not forthright. And lawsuits are costly.

189The natural question then is why would MS so persistently obfuscate in the areas of evidence pertaining to her financial wellbeing?

190Motive does not have to be proven. But certain principles apply when motive is under consideration: the defence has no onus to demonstrate a motive to fabricate; the absence of evidence of a motive to fabricate does not necessarily mean that there was no such motive; and the absence of a motive to fabricate does not establish that the witness is telling the truth: R. v. Blackman 2008 SCC 37, [2008] 2 SCR 298, at paras. 39, 42 and 43, (S.C.C.).

191MS was either dishonest, evasive, unresponsive or simply not forthright in the areas of her testimony that could establish a financial motive. I find when the letter is viewed in the full context of the multitude of MS’s credibility failings in other areas, that I cannot accept her denials about the letter. The evidence demonstrates to me that she had a motive to fabricate. She had a financial motive to extort money from Mr. Rodrigues.

192I do not think it beyond the scope of the evidence to conclude that, when MS discovered on Instagram in March 2020, four years after the alleged incident, that Mr. Rodrigues was embarking on a potentially lucrative career as an anesthesiologist, this prompted her two months later in May 2020 to go to the police with her allegation. Aside from the fabrication about the sexual assault itself, I find the letter and denial of having anything to do with it an appalling display of chicanery, a cynical attempt to derail the course of criminal justice, that has only compounded my suspicion about her allegation.

193I do not find the forensic findings or private investigator’s evidence particularly useful in helping to resolve the source of the letter.

194There is no evidence on the functions of the postal system, the purpose and meaning of marked and unmarked stamps and why some postal areas mark stamps and others do not. There is no evidence whether some areas are inconsistent in marking and not marking stamps, or on what meaning can be assigned to the envelope received by Mr. Rodrigues with the unmarked stamp.

195But for reasons set out earlier I did not need that evidence to arrive at my determination on the source of the letter.

196There is an agreed statement of facts on the forensic evidence. Regarding the fingerprint and DNA evidence, the absence of DNA and fingerprints from a person is not conclusive of the person not handling or touching the letter. As the adage goes, absence of evidence is not evidence of absence. This applies to MS whose fingerprints and DNA were not found.

197The male DNA has not yet been processed. If the DNA is found to be that of Mr. Rodrigues that is to be expected since he received and handled the envelope and letter. Five fingerprints on the envelope and letter were found to be Mr. Rodrigues’s. For the same reason, it is expected that Mr. Rodrigues’s fingerprints would be on the letter and envelope.

198So, the presence of Mr. Rodrigues’s DNA and fingerprints would not be determinative of him sending the letter to himself.

199MS denied knowing Mr. Rodrigues’s home address. However, given her dishonesty about searching him on social media, particularly Facebook, it is not beyond reason to conclude that she obtained Mr. Rodrigues’s address from his Facebook profile perhaps from the 2009 house party invitation Mr. Rodrigues says is still posted on his Facebook account. Mr. Rodrigues testified, and MS’s evidence confirms, that Mr. Rodrigues’s Facebook account was not private. And MS told Sgt. Hall that Mr. Rodrigues’s profile contained many details. In any event, the fact remains that MS did get the address from somewhere because I believe it was she who sent the letter.

200The irresistible conclusion I draw from the evidence is that by February/March 2021 when the letter was sent, with mounting fiscal challenges just before trial, and with knowledge of Mr. Rodrigues’s career, MS targeted him as a cash cow to solve her financial woes. And, thus the ostensible moral imperative for her delay in reporting the sexual assault dissolves and her true motivation unmasked as unvarnished opportunism. I think she saw an opportunity and she took it, no doubt to Mr. Rodrigues’s utter shock and dread. And what this has meant for him is that for over one-and-a-half years Mr. Rodrigues’s life and long-sought medical career have been tottering in the balance awaiting a verdict.

201The significance of my findings on the letter lay in its place as the final piece in the fabric of MS’s ever-shrinking credibility. It brings together all the threads of dishonesty in her story and makes it believable that she wove an elaborate fiction of a sexual assault. With all of this, justice lies in finding beyond a reasonable doubt that the sexual assault did not happen.

VERDICT

202I find Shannon Rodrigues not guilty of sexual assault and accordingly an acquittal will be registered.

B.A. Allen J.