Court File and Parties

Court File No.: CR-19-1048 (Walkerton) Date: 20220217 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Soheyl Tahan

Counsel: H. Adair, for the Crown S. Cowan, for Mr. Tahan

Heard: September 21 to 24, 2021 in person; October 22, 2021, November 8, 16, and 30, 2021 and January 7 and 21, 2022 by videoconference

Justice: R. Chown

Judgment

These reasons are subject to a publication ban under s. 486.4 of the Criminal Code prohibiting the publication, broadcast or transmission, in any way, of any evidence that could identify the victim.

[1] Soheyl Tahan is charged with sexually assaulting the complainant on September 29, 2018.

[2] The complainant and Mr. Tahan did not know each other prior to the events in question. Due to intoxication, the complainant does not remember anything for a period of roughly five hours surrounding the alleged sexual assault. The accused told the police in an interview that he did not remember anything, or at least he did not remember much, for a period of several hours, and did not recall whether he had sex with the complainant.

[3] The accused’s DNA was identified in a swab taken from the external genitalia of the complainant.

[4] The Crown’s position is that the complainant did not have capacity to consent to the sexual activity that occurred. A major issue in this matter is whether the Crown has proven this beyond a reasonable doubt.

[5] To protect her identity, in these reasons I refer to the complainant only as “the complainant” and initialize the witnesses who were connected with the complainant.

Facts

[6] The events in question took place in Port Elgin beginning on Friday, September 28, 2018. The complainant was then 19 years old, about to turn 20 on September 30. The accused was 23.

[7] The complainant worked her 8:00 a.m. to 4:00 p.m. shift at a location in Port Elgin. That evening, she and her long-time friend AJ, AJ’s boyfriend WS, and SC gathered to celebrate Pumpkinfest, an annual fall festival and celebration in Port Elgin, as well as the coming birthday of the complainant, and the recent birthday of SC. The complainant and her friends planned to pre-drink at AJ’s house and then go to the bars – The Queen’s and Wismer House and perhaps other bars. The complainant had to work the next day at 10:00 a.m. so did not plan to drink too much or stay out too late.

The Complainant’s Alcohol Consumption

[8] The complainant smoked some marijuana from a bong at her house while she got ready to go AJ’s. After she showered and got ready, her mother drove her to AJ’s at around 8:00 p.m. or 9:00 p.m. She brought some Mike’s Hard Lemonade with her.

[9] SC arrived shortly after the complainant.

[10] The complainant knew AJ her whole life. However, she had only met AJ’s boyfriend, WS, once before.

[11] The group sat at the kitchen table, looked at old yearbooks and reminisced. AJ made some sangria. They took some shots of vodka.

[12] As one would expect, there is some variation in the evidence of the complainant, AJ, WS and SC with respect to how much the complainant drank.

[13] The complainant testified that she started off with one can of Mike’s Hard Lemonade and two glasses of sangria. She also had a shot of vodka from a tall shot glass. She only remembers taking one shot. She was feeling drunk. The last thing she remembers from September 28, 2019 is being at AJ’s house sitting at the table. She does not remember leaving AJ’s house.

[14] AJ said she believes the complainant had two Mike’s Hard Lemonade, three medium size glasses of sangria, and two shots of vodka.

[15] WS described the complainant as already slightly intoxicated when she got dropped off. He recalls her having brought coolers to drink. He also remembers the complainant “was joining us in shots,” but he does not recall how many she drank.

[16] In my view, it is not necessary to resolve with any more precision than these estimates how much the complainant drank. It was a lot, in a short period of time. More crucial to the analysis is how the alcohol impacted her.

The Complainant’s Level of Intoxication

[17] The party of four left AJ’s residence at roughly 10:30 p.m. for the short walk to The Queen’s. They stopped for cash at the TD Bank.

[18] As they walked towards the bank and The Queen’s, the complainant stumbled, falling twice. AJ walked arm in arm with her. The complainant was slurring her words.

[19] SC recalls that both AJ and SC fell. The complainant and AJ were giggling on the ground.

[20] WS said the complainant was having a hard time walking and was slurring words. He said the complainant was “kind of just falling over drunk on the way there [to the bank].” He said he thought she fell twice.

[21] At the bank, the complainant tried to withdraw some cash from the bank machine. She was using her Student Price Card (“SPC”) and not a debit card so obviously this effort failed. Her friends could not convince her that she was using the wrong card. She grew angry with her friends. AJ told the complainant she would not need any money anyway, because she didn’t need to drink any more. She persuaded the complainant that she had cash in her wallet and was good to go.

[22] Still shots from bank surveillance camera show the complainant walked out of the bank at 10:53 p.m.

[23] The group gathered outside the bank. WS thought the complainant was too drunk to be going to the bar. AJ thought the complainant was too drunk to get into the bar. AJ offered to call her a cab, or to call her mother to come and get her, or to call AJ’s mother. The complainant declined. The complainant was swearing at her friends and telling them to “fuck off.” This was out of character for her. The complainant said she was going to walk home.

[24] AJ, WS and SC all testified that they last saw the complainant walking in the general direction of her home as they headed to The Queen’s. Her walk home would have been about 2 km.

[25] I accept the evidence of AJ, WS and SC that the complainant was noticeably intoxicated when they left AJ’s residence and highly intoxicated by the time they got to the bank. This is not surprising given how quickly she drank a significant quantity of alcohol.

Mr. Tahan’s Alcohol Consumption

[26] Mr. Tahan did not testify but his video-recorded police interview was made an exhibit. The interview was admitted to be voluntary and Charter-compliant. “Ordinarily … statements that are made by an accused to a person in authority and tendered by the Crown constitute evidence both for and against the accused”: R. v. Al-Shammari, 2016 ONCA 614, at para. 29. The recorded interview was treated as Mr. Tahan’s evidence by both sides.

[27] Mr. Tahan was in Port Elgin temporarily because he was working as a welding inspection contractor at Bruce Power. He was living on Falconer Street with his work supervisor, Chris Jackson, in a house owned by another work colleague.

[28] In his recorded interview, Mr. Tahan said that due to intoxication from alcohol, he had no memory from about 1:00 a.m. to 3:00 a.m. on September 29, 2018. He said he drank somewhere between five and ten vodka drinks before 11:00 p.m. when he went to Wismer House.

Security Video from Wismer House

[29] Security video from Wismer House for the night in question was obtained and reviewed by Sgt. Briggs of the Saugeen Shores Police Service.

[30] Sgt. Briggs obtained the Wismer House security video commencing at 10:45 p.m. She subsequently learned that there is a 13-minute error in the time stamp on the video so the video would have commenced at 10:58 p.m. Mr. Tahan could be seen in the bar at that time. There is no video evidence as to his precise arrival time. The video covered from approximately 10:45 p.m. to 3:00 a.m. (before the time correction). Sgt. Briggs said she reviewed all the video.

[31] Mr. Tahan appeared on the recordings from four different cameras placed at different locations in the bar.

[32] Mr. Tahan is seen talking to various people. He is seen sitting at a bar talking to a woman. He is seen approaching two women and engaging in conversation. He can be seen dancing to the live band music. “Dancing” may be an overstatement because it involved only a modest amount of movement. However, it appears he was trying to attract the attention of a female who was also dancing as he reaches out to touch her on the elbow several times. He appears to move fluidly on the video. He shows no signs of intoxication on the video. Sgt. Briggs said that she observed Mr. Tahan consume four drinks at Wismer House on the video including what appears to be one shot which he quickly downs. The content of the drinks cannot be discerned from the video.

[33] Mr. Tahan is not visible on camera where there are gaps in camera coverage. For instance, he moves from one floor in the bar to another. Sgt. Briggs said some of the camera angles were not working or did not come through on the copy she was provided, but the missing angles were not significant. For instance, one missing angle showed a storeroom.

[34] Mr. Tahan left Wismer House at 11:50 according to the time stamp on the video, or 12:03 a.m. on September 29, 2018, once the time error is factored in.

[35] I saw nothing in the video that would suggest Mr. Tahan was impaired. To the contrary, he appears to move fluidly, and he appears to be steady on his feet. The complainant is not seen in the Wismer House security video.

No Evidence Explaining How the Accused Encountered the Complainant

[36] The TD Bank is one door north of an auto repair shop located on the northeast corner of Goderich and Eglin Streets. Wismer House is on the southeast corner of that same intersection.

[37] The complainant left her friends and was last seen by them (or anyone who provided evidence) shortly after 10:50 p.m. on September 28, 2018, crossing the parking lot for the auto repair shop and headed towards Bricker Street, which is one street east of Goderich Street. That is in the general direction the complainant would need to go to get home.

[38] As indicated, Mr. Tahan is in Wismer House by 10:58 p.m.

[39] Despite their apparent proximity at the time the complainant left her friends, there is no evidence that Mr. Tahan and the complainant encountered each other before he went into Wismer House, and it seems unlikely that they did.

[40] In his video-recorded interview, Mr. Tahan told Insp. Mighton that he met the complainant at Wismer House.

[41] I accept as likely AJ’s expectation at the time that the complainant would not have been allowed into a bar. However, quite apart from that likelihood, the video from inside Wismer House proves that Mr. Tahan’s statement that he met the complainant at Wismer House is untrue. She is not seen in the video. He is seen approaching and talking to several women but none of them are the complainant. He appears to have left Wismer House on his own at 12:03 a.m. on September 29, 2018.

[42] There is no evidence as to how Mr. Tahan and the complainant encountered each other.

[43] After the foregoing observations, there is no evidence as to where either the complainant or Mr. Tahan were until approximately 3:00 a.m., when they were at the residence on Falconer Street where Mr. Tahan and Mr. Jackson were staying.

The Events at Falconer Street

[44] As indicated, Mr. Tahan’s work supervisor and temporary housemate at the time was Chris Jackson. Mr. Jackson testified that he went to bed not feeling well at 6:30 p.m. on September 28, after setting his PVR to record the Maple Leafs game. He testified that as he was going to bed, he remembers Sean House coming to pick up Mr. Tahan. Mr. Jackson does not drink alcohol and was not interested in going to a bar with Mr. Tahan. He did not observe Mr. Tahan drink anything. He had not worked with Mr. Tahan before working with him on the contract that brought them both to Port Elgin and Bruce Power, although he had met him previously during some company training.

[45] Mr. Jackson woke at approximately 3:00 a.m. He came out of his bedroom and observed a pair of black jeans and pink frilly underwear draped over the back of the couch. He could hear a couple in Mr. Tahan’s bedroom. He heard noises coming from the bedroom that “sounded … like they were engaged in some form of sexual act.” In cross examination, Mr. Jackson said he thought he was hearing two people “having a good time” in the bedroom. He said it was sexual noises.

[46] In re-examination, Mr. Jackson said the sounds he heard from the bedroom were not conversation or words. There was nothing to the effect of “stop” or screaming. It was more like oh’s and ah’s the whole time. He heard two distinct voices with sounds. He did not think anything was going on that was wrong. He would have intervened if he thought something was wrong.

[47] At some point, Mr. Jackson went to the bathroom and came out and noted that the pants and underwear were gone.

[48] Mr. Tahan and a woman came out of Mr. Tahan’s bedroom. The woman was fully clothed at that point. Mr. Jackson did not know the woman. There can be no doubt that the woman was the complainant, and this was not challenged.

[49] Mr. Jackson stated that he spoke with Mr. Tahan and the complainant. He testified that he did not talk to the complainant very long. He said the complainant was quiet and did not say much more than two or three words.

[50] Mr. Jackson said there was a smell of alcohol coming from them. They were acting as though they were drunk which is what he expected. Neither were slurring their words. They were using each other for balance. He described them as “hammered.” They both seemed “adequately drunk.” He determined from the look on her face that she was “fairly well intoxicated.” Mr. Tahan’s face was red. He seemed intoxicated and in good spirits. Mr. Jackson could smell booze. He said they both looked very drunk to him at the time.

[51] Mr. Jackson gave a video-recorded interview to Insp. Mighton shortly after the events in question. A transcript was prepared. He had not viewed the recording and was not given a copy of the transcript of the interview prior to testifying. He said, however, that he would have been truthful, and he would have remembered the events better at the time he gave his statement. While he was testifying, he was given an opportunity to refresh his memory with the transcript.

[52] On reviewing that he told Insp. Mighton that the complainant was more “hammered” than just drunk, he remembered saying that. He said this refreshed his memory. He said he determined from the look on her face that she was “fairly well intoxicated.”

[53] On reviewing what he said to Insp. Mighton, Mr. Jackson said Mr. Tahan seemed intoxicated and in good spirits. He seemed like “a normal drunk self.”

[54] Mr. Jackson testified, “She was using him to stand up,” and, “He did not appear to have any difficulty holding her up.”

[55] He said they left through the front door and came back at some point, he believes to look for the complainant’s purse and phone. He did not remember how long they were gone.

[56] At some point Mr. Tahan left with the complainant to walk her home. Mr. Jackson did not notice any issues with Mr. Tahan walking. The complainant needed to use Mr. Tahan to stabilize herself.

[57] Mr. Jackson said he posted a comment on social media about the Leafs game at 3:08 a.m. The exchange that Mr. Jackson had with the complainant and Mr. Tahan occurred after that post.

[58] Mr. Jackson was asked about any conversation he had with the complainant. As indicated, he had previously testified that she only spoke two or three words. He said he did not remember the conversation between himself and the complainant. After reading the transcript of his statement, he still did not recall it, but he did recall that they spoke. I accepted that his failure to recall the specifics of the conversation with the complainant was genuine. After discussion with counsel about the conditions for admissibility of a past recollection recorded, on consent, two passages of the transcript from Mr. Jackson’s recorded interview were read in as past recollections recorded.

[59] In his recorded interview, Mr. Jackson told the police that the complainant was “going on” about Mr. Tahan dating her best friend. That made no sense to Mr. Jackson because Mr. Tahan had just come to Port Elgin from Vancouver. The complainant gave AJ’s first name as her best friend. That is, Mr. Jackson was able to tell the police AJ’s first name (but not her last name), meaning that the complainant related this to Mr. Jackson. The complainant thought AJ was dating Mr. Tahan. This evidence is admissible as a past recollection recorded, and I find it reliable. The inference I make from this is that the complainant thought Mr. Tahan was WS.

[60] In the transcript of his recorded interview, Mr. Jackson also indicated that the complainant said she worked for Bruce Power. “And then after about four more questions she’s like, oh no, I don’t work for Bruce Power.” (The complainant did not work for Bruce Power.) This evidence speaks to the complainant’s level of intoxication at the time. It is admissible as a past recollection recorded to support the conclusion that she was highly intoxicated, and I find it reliable.

[61] Initially in his testimony Mr. Jackson was trying to suggest, at least to some extent, an equivalence between the level of intoxication of the complainant and Mr. Tahan. However, later in his testimony he described considerable differences between them. I concluded that Mr. Jackson was, at least initially, trying to provide evidence that was helpful to Mr. Tahan, and that he was somewhat partial to Mr. Tahan. I was not told whether they remain work colleagues, but there was at one time a connection that would potentially explain partiality on the part of Mr. Jackson. I concluded that Mr. Jackson was partial because it was only upon his memory being refreshed by the transcript of his recorded police interview that the tenor of his evidence moved towards there being a significant difference in the respective levels of intoxication of the complainant and Mr. Tahan.

The Search for the Complainant

[62] The complainant’s mother testified. She texted the complainant before going to sleep at about midnight and did not receive a response. She awoke about an hour later. She texted the complainant again. She tried calling the complainant but there was no answer. She received information through her other daughter that the complainant was not with AJ, so she became concerned. She tried Facetime and Facebook messenger with no answer. She went out in the car and started looking for the complainant. She was pulled over by Const. Erik Luscombe and explained the circumstance.

[63] Insp. Mighton testified that he became aware of the report that the complainant was missing at 3:30 a.m. on September 29, 2018, when he stopped a vehicle which caught his attention because it had been circling the Pumpkinfest grounds. The driver was the complainant’s grandmother who explained she was looking for the complainant. Insp. Mighton spoke with the complainant’s grandmother and later the complainant’s mother. Insp. Mighton then obtained the complainant’s phone number and a photo of the complainant. He sent that photo to any of the members of the OPP that were working that night, including auxiliary members. He arranged a cell tower ping which revealed that the complainant’s phone was turned off.

The Complainant is Located

[64] The first thing the complainant remembers from September 29, 2018 is walking with a man. She remembers walking down a side street. She then remembers walking down Goderich Street. At that point, she did not know what time it was. In her mind, she was walking with WS. She thought she was walking from AJ’s house. She does not remember what she discussed with this man as they were walking, but she knows there was conversation. She remembers he was calling her sassy and that she was trying to walk ahead of him. She was drunk. She was walking with this man when the police pulled up. They called out her name. They told her that her mother was looking for her and was worried sick and that the police were out looking for her as well. The man backed away while she was talking with the officer and that was the last she saw of him. The police said they were going to give her a ride home because her mother was worried. She was embarrassed by this. She had never been in trouble with the law and had never been in the back of a police car.

[65] At 3:55 a.m. Insp. Mighton received information from an auxiliary officer that the complainant had been found. Insp. Mighton went to the location where she was found which was on Goderich Street south of Gustavus Street.

[66] Insp. Mighton observed that the complainant was very intoxicated.

[67] Insp. Mighton learned from the auxiliary officers that the complainant had been with a male person who was not at the scene. Insp. Mighton instructed his officers to try to locate the male person and obtain ID.

[68] Const. Luscombe testified that he stopped Mr. Tahan at 3:59 a.m. as he was walking on the street. Const. Luscombe’s notes state Mr. Tahan’s name and date of birth and the address where Mr. Tahan was staying, followed by the words “sober male.” Const. Luscombe is a “breath tech” and is trained in identifying intoxication. He testified that Mr. Tahan was not intoxicated.

[69] During his cross examination of PC Luscombe, Mr. Cowan noted that the words “sober male” were written on the last line of the page of PC Luscombe’s notebook just above the fold, and that in other places in his notebook, PC Luscombe had not used that line. I reviewed the original notebook. He had in fact used the same line elsewhere in the notebook. I am satisfied that PC Luscombe made the note contemporaneously with his observation and that he considered Mr. Tahan to be a “sober male” when he stopped him. I accept that Mr. Tahan was relatively sober at that time.

[70] Insp. Mighton drove the complainant home. While in the vehicle, the complainant was agitated that her mother had involved the police. She said she had left AJ’s an hour ago. She told Insp. Mighton that she was with “Nicholas,” and she didn’t know his last name. She told Mighton she left AJ’s house at 1:00 a.m. He asked if anything inappropriate had happened that she wanted to talk to the police about. She said nothing inappropriate had happened. The complainant testified that she remembered being in the back of the police car and was embarrassed by this, and her evidence about what she said to Insp. Mighton was consistent with his.

[71] After being satisfied that the complainant would be safe with her mother, Insp. Mighton returned to his duties at the Pumpkinfest grounds. A town employee brought the complainant’s wallet to him later that shift.

Subsequent Events

[72] When she got home, the complainant was embarrassed, and angry with her mother for involving the police. She explained that she had been with WS. She had lost her phone and her purse with her wallet. The complainant was intoxicated, disoriented, and confused. She could not get it into her head that so much time had passed. The complainant thought that she was just walking home from AJ’s with WS, and she thought only an hour had passed. There was alcohol on her breath.

[73] The complainant testified that her mother pointed out that she had dirt on her clothes. She had cuts and scrapes. There was blood on her jeans. “And there was puke in my hair.”

[74] Before she went to bed, the complainant used her mother’s phone to try to call AJ but did not reach her. After that, probably after 5:00 a.m., the complainant’s mother went to bed. She woke up the complainant in time for her to go to work.

[75] The complainant did tell her mother and the police that WS was being a gentleman and he was just walking her home.

[76] When she woke up later that morning, she was still feeling drunk but couldn’t call in sick because her employer was short staffed and would be busy due to Pumpkinfest. The complainant was emotionally upset. She had to go to work and did not have time for a shower. By this point, the complainant was receptive that there was lost time.

[77] The complainant’s mother told her that the police had indicated that her wallet was found. They drove to the police station to try to get it, but they could not get into the building, so they decided to try again after her shift.

[78] At work, she became increasingly aware of the cuts and scrapes and bruises on her body, and her vagina was sore in the front and felt like it was bruised. She was confused and thought maybe she fell. At one point during her shift, she went to the washroom and had a bowel movement which was painful. She saw that there was blood on the tissue paper when she wiped. She knew at that point that there was something wrong that went beyond her just falling.

[79] She stayed late at work because it was busy. When her mother picked her up around 4:30 she disclosed how her vagina was sore and her anus was sore and tender.

[80] They went to the complainant’s grandmother’s and the three of them considered what to do. She wasn’t sure she wanted to go to the police because she didn’t want to get anyone in trouble if she was wrong.

[81] She was scared because she didn’t remember having sex that night. They decided she should go to the hospital. Before doing that, she wanted to talk to AJ. She spoke to AJ and learned they had parted company at the bank. She did not disclose her concerns to AJ.

[82] She then went to the Southampton Hospital and learned that a sexual assault examination could not be performed there. She was referred to Owen Sound hospital where she attended the next day. She avoided showering before attending at Owen Sound hospital the next day, which was her 20th birthday. She took the clothing and underclothing she had been wearing the night of September 28th with her.

[83] On her way to the Owen Sound hospital the complainant used her mother’s phone to check her Facebook. She saw a friend request and message from Mr. Tahan and was confused by it. “Hey did you end up finding your phone and your belongings?” She did not know who this person was or how this person knew she had lost her phone and her belongings. In her mind, she thought it was WS who had assaulted her, but she didn’t know who this person was who was trying to message her. She subsequently learned from the police that the person she had been walking with was Mr. Tahan, and she was shocked to learn this.

Mr. Tahan’s Police Statement

[84] Mr. Tahan gave his interview to police on October 3, 2018, four days after the alleged sexual assault.

[85] In the opening minutes of the interview, Mr. Tahan told Insp. Mighton that he met the complainant at Wismer House. He said he “started chatting her up and it was closing soon so we walked towards the place I’m at now. And we just made out, kinda hooked up.”

MIGHTON: Okay. Um, maybe I should clarify sooner rather than later, when you say hooked up, did you have sex with her?

TARAN: I actually don't remember because I was not in the right frame of mind.

[86] At that point Insp. Mighton explained to Mr. Tahan that he was not obliged to saying anything unless he wished to do so and that whatever he said might be given in evidence against him. He further explained that the interview was being recorded and that arrangements could be made for Mr. Tahan to speak to a lawyer. Mr. Tahan declined speaking to a lawyer, and the interview proceeded.

[87] Mr. Tahan told Insp. Mighton that before going to Wismer House, he had “a couple drinks at home.” Shots. By himself. Smirnoff vodka. Between 5 and 10 shots.

[88] He arrived at Wismer House at 11:00 p.m. He then maybe has “a couple more.” He then said, “I have no idea even where I met her.” “It’s at the Wismer House I’m pretty sure though.” He knew he had not gone anywhere else because he had checked his credit card since then and he didn’t have any cash on him. He only recalled meeting her. He couldn’t recall what she looks like.

[89] He said his last credit card charge was at 12:30 or 1:00. If anyone bought him drinks, he wouldn’t know.

[90] Towards the end of the interview, Mr. Tahan backtracked: “Maybe she, she wasn't even at the Wismer House, maybe I met her on the street, I couldn't tell anyone, like.”

[91] The interview transcript includes the following passages:

MIGHTON: All right. So tell me what happens after your last drink.

TARAN: I, I ... if I knew, I would definitely tell you. I actually don't know, I don't remember anything.

MIGHTON: Okay.

TAHAN: Wish I did. I would tell you.

MIGHTON: Okay. Um ...

TAHAN: And this is like no recollection at all.

MIGHTON: All right. Well you said you, you remember making out with her, you hooked up with her.

TARAN: Like, it's, it's pretty evident, like I would have kissed her and stuff like that.

MIGHTON: Well, how's it pretty evident, like what do you mean?

TARAN: Just because of like our, like right before that I probably would have kissed her and stuff like that.

MIGHTON: You did or you didn't? You don't know, you don't know that.

TARAN: I don't really know, but what I would assume is I kissed her.

MIGHTON: Okay. At the bar?

TARAN: At the bar, probably, yeah.

MIGHTON: All right, did you go back to your place?

TARAN: See, I'm not exactly sure, but I probably would have. I'm, I'm, I'm … I couldn't explain, like I wouldn't know. Cuz like I remember at one point we were both falling down.

MIGHTON: Um, so do you know if you ever made it back to your house?

TAHAN: I couldn't tell you.

MIGHTON: Would your supervisor, was he home all night?

TAHAN: They were, they were sleeping.

MIGHTON: But they were there.

TAHAN: One of them was out, one of them was sleeping or out, his door was closed and no one was home.

MIGHTON: Okay. And when, and how do you know that?

TAHAN: Because he told me, like. I'm like, what happened last night? I don't know, I was sleeping.

MIGHTON: Okay, why' d you ask him what happened last night?

TAHAN: Cuz I asked him, cuz I don't remember what happened.

[92] Mr. Tahan’s assertions that he wasn’t “exactly sure” if they went back to his place and, “I couldn’t tell you” if he ever made it back to his house are proven false by Mr. Jackson’s testimony. Mr. Jackson testified that later that morning he and Mr. Tahan discussed the events of the night before. Mr. Tahan told Mr. Jackson he walked the complainant home. He told Mr. Jackson her name (first and last). He told Mr. Jackson that the police were looking for her because she hadn’t met up with her family. He mentioned that the police had stopped and questioned him. Mr. Tahan also told Mr. Jackson that he did not remember how he met the complainant at the bar. Mr. Jackson testified, “He remembers going to the bar and then back to the house. He doesn’t remember anything between. That’s what he told me.”

[93] As is apparent from this, Mr. Tahan lied to Insp. Mighton when he said did not know if he and the complainant made it back to the house.

[94] Mr. Tahan also lied to Insp. Mighton when he said that Mr. Jackson was sleeping, and that Mr. Jackson had said he did not know what happened that night. In fact, Mr. Jackson was not sleeping at the important time.

[95] Insp. Mighton also asked Mr. Tahan if he had communicated with the complainant after that night, including through social media. Mr. Tahan said they had not, which was not a lie because he sent a message which was not returned. But Insp. Mighton returned to this, and Mr. Tahan was less than candid by not clarifying that he had attempted to communicate with the complainant through Facebook and Snapchat, but she had not responded.

[96] The complainant was not listed on Snapchat under her own name but rather under an alphanumeric code that would not have been findable by Mr. Tahan unless it had been given to him. This evidence demonstrates not only that Mr. Tahan was less than forthright with Insp. Mighton, but also that he had obtained, and either recorded or remembered, the complainant’s name. This undermines Mr. Tahan’s assertion that he was so intoxicated he could not remember whether he had sex with the complainant.

[97] Mr. Tahan’s assertion that he was so impaired he did not remember things was also undermined by Const. Luscombe’s testimony that indicated Mr. Tahan was sober at 3:59 a.m. Finally, the security video from Wismer House shows Mr. Tahan moving fluidly. By his movements he does not appear to be impaired.

[98] Collectively, the evidence establishes that Mr. Tahan was not highly intoxicated at 12:03 a.m. on September 29, 2018 when he left Wismer House or at 3:59 a.m. when he was stopped by Const. Luscombe.

[99] Mr. Tahan’s assertion in the recorded interview that he had essentially blacked out due to intoxication from about 1:15 a.m. to about 3:30 a.m. is not credible. Mr. Tahan was fabricating an exculpatory version of events during the interview. I do not accept Mr. Tahan’s assertion in the recording that he had between five and ten shots of vodka at home by himself before going to Wismer House. If this was true, he would have been more visibly intoxicated on the security video. I do not accept Mr. Tahan’s assertion in the recorded interview that he does not remember having sex with the complainant. Not only is this unlikely in all of the circumstances, but if it was true, he would not have appeared relatively sober on the video and sober to Const. Luscombe. Mr. Jackson’s evidence would have to be wrong when he said that Mr. Tahan told him that he remembered “going to the bar and then back to the house.”

[100] I should add that I do not accept that Mr. Tahan was being truthful to Mr. Jackson when he said he doesn’t remember anything between going to the bar and then coming to the house. This again is inconsistent with the security video at Wismer House.

[101] The recorded interview also contains this passage:

MIGHTON: Right, so you clearly have a recollection of that night.

TAHAN: I know she lost some stuff cuz I was ... when I was trying to walk her home she said, like, I was like, where do you live, let's walk to your house, drop you home.

MIGHTON: Okay.

TAHAN: She's like, I don't have my phone, I don't know where I live.

MIGHTON: All right, so you did know more. You do recall some parts of that night then.

TAHAN: As I was walking home, yeah.

MIGHTON: Okay.

TAHAN: Walking her home, that's why I was talking to you guys.

The Hospital Evidence

[102] The records from the forensic sexual assault examination conducted by the nurse in Owen Sound were filed on consent. These included photos of her injuries which showed that she had injured her both knees, both ankles, both hands, both elbows and her chin. These injuries are consistent with the complainant having fallen, as observed by her friends and as Mr. Tahan indicated in his recorded interview.

[103] The records also reveal that the complainant complained of pain to her jaw, lower ribs, vagina, and anus.

The Forensic Evidence

[104] Gerald Alderson, a forensic scientist with the Centre for Forensic Sciences was called as a witness. His report, Biology Report #1, was admitted into evidence on consent. The CFS did DNA testing of the swabs taken from the complainant at the Owen Sound hospital. It is admitted by Mr. Tahan that the swab taken from the complainant’s external genitalia contains his DNA.

[105] Mr. Alderson’s report indicates, for the swab from the external genitalia of the complainant, “presence of semen suggested.” In his testimony, he went further and said that the male DNA profile was likely originating from semen, but he could not quantify the likelihood that it was semen.

[106] In cross examination, Mr. Alderson acknowledged that if someone was to sit on a wet semen stain and was there long enough, that is a possible mechanism of transfer of DNA.

Credibility of the Complainant

[107] I found the complainant to be a very credible and reliable witness. There were no significant inconsistencies in her evidence.

[108] Under cross examination, the complainant acknowledged insisting to her mother when she got home that WS had been a perfect gentleman. I do not find this surprising or in any way contradictory of any other aspect of her evidence.

[109] She was not shaken in cross examination.

[110] I was also fully convinced that the complainant thought she was sexually assaulted by WS. Upon receiving the message from Mr. Tahan, she realized she did not know who she had been with during that night, but until she learned from Const. Luscombe that it was Mr. Tahan who had been walking her home, she thought she had been with WS. Everything points to this:

• her conversation with Mr. Jackson where she said Mr. Tahan was dating her best friend;
• her statement to Insp. Mighton that “Nicholas” has walked her home – “Nicholas” is not so distant from WS’s first name. It is credible that in her intoxicated state she would state it incorrectly or be misheard.
• her statement to her mother that WS had walked her home;
• her reporting to medical personnel in Owen Sound that she had been found by police walking with her friend’s boyfriend;
• her anxiousness about discussing the events of the evening before with AJ. She said when she talked to AJ on the phone the next day, “I was just scared to even bring up [WS’s] name because that would be a big conflict with a friend and her boyfriend and that is a big accusation”;
• her anxiousness about going to the police and accusing AJ’s boyfriend of sexually assaulting her.

[111] I am persuaded from the totality of the evidence that the complainant did not know who she had sex with. I fully accept every material aspect of her evidence.

Elements of the Offence

[112] For me to find Mr. Tahan guilty of sexual assault, I must conclude that the Crown has proven each of following essential elements beyond a reasonable doubt:

a. that the accused intentionally applied force to the complainant; b. that the complainant did not consent to the force that the accused applied; c. that the accused knew that the complainant did not consent to the force that the accused applied; and d. that the force that the accused applied took place in circumstances of sexual nature.

Positions of the Parties

[113] The Crown submits that the evidence establishes beyond a reasonable doubt that the complainant did not have an operating mind at the time of the sexual activity in question and did not have the capacity to consent to it. Referring to R. v. G.F., 2021 SCC 20, at para. 65, the Crown noted:

Whether the complainant has a memory of events or not does not answer the incapacity question one way or another. The ultimate question of capacity must remain rooted in the subjective nature of consent. The question is not whether the complainant remembered the assault, retained her motor skills, or was able to walk or talk. The question is whether the complainant understood the sexual activity in question and that she could refuse to participate.

[114] Mr. Cowan argued that if it is implausible that Mr. Tahan had no memory of the events (as Insp. Mighton had put to Mr. Tahan in the recorded interview), the same must be true of the complainant. Mr. Cowan noted that the complainant must have given Mr. Tahan either her home address or directions to her home because they were walking towards her home. She must have put her clothes on properly and zipped up her boots before leaving the Falconer Street residence. She must have given Mr. Tahan her alphanumeric Snapchat username.

[115] Mr. Cowan also points to the conversation the complaint had with Mr. Jackson as evidence of her operating mind and not a black spot. Mr. Cowan also argued that the embarrassment which the complainant experienced is an advanced cognitive process. Also, the complainant said in the preliminary inquiry that she spoke for an hour with her mother when she got home and that she wanted to call AJ. Mr. Cowan argued that all these things show her mind was operating. On this basis, he argues that there is more than a reasonable doubt as to her capacity.

[116] Mr. Cowan also pointed to Mr. Jackson’s testimony as evidence that the encounter in Mr. Tahan’s bedroom was harmonious. He argued that Mr. Jackson was in a position to make the call as to whether this was a harmonious encounter. Mr. Jackson testified that if he had had concerns, he would have done something. Mr. Cowan further argued that I should find it plausible that the alcohol caused the complainant to behave out of character, and that as a result she may have consented to the sexual activity.

Analysis

Application of force in circumstances of a sexual nature

[117] The Crown has proven beyond a reasonable doubt that Mr. Tahan applied force to the complainant in circumstances of a sexual nature.

[118] There is no evidence as to how Mr. Tahan and the complainant met or came upon each other. It must not have been in the Wismer House and it must have been sometime after 12:03 a.m. that they met. This was about an hour after the complainant parted company with her friends, and there is no account of the complainant’s whereabouts during that hour. However, there is overwhelming evidence that the complainant and Mr. Tahan encountered each other somewhere in the downtown Port Elgin area and went to the Falconer Street house and engaged in sexual activity.

• Mr. Jackson’s observations of jeans and pink frilly underwear over the back of the couch indicates that when the complainant and Mr. Tahan were in Mr. Tahan’s bedroom, the complainant was not wearing her pants or underwear.
• Mr. Jackson heard noises coming from the bedroom that sounded like two people engaged in a sexual act.
• Mr. Tahan’s DNA was on the complainant’s external genitalia.
• Mr. Tahan initially admitted in his recorded police interview that he and the complainant, “just made out, kinda hooked up.” He later retracted this, saying “I know I kissed her, that’s all I remember.” He said he had no recollection at all, but it was “pretty evident” he “would have kissed her,” and that “I probably kissed her in the bar.” However, I find that was solely backpedalling and fabrication by Mr. Tahan in an effort to avoid being charged.

[119] In his closing submissions, Mr. Cowan did not press the argument that Mr. Tahan’s DNA may have transferred to the complainant’s genitalia because she sat in his semen. However, because it was raised in cross examination, I will address it. All that needs to be said is it is a fantastical and speculative theory which is not grounded in evidence.

[120] I accept the complainant’s evidence of her growing awareness during the day, including while she was at work, of pain from her vagina and anus, and that something untoward had occurred that she could not remember. I do not accept as remotely plausible any theory that this may have occurred to her before Mr. Tahan encountered her, such as in the one-hour period while she was no longer with her friends and Mr. Tahan was in Wismer House. I find from the totality of the evidence that the Crown has proven beyond a reasonable doubt that Mr. Tahan did penetrate the complainant both vaginally and anally.

Consent

[121] Section 273.1(1) of the Criminal Code states:

Meaning of consent

273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. [Emphasis added.]

[122] Section 273.1(2) of the Criminal Code states, in part:

No consent obtained

273.1 (2) For the purpose of subsection (1), no consent is obtained if

(a.1) the complainant is unconscious;

(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1). [Emphasis added.]

[123] As the complainant does not remember the sexual encounter, she is not able to provide evidence as to whether she consented or not. The Crown’s theory is that the complainant lacked the capacity to consent.

[124] In this case, owing to her lack of memory, there is no direct evidence as to whether the complainant consented (or ostensibly consented) to the sexual activity which occurred.

[125] The complainant was not asked whether she would have consented, which is often asked in these cases, but evidence of this nature is of limited value: R. v. Al-Rawi, 2018 NSCA 10, at para. 70.

[126] Given the complainant’s actions later during the day of the alleged assault and in the following days, and given the totality of her evidence, it is abundantly obvious that she felt violated. This evidence might possibly be used as post-event demeanour evidence to indicate the complainant would not have consented and did not consent. However, the testimony of Mr. Jackson about the “oh’s and ah’s” and sexual noises coming from Mr. Tahan’s bedroom which sounded like people “having a good time” is indirect or circumstantial evidence from which consent might be inferred. That evidence is enough to leave me in a state of reasonable doubt as to whether the complainant ostensibly consented to the activity. That does not end the matter however, because, as indicated, under s. 273.1(2), even if ostensible consent is present, no consent is obtained if the complainant is incapable of consenting.

Capacity to Consent

[127] The Supreme Court of Canada has recently reviewed the law surrounding the capacity to consent in R. v. G.F., 2021 SCC 20.

[128] G.F. was decided in the wake of multiple decisions which held, relying on R. v. Hutchinson, 2014 SCC 19, that a two-step process should be used where both consent and capacity to consent are in issue. The Supreme Court clarified how Hutchinson is to be applied. Here, given my finding above, only capacity to consent is in issue. G.F. is nevertheless helpful in the analysis. At para. 53 to 54, the court stated:

In sum, a finding of subjective consent requires both that the complainant was capable of consenting and did agree to the sexual activity. Finding that a complainant was either incapable of consenting or did not agree to the sexual activity in question will establish a lack of subjective consent. These two aspects of subjective consent do not need to be considered in any rigid order. Only if subjective consent exists, or if there is a reasonable doubt as to subjective consent, does a trier of fact need to go on and ask whether that consent was vitiated.

The question of whether a complainant had the capacity to consent will not always be at issue; nor will the question of whether subjective consent was vitiated always be at issue. Such questions are driven by the facts and context of each individual case. [Emphasis added.]

[129] The Supreme Court in G.F. went on to explain the four requirements for capacity, at para. 55 to 58:

As capacity is a precondition to subjective consent, the requirements for capacity are tied to the requirements for subjective consent itself. Since subjective consent must be linked to the sexual activity in question, the capacity to consent requires that the complainant have an operating mind capable of understanding each element of the sexual activity in question: the physical act, its sexual nature, and the specific identity of their partner: Barton, at para. 88; Hutchinson, at paras. 54-57.

There is one further requirement. Because subjective consent requires a “voluntary agreement”, the complainant must be capable of understanding that they have a choice of whether or not to engage in the sexual activity in question: Criminal Code, s. 273.1(1). At the very least, a voluntary agreement would require that the complainant exercise a choice to engage in the sexual activity in question. …

In sum, for a complainant to be capable of providing subjective consent to sexual activity, they must be capable of understanding four things:

1. the physical act;
2. that the act is sexual in nature;
3. the specific identity of the complainant’s partner or partners; and
4. that they have the choice to refuse to participate in the sexual activity.

The complainant will only be capable of providing subjective consent if they are capable of understanding all four factors. If the Crown proves the absence of any single factor beyond a reasonable doubt, then the complainant is incapable of subjective consent and the absence of consent is established at the actus reus stage. There would be no need to consider whether any consent was effective in law because there would be no subjective consent to vitiate. [Emphasis added.]

[130] Only a high level of intoxication that deprives the complainant of an operating mind is sufficient to remove the capacity to consent to sexual activity. Drunkenness, alcohol-induced memory loss, disinhibition, or loss of self control are not the equivalent of incapacity; a drunken consent is still a valid consent: R. v. Cedeno, 2005 ONCJ 91, at para. 18; R. v. J.W.M., [2004] O.J. No. 1295, at para. 55.

[131] At the same time, “Parliament intended consent to mean the conscious consent of an operating mind”: R. v. J.A., 2011 SCC 28, at para. 36. In the G.F. case discussed above, at the Court of Appeal level, Pardu J.A. stated, at para. 38:

while mere proof of drunkenness, loss of inhibitions, regret for a bad decision or some memory loss do not of themselves negate capacity for consent, some physical actions such as walking a short distance, making a phone call, speaking, and some awareness of or resistance to sexual activity do not necessarily preclude a finding of incapacity. I also agree that some memory of the events is not necessarily inconsistent with incapacity. As the case law demonstrates, the trier of fact must consider all the evidence to make the factual determination of the complainant’s capacity at the relevant time. [Citations omitted.]

[132] The Court of Appeal was overturned by the Supreme Court of Canada, but this statement remains instructive.

[133] Of the four elements required to meet the test for capacity, the most salient element in the facts of this case is item 3, “the specific identity of the sexual partner.” I have already said I am fully convinced that the complainant thought she was assaulted by WS, meaning that she did not know the identity of the person she had sex with. Of course, not knowing or being mistaken is not the same as being incapable of understanding, and the Crown must prove beyond a reasonable doubt that the complainant was incapable of understanding.

[134] The facts compel the conclusion that the complainant did not have the necessary operating mind to understand the specific identity of her sexual partner:

a. She had consumed a great deal of alcohol. b. She was grossly impaired to the point of falling down as she walked to the bank. c. She was too impaired to understand that she could not get money from the bank machine using her Student Price Card, or in the alternative to recognize that she was not using her bank card. d. She was behaving out of character in being rude to her friends. e. Her friends observed that she was too intoxicated to be let into the bar. f. She has no memory of the events in question, including no memory of the fact that she was vaginally and anally penetrated. g. Her deep and persistent misunderstanding of who she was with. h. Her complete loss of approximately five hours of time without having any idea where she was. i. The fact that she lost her phone, purse, and wallet. j. The fact that she fell down with Mr. Tahan as well, according to his recorded interview. k. Her lack of awareness of her injuries. l. She had vomit in her hair with no recollection of vomiting. m. Her incoherent conversation with Mr. Jackson. n. The fact that she needed to be held up by Mr. Tahan, according to Mr. Jackson’s evidence. o. Her failure to understand Mr. Tahan’s Facebook messenger message. p. Insp. Mighton’s observation that she was highly intoxicated at 4:00 a.m. q. Her agitation with her mother for involving the police and her incoherence with her mother. r. The fact that she still felt drunk when she woke up to go to work.

[135] As indicated, Mr. Cowan argued that the complainant had the ability to give Mr. Tahan either her home address or directions to her home, and to dress herself and walk, and to provide her Snapchat username. He argues that these facts show she had an operating mind.

[136] In response, firstly, Mr. Tahan said in his recorded interview that when he was walking the complainant home, she said, “I don't have my phone, I don't know where I live.”

[137] Secondly, these factors do not answer the compelling conclusion that the complainant did not comprehend who she had sex with. After getting to Falconer Street with Mr. Tahan, after having sex with Mr. Tahan, and after Mr. Tahan walked her part of the way home, she still thought Mr. Tahan was WS. This is compelling evidence that her mind was not operating and that the facts meet the test for incapacity set out in G.F.

[138] The elements such as her embarrassment, her significant conversation with her mother, and her desire to call AJ, all occurred after her mind was operative enough to again enable memory.

[139] Mr. Jackson’s testimony raises a doubt as to whether there was ostensible consent but does not raise a doubt about her capacity to consent. Indeed, the totality of his evidence further establishes the complainant’s high level of intoxication while at the Falconer Street residence.

[140] The Crown has met its burden to prove beyond a reasonable doubt that the complainant did not have the capacity to consent to the sexual activity in question.

Knowledge

[141] The final element that the Crown must prove beyond a reasonable doubt is that Mr. Tahan knew that the complainant did not consent to the force that he applied. In this case, s. 273.1(2)(b) is engaged. Again, it indicates that “no consent is obtained if … the complainant is incapable of consenting to the activity…” The Crown only needs to prove beyond a reasonable doubt that Mr. Tahan knew the complainant was incapable of consenting to the activity (i.e., the Crown need not prove that the complainant did not ostensibly consent).

[142] Anyone who was with the complainant for as long as Mr. Tahan was must have known she was highly intoxicated. The totality of the evidence establishes this beyond a reasonable doubt. One especially telling component that speaks to Mr. Tahan’s knowledge was that he admitted remembering that “we were both falling down.”

[143] The fact that Mr. Tahan fabricated a story to Insp. Mighton adds to the evidence of his guilty mind. I am aware that it is an error to infer guilt merely from disbelieving the evidence of the accused: [R. v. Watkins (1992), 70 C.C.C. (3d) 431 (Ont. C.A.), at 349](R. v. Watkins (1992), 70 C.C.C. (3d) 431 (Ont. C.A.)); R. v. White, [1998] 2 S.C.R. 72, at para. 19 to 22.

[144] It is not simply the case that I disbelieve Mr. Tahan’s recorded interview. Rather, I find that he fabricated a narrative that he thought would assist his position.

[145] Mr. Tahan wanted Insp. Mighton to believe he was so drunk he did not remember having sex with the complainant. He therefore fabricated the story that he drank between five and ten vodka shots at his house, by himself, before going to Wismer House. From the Wismer House security video, this is, minimally, a demonstrable exaggeration.

[146] In addition, as indicated, Mr. Tahan told Insp. Mighton he did not know if he made it back to Falconer Street, and that Mr. Jackson was sleeping and did not know what happened. Both statements were untrue, as Mr. Jackson’s evidence established.

[147] These fabrications are evidence of a guilty mind.

[148] The Crown has proven beyond a reasonable doubt that Mr. Tahan knew the complainant was incapable of consenting to the sexual activity.

W.(D.) Analysis

[149] Mr. Tahan did not testify, but as his recorded interview became evidence, I will explicitly consider the requirements of [R. v. W.(D.), [1991] S.C.R. 742](R. v. W.(D.), [1991] S.C.R. 742).

[150] Because he claimed not to remember having sex with the complainant, nothing in Mr. Tahan’s recorded interview can be considered evidence that the complainant consented. Similarly, there was no material evidence in his interview that the complainant had the capacity to consent. In any event, because of his lies and concocted statements to Insp. Mighton, I do not believe any of the exculpatory information Mr. Tahan provided.

[151] In addition, none of the information he provided in his recorded interview raised a reasonable doubt in my mind about his guilt.

[152] Finally, on the evidence as a whole, including Mr. Tahan’s information in the recorded interview, I do not have a reasonable doubt as to whether he applied force to the complainant in circumstances of a sexual nature, whether the complainant had capacity to consent, or whether Mr. Tahan knew that the complainant did not have capacity to consent.

Disposition

[153] For the foregoing reasons, I find Mr. Tahan guilty of the offence with which he is charged.

Chown J. Released: February 17, 2022