Court File and Parties

Court File No.: CR-20-70000040-0000 Date: 2022-05-02 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: Ahmed Rabah, Defendant

Counsel: Sandra Duffy, for the Crown James Kopman, for the Defendant

Heard: March 28 – April 7, 2022

Justice: S. Nakatsuru

[1] Ahmed Rabah is charged with two counts of sexual assault. One count against A.D. on June 28, 2018. Another against V.L. in the early morning hours of June 30, 2018. On June 30, A.B. and V.L., who were close friends, met up and talked about their previous interactions with Mr. Rabah. They then called the police to report the sexual assaults.

[2] The trial issues are whether the sexual contact occurred and if it did, whether it was non-consensual. Central to my decision is my assessment of the honesty and reliability of the complainants’ testimony.

[3] Before getting to whether the Crown has proven its case, I will deal with the Crown’s similar fact application.

A. The Similar Fact Application

[4] The Crown applies to have the evidence of the two complainants used as similar fact evidence between counts on the same indictment. It is argued that the similar fact evidence supporting Mr. Rabah’s situation-specific propensity is probative to the issues of whether the sexual activity happened and whether the activity was consensual.

[5] Similar fact evidence is admissible where its probative value is not outweighed by the prejudice of tendering the evidence. In assessing the probative value of the evidence, the Crown must identify the issue to which the evidence is probative and prove on a balance of probabilities that the evidence is sufficiently similar such that it has some probative value to a material issue at trial.

[6] In R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, the Supreme Court set out a non-exhaustive list of factors that assist in determining whether there is a sufficient connection between the similar acts:

a. The extent to which the other acts are similar in detail to the offence charged; b. The proximity in time of the similar acts and the offence charged; c. The number of occurrences of the similar acts; d. The circumstances surrounding or the context in which the similar acts occurred; e. Any distinctive feature or features unifying the incidents or any intervening acts; and f. Any other relevant factor.

[7] The Crown must also show that the evidence is reasonably capable of belief and show on a balance of probabilities that the evidence is not tainted by collusion.

[8] Credibility is not a standalone factual issue on which similar fact evidence is to be admitted. However, the Crown may tender the similar fact evidence to support the credibility of the complainant, provided that the Crown identifies a material issue to which the complainant’s credibility is probative. Evidence that the accused has an established, clearly defined, situation-specific propensity to engage in a similar pattern of conduct is probative to assessing the credibility of the complainants when they allege that the offence occurred in a particular way that accords with that specific propensity: R. v. C.K., 2015 ONCA 747, 342 O.A.C. 87, at paras. 33- 34. In this case, the Crown submits that the similar fact evidence of that propensity is admissible to support the credibility of each complainant’s claim that they had been assaulted in the manner that they described: R. v. R.B. (2005), , 77 O.R. (3d) 171 (C.A.), at paras. 10- 11, leave to appeal refused, ; R. v. T.C. (2005), , 74 O.R. (3d) 100 (C.A.), at para. 56; R. v. D.(T.J.) (2004), , 185 O.A.C. 336 (C.A.), at para. 6; R. v. Whitehead (2004), , 190 O.A.C. 264 (C.A.), at para. 15.

[9] The Crown submits that Mr. Rabah had a situation-specific propensity of inviting women of apparently precarious housing circumstances into his home to sleep, removing their clothing while they slept, and sexually assaulting them by penetrating them. He had specific habits that consisted of assuring the victims by saying “trust me” during intercourse and attempting to make the victim masturbate him as an aspect of the sexual assault. The Crown submits the allegations are sufficiently similar that it is highly improbable that the allegations were fabricated by either complainant.

[10] Looking at the evidence in this case, I agree that there are some similarities between the two allegations. The profile of the victims is similar in that they were women who were economically vulnerable and relied from time to time on friends to provide a place to stay. The context of the sexual assaults is also similar in that both complainants were invited back to Mr. Rabah’s place when they had no place to stay in the early morning hours. They fell asleep and were awakened to non-consensual touching. In both instances, Mr. Rabah is alleged to have said to trust him as he ignored their pleas to stop. While most of the sexual acts themselves are not particularly distinctive, he did attempt to get both women to stimulate him manually over their objections.

[11] On the other hand, there are significant dissimilarities. A significant one is the nature of the relationship the women had with Mr. Rabah. V.L. had a much closer relationship, having been over many times to Mr. Rabah’s and having socialized with him. They had a relationship of sorts. On the other hand, A.D. did not know Mr. Rabah well. At best, he was an acquaintance that she met through V.L. In addition, V.L. was invited to Mr. Rabah’s place when she randomly bumped into him. If A.D. is believed, her stay at Mr. Rabah’s was not random but was set up by V.L. She had only been at his place at most a couple of times. Put another way, the circumstances in which the complainants arrived at Mr. Rabah’s home to spend the night are quite different.

[12] Looking at other factors, the two alleged offences are close in time. They happened within days of each other. While the fact that there are only two incidents does not preclude admission, it does weaken the probative value of this specific propensity of Mr. Rabah.

[13] In my opinion, there are sufficient similarities that there is some probative value and connection between the two alleged sexual assaults.

[14] The major problem for the Crown is the evidence of conscious collusion and inadvertent tainting of the two complainants’ testimony: R. v. J.F. (2003), , 177 C.C.C. (3d) 1 (Ont. C.A.), at para. 86. My factual findings that lead me to this conclusion will be expanded upon when I assess the evidence on the trial proper. For now, I will say the following.

[15] The Crown rightfully concedes that collusion is a real issue. On June 30, 2018, V.L. and A.D. met to go swimming at the Regent Park pool. They sat on a bench outside the pool and talked. Their accounts of their conversation differ, but they agree that they talked about the sexual assault they each suffered at the hands of Mr. Rabah. They both agree that V.L. first brought this up. They both agree that A.D. then told V.L. that the same thing happened to her. I find that they spoke about this for at least half an hour. Likely more. It was only after they talked about it that they decided to call the non-emergency line of the Toronto Police Service to report the sexual assaults. They did so immediately from the bench where they sat.

[16] A.D. testified that they did not talk about the details of the sexual assaults. Contrarily, V.L. testified that they indeed did talk about the details. I accept V.L.’s testimony and prefer it over A.D.’s. V.L.’s recollection was clear. She was more forthcoming and candid. An example of the lack of candor by A.D. is her testimony that V.L. only disclosed the sexual assault when A.D. had suggested that V.L. stay at Mr. Rabah’s place again when V.L. said she had no place to stay. This evidence belies belief. If A.D. had been recently sexually assaulted by Mr. Rabah, then suggesting that her good friend should stay over at his apartment again is implausible. V.L. also denied that A.D. ever suggested this. Another reason I accept V.L.’s testimony is that it is more in keeping with logic and human experience. Two close friends were talking about recent sexual assaults by a man they both knew. They concluded the sexual assaults were the “same” or “similar”. To determine the similarity of the assaults, they must have talked about the details.

[17] V.L. testified that she started to talk about what happened the night of June 30 when she was at Mr. Rabah’s place. She testified that she described his behaviour in detail to A.D. She recalled telling A.D. that she really did not want to do anything, he wanted to do stuff, and she had pains in her tummy because of it, during and after the encounter. The pain lasted a day or so. V.L. told A.D. what physically happened between them: that Mr. Rabah was on top when she woke up, then she kept trying to push him off, and he kept trying to get her to grab his penis and stuff.

[18] After V.L. told A.D. the details of what happened to her, A.D. mentioned to V.L. that she had a similar incident with Mr. Rabah. A.D. said he tried to have anal sex with her, he tore her, and she bled from her anal area. V.L. did not recall A.D. saying anything else.

[19] They then discussed other unrelated things that were happening in their lives at that time. V.L. testified that A.D. then said, “[Y]ou know we can actually do something about this” and the topic came up again. They talked about it and decided that they could do a rape kit and go to the police. They ended up calling the police and an ambulance came to take them to the hospital. V.L. agreed that she and A.D. made sure that all the information they had was correct so that they were sure Mr. Rabah assaulted them before they called the police. It was A.D.’s idea to report Mr. Rabah to the police, but it ended up being V.L.’s decision to call the police as A.D. had no physical evidence of the sexual assault. Since the sexual assault on V.L. was recent, the forensic evidence would still be fresh. V.L. made the decision to go to the police because she was worried that others might be endangered by Mr. Rabah.

[20] The Crown agrees that both conscious and unconscious collusion or inadvertent tainting [1] are factors to be considered. A.D. and V.L. were both consistent in testifying that they did not discuss the verbal conversations they had with Mr. Rabah when they were being sexually assaulted. I do not doubt the sincerity of their evidence. However, I cannot be sure that this part of V.L.’s evidence is reliable. I am not fully confident that the two women did not have these conversations. I can readily see the two women discussing this. It would be normal to do so.

[21] In this case, I find that the Crown has not proven on a balance of probabilities that collusion or tainting did not happen. V.L. told A.D. what happened to her in detail. She did this before A.D. spoke about the sexual assault committed on her. When A.D. did discuss the sexual assault she experienced, she only recounted that Mr. Rabah forced anal sex on her and she bled from her anus (I observe that this is inconsistent with A.D.’s trial testimony). It was only after being exposed to V.L.’s detailed account that A.D. later testified that Mr. Rabah did things like try and get her to masturbate him, and that he said continually to “trust” him. I cannot help but conclude that what V.L. said to A.D. on the bench while waiting to go swimming has tainted A.D.’s account of the sexual assault on her.

[22] To be clear, if there is any inadvertent tainting or conscious collusion, I find that it is really one way. V.L. advised A.D. about what happened to her on June 30 with Mr. Rabah, and this tainted A.D.’s recollections of what happened to her. Indeed, in my opinion, it goes beyond inadvertent tainting. I will go so far as to say that when the evidence of A.D. is considered as a whole, it is likely that A.D. consciously changed her account of the sexual assault on her to support her close friend V.L. In these circumstances, the probative value of the cross-count similar fact evidence is effectively destroyed. Put another way, given the collusion/tainting, the similarities in the description of the sexual assaults are of little value. Any remaining similarities do not suffice to overcome the presumption against admissibility.

[23] On the balancing of probative value and prejudice, I appreciate that the risk of prejudice posed by the proposed similar fact evidence is minimal given the cross-count nature of the similar fact application. Reasoning prejudice is not significant. The proposed evidence does not require the Crown to call additional evidence of bad conduct beyond what is needed to prove the charges. There will be little chance of distraction. More time will not be required. Moral prejudice is also lessened by the fact that the trier will have to hear the evidence in any event. All that said, given the collusion/tainting and the dissimilarities between the two allegations, the probative value of this evidence for the purpose the Crown seeks its admission will not outweigh the prejudice.

[24] The similar fact application is dismissed. The evidence relating to each count must be considered separately.

B. The Sexual Assault Against A.D.

1. Summary of A.D.’s Allegations as Testified to in Chief

[25] Although not sure of the year, A.D. testified that she had met Mr. Rabah through her friend V.L. and had stayed a couple of times with him at his bachelor apartment on George Street. She did not consider him a friend. On the other hand, V.L. and A.D. had been close friends for a few years, having first met in a transitional housing program.

[26] In June of 2018, A.D. came back to Toronto from Thunder Bay after attending her grandfather’s funeral. At the time, she was staying with a friend, Ian. Aside from a few other friends she stayed at, Ian’s was the main place she would stay the night during that month.

[27] On June 27 to 28, 2018, A.D. spent the night at Mr. Rabah’s place. That morning, A.D. flew back from Thunder Bay. She had been there for about a week. She had brought a bag of clothes, hair products, and some other things. Her grandfather’s ashes were also in her bag. Her plan was to go back to Ian’s. However, Ian had gone to New York for business. He texted her about this when she got off the plane. A.D. tried to get ahold of her friend Angela to stay there for the night but could not. As other options to stay the night did not pan out, A.D. ended up calling V.L. sometime in the evening to see if she had any ideas as to where A.D. could stay. V.L. suggested Mr. Rabah’s place. V.L. said that she was going to email him.

[28] A.D. waited for a response back from Mr. Rabah while sitting on a bench in Allen Gardens. V.L. texted A.D. that Mr. Rabah was going to get a coffee. A.D. saw him walking through Allen Gardens. Mr. Rabah noticed her, sat beside her, and had a coffee and a smoke. They talked. After that, they walked toward his building on George Street. A.D. had her bag with her. This was the first time she had brought a bag to Mr. Rabah’s place; the other two times she stayed there she did not recall bringing any personal items with her.

[29] They went to Mr. Rabah’s apartment. A.D. sat on the couch while Mr. Rabah heated food and looked at his laptop. A.D. eventually dozed off on the couch. She woke up and went to the bathroom. Returning to the couch, Mr. Rabah offered that A.D. could lay in his bed. He promised that he would not do anything if she came to the bed. When asked for more details by the Crown, A.D. testified that he said, “[T]rust me, trust me” and that he would not do anything. A.D. at first felt uncomfortable because he kept saying trust him. However, A.D ultimately moved to the bed. A.D. laid down on the bed wearing her dress and leggings. Mr. Rabah was on the couch. A.D. then fell asleep. She was not sure for how long she slept.

[30] A.D. was awoken by Mr. Rabah lying next to her, grabbing her hand, and placing it on his penis. A.D. pulled her hand away. A.D. said she did not want that. She could not recall if Mr. Rabah said anything. He kept grabbing her hand and pulling it towards his penis. It happened three times. He then tried to pull down her leggings. She kept pulling them up. Mr. Rabah tried to get his penis into her butt. She clenched her butt so that he could not get in. Against her wishes, he turned her onto her back and pulled her leggings and underwear off. He got on top of her and forced sexual intercourse against her wishes while she told him it hurt.

[31] Mr. Rabah finished and went to the bathroom to shower. A.D. washed herself at the kitchen sink and then used the bathroom after Mr. Rabah finished. She noticed blood and fluid coming from her vagina. A.D. changed her leggings after getting new ones from her bag.

[32] She sat on the couch and waited for Mr. Rabah to fall asleep. When he did, she unlocked the door and left without her bag. It was light outside. She did not retrieve her bag as it was in the closet and she did not want to make too much noise, fearing that it might wake Mr. Rabah. She never got her bag back. She was too scared to go back to get her bag.

[33] A.D. went to Ian’s apartment, sat outside, and waited for his return. He returned around 11 a.m. and A.D. did not disclose what had had happened to her.

2. Credibility Findings About A.D.

[34] I do not find A.D. credible. She was internally inconsistent, inconsistent with previous statements she gave, and inconsistent with V.L.’s testimony. Some things she said were implausible.

[35] This is not to say A.D.’s demeanour was not good. She is an intelligent woman. She gave her testimony in a soft-spoken way. She appeared honest and sincere. I also appreciate that some of her inconsistencies were minor and can readily be explained by memory lapses or by misunderstanding questions asked of her at the preliminary inquiry. This includes such areas of questioning as: how long she had stayed with Ian or if she was ever homeless; whether she was introduced by V.L. to Mr. Rabah initially; whether she stayed with anyone else other than Ian and Mr. Rabah; and whether she mentioned to the police seeing fluid as well as blood. Other inconsistencies relate to peripheral details of the sexual assault and the evening in question and do not negatively impact my assessment of A.D.’s evidence. Examples would be inconsistencies with the hospital records.

[36] It is when the whole body of evidence is considered that I find A.D.’s testimony cannot form the basis for a conviction for sexual assault. She could well be telling the truth. But I am not sure of it due to the following reasons.

[37] First, A.D. was inconsistent on the following material issues:

• The core reason why A.D. stayed at Mr. Rabah’s the night of the alleged assault was that she could not stay at Ian’s. However, A.D.’s testimony about why Ian was not around significantly shifted during her testimony. She testified initially that she found out Ian was in New York for business when she landed back in Toronto. However, she did not tell the police that. She told the police Ian was not at home as he was out at a party with friends. There was no mention of New York or a business trip. When confronted with the contradiction, A.D. tried to explain that Ian was supposed to fly back that night but ended up at a party with friends in New York. As she was cross-examined further about this, A.D.’s testimony about when she found things out about Ian’s return was inconsistent, evasive, and kept changing in response to the pressure of cross-examination. She had also told the police that when she was at Mr. Rabah’s her plan was to only be there for a couple of hours while waiting for Ian to contact her. This whole area of cross-examination diminished her credibility. This is material since A.D. was being questioned on why she ended up staying at Mr. Rabah’s place and not Ian’s. If Ian was in Toronto and at a party, as she seemed to have told the police, it made no sense that she would be looking for a place to stay overnight. She would just plan to be at Mr. Rabah’s place for a couple of hours as she told the police. While this may not directly impact her testimony about the sexual assault, it was the manner in which she changed her testimony that affected the overall weight of her evidence. She seemed unconcerned about the accuracy or truth of what she was saying as she was trying to explain the inconsistencies.
• Inconsistencies in the details and the order of things in recounting the sexual assault is understandable. That acknowledged, there was one area of cross-examination that had impact. Under cross, A.D. agreed that Mr. Rabah moving her hand on to his penis was what woke her up, and it was not him pulling off her leggings that woke her. However, she told the police that she was asleep until she woke up to him pulling down her pants. Standing alone, this is really a peripheral detail regarding the order of actions that a person can honestly be mistaken about. However, her response to that contradiction is what I find troubling. She then changed her evidence and explained she had fallen asleep twice in bed. The first time she woke up with Mr. Rabah putting her hand on his penis. She moved it away, but she did not say no. She stayed in bed and fell asleep again. She was then awakened a second time when he pulled down her leggings. I have three issues with this evidence. First, this is inconsistent with what she told the police. Second, she never mentioned this in examination-in-chief. Third, it does not make sense that she would again fall asleep after he put her hand on his penis given her level of discomfort with even going to lie down on the bed. I find she was not being candid about these details.
• The same can be said about whether A.D. felt any fabric of Mr. Rabah’s underwear when he put her hand on his penis. Her testimony was inconsistent with what she told the police. Whether he was wearing underwear or not can be an innocent mistake. But again, it was A.D.’s response to the inconsistency that bothered me. It was as if she was just making up a clever response to explain the inconsistency rather than testifying from her true memory.
• A.D. told the nurse at the hospital that Mr. Rabah had licked her nipple. She did not tell this to the police, testify to this at the preliminary inquiry, or mention it in her evidence-in-chief. I agree with the Crown that this on its own is minor. But of course, it does not stand alone and must be viewed in the context of the other inconsistencies.
• When A.D. called the police, after some questioning by the police operator, A.D. confirmed that Mr. Rabah put his penis in her butt. This is inconsistent with A.D.’s testimony that he had only tried but did not enter her anus. She also told the operator that Mr. Rabah tore her butt and that she was bleeding from there. Again, this is inconsistent with her trial testimony. Given the context of the call, I can accept that this might be just an error. However, when her evidence is considered in its entirety, I find that this was not simply a miscommunication or misspeaking. It raises the question of what truly happened in the incident.
• Much was made of the fact that A.D. made a mistake as to when everything happened. In cross, she testified that she had gotten off the plane from Thunder Bay the morning of June 28. She related various things she did that day before getting to Mr. Rabah’s as all happening on June 28. In chief, she had testified that this was June 27. The relevance of the date inconsistencies is that if the sexual assault took place in the early morning of June 29 and not June 28, this would conflict with the email that was sent on June 28, 2018, at 9:39 p.m. when Mr. Rabah emails V.L. to have her tell A.D. that he threw out A.D.’s stuff because it was smelling bad. V.L. testified that she told A.D. about the email when she received it because she was with A.D. at the time. If that were the case, A.D. could not have been at Mr. Rabah’s during the evening as she testified to. In re-examination, done by way of a totally open-ended series of questions, she clarified that she got off the plane on June 27 and the sexual assault took place the early morning of June 28. At the end of the day, I accept that she may have just confused dates and was not paying close attention to the suggestive nature of the questions on cross when it came to the dates.

[38] Second, A.D.’s testimony was contradicted by V.L. I appreciate that honest witnesses can have differing memories of the same event. Also, it may be that it is V.L.’s credibility that is suspect and not A.D.’s. That recognized, I find that V.L. was the far superior witness. Her evidence can be given weight. Thus, these are the inconsistent areas:

• V.L. testified that the week of the sexual assaults she hung out with A.D. and then stayed at A.D. and Ian’s place the evening of June 28. A.D. testified she had no contact with V.L. until June 30.
• On June 27 to 28, A.D. testified that V.L. was going to email Mr. Rabah to see if A.D. could stay there that night. V.L. denied ever doing this. I accept V.L.’s account of this.
• On June 29, V.L. testified that when she texted and spoke with A.D., A.D. stated that she had seen their friend Abby or Abigail at Mr. Rabah’s place. A.D. told V.L. that she and Abby were there in Mr. Rabah’s unit. Abby had wanted to use the phone or something like that. Until then V.L. was not aware A.D. had been at Mr. Rabah’s place. On the other hand, A.D. denied ever knowing an Abby or Abigail.
• When I addressed the similar fact application, the contradictions between A.D.’s and V.L.’s testimony about what they talked about on the bench outside the Regent Park Pool were highlighted.

[39] Third, V.L. testified that emails were exchanged between her and Mr. Rabah. I accept that they were. This leads me to the following conclusions:

• A.D. was not in Thunder Bay the week before the sexual assault. When shown the email exchange, A.D. was at a loss to explain it as she was insistent that she was not in Toronto but was at the funeral. The emails clearly show that before June 24, A.D. had been at Mr Rabah’s. She was at Mr. Rabah’s apartment before the emails were exchanged, and she had left her bag there. V.L. confirmed that A.D. told her that she had been at Mr. Rabah’s place and left a bag or two of clothes. She got V.L. to send messages to Mr. Rabah to ask for her stuff. V.L. believed the stuff was in his closet.
• A.D. did not leave her bag at Mr. Rabah’s on the evening of the sexual assault. It was already implausible that she would have knowingly left her bag behind with her grandfather’s ashes in it. She testified that she left the bag in the closet not because she had forgotten to take it, but because she did not want to retrieve it since she was afraid doing so would wake up Mr. Rabah. The emails clearly show that A.D. had left her bag at his place much earlier and it was on June 28 at 9:38 p.m. that Mr. Rabah had told V.L. he was going to throw it out as it was smelling bad. This was not consistent with A.D.’s testimony. V.L. testified that she was with A.D. at the time of the email. V.L. testified that A.D. was a bit upset but not majorly so, as according to A.D. there was nothing of actual value in the bag.

[40] The emails are objective and contemporaneous evidence contradicting A.D. The bag is not immaterial. A.D. was insistent that she had never before left a bag at Mr. Rabah’s place. On the evening A.D. alleges the sexual assault happened, A.D. described many actions in relation to the bag: putting it in the closet, retrieving new leggings from it, and leaving her phone in it. In addition, it was central to her story about how she came to stay at Mr. Rabah’s. The bag related to how she had returned from Thunder Bay with her grandfather’s ashes only to find Ian was not home. Finally, A.D. leaving her bag with important items in it supported her professed fear of Mr. Rabah and thereby supported her allegation of sexual assault. In my opinion, these contradictions cannot be explained by a lapse in memory about when she left her bag at his place. This negatively affects her credibility.

[41] While I reject any suggestion made by the defence that A.D had a motive to falsely allege sexual assault to gain priority for social housing, I do have a lingering concern that A.D. may have come forward with the allegation of sexual assault to support V.L.’s allegation. They were close at the time of the alleged assaults and V.L. described A.D. as her mentor/mother. Moreover, A.D. might have been upset with Mr. Rabah for throwing out her bag.

[42] I have concluded that A.D.’s allegation of the sexual assault is not trustworthy. I am not sure that sexual contact happened or if it did happen, it was non-consensual. Therefore, I have a reasonable doubt on this count.

C. The Sexual Assault Against V.L.

1. Summary of V.L.’s Allegations as Testified to in Chief

[43] In June of 2018, V.L. was living with her sister in Whitby but she often came to Toronto to visit friends and for regular medical appointments. She had known Mr. Rabah for about six months. They were socially friends. She described it as almost a relationship, but it was not a boyfriend/girlfriend one. V.L. had stayed at Mr. Rabah’s place on numerous previous occasions.

[44] In June, V.L. came to Toronto. She initially stayed with a friend in Scarborough. Also, she stayed a night with A.D. and Ian. In the early morning hours of June 30, after a few drinks at a bar, she was on her way to stay at Ian’s place, when she bumped into Mr. Rabah on Dundas Street. He was going to buy a coffee. He gave her the keys to his place. V.L. decided to go to his place rather than Ian’s because it would be more comfortable sleeping at Mr. Rabah’s.

[45] When she arrived at his place, she went to bed dressed in an oversized T-shirt and underwear. She was tired after the drinks though she was not intoxicated. She fell asleep quickly and slept deeply. She admitted that she may have roused a bit when Mr. Rabah came in, but she did not actually notice him. V.L. testified that when she was awoken, Mr. Rabah was on the bed. He was sitting at her legs and leaning over her. He did not have his pants on. She did not have any underwear on. She did not know how they had come off. He began to have sexual intercourse with her. V.L. was having cramps and pain in her stomach, so she told him to stop because she was in pain. V.L. was pregnant at the time. He said something like “trust me” or “it’s okay”. She told him she was not okay and to please get off. She said it multiple times. He ignored her, and he kept saying to trust him and continued to penetrate her. She said her stomach hurt and said please stop both before and during the penetration. After a few minutes, V.L. pushed him off of her. He still had his leg over her thigh as he lay beside her. Mr. Rabah grabbed her hand and tried to get her to touch him, but she kept pulling her hand away. She repeatedly said no. Mr. Rabah then masturbated until he ejaculated. He went to the bathroom to clean himself. V.L. tried to text A.D., but A.D. did not respond. As she was physically and mentally exhausted, V.L. stayed and tried to sleep. She had her eyes closed but could not sleep. At 6 a.m., she got dressed and left. She messaged A.D. and eventually got ahold of her. She also got ahold of her boyfriend so he could send her money to pay off her bar tab. She did not disclose what took place to either A.D. or her boyfriend.

[46] Later that day, she met up with A.D. and they went to Regent Park to go swimming. It was there, while on the bench, that V.L. disclosed what happened to her.

2. Credibility Findings About V.L.

[47] In general, I find that V.L.’s testimony was honest and straightforward. For instance, she was candid about her drug use. She was frank and expansive about the conversation she had with A.D. on June 30 at the park bench. She was not evasive in her answers. She agreed to suggestions made by the defence that painted Mr. Rabah in a good light. Put another way, her testimony was fair, and she displayed no hostility towards the accused in her testimony.

[48] There are some reliability issues. These relate to understandable failings in her memory. It has been some four years since the incident. In addition, some matters were not particularly important to her at the time and thus not things that she tried to remember accurately. An example is how A.D. came to know Mr. Rabah.

[49] While I am very mindful of the reliability issues, at the end of the day, I am of the view that they do not affect the weight I give to V.L.’s account of the sexual assault itself. V.L. conceded that she was inconsistent and not good about the “timeline” of events. She was inconsistent with times, dates, and chronology. For several reasons, this does not cause me to doubt her testimony about the essential parts of the alleged sexual assault:

• First, inconsistencies of this nature are understandable to me given the passage of time and the fact that certain details may not have been important to V.L. Moreover, her life was fairly precarious at the time and the details of things such as how long she was in Toronto and where she may have stayed may not have stood out for her.
• Second, these inconsistencies were not particularly material to the sexual assault. I will deal more specifically with the ones that affect her account of the sexual assault.
• Third, it did not affect her overall honesty and sincerity. When confronted with the inconsistencies, V.L. was not evasive nor did she dissimulate in attempts to explain them. Her answers were plausible and accepting of the contradictions.
• Fourth, I accept her explanation as to why she did not reveal any errors in her statement or preliminary inquiry transcripts to the police and the Crown. She admitted that she was told that she should tell them of errors but in her mind, she was unsure about how much she was to bring up with the Crown. V.L. strikes me as an unsophisticated person who has had challenges in her life. She is unfamiliar with the legal system. I find it understandable that she might be reluctant to disclose some mistakes to the authorities and be under a misimpression that it would be inappropriate to do so. Other times, V.L. said she was not really aware it was a mistake. I accept her testimony on that.
• Fifth, in re-examination she testified that what had happened to her was traumatic and it affected her. She testified that she may have blocked some things out or the trauma may have clouded her judgment. This strikes me as reasonable and is yet another factor explaining some of the inconsistencies, especially the ones regarding peripheral details of the events.

[50] Let me expand more about some inconsistencies that I find do not affect the weight I can give to V.L.’s testimony:

• The inconsistency about how long she was at her Scarborough friend’s place. At the preliminary inquiry, she said she was there three days prior. At trial, she believed she stayed only one night. V.L. explained that she was not articulating it well as she did not really understand the timeline. She explained that her belief in the timeline was different than the reality. To me, this is an understandable mistake and in keeping with her difficulties with timelines. In addition, V.L.’s testimony that she stayed with A.D. and Ian is inconsistent with A.D.’s testimony. I would likely prefer the evidence of V.L. However, even if V.L.’s recollection about where she stayed is mistaken, it really does not make any difference when it comes to the core of her evidence against Mr. Rabah about the sexual assault. At the time, where she stayed and for how long was likely not important to her. It is the type of mistake that is natural for an honest witness to make. Unlike A.D., where V.L. had stayed the night before being sexually assaulted by Mr. Rabah or how long she had been in Toronto, does not have any great weight when it comes to assessing her evidence.
• I did not find any real inconsistency between what she said at the preliminary inquiry and what she said at trial about staying in shelters in June of 2018. If there was an inconsistency, it was minor and irrelevant.
• An alleged inconsistency between her preliminary inquiry evidence and her trial evidence about whether she was “actively” looking for housing in June of 2018 is just a matter of semantics or the use of words. It had no effect on her credibility.
• V.L. explained inconsistencies in statements she made about how far she was in her pregnancy as due to her uncertainty in estimating the length of gestation in terms of weeks as opposed to months. I accept that. Moreover, despite the defence arguments focusing on the significance of this inconsistency, it is truly immaterial. While pregnancy is a significant life event, wrongly estimating one’s gestational period is not of any moment when it comes to assessing a witness’s honesty or reliability.
• V.L. testified at the preliminary inquiry that Mr. Rabah had not messaged her about A.D.’s bag. This is an understandable error given the passage of time. Additionally, the circumstances surrounding A.D.’s bag being left at Mr. Rabah’s place were unimportant to V.L.’s narrative about the sexual assault committed on her. V.L.’s memory was refreshed by the emails. V.L. was completely straightforward in her testimony about those emails. Once her memory was refreshed, she gave reliable evidence about the issue.
• Inconsistencies in her statements about when she stopped using drugs and her drug use are explainable by understandable gaps in memory and the fact that she may have had relapses in her addiction as she tried to get off drugs when she became pregnant. These inconsistencies are not significant in terms of assessing her honesty or the accuracy of her recollections about the sexual assault.
• Unlike the situation with A.D., whether V.L. had a bag with her on June 29 when she met Mr. Rabah is insignificant. Inconsistencies in her testimony of whether she had a bag with her or whether she changed her outfit are not important. I observed that her memory was refreshed by the call to the police operator, which reminded her that she had changed into her dress sometime that day. She had previously testified there had been a summer dress in the bag.
• V.L. testified that the police operator told them not to speak about the event or share details. The audio does not bear this out. This is a mere lapse of memory. This was not an attempt to conceal her interactions with A.D in speaking about the sexual assaults. As noted, V.L. was quite frank about how much she told A.D. about what happened to her before they called the police.
• Inconsistencies about who she knew in the building other than Mr. Rabah or how close she would describe her relationship with Mr. Rabah did not have any effect on my assessment of her testimony about the sexual assault.

[51] It is my assessment of V.L.’s testimony when it comes to the sexual assault that is critical. On that, I find her testimony was plausible and had the ring of truth. She had fallen asleep and awoke to find Mr. Rabah about to have sex with her. Given how deeply she was asleep and affected by having consumed alcohol, she was unaware of how Mr. Rabah got in, got on the bed, and how her underwear was removed. It could only have been removed by Mr. Rabah. He was over her and it was reasonable for her to believe he wanted something sexual to happen. She did not want this. She told him so. She told him it was because her stomach was hurting. He ignored her. He continued until she pushed him, and he rolled off of her. He tried to have her masturbate him, but she pulled her hand away. He then finished on his own. The core of this evidence was unshaken.

[52] The defence points to V.L.’s conduct after the sexual assault to raise questions about its veracity or accuracy. I do not accept this submission. The fact that she did not leave or get off the bed but instead tried to fall back asleep does not detract from her credibility. It is common-sense that those who are sexually assaulted do not all behave in the same fashion: R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 63, 66. Their behaviour is unique to the circumstances confronting them and unique to who they are as individuals. It is a myth or stereotype that victims always fight back, shout for help, or try to immediately flee the scene in its aftermath. On the facts of this case, the fact that V.L. did not leave or raise a “hue and cry” but rather tried to fall asleep is understandable. It was early in the morning. She had no ready place to go to. She had a past history with Mr. Rabah who she trusted. Moreover, she did not just fall back into a deep sleep; she had her eyes closed but could not sleep. That is consistent with this being traumatic for her. Finally, she did not immediately disclose what happened to her boyfriend or to A.D., but she did disclose it to A.D. and later the police in the afternoon of that same day.

[53] The defence relied upon the cross-examination whereby V.L. said it was possible that the consumption of alcohol and a “weed gummie” could have affected her memory. In my view, this was not a major admission gained in cross that adversely affected her credibility. V.L. was open about her past use of drugs and hallucinogens. She was inconsistent about when she fully stopped using. That is understandable given the passage of time and the fact that her dependance on drugs led to periodic relapses. More importantly, I accept her testimony that aside from perhaps a cannabis edible, she was not under the influence of drugs on June 29 and 30. At the time, she was on medication to help with her addiction. Her pregnancy gave her good reason to stop using drugs. Moreover, her explanation given in re-examination as to why she believed she was not hallucinating the night of the sexual assault makes sense. Her memory was clear that night; when hallucinating in the past, her view of reality was significantly affected. Thus, the fact that she had a few drinks and possibly a cannabis edible, had no effect on the reliability of her recollections of the sexual assault.

[54] The defence also pointed to an inconsistency regarding whether V.L. saw Mr. Rabah ejaculate or clean himself up. At trial, V.L. testified that she did not see him ejaculate and he then went to clean up. At the preliminary inquiry, she testified that she did see him ejaculate. I do not find this to be a major contradiction. At trial, she testified that she was not looking at him at the time, but she knew he had ejaculated. It was likely poor phrasing by the witness at the preliminary inquiry that was seized on by the defence. Alternatively, she could just be mistaken about whether she had “seen” him. Regardless of whether she saw the ejaculate, using common sense, there are other ways through conduct and sound that someone can determine if another person reaches orgasm. The bottom line is that V.L. has remained consistent that Mr. Rabah orgasmed. The inconsistency of whether she saw it or not, if it is one, is inconsequential.

[55] One area of cross-examination that must be addressed and examined carefully is what V.L. told the police operator when A.D. and V.L. reported the sexual assaults on June 30. I have carefully listened to the audio recording of this call. When V.L. was put on the line after A.D. had spoken to the operator, she identified herself, her phone number, and where she lived. V.L. said Mr. Rabah always tried to touch her and do stuff. She told him no and he tried to force her. There is then brief background noise of wind that makes it hard to hear what is said. The operator then asked V.L. if Mr. Rabah coerced her into anal sex that she was not ready for. V.L. responded “coerced, yeah he coerced me.” In cross-examination, she agreed that she told the operator she was anally sexually assaulted. When further pressed in cross-examination, she struggled to come up with an explanation as to why she told the operator this. She had always been clear that Mr. Rabah did not have anal sex with her, nor did he attempt to.

[56] I have considered this evidence carefully. Until she was confronted with the audio-recording in cross-examination, V.L. was unaware of the contents of this audio-recording. She was genuinely surprised by it. Now, years later, I find that she was unable to go back and determine what was going on in her mind when she said this to the operator. In essence, she was agreeing to what it sounded like she said in the recording. But I must observe that it was the operator who raised the question of an anal sexual assault on V.L. I did not hear V.L. mentioning it. V.L.’s response to the question was that yes he had coerced her. But she does not mention anal sex in her response. In my view, V.L.’s response to the operator may not have truly been an adoption of the operator’s suggestion that Mr. Rabah coerced her to have anal sex.

[57] I recognize that V.L. did not correct the erroneous misimpression of the operator. Likely, the operator had this impression because A.D. had just said she was anally sexually assaulted, and they were both reporting a sexual assault. That said, in cross-examination, V.L. did agree that this was what she told the operator. In my opinion, despite her testimony now, some four years later, V.L. may not have been telling the operator that she was anally assaulted. I believe that V.L. testified four years later that she did tell the operator she was being anally sexually assaulted because she really does not remember what was going through her mind at the time. Hence, her struggles in cross to explain what she said to the operator.

[58] Moreover, even assuming it is a prior inconsistent statement, the context of the call must be considered. She was not being closely interviewed by the operator about what happened to her. This was not a formal statement being taken by the police. It was not under oath or being videotaped. The two women were just reporting the incidents while seated on a bench in a park. There is audible wind in the background. There were other people in the park. A.D. had just told the operator that she had been anally sexually assaulted. A short exchange between the operator and V.L. ended with V.L. agreeing that she had been anally sexually assaulted.

[59] In these circumstances, this is not a significant inconsistent statement. Moreover, V.L. was not further impeached on any other statement given to police or to others where she had made a similar prior inconsistent statement that she was anally sexually assaulted. Put another way, this is the only statement that is inconsistent with V.L.’s trial version of events on this issue. I disagree with the submission made by the defence that she did not later tell the police officers who interviewed her about the anal sex because she became aware there was no evidence of anal sex. It was only just prior to the being interviewed by the police that V.L. had the sexual assault kit done on her at the hospital. There is no foundation in the evidence that she was aware of the results of that kit before speaking to the officers later on that night.

[60] Given these factors, I find that while this prior inconsistent statement must be considered, it does not significantly affect V.L.’s credibility or reliability in a negative way. I find that this was at its highest just an innocent mistake made by V.L. to the operator.

[61] Other arguments raised by the defence about V.L.’s evidence is also uncompelling.

[62] I do not accept the defence submission that the pre-trial preparation of V.L.’s testimony affects the weight of her testimony. In my view, nothing inappropriate happened during any preparatory discussions or meetings with the Crown and police.

[63] I do not accept that V.L. has fabricated this sexual assault to move up the priority list for social housing. I accept that she only found out about this possibility from a victim service worker around the time of the preliminary inquiry. V.L. was also candid about Mr. Rabah offering her his help to get social housing, but she did not take him up on it as she had her own case worker. She was already on the waiting list. I pause to emphasize that my rejection of this defence argument on motive or the fact there does not seem to be a motive to fabricate does not enhance V.L.’s credibility in any way or advance the Crown’s proof of the case. It is only referred to as the defence arguments raised it. Moreover, I emphasize there is no onus on the defence to show any motive. An unknown motive to fabricate can always exist.

[64] I reject any notion of collusion. I accept V.L.’s testimony about what happened between her and A.D. on the park bench in Regent Park. While V.L. could not recall every detail, I accept the core of her recollections. It is something that she would remember. She told the truth about it. There was no conscious collusion on V.L.’s part. There was no inadvertent tainting of V.L.’s recollections. It was V.L. who first revealed to A.D., her mentor/mother, what had just happened the night before. V.L. was not pressured into making any allegations against Mr. Rabah. Her recollections were not affected by any conversations the two had. Since that time, both complainants have not discussed the incidents because they were told not to do so by the police.

[65] Looking at the whole of the evidence, I accept V.L.’s testimony about the sexual assault. I am certain that it happened in the fashion that she testified to.

D. Conclusion

[66] The count of sexual assault regarding A.D. is dismissed.

[67] Mr. Rabah will be convicted of sexual assault on V.L. I find that the Crown has proven beyond a reasonable doubt that sexual contact occurred and V.L. did not consent. In addition, given that V.L. told Mr. Rabah on more than one occasion she did not want the sexual contact and her explicit acts also clearly indicated her lack of consent, I find that the Crown has proven beyond a reasonable doubt that Mr. Rabah had the mens rea for sexual assault. He continued his sexual contact with her knowing that she did not consent.

[68] There will be a finding of guilt.

Justice S. Nakatsuru Released: May 2, 2022

Footnote

[1] The term “inadvertent tainting” is preferred: R. v. C.G., 2021 ONCA 809, 407 C.C.C. (3d) 552, at para. 30.