R. v. Eze, 2022 ONSC 277

COURT FILE NO.: CR-19-10000046-0000

DATE: 20220113

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GREGORY OBI EZE

Defendant

David Parry, for the Crown

Alonzo Abbey, for the Defendant

HEARD: August 30, 31, 2021; September 1, 2, 2021; October 21, 2021

RESTRICTION ON PUBLICATION

An order has been made pursuant to s. 486.4(1) of the Criminal Code directing that any information that could identify the complainant shall not be published in any document or transmitted in any way. This judgment complies with that order and may be published.

reasons for judgment

Presser J.

I. OVERVIEW

[1] Gregory Obi Eze is charged with two counts of sexually assaulting J. K. He testified and admitted that he committed two common assaults on J. K. He denied that these assaults were sexual in nature or that they were committed for a sexual purpose.

[2] J. K. testified that the first assault involved Mr. Eze touching her buttocks and vagina, but could not recall the details of what transpired in the second assault after Mr. Eze tackled her to the ground.

[3] In light of Mr. Eze’s admission that he committed two common assaults, the only issue for my determination is whether the Crown has proven that the two assaults were sexual in nature beyond a reasonable doubt.

[4] For the reasons that follow, I find that the Crown has proven that both assaults were sexual in nature beyond a reasonable doubt. Mr. Eze will be found guilty of two counts of sexual assault.

II. THE EVIDENCE

[5] I begin with a brief overview of the evidence. While I have considered all of the evidence, I will return later in these reasons to set out in greater detail only that which is necessary to my analysis.

[6] This was an attack late at night in the TD Bank tower, concourse or “PATH” level. J. K. was a cleaner there. On February 1, 2018, between 11:30 pm and midnight, she was cleaning a men’s washroom. Mr. Eze came into the washroom. J. K. asked him to use another washroom stall because she had just finished cleaning the one he was going into. J. K. testified that the man grabbed her, covered her mouth with his hand, and forced her to the ground. She struggled to free herself and called for help. The man pinned her to the ground by holding her knee down with one hand. He pulled down her pants and touched her buttocks and vagina with the other hand. J. K. continued to struggle and yell for help. This forms the basis of the first count of sexual assault.

[7] Mr. Eze testified that he had been drinking at a downtown sports bar and went into the PATH to use a washroom before getting on the subway to head home. He entered a washroom in the basement of the TD Bank tower. He saw feet under a closed stall. He assumed an old man was using the facilities. Mr. Eze said that J. K. emerged from the stall and told him he could not use that washroom. He maintained that he did not know she was a cleaner. He said he was angry to find a woman in the men’s room. He was also angry that she asked him to use another washroom. He snapped, tripped her, and heard a thump as she fell to the ground. He left the washroom. Mr. Eze denied pulling down J. K.’s pants, touching her buttocks or vagina, or grabbing her face or mouth. He denied that the assault was sexual in any manner.

[8] Both J. K. and Mr. Eze testified that after she was on the ground for a short while, Mr. Eze left the washroom. J. K. then got up, pulled up her pants, and followed Mr. Eze out of the washroom. She was screaming for help. She encountered Mr. Eze in the concourse area. He moved quickly toward her, the two circled each other around a large planter in the food court, and then J. K. ran away from Mr. Eze. He chased her down the concourse hall. He caught her and tackled her to the ground. This forms the basis of the second count of sexual assault.

[9] J. K. had very little memory of the second incident. She could not recall much of what happened after Mr. Eze tackled her to the ground, except that she was struggling and screaming for help and that at some point Mr. Eze got up and left, and her supervisor attended. She did not give evidence of any touching of a sexual nature when Mr. Eze tackled her to the ground on this occasion.

[10] Mr. Eze testified that after he had left the washroom, J. K. followed him out yelling. He said he had intended to leave but when J. K. came out of the washroom he was still angry with her for being a woman in the men’s room and for yelling at him. So he turned around and chased her and tackled her. He denied intending to sexually assault J. K. or doing anything sexual to her when she was on the ground.

[11] Video surveillance footage from the TD Centre was introduced in evidence through Mr. Elbert Ho, a security dispatcher at the TD Centre who was working on the night of February 1, 2018. One surveillance video clip with a view of the food court (Exhibit 5b) depicts Mr. Eze walking across the screen from upper right to lower left. J. K. is then seen at the upper right, hitching up her pants (which were not all the way down) and walking in the same direction as Mr. Eze. He then turns and heads quickly back toward J. K. They circle each other around a large standing planter, at which point Mr. Eze starts chasing J. K. away from the planter and both run off screen with Mr. Eze chasing J. K.

[12] Another segment of the compilation of video surveillance footage (Exhibit 5a), chronologically subsequent to the clip described above, shows J. K. running down the concourse hall with Mr. Eze chasing her. He catches up to her, grabs her waist from behind, and tackles her to the ground. At that point, Mr. Eze gets on top of J. K, straddling her. She is face down on the floor with her back to Mr. Eze, who is still on top of her. J. K. struggles and kicks under Mr. Eze on the ground. He grabs her shoulders and flips her around under him so that they are face-to-face, all while he remains on top of her and she continues to struggle. Mr. Eze’s hat falls off, he replaces his hat on his head, and then gets up and walks away from the camera down the hall. The video then shows J. K. getting up, hitching up her pants (which were not all the way down), and walking down the hall in the same direction as Mr. Eze. Both then disappear from view. This segment of video, from when we first see J. K. being chased by Mr. Eze through to when he gets up and starts walking away, runs a total of approximately 12 seconds. This portion of the video is viewed from down the hall. Given the distance of the camera from Mr. Eze and J. K. and the speed with which this assault transpired, it is difficult to see exactly where Mr. Eze’s hands were when the two were on the ground.

[13] Mr. Eze was videotaped by several other surveillance cameras in the PATH (Exhibit 5a), as he travelled away from the altercation with J. K., followed by security guards. Videos depict Mr. Eze ultimately emerging from the TD Centre South Tower onto Wellington Street West, where he gets into a Beck taxi shortly before midnight. Security guard Liam Conway testified that he was working at the TD Centre on the night of February 1, 2018. He followed Mr. Eze and witnessed him entering the taxi. Mr. Conway recorded the taxi’s licence plate number. Police obtained still photographs from the CCTV camera in the Beck taxi (Taxi CCTV stills, Exhibit 6). These were entered into facial recognition software for investigatory purposes. A match returned for Mr. Eze. A BMO debit card belonging to Mr. Eze was used to pay for a trip in the Beck taxi from Wellington Street to Bloor and Yonge a few minutes before midnight on the night of February 1-2, 2018 (Bank Records, Exhibit 7). A search warrant was executed at Mr. Eze’s residence on February 9, 2018, which yielded: (i) a red Montreal Expos ballcap; (ii) a red and yellow Houston rockets basketball jersey; and (iii) a black and white varsity jacket, turned inside out. These articles of clothing (the varsity jacket turned right side out) match what the perpetrator was wearing on the surveillance videos before, during, and after the assaults (Agreed Statement of Facts, Exhibit 10).

[14] J. K. sustained injuries as a result of these assaults. She had a cut of approximately one centimetre in length on her right cheek, a two milimetre cut to the right side of her chin, a scratch to her forearm, and multiple abrasions to her elbows (Photographs of J. K.’s injuries, Exhibit 2). J. K. explained that she landed on both elbows when she was pushed to the ground. She testified that her eyes and upper face were red as a result of the assaults. In Exhibit 2a, her eyes appear swollen and her cheeks appear red. J. K. explained that she also suffered from low back pain from the assaults.

III. THE POSITIONS OF THE PARTIES

[15] The position of the Crown is that the sexual nature of the two assaults has been proven beyond a reasonable doubt on all the evidence. The Crown submits that the evidence of J. K. is credible and reliable, and that there is an absence of a proven motive to fabricate on her part. Crown counsel argues that Mr. Eze’s evidence was not credible, that I should disbelieve it, not be left in reasonable doubt by it, and that the two sexual assaults are proven beyond a reasonable doubt on all of the other evidence which I should accept. According to the Crown, this includes: J. K.’s evidence; all of the evidence on each count across counts; the surveillance videos; and some conduct of J. K. and Mr. Eze after the assaults.

[16] The position of the defence is that the sexual nature of the assaults has not been proven beyond a reasonable doubt. The defence submits that I should believe Mr. Eze’s evidence denying the sexual nature of the assaults, or be left in a reasonable doubt by it. They submit that the Crown has not proven that the assaults were sexual beyond a reasonable doubt because J. K.’s evidence was not reliable; because she was not able to give evidence as to what transpired in the second assault; because the surveillance videos do not depict anything sexual; and because the conduct of J. K. and Mr. Eze after the assaults relied on by the Crown does not assist in determining whether the offences were common physical assaults or sexual ones. Defence counsel opposes the Crown request that I consider all of the evidence on each count across counts because the Crown did not give notice or argue a formal application for cross-count similar fact evidence. The defence also opposes cross-count reasoning because, they submit, this would result in prohibited reasoning from bad character.

IV. ANALYSIS

A. Assessing the Evidence of Mr. Eze and J. K.

(i) Credibility and Burden of Proof – the Applicable Law

[17] The law around how triers of fact should assess the credibility of a defendant and its relationship to the burden of proof is well-settled. It derives from the Supreme Court of Canada’s holding in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, directing that defence evidence must be assessed in the context of the evidence as a whole, not in isolation, as follows: (i) if the trier of fact believes the evidence of the defendant, they must acquit; (ii) if the trier of fact does not believe the evidence of the defendant but is left in reasonable doubt by it, they must acquit; and (iii) even if not left in reasonable doubt by the evidence of the defendant, the trier must determine whether, on the whole of the evidence they do accept, they are convinced of the guilt of the defendant beyond a reasonable doubt.

[18] I now proceed to assess the evidence, applying these legal principles, to determine whether the Crown has established the sexual nature of the two assaults beyond a reasonable doubt.

(ii) Assessing the Evidence of Mr. Eze

[19] Mr. Eze testified that on the evening of February 1, 2018, he had been drinking at a downtown sports bar. He said he left the bar and entered the PATH to find a washroom before taking the long subway ride home to Scarborough. His evidence was that he entered the washroom and was surprised and angered to find a woman, J. K., in the men’s room, and that he was also angry that she told him to use a different washroom. He said this made him so angry that he tripped her, saw her fall, heard a thump, and then he left the washroom. Mr. Eze denied covering J. K.’s mouth with his hand, forcing her to the ground, holding her down, lowering her pants, or touching her buttocks and vagina. Mr. Eze testified that he was trying to leave when J. K. emerged from the washroom, yelling and screaming. He said he was still angry that a woman had been loitering in the men’s room, that she had told him to use a different washroom, and that she was yelling at him. He again “lost it,” chased her, took her down to the ground, struggled with her there, and then got up and left. He denied covering her mouth with his hand, trying to pull down her pants or touch her vagina or buttocks. He denied that either assault was sexual, maintaining that he never touched J. K. sexually, and that he had no sexual intent or motivation.

[20] Mr. Eze’s testimony was often bizarre. He described conduct and motivations that were irrational and defied common sense and logic. Some of his evidence was inconsistent with objectively ascertainable facts and with evidence I accept as fact. His testimony was inconsistent with his voluntary statement to police on arrest in a number of ways. For these reasons, I do not believe Mr. Eze’s evidence, and am not left in reasonable doubt by it.

[21] Perhaps the most fundamental problem with Mr. Eze’s evidence was that his stated reason for assaulting J. K. was inconsistent with objectively ascertainable facts, and with evidence I find to be fact. His explanation for why he “lost it” and committed a common assault on J. K. was that she was in the wrong by being in the wrong gender washroom without reason. In cross-examination, Mr. Eze maintained that he did not know J. K. was a cleaner, or that she was in the washroom to clean it. However, all of the other evidence in the case satisfies me that Mr. Eze would necessarily have known that J. K. was a cleaner, and that she was in the washroom to clean it.

[22] A photograph taken on the night of the assaults shows that the door to the washroom (which opens inward into the washroom) was propped open by what is obviously a professional cleaning cart (Exhibit 1, photograph C). She explained she took a cleaning cart with her to the washroom, and that she propped the door open with the cart when she went in to clean. J. K. identified the cleaning cart in Exhibit 1, photograph C, as her cart. She confirmed that she had placed it in the position depicted in the photo.

[23] Based on J. K.’s evidence and my review of these photographs, I find that Mr. Eze could not possibly have entered the washroom without seeing the cleaning cart. It would have been absolutely obvious to anyone that this was a professional cleaning cart. Its position in the doorway would necessarily have conveyed to anyone entering that the washroom was being (or had just been or was about to be) cleaned.

[24] Two of the photos that show the inside of the washroom (Exhibit 1, photographs D and F) depict that there was a cleaning cloth on the edge of a standing garbage can pulled up to the middle of the bank of sinks, a cleaning cloth on the counter next to one of the sinks, and a spray can of what appears to be some form of cleaning spray on the counter in front of one of the sinks next to the garbage can. In addition, photograph D, which appears to be taken from a vantage point standing in the doorway or just inside the washroom, shows that the cleaning cart propping open the door to the washroom intrudes into the room. The cart is also reflected in the mirror behind the row of sinks. The reflection of the cart in the mirror shows that it contains more cleaning supplies. In addition to being clearly visible to anyone entering the washroom, photograph D shows that the cleaning cart is clearly and obviously visible to anyone exiting from one of the three toilet stalls, going toward the sinks, standing at the sinks, or exiting the washroom. I conclude that it would have been impossible for anyone in that washroom not to have been aware that it was in the process of being cleaned. Mr. Eze would certainly have seen the cleaning cloths, the spray can of cleaning solution on the counter, and the garbage can pulled over to the sink in what cannot have been its usual position. He would also have seen the cleaning cart from within the washroom. I find that Mr. Eze knew that this washroom was being cleaned.

[25] Other evidence supports a conclusion that Mr. Eze knew J. K. was a cleaner. J. K. explained that on the night of the assaults, she was wearing her uniform, rubber gloves, and a mask. In addition to her cleaning cart, she had a spray bottle, paper towel, and cloths. In the surveillance video (Exhibit 5b), J. K. emerges from the washroom wearing rubber gloves. She has a mask below her mouth, around her chin. A photo entered at trial (Exhibit 1, Photograph G) shows a spray bottle with top and bottom separated on the floor of one of the toilet stalls. Photograph F shows the same white cloth that is visible in photograph G, as well as another white cloth on the floor in the area leading to the sinks. These photographs were shown to J. K. She identified the spray bottle top and bottom as part of her cleaning supply kit. She said she had been tasked with polishing the stall doors, and that she was holding the spray bottle to do so when Mr. Eze approached her. She explained that the bottle was in one piece, but it must have come apart when she fell to the ground.

[26] Having carefully studied the photographs and videos and considered J. K.’s evidence, I find that J. K. was holding and using the spray bottle, that she had a cloth or several cloths in her hand, and that she was using these to polish a stall door when Mr. Eze encountered her in the washroom. I also accept J. K.’s evidence that she was wearing rubber gloves and a mask, as depicted in the video. I conclude that it would have been obvious to Mr. Eze upon encountering J. K. holding a spray bottle and a cloth, polishing a stall door, wearing rubber gloves and a mask, that she was a cleaner in the process of cleaning the washroom. This is especially so given that he had just seen the professional cleaning cart propping open the door, and the cleaning supplies and cloths littered about the room.

[27] J. K. had also testified that she was wearing her uniform that night. The surveillance video footage described above shows that J. K. was wearing a light coloured golf shirt, and dark coloured pull-on pants with what appears to be an elasticized waist. I accept J. K.’s evidence that this was her uniform, especially since video footage reveals her supervisor to be similarly attired. However, this uniform is not obviously a uniform. Any logo or cleaning company branding is not obvious to me from the images I have seen. The Crown cross-examined Mr. Eze as to whether he was aware that J. K. was a cleaner because, inter alia, she was wearing a uniform. Mr. Eze replied that she was wearing a golf shirt. He said he did not recognize that the woman was wearing a uniform. In fairness to Mr. Eze, I accept that J. K.’s attire was not immediately recognizable as a uniform. This may well not have identified her as a cleaner to him. However, notwithstanding that he may well not have noted that J. K. was in uniform, I find that on all of the evidence, he could not have come to any conclusion other than that she was a cleaner, cleaning that washroom.

[28] Mr. Eze testified that he got so angry that he assaulted J. K. because he was surprised to find a woman in the men’s room for no reason. He maintained that he did not know she was cleaning the washroom. On all of the evidence, this cannot have been true. Mr. Eze’s stated reason for committing what he maintained was a common assault on J. K. is inconsistent with the evidence. I find that he lied about his motive for assaulting J. K.

[29] Another significant problem with Mr. Eze’s evidence was that his denial of having held J. K. down on the ground as she struggled in the washroom is inconsistent with the evidence. His evidence was that he tripped J. K. and then directly left the washroom. But the photographs tell a different tale. The separated spray bottle parts and white cloths scattered in different locations on the floor of the washroom suggest that there was a struggle. A photo entered at trial (Exhibit 1, photograph G) depicts a single black slip-on sneaker at the door to the stall. Photograph F shows the same black sneaker, as well as its partner, which is located several feet away near the urinals. J. K. identified the black sneakers as the shoes she was wearing on the night of February 1, 2018. She explained that her shoes came off when she was struggling on the ground, kicking to free herself from Mr. Eze. She did not remove them on purpose.

[30] The placement of these items, spread out from each other, could not have resulted from a trip and fall alone. I recognize that the spray bottle and cloths might have hit the ground and rolled or been projected outward in a single trip and fall without a struggle. It is possible that they could have landed where they did from their holder being tripped and falling. However, sneakers being worn on the feet of a person who was tripped and fell would not, as a matter of common sense and experience, both come off the feet and land so far apart, facing in different directions. These sneakers could only have landed where they did, as they did, if they were kicked off (whether intentionally or by someone squirming or struggling). I am satisfied, based on all of the items as they are placed on the ground combined with J. K.’s evidence, that J. K. did not intentionally kick or take off her sneakers. Instead, she was kicking as she struggled on the ground as she was held down by Mr. Eze. In my view, the photographic evidence confirms J. K.’s evidence that after taking her to the ground, Mr. Eze held her down on the floor as she struggled and kicked to free herself from his grasp. On all of the evidence, Mr. Eze’s testimony that he tripped J. K. and then directly left the washroom cannot have been true. This joins in grounding my conclusion that Mr. Eze is not credible. He lied when he testified that he only tripped J. K. and did not hold her down or struggle with her on the ground.

[31] Further significant problems with Mr. Eze’s testimony arise from inconsistencies between his evidence at trial and his prior voluntary statement to police on arrest, as well as from inconsistencies within his trial testimony. In cross-examination, the Crown confronted Mr. Eze with several of these, including:

• At trial Mr. Eze testified variously that he would go downtown to drink at sports bars “a lot,” “often,” “occasionally,” and “three times a week or less,” and that he had been downtown drinking at a sports bar on the night of these assaults, February 1, 2018. He also testified that he was not a Toronto FC soccer team fan and said he did not go downtown to attend that team’s championship win victory parade. By contrast, Mr. Eze told police on February 9, 2018, that he did not really ever go downtown, and that the last time he had been downtown was for the Toronto FC championship parade, which was before the night of the assault. He explained part of this inconsistency by saying he had understood the Crown to be asking whether he had gone downtown for the Toronto FC championship game, which he had not done, as opposed to the parade – on the day of which he had been downtown;

• At trial Mr. Eze acknowledged that he had been in the PATH on the night of February 1, 2018, admitted the authenticity and integrity of all surveillance videos seized by police, and admitted his identity on all surveillance videos. By contrast, on February 9, 2018, Mr. Eze told police that there was no reason for him to appear on any surveillance video footage from February 1, 2018 seized from downtown buildings. He also looked at screen shot still photographs taken from the surveillance videos shown to him by police and said that he was not sure if it was him in the photos. Mr. Eze initially explained this inconsistency by saying that he did not look at the still photographs when they were shown to him by police. The Crown then played the videotape of Mr. Eze’s interview by police, where it was clear that he had taken a long look at the still photographs. He then explained his denial of his identity in them by saying he had never seen those photos or the videos they were drawn from before, and he was not sure that they were real when police showed them to him;

• At trial, Mr. Eze acknowledged that he was wearing the t-shirt, jacket, and hat seized from his apartment on February 1, 2018 when he assaulted J. K. By contrast, at his interview, when police showed him the t-shirt and jacket they had seized from his apartment, and asked whether these items helped him identify himself in the photographs, Mr. Eze replied that a lot of people have these articles of clothing. In effect, he denied to police that it was him, wearing these clothes, in the photograph from the night of the assaults; and

• At trial, Mr. Eze admitted that he had committed two assaults on J. K. on the night of February 1, 2018 in the PATH of the TD Centre. By contrast, when police put to Mr. Eze that he was being accused of sexually assaulting a cleaner in a downtown building, he denied culpability. He explained this inconsistency by saying that he did not sexually assault anyone, so he was not lying to police when he denied committing a sexual assault. The Crown put to Mr. Eze that he knew he had committed an assault, he knew it was on a cleaner, and he knew it was in a downtown building, so he had enough information to “connect the dots.” The Crown submitted that Mr. Eze’s outright denial of any responsibility amounted to a lie.

[32] Mr. Eze acknowledged that he had given the earlier inconsistent evidence noted above. In addition to the specific explanations for inconsistencies already outlined, overall Mr. Eze’s position was that he was untruthful because he was not sure that he was speaking to real police. He said that the circumstances of his arrest made him doubt that these were really police officers.

[33] According to Mr. Eze, a fire alarm went off in his building on the day of his arrest. In the stairwell, as he was exiting the building in response to the fire alarm, someone cuffed him and arrested him. He said that the people who arrested him were not wearing police uniforms and did not tell him what he was being charged with. They did not read him his rights. He said he was never shown a police badge. Mr. Eze acknowledged that the person who arrested him called the police station and a marked police cruiser came to pick him up an hour later. He acknowledged that he was transported to the police station in that police cruiser, and was questioned at the station. Yet he maintained that he did not trust that these were real police officers. He said he asked the officers multiple times during the interview whether they were real police.

[34] Mr. Eze did not explicitly say why his suspicions about the authenticity of the identity of the police explained or justified his lies to them. I infer his position was that, giving his misgivings, he was justifiably cagey or evasive with his captors. I infer that the defence is asking me not to make adverse credibility findings on the basis of Mr. Eze’s prior inconsistent statements to police in these circumstances.

[35] However, Mr. Eze’s stated suspicions around authenticity of police identity do not make sense. It is hard to believe that Mr. Eze could or would doubt that he was in the hands of the real police when he was transported in what he acknowledged was a real police vehicle, to what he acknowledged was a real police station, where he was questioned by people holding themselves out as police officers who were apprised of information and evidence that could only have been obtained through investigation. By agreed statement of fact (Exhibit 11), I am advised that Mr. Eze has a criminal record which includes convictions for crimes of violence, breaches of court order, and possession of weapons. This means that Mr. Eze had been arrested before. His past experiences with police would inform a conclusion that, although these people were not in uniform and may not have shown him a badge, they were real police conducting a real investigation and arrest in these circumstances.

[36] It is also hard to imagine what motivation Mr. Eze could have thought some non-police imposters would have had for arresting him. What benefit would strangers have hoped to gain from posing as police in these circumstances? What harm could they have intended or caused him through arrest and investigation using standard police techniques and resources? Why would Mr. Eze suspect the officers of being false? No explanation of motive for this purported elaborate charade by fake police was offered by Mr. Eze.

[37] Moreover, Mr. Eze knew that the subject matter of this arrest and questioning were real. He knew that he had indeed been in the TD Centre PATH on February 1, 2018, and that he had assaulted a woman there. That the people who arrested him were investigating a real crime that Mr. Eze knew he had committed, with no motive to deceive him, would have compelled a conclusion that these were real police in execution of their duties.

[38] I do not believe that Mr. Eze was suspicious of the identity of the people who arrested and interviewed him. In my view, this explanation is a ruse, calculated to explain and justify why he knowingly lied to police. I reject Mr. Eze’s explanation and find that his prior inconsistent statements to police, which were lies, do adversely impact on his credibility.

[39] However, I recognize that sometimes people genuinely hold beliefs that are irrational and defy common sense and experience. It is conceivable, although unlikely in the extreme, that Mr. Eze did believe or suspect these were false police. Even if I am mistaken in my finding that Mr. Eze knew these were real police, my conclusion that Mr. Eze is not credible overall is amply justified on the basis of the other reasons for which I have found him not credible, as outlined in this judgment.

[40] Additionally, if Mr. Eze did genuinely believe that he was not in the hands of real police, despite all the contrary evidence and his experience with police, this would negatively reflect on his reliability. In my view, persistence in a view that is so out of step with what obviously presents itself, especially as informed by relevant experience, points to an inability to reliably receive, interpret, and recount events as they actually occurred. In other words, if Mr. Eze did truly believe that he was not dealing with real police, I find his testimony unreliable. If, as I have found, he knew he was dealing with real police, I find his evidence on point and his prior inconsistent statements to police contribute to my finding that he was not credible.

[41] This leads me to consider two other examples of Mr. Eze’s testimony explaining his behaviour that did not make sense:

• Mr. Eze testified that he left the sports bar around Yonge-Dundas Square where he had been drinking and entered the PATH to use a washroom before getting on public transit to return home. It does not make sense that he would have walked several blocks to find a washroom instead of using the facilities at the bar where he already found himself. It also did not make sense that he walked past several washrooms in the PATH before he entered the one he ultimately did; and

• Mr. Eze walked south and west from around Yonge and Dundas in the PATH. His ultimate destination, home, was in Scarborough. To get home, he would have to travel north and east from Yonge and Dundas. He acknowledged that it was a long trip home on public transit, and that at a certain point transit would close for the night. If he did not make it home before it closed, he would be stranded until it re-opened in the morning. It does not make sense that Mr. Eze would have walked in the opposite direction from his ultimate destination, especially since he knew he was under time pressure to get home before the TTC closed. His route both delayed and lengthened his trip home. Mr. Eze could not explain why he took this route. He acknowledged that he got out of the taxi at Yonge and Bloor shortly after midnight, and did not return home until 6:30am on the morning of February 2, 2018. He could not account for or recall what he had done in the six or so hours between those events, but acknowledged that he had probably missed the last subway and gotten stranded.

[42] As noted above, I recognize that sometimes people hold beliefs or do things that are irrational or defy common sense. We are not all robots executing perfectly logical programs as we go about our daily lives. Sometimes we do things for no good reason, without much planning or consideration. So I must consider whether to take Mr. Eze’s explanations for this conduct, and his conduct itself, at face value. And, if I do accept his explanations, I must consider whether this impacts on his reliability. Alternatively, I must consider whether Mr. Eze’s explanations do not make sense because they are untrue. Did Mr. Eze do these things for the reasons he said he did even though that did not make sense in the circumstances? If so, does this mean that he is not reliable? Or was he lying to cover his true reason for entering the PATH? And, if he was lying, did he actually enter the PATH because he was looking to commit a sexual assault?

[43] Mr. Eze testified to having been diagnosed as bipolar years ago. He did not elaborate on this diagnosis, its symptoms or effect on him, or any treatment in the past or at present. The defence called no further evidence in relation to Mr. Eze’s mental health, his bipolar diagnosis or its treatment, or the impact of bipolar disorder on perception or conduct either in general or in Mr. Eze’s case. In closing argument, defence counsel submitted that some of Mr. Eze’s strange or “quirky” evidence could be understood as being the product of the cognitive mindset of a person who is bipolar.

[44] I questioned defence counsel about this submission, asking how I could find Mr. Eze’s seemingly bizarre evidence explainable on the basis of his bipolar diagnosis in the absence of evidence on point. Defence counsel Mr. Abbey responded that he did not call medical evidence because he considered that such evidence would be peripheral, and he did not want to call self-serving self-diagnosis evidence from Mr. Eze. However, Mr. Abbey maintained that Mr. Eze’s diagnosis could help me understand who Mr. Eze is as a person. He maintained that it could help me understand Mr. Eze’s strange evidence. Mr. Abbey went on to submit that I could use Mr. Eze’s mental health diagnosis to allow me to reject inconsistencies and improbabilities in his evidence, without rejecting all of his evidence.

[45] I understand Mr. Abbey’s argument to be that I can use the bare fact of Mr. Eze’s bipolar diagnosis to disregard the impact of testimony that defied logic and common sense when assessing Mr. Eze’s credibility. In other words, the defence position was that I should find Mr. Eze credible, notwithstanding problematic testimony, because he says he is bipolar. This I cannot do. I am alive to how significantly mental health challenges may impact on people in general; and in ways that may be relevant in a criminal court (for example, to criminal responsibility, fitness to stand trial, the capacity to form specific intent, testimonial capacity, and numerous other issues, including potentially credibility). But without an evidentiary foundation, I cannot make specific findings in this case about how the bipolar diagnosis Mr. Eze testified to may have impacted on his worldview, his perceptions, his ability to give rational evidence, or his conduct, at any moment in time. I accept the Crown’s submissions in this regard: mental health conditions are not monolithic. Different conditions have different symptoms, and different presentations, in different people. A mental health condition may present differently in a particular person at different times depending on a number of factors, including whether they are being treated and whether they are experiencing other life stressors. Even accepting that Mr. Eze was, in fact, diagnosed as bipolar (a fact not contested by the Crown), I simply do not have the evidence I would need to be able to conclude that this mental health condition explained his bizarre evidence. In the absence of evidence on point, I cannot conclude that Mr. Eze is credible notwithstanding problems with his testimony, on the strength of the fact of a bipolar diagnosis standing alone.

[46] That having been said, I am not convinced that Mr. Eze was lying when he said he entered the PATH to find a washroom. I suspect that he was lying, because it did not make sense that he failed to use the facilities in the sports bar where he already found himself; that he walked past several washrooms in the PATH before he arrived at the one he used; or that he walked in the opposite direction from his intended destination to find facilities, thereby delaying and lengthening his trip when under time constraint. But I consider it possible that Mr. Eze genuinely acted without thinking rationally about his actions. It is possible that he did not realize he needed to use the washroom until after he had left the sports bar, and that he then wandered until he noticed one without paying attention to his course or the time. In other words, I am not satisfied that Mr. Eze’s illogical explanations for these actions are lies. Indeed, the Crown did not argue that they were. Instead, the Crown position was that Mr. Eze’s bizarre conduct and explanations for it underscored that he was not reliable - not that he was not credible.

[47] I have already found that Mr. Eze’s bizarre explanation for lying to police, if true, adversely reflected on his reliability. His suspicions that he was not dealing with real police were so out of step with reality that they had to either be fabricated or reflect that he was not able to reliably receive, interpret, or recount events as they actually occurred. By contrast, his explanation for entering the path and walking away from his intended destination was nonsensical, but could possibly be genuine. His conduct as he explained it was irrational. But, unlike his explanation for his lies to police, it was not utterly fantastical. For this reason, I do not consider this evidence to detract from Mr. Eze’s reliability.

[48] Before concluding my assessment of Mr. Eze’s evidence, I note that I am not much assisted in my credibility assessment by his criminal record. I am advised that he has convictions for crimes of violence, breaches of court order, and possession of weapons, starting in 2003 and ending in 2013 (Agreed Statement of Fact, Exhibit 11). I am of course permitted to consider the impact of prior convictions on credibility: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670; s. 12 of the Canada Evidence Act. However, case law establishes that convictions for offences of violence do not typically directly reflect on truthfulness and may therefore have limited probative value in assessing credibility: R. v. Brooks, 1998 CanLII 5686 (ON CA), [1998] O. J. No. 3913 (C.A.); R. v. Brown 1978 CanLII 2396 (ON CA), [1977] O. J. No. 1220 (C.A.). Convictions for breaching court orders may reflect a disregard for the court and the law, and may, depending on the circumstances, be relevant to credibility. But the probative value of prior convictions in relation to credibility will vary according to the number of prior convictions and their proximity or remoteness in time. A dated conviction may be of little assistance where the witness has since had time to live an honest life: Brown. In this case, evidence of Mr. Eze’s criminal record was received in short summary form, by means of an Agreed Statement of Fact (Exhibit 11). I do not know how many convictions of each type of offence are on Mr. Eze’s record. But I do know that his last conviction was five years before the date of the offences before the Court, and eight years before he testified at this trial. Given that none of the convictions are for offences of dishonesty, the lack of information about how many convictions he has, and the passage of time, I have decided to give Mr. Eze’s criminal record little to no weight in assessing his credibility.

[49] In conclusion, I find: that Mr. Eze lied about why he assaulted J. K; that he lied when he testified that he only tripped her in the washroom and then left and did not force her to the ground and then hold her down as she struggled; and that he lied multiple times to police in his statement. I also find that he lied in his explanation at trial as to why he lied to police. In the event that I am mistaken on this point, I find that his explanation negatively impacts on his testimonial reliability. All of these lies, some of them going to the heart of his evidence, lead me to the conclusion that Mr. Eze is not a credible witness. I do not accept his evidence that he did not touch J. K. in a sexual manner, and I am not left in reasonable doubt by it.

(iii) Assessing the Evidence of J. K.

[50] The defence made clear in submissions that it was not challenging J. K.’s credibility. Mr. Abbey acknowledged that J. K. was sincere, and that she testified honestly to the best of her ability. Instead, the defence challenge to the prosecution case focused on J. K.’s reliability. In particular, Mr. Abbey highlighted the following as indicative of her unreliability: J. K.’s memory gaps; inconsistencies between her trial testimony and her statement to police; inconsistencies within her trial testimony; and reasons for which he argued she would have become invested in a version of events that included sexual rather than common assault. I have considered J. K.’s testimony, alongside all of the other evidence in the case, and have come to the conclusion that J. K. was sincere and credible, and that she testified honestly to the best of her ability. I move on, therefore, to assess her reliability.

[51] J. K. did have some gaps in her memory of the assaults on February 1, 2018. She acknowledged as much. Of particular concern, when J. K. first gave evidence about the washroom assault, she recalled that Mr. Eze touched her buttocks but she could not recall whether he also touched her vagina. She initially said that all she was thinking about at the time was how to fight her assailant off, as if to explain why she could not recall whether he touched her vagina. She also repeatedly explained that she was very traumatized at the time of the assaults, and that this impacted on her memory of events. However, after refreshing her memory by reviewing the transcript of her videotaped statement to police, J. K. testified that Mr. Eze did touch her vagina in the washroom. She said that the touching of both her buttocks and vagina was quick. She did not know how many fingers Mr. Eze used to touch her vagina and could not remember how many times he touched her there.

[52] In addition, J. K. initially could not remember the details of the second assault. She testified that she followed the man out of the washroom, yelling for help. She saw the man again. They ended up on opposite sides of a large standing planter in the food court. But she could not recall what happened after that. She asked to refresh her memory by reviewing the transcript of her statement to police in relation to the second assault. After reviewing the transcript, J. K. testified that she was trying to get away from the man, and he was trying to catch her. The man chased her down the hall from the washroom toward the concourse where he caught her, and threw her down to the ground. J. K. could not recall, even after reviewing the transcript of her police statement, what transpired on the ground. She could not recall whether he covered her mouth with his hand, whether he tried to pull down her pants, or whether he touched her buttocks or vagina on this occasion.

[53] In cross-examination, defence counsel asked J. K. whether her evidence was that the assailant was only on top of her once. She replied that this was not her evidence, because the man was never on top of her. She maintained that in the washroom, the man had forced her to the ground, held her down with one hand on her knee and used the other hand to pull down her pants and touch her buttocks and vagina. She said he was never on top of her in the washroom. Refreshed by the transcript of her police statement, she said that on the second occasion in the concourse Mr. Eze chased her and threw her to the ground, and she struggled, but she could not otherwise recall what had happened on that occasion. She did not think the man was on top of her then. When defence counsel then played the portion of the surveillance video (Exhibit 5a) that depicted the second assault, J. K. acknowledged that Mr. Eze was, in fact, on top of her at that time. She admitted that she had been mistaken when she said he was never on top of her. J. K. also admitted that, even after refreshing her memory by reviewing the transcript of her police statement and seeing the video, she did not remember what happened in the second assault when she was on the ground. She candidly acknowledged that she could not remember whether the second assault involved Mr. Eze using his hands to touch her private parts.

[54] J. K. explained her memory gaps by saying that the assaults occurred a long time before trial and that they were very upsetting and dramatic for her. She acknowledged that her memory of the details of the assaults was not great because the incidents were traumatic for her. She did not talk about the assaults every day, and had wanted to try to forget what happened to her. J. K. candidly acknowledged that, given the passage of time and her trauma, her memory was fading. However, J. K. explained that the transcript of her police statement and the surveillance video refreshed her memory. And she adamantly maintained that she did remember that she was sexually assaulted in the washroom.

[55] I am satisfied that J. K.’s evidence is reliable, notwithstanding her memory gaps. Her explanation for why her memory was imperfect makes sense to me. I accept that the combination of trauma and passage of time would result in lapses of memory. However, I find that her memory issues did not negatively impact on J. K.’s reliability. She carefully explained what she did and did not remember. She did not pretend or claim to remember things she could not actually recall. Even after refreshing her memory by reviewing the transcript of her police statement and surveillance videos, she did not claim to recall everything. Even refreshed - when a less careful, honest, or reliable witness might claim to recall the most inculpatory version of events available in the transcript and/or the video – J. K. admitted what she could not recall. Even when that meant she did not have evidence to give that would support the prosecution case.

[56] At the same time, J. K. insisted that she remembered certain core events clearly, including that Mr. Eze had thrown and held her down and sexually assaulted her in the washroom; and that he had chased her and thrown her down to the ground in the concourse. To me, the care with which J. K. explained what she remembered, what she remembered after her memory was refreshed, and what she still did not remember, spoke to her reliability. She was not a careless witness. She was not a witness who, overcome by anger, fear, or trauma, filled in memory gaps to be able to give a more complete and inculpatory story at trial.

[57] I recognize that the process of embellishing one’s evidence, or filling in details to compensate for memory lapses, might occur unconsciously. If this happened, an honest and sincere witness might be credible but still unreliable. This could occur if the witness unconsciously added details, which they honestly but mistakenly believed they ‘remembered,’ to present a seamless and complete inculpatory story. While it is of course impossible to know what has transpired deep within the recesses of J. K.’s unconscious mind, I am satisfied that the evidence points away from this kind of unreliable gap-filling by her, whether conscious or unconscious. Her care in delineating what she could and could not remember suggests not only candour, but also reliability. A person who was consciously or unconsciously improving their story would not fill some gaps and leave others open. There is simply no basis to conclude that J. K.’s ability to perceive, remember, and communicate some of the events in question and not others gives rise to reliability concerns. In fact, in my view, the opposite is true.

[58] I have considered the impact of J. K.’s mistaken belief that Mr. Eze was never on top of her on the reliability of her evidence. The concern is that because she was wrong about that, she may have been wrong about other parts of her evidence too. It is clear that she was wrong when she testified that Mr. Eze was never on top of her because the video of the assault in the concourse conclusively shows that he was. But how can we be certain that she was not mistaken in her memories and testimony about other parts of the assaults where there is no other objective evidence to compare it to? Can I be satisfied that J. K.’s memory and testimony are reliable overall in these circumstances?

[59] Fortunately, although there is no videotape of the assault in the washroom, there is meaningful evidence in addition to J. K.’s testimony that corroborates what she said about that assault. I have already reviewed and analyzed that evidence extensively earlier in these reasons. The photographs of the washroom, taken shortly after the assault there, demonstrate that J. K.’s evidence about what transpired was reliable. The photographs support that she was in the washroom to clean it, and that she was cleaning it at the time of the assault. Her testimony on point was accurate and reliable. The photographs also support that Mr. Eze held J. K. down on the ground as she struggled. That he did not merely trip her and leave. Her testimony on point was accurate and reliable. The surveillance video segment in which Mr. Eze is exiting from the washroom into the food court followed by J. K. shows that she was wearing rubber gloves and a face mask and that she was pulling up her pants. Her testimony on point was accurate and reliable.

[60] The only evidence from J. K. that is not independently corroborated by photographs or surveillance video was that Mr. Eze pulled down her pants and touched her buttocks and vagina in the washroom. However, as I have already found, the photographs do demonstrate that Mr. Eze lied about his motivation for assaulting J. K. The evidence established that he knew that J. K. was a cleaner who was in the washroom to clean it. He did not assault her in a fit of temper brought on by her being in the wrong gender washroom without reason. He assaulted her for some other reason. And, contrary to his testimony, independent evidence depicted in the photographs establishes that he did hold her down while she struggled. In these circumstances, I find that J. K.’s testimony that Mr. Eze pulled down her pants and touched her buttocks and vagina in the washroom is reliable. All of her other evidence about what transpired in the washroom is independently confirmed as reliable. All of the other evidence given by Mr. Eze that conflicts with the evidence of J. K. is independently shown to be unreliable and not credible. I accept J. K.’s evidence as reliable notwithstanding that she was mistaken when she initially testified that Mr. Eze was never on top of her.

[61] Defence counsel suggested that J. K. was inconsistent in her evidence about whether Mr. Eze inserted fingers into her vagina or whether he only touched the outside of it. The defence position was that this too gave rise to concern about the reliability of her memory and her testimony. I have carefully reviewed and re-reviewed the evidence in relation to this point. J. K. was initially asked in-chief whether the assailant’s fingers stayed on the outside parts of her vagina, or whether the fingers went inside her vagina. She did not have an opportunity to answer this question because she was interrupted by an outburst from Mr. Eze. I endeavoured to calm Mr. Eze by reminding him that he could not speak while J. K. was testifying and that he would have an opportunity to tell his story if he chose to testify. But Mr. Eze continued to interject loudly and disruptively. Ultimately, we took a short recess to enable Mr. Abbey to confer with Mr. Eze privately in a zoom breakout room. When the trial resumed, Mr. Eze was calm and quiet. The Crown continued the examination-in-chief without ever returning to the question that had been interrupted. J. K. never had an opportunity to give evidence in-chief as to whether Mr. Eze had inserted his fingers into her vagina or only touched the exterior parts of it.

[62] In cross-examination, Mr. Abbey put to J. K. that the assailant did not insert his fingers into her vagina. Through the Tagalog interpreter, J. K. answered “no, he did that.” Mr. Abbey then went on to put to her a pre-trial statement she had made to the Victim Witness Assistance Program (“VWAP”) in which she said that the assailant did not insert his fingers into her vagina. J. K. readily agreed that she had made that statement to VWAP and that the notes of the statement were accurate. She maintained that the assailant had not inserted his fingers into her vagina and that she had not said anything different at any point at trial.

[63] At a later point in the cross-examination, Mr. Abbey asked J. K. whether there were any inaccuracies in the transcript of her statement to police. She reviewed a portion of the transcript and said that she thought she told police that Mr. Eze had inserted his finger into her vagina, but he did not.

[64] I find that J. K. did not give inconsistent evidence at trial about whether Mr. Eze inserted fingers into her vagina. She did not have an opportunity to answer this question when it was first asked of her. In cross-examination, Mr. Abbey’s initial question on point was framed in the negative (something in the nature of ‘he did not insert his fingers into your vagina?’). J. K.’s answer, as interpreted, was a confusing combination of negative and positive (something like ‘no, he did that.’). Mr. Abbey seems to have understood this answer to mean that J. K. was saying Mr. Eze had inserted his fingers. He went on to confront J. K. with her statement to VWAP that there was no finger insertion. But J. K. confidently agreed that she had made that statement to VWAP, adopted its contents as accurate, and firmly maintained that she had given no differing evidence at trial. She did not respond to these questions defensively or as if challenged, as an inconsistent or self-contradicting witness would typically respond.

[65] In my view, J. K.’s answer through the interpreter to a negatively framed question is ambiguous and capable of more than one interpretation. One is that she was saying “no” the assailant did not insert his fingers - in other words, that she was agreeing with the questioner. Another available interpretation is that she was disagreeing with the questioner, saying “no” you are wrong in your question, the assailant did insert his fingers. The second part of J. K.’s answer as interpreted, “he did that,” might suggest that the second possible understanding of her meaning is correct. However, the subsequent questions and answers, J. K.’s confident adoption of the VWAP statement denying insertion, and her insistence that she had never testified to insertion at trial suggest otherwise.

[66] It should be remembered that language interpretation is an imperfect process. Inexact language transference may present itself in the ordinary course of court interpretation. In R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, at para. 60 (QL), the Supreme Court of Canada recognized this, citing G. J. Steele, “Court Interpreters in Canadian Criminal Law,” (1992) 34 C.L.Q. 218 at 242 as follows:

Even the best interpretation is not “perfect,” in that the interpreter can never convey the evidence with a sense and nuance identical to the original speech. For that reason, the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of a doubt should be given to the witness.

[67] In this instance, J. K. gave only one answer that could have suggested that Mr. Eze inserted his fingers into her vagina. But this one answer was not clear. All of her other answers and her manner of answering were clear. Other than the one ambiguous answer, all of her evidence was that there was no finger insertion. I find that the ambiguity of the one answer is an artifact of the way the question was put to her, and of language interpretation. There is no inconsistency in J. K.’s evidence at trial on this point.

[68] There remains an inconsistency between J. K.’s apparent pre-trial statement to police that Mr. Eze did insert his fingers into her vagina and her testimony at trial that he did not. It goes without saying that prior inconsistent statements may provide a valuable means of assessing witness credibility and/or reliability: R. v G. (M.) (1994), 93 C.C.C. (3d) (Ont. C.A.) at p. 354, leave to appeal to S.C.C. denied, [1994] S.C.C.A. No. 390. However, not all inconsistencies carry the same weight when it comes to assessing credibility and reliability. As the Court of Appeal for Ontario helpfully set out in R v A. M., 2014 ONCA 769 at para. 13:

Inconsistencies vary in their nature and importance. Some are minor and others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

[69] The inconsistency here is not one that causes me concern about J. K.’s credibility or reliability. Both J. K.’s statement to police and her evidence at trial involve Mr. Eze touching her genitalia without her consent. Both versions involve him using his hand to touch a part of her vagina, thereby violating her sexual integrity, in the washroom. After refreshing her memory by looking at the transcript of her police statement, J. K.’s testimony was consistent with her earlier police statement in the essential details: that she was forced down to the ground, held down, her pants were lowered, and her buttocks and vagina were touched as she struggled and called for help. Whether Mr. Eze inserted his fingers into her vagina or only touched the outside of it is not a core detail that goes to whether the sexual assault actually occurred. The inconsistency between J. K.’s earlier evidence and her evidence at trial is not something material about which an honest and reliable witness is unlikely to be mistaken or incorrect. It does not demonstrate either a carelessness with the truth or a significant reliability concern.

[70] The defence relied on other inconsistencies too in support of its position that J. K.’s testimony was not reliable. These included (a) an inconsistency between her statement to police that Mr. Eze was not wearing a hat during the assaults and her evidence at trial that he was; and (b) some purported inconsistencies within her evidence at trial as to whether the events surrounding the second assault occurred in the “food court” or the “concourse.”

[71] When confronted about the inconsistency about whether Mr. Eze was wearing a hat, J. K. was initially either confused by the questions or hesitant in her responses. But she ultimately acknowledged this inconsistency and explained it. J. K. said that when she gave her initial police statement, it was immediately after the assaults had taken place. At that time, she was traumatized and confused. But at trial, she had seen the video so she knew that Mr. Eze was wearing a hat during the assaults. This inconsistency about whether Mr. Eze was wearing a hat or not does not cause me to question the reliability of her core evidence of sexual assault for two reasons. The first is that J. K. readily acknowledged that her memory may have been fallible about the hat. By contrast, she adamantly and consistently maintained that she had been sexually assaulted in the washroom. As I have already found, J. K.’s care in admitting what she could and could not remember and what she was and was not certain about spoke to her ability to perceive, remember, and recount details of the assaults. It confirmed her reliability. The second reason is that whether Mr. Eze was wearing a hat is not a core or material issue about which an honest and reliable witness is unlikely to be mistaken. A frightened and traumatized victim might well not carefully note whether their assailant was wearing a hat while still being able to accurately and reliably perceive, remember, and recount the core details of a sexual assault. For these reasons, I find that J. K.’s evidence of having been sexually assaulted in the washroom and of having been chased by Mr. Eze outside of the washroom and tackled to the ground is reliable, notwithstanding her inconsistency about whether he was wearing a hat when these events occurred.

[72] With respect to the alleged inconsistencies within J. K.’s trial testimony about whether events occurred in the “food court” or the “concourse,” I am not at all convinced that these even amounted to inconsistencies. Both assaults occurred in the PATH (underground) level of the TD Centre. All of the relevant events after the washroom assault occurred outside of the washroom in the PATH. Video surveillance footage shows that that the food court and the concourse are contiguous, and it is not entirely clear where the food court ends and the concourse begins. When confronted about this issue in cross-examination, J. K. explained that the food court contains fast food restaurants, tables and chairs, that it is wide, and that the concourse extends from there and also includes places to eat. I understood J. K. to be saying that “food court” and “concourse” are overlapping places, and that she may use these terms interchangeably. I also consider it possible that court interpretation may have played a role in any apparent inconsistency or inexact wording here. And, whether events after Mr. Eze and J. K. exited the washroom up to and including the second assault occurred in the “food court” or the “concourse” is, in my view, of no moment. It is a minor terminological issue that does not touch upon the core of J. K.’s evidence or her reliability. I find that J. K. was not inconsistent in her testimony about where she was chased and tackled to the ground outside the washroom. Her core reliability is unaffected by any terminological inexactitude or interpretation issues on this point.

[73] The defence also submitted that J. K.’s evidence was not reliable because she had become invested in a version of events that included sexual, rather than common, assault. Defence counsel cross-examined J. K. about whether she had heard her colleagues tell police that she was sexually assaulted, and whether they treated her as a sexual assault victim. J. K. could not recall. I am not satisfied that J. K. heard her colleagues describing her as a sexual assault victim, or that this would have caused her to be invested in being one if she had.

[74] Defence counsel also cross-examined J. K. about whether she got time off work as a result of the assaults, and about whether she got compensation from the Criminal Injuries Compensation Board. J. K. acknowledged that she did get time off work in the wake of the assaults. She initially said she could not remember whether she got compensation from the Board. With further questioning she agreed that a VWAP worker suggested that she apply for money, assisted her with making the application, and that she did get some money from the government.

[75] The defence position was that J. K. got time off work and received compensation payments for being a victim of sexual, not common, assault. This, the defence submitted, wedded her to the position that these were sexual assaults. Having applied for government compensation for sexual assaults, the defence argued, she could not now reconsider or change her position and testify that she was a victim of common assaults. According to Mr. Abbey, this meant that J. K.’s evidence was not reliable. He emphasized that J. K. was reluctant to admit that she had received compensation. He suggested that this too negatively reflected on her reliability.

[76] I do not see the compensation J. K. received, her reluctance to talk about it, or her time off work as relevant to her reliability. There is nothing about any of these things that would have made J. K. less able to accurately perceive, remember, or recount what had happened to her during the assaults. Rather, time off work, receipt of compensation, and reluctance to talk about it, might be relevant to credibility. A witness might lie about the severity of an assault to become eligible for more compensation or more paid leave from work. A witness who had lied about the severity of an assault for these reasons might be reluctant to give evidence about the compensation they received to avoid detection or suspicion of their fabrication.

[77] But in this case, the timeline does not support a finding that J. K. lied when she alleged a sexual assault in order to be paid compensation or get time off work. J. K. was not aware that government compensation was available to her until after she made her initial statement to police alleging sexual assault. She only learned about the availability of compensation from VWAP, after she spoke with police and charges were laid. Her application to the Criminal Injuries Compensation Board was made, with VWAP support, after that. She could not have been lying to bolster her claim for compensation when she gave her statement to police because she did not know at that time that compensation was available. There is also no evidence that J. K. would have been entitled to less time off work or less compensation following a common assault than following a sexual assault, or that J. K. believed that to be the case. This suggests that she would have had no motive to lie when she told police, her employer, or the Criminal Injuries Compensation Board that she had been sexually assaulted. For all of these reasons, I conclude that J. K.’s credibility was not adversely affected by her time off work or her receipt of compensation.

[78] Moreover, the defence explicitly did not take the position that any of these things impacted on J. K.’s credibility, focusing instead only on their purported impact on her reliability. Defence counsel explicitly acknowledged that J. K. was sincere and credible, taking the position that her purported investment in a version of events that involved sexual assaults negatively impacted only on her reliability.

[79] I have already found no relationship between these things and J. K.’s reliability. There is simply no relationship between her having had time off work, receiving compensation, and her ability to accurately perceive what happened to her or to testify about it. In addition, J. K. was not so invested in the version of events she shared with police that she was consistently and completely wedded to it. Notwithstanding having had time off work and received compensation, J. K. did resile from some of the details she gave in her initial police statement. While she apparently told police that Mr. Eze inserted his fingers into her vagina, she told VWAP workers and testified at trial that he did not. She also told police that her assailant was not wearing a hat during the assaults, but testified at trial that he was. In other words, contrary to the submission of the defence, J. K. was not so invested her pre-trial story that she felt she could not deviate. There is no basis here to conclude that she was so invested in having been sexually assaulted that her evidence was unreliable.

[80] There remains the question of why J. K. seemed reluctant to answer questions about the government compensation she received, and whether this impacts on her credibility or reliability. I find that it does not. When asked whether she applied for compensation from the Criminal Injuries Compensation Board, J. K. responded that she was not seeking payment but that a VWAP worker suggested she do so, and helped her to apply for it. She said she could not recall whether she received compensation from the Board. When Mr. Abbey asked her whether she had received any government money as a result of the attack, J. K. answered that she had.

[81] In my view, J. K.’s hesitancy is explained by uncertainty about what precise body within government paid her. She could not recall whether she had received payment from the “Criminal Injuries Compensation Board” but directly agreed that she had received money from “the government.”

[82] She also seemed to want to emphasize that she was not the one who initiated the process of seeking payment. This came across as defensive, as though J. K. was guarding against an anticipated defence suggestion that she had fabricated her story in order to be paid. Defensiveness in a witness may well signal that they have something to hide. Or that they are lying. In such cases, defensiveness may adversely impact on credibility, or even on reliability. In this case, however, I find that it does not. I have already concluded that J. K. was credible (as admitted by the defence) and reliable for all of the reasons explained above. Her defensive responses to an anticipated attack on her evidence does not detract from her credibility or reliability. Ultimately, she was correct in anticipating a defence challenge arising out of her receipt of compensation. She cannot be faulted for attempting to address and respond to that challenge when the story she was telling and defending was true. Overall, J. K. was forthright and direct in answering questions. She was not, in the main, a defensive or evasive witness. While she might have responded to this line of questioning more effectively had she been less hesitant or defensive, I find that her manner of answering the challenge she rightly anticipated did not detract from her overall credibility or reliability.

[83] Before concluding my assessment of J. K.’s evidence, I want to address the issue of absence of motive to fabricate advanced by the Crown. In his closing submissions, Crown counsel Mr. Parry asked me to find a proven absence of motive to fabricate on J. K.’s part, and to find that this supported her credibility. He argued that because J. K. and Mr. Eze were strangers with no prior relationship whatsoever, there could be no reason for her to lie. Mr. Parry submitted that J. K.’s application for compensation did not provide evidence of a motive to fabricate because she was not aware that she was eligible for it until after she made her statement to police. After closing arguments were completed, I wrote to counsel to elicit further submissions in relation to several issues in the case. One of these was the issue of the proven absence of motive to fabricate. Counsel appeared before me on zoom and made further submissions. The defence clarified that it was not alleging that J. K. had a motive to fabricate, and repeated its position that J. K. was credible but not reliable. The Crown then modified its earlier position, asking me for a finding of absence of proven motive to fabricate, not for a finding of proven absence of motive to fabricate.

[84] This distinction at first blush appears to be no more than one of semantics. But it is meaningful in law. The case law underscores that there is a significant difference between absence of proven motive to fabricate and a proven absence of motive to fabricate: R. v. Bartholomew, 2019 ONCA 377 at para. 20; R. v. L.L., 2009 ONCA 413 at para. 44. A proven absence of motive to fabricate provides a potent basis for the prosecution to assert that the complainant must be telling the truth: Bartholomew at para. 21. By contrast, an absence of proven motive to fabricate is but one factor among many to consider in determining whether the complainant is telling the truth: L.L. at para 48. A complainant may have no apparent reason to lie but still not be telling the truth. Absence of an apparent motive to fabricate does not mean that there is no motive to fabricate: R. v. Ignacio, 2021 ONCA 69 at para. 29. Even where a witness has no apparent reason to fabricate, courts have recognized that people may accuse others of crime for reasons that may never be known, or for no reason at all: Bartholomew at para. 22.

[85] In this case, the evidence fell short of establishing a proven absence of motive to fabricate. I accept that there was an apparent absence of proven motive to fabricate on J. K.’s part. As submitted by the Crown, Mr. Eze and J. K. were strangers who had no prior or subsequent relationship. There would be no reason arising from their absent history for her to lie about what he did to her. There was also no evidence that she knew she could get time of work or receive monetary compensation when she made her police statement. She would not have been motivated to lie to obtain these benefits.

[86] J. K.’s apparent lack of motive to fabricate is one factor I have considered in assessing her credibility and finding her credible. However, since the defence did not take issue with it, J. K.’s credibility was not a major focus of my deliberations in this case. I have nonetheless considered her credibility overall, and specifically as noted in these reasons. I have concluded that J. K. was credible. Her apparent absence of proven motive to fabricate was one factor I considered in doing so.

(iv) Summary of Findings Arising from the Assessment of the Evidence of Mr. Eze and J. K.

[87] For the reasons set out above, I do not believe the evidence of Mr. Eze with respect to whether the assaults were sexual, and am not left in a state of reasonable doubt by it. I do believe the evidence of J. K. and find it reliable. But this does not end the matter.

[88] There is a gap in J. K.’s evidence about what transpired in the assault in the concourse. She did not remember what happened after Mr. Eze took her down to the ground on that occasion. She could not recall whether Mr. Eze had touched her sexually, or tried to, at that time. The surveillance video establishes that Mr. Eze chased J. K., caught her, forced her to the ground, got on top of her, flipped her over, and held her down as she struggled. But the speed with which these events took place and the position of the video camera at a distance do not allow me to determine precisely what Mr. Eze did or tried to do with his hands while J. K. was under him on the ground. In order to determine whether the prosecution has proven the second alleged sexual assault beyond a reasonable doubt, I must go beyond the evidence I have already considered. I must consider all of the evidence. And then determine whether, on all of the evidence I accept, the Crown has proven that the assaults were sexual in nature beyond a reasonable doubt. To do this, I will consider certain conduct after the assaults and admission of the evidence on each count across counts as requested by the Crown.

C. Evidence of Conduct After the Assaults

(i) Evidence of Mr. Eze’s After-the-Fact Conduct Relied on by the Crown

[89] The Crown submitted that some after-the-fact conduct of Mr. Eze was evidence of consciousness of guilt from which I could infer that he had committed sexual assaults. That conduct was turning the jacket he was wearing during the assaults inside out after-the-fact.

[90] Police found the jacket Mr. Eze was wearing during the assaults when they searched his apartment. It was turned inside out. The inside of the jacket is all black (See Agreed Statement of Fact, Exhibit 10; photographs of the execution of the search warrant at Mr. Eze’s residence, Exhibit 9).

[91] Surveillance videos from Mr. Eze’s apartment building from February 1, 2018 before the assaults (Exhibits 8a, b, and d) depict Mr. Eze wearing a varsity-style jacket that has a black body and white sleeves, with a larger white crest on the right side of the chest area and a smaller white crest on the left side of the chest area. Surveillance videos from the TD Centre before, during, and after the assaults (Exhibits 5a and b) show that Mr. Eze was still wearing the same varsity jacket, right side out, with white sleeves visible throughout. But by the early morning of February 2, 2018, when he returned to his apartment building, surveillance videos show that he was wearing what appeared to be an all-black jacket (Exhibits 8c and e). At some point between when he got into the taxi outside the TD Centre around midnight on February1-2, 2018 and when he arrived back home around 6:30am on February 2, 2018, Mr. Eze took off his jacket, turned it inside out, put it back on and wore it that way. He left it on the back of a chair in his bedroom, where it was found by police, inside out.

[92] Mr. Parry questioned Mr. Eze in cross-examination about why he was wearing his jacket wrong way out. Mr. Eze said he just does this sometimes, that it is something he saw Will Smith do.

[93] Mr. Parry submitted that Mr. Eze turned his jacket inside out to avoid detection. He argued that I could infer from this that Mr. Eze had a consciousness of guilt from which I could infer that he had committed a sexual assault. The defence did not oppose the admission of the inside out jacket. In fact it admitted that the jacket was inside out when found (Agreed Statement of Facts, Exhibit 10). The defence position was that Mr. Eze’s conduct in turning his jacket inside out was no more probative of sexual assault than it was of common assault. And for this reason, the after-the-fact conduct relied on by the Crown had no probative value in relation to whether Mr. Eze had committed a sexual rather than a common assault. I agree with the defence on this point.

[94] In R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S. C. R. 129 at p. 145, the Supreme Court of Canada held that “where an accused’s conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.” Where two or more offences are under consideration and some baseline culpability has already been established (whether by admission or a finding to that effect), the trier of fact must consider whether after-the-fact conduct evidence is “equally explained by” or “equally consistent with” two or more offences: R. v. Calnen, 2019 SCC 6 at paras. 120 - 123 per Martin J, dissenting in part but not on this point; R. v. White, 2011 SCC 13 at para 37. If the after-the-fact conduct evidence is equally consistent with both the offence admitted (or proven) and the other offence, the evidence may have no probative value in relation to establishing guilt for the other offence. A trier determines whether after-the-fact conduct evidence is equally consistent with two offences by considering whether “[t]he overall conduct and context . . .[are] such that it is not possible to choose between the available inferences as a matter of common sense, experience and logic”: Calnen at para. 124.

[95] In this case, I consider it quite likely that Mr. Eze turned his jacket inside out in order to evade identification by law enforcement. He did not have much of a plausible alternate explanation. It does not make sense that he would have done this in the middle of the night, while stranded somewhere downtown after the close of public transit, to emulate Will Smith. As a matter of common sense and experience, people do not generally make fashion choices and changes for no articulable reason after they have left a bar or social setting. Particularly not when they are running away from the scene of a crime with security officers in hot pursuit, and are unable to get home. In these circumstances, I conclude that Mr. Eze turned his jacket inside out so that he could not be identified as the person who assaulted J. K. This after-the-fact conduct speaks to his consciousness of guilt.

[96] However, as a matter of common sense, experience and logic, in all the circumstances and context of this case, Mr. Eze’s after-the-fact conduct is as consistent with consciousness of guilt for common assault as for sexual assault. It is equally plausible that he would have turned his jacket wrong way out in order to escape detection for common assaults as that he would have done so to escape detection for sexual assaults. There is nothing about this after-the-fact conduct that speaks to whether Mr. Eze was wary of being apprehended for one kind of assault instead of the other. Mr. Eze has admitted that he committed the common assaults on J. K. His after-the-fact conduct may evidence no more than his consciousness of guilt in relation to the common assaults he admitted to having committed. For these reasons, I am not assisted by the after-the-fact conduct evidence in determining whether the Crown has proven that Mr. Eze committed sexual rather than common assaults beyond a reasonable doubt.

(ii) Evidence of J. K.’s Post-Event Demeanour Evidence Relied on by the Crown

[97] The Crown asked me to find that J. K.’s demeanour after the assaults, as captured on video, corroborates her evidence that she was sexually assaulted.

[98] Some time after the assaults, J. K. is seen on surveillance video footage (Exhibit 5a at 7:35 – 8:53). She sits down on a couch in a hallway in the TD Centre. Her body appears to collapse into the couch, her head resting back on the wall behind her. She seems to be breathing heavily or panting, opening her mouth wide intermittently, possibly yelling or crying (there is no audio). She has a pained and distressed look on her face.

[99] Mr. Parry for the Crown submitted that J. K.’s body language and facial expressions corroborate her evidence. He argued that the look of terror on J. K.’s face speaks to her having been a victim of sexual assault, rather than common assault.

[100] Evidence of a sexual assault complainant’s post-event demeanour can be considered as circumstantial evidence. It may corroborate the complainant’s version of events: R. v. Rose, 2021 ONCA 408 at para. 22. Much of the case law dealing with the uses of evidence of a sexual assault complainant’s post-event demeanour relate to the issue of consent. Courts have held that post-event demeanour may assist the Crown in proving an absence of consent or it may assist the defence in proving consent: Rose at para. 22. But I see no reason for which evidence of a sexual assault complainant’s post-event demeanour can not be considered in relation to live issues other than consent where appropriate. If a complainant’s post-event demeanour is relevant and material to issues at trial and its prejudicial effect does not outweigh its probative value, it could be considered like any other circumstantial evidence, along with all the other evidence in the case.

[101] In this case, the issue for determination is whether the assaults were sexual in nature. The Crown submits that J. K.’s body language and facial expressions after the assaults are post-event demeanour which corroborate her evidence. And from which I can infer that she was sexually assaulted.

[102] It is clear to me from my review of the relevant segment of videotape that J. K. was extremely upset at the time. The video provides evidence that is consistent with J. K.’s testimony that she was traumatized and distraught. However, there are limits to what I can determine from this evidence. I am not able to determine from what I can see there that J. K.’s demeanour is more consistent with having been sexually assaulted than it is with having been the victim of common assaults. A person who is the victim of two sudden shocking common assaults by a stranger late at night might well behave as J. K. did. There is nothing about her post-event demeanour that speaks uniquely to having been sexually assaulted. For this reason, I do not find the evidence of J. K.’s post-event demeanour evidence helpful in relation to the live issue of whether these were sexual rather than common assaults.

C. Admission of Evidence on Each Count Across Counts

(i) History of this Issue at Trial and Positions of the Parties

[103] The Crown ultimately took the position that I should consider the evidence on each count in relation to the other count. There was no formal notice of application for the admission of cross-count similar fact evidence filed and no formal voir dire on point. This issue arose as follows.

[104] At the close of the prosecution case, the defence brought an application for a directed verdict on the second count of sexual assault. In responding to the directed verdict application, Crown counsel Mr. Parry submitted that I could consider the evidence on the washroom sexual assault in determining whether to grant a directed verdict on the second sexual assault. I asked Mr. Parry if the Crown was bringing an application for the admission of evidence on each count across counts, also known as a cross-count similar fact evidence application. Mr. Parry took the position that this was not cross-count similar fact evidence because the two counts arose from a single transaction. Consequently, he submitted, no cross-count similar fact evidence application was required. Defence counsel Mr. Abbey took the position that I should not consider the evidence on the first count across counts in determining the directed verdict application. He submitted that the Crown had chosen to prosecute two separate charges of sexual assault and could not now rely on them both arising in a single transaction to defeat the general prohibition on cross-count admission of similar fact evidence. He further submitted that taking up the Crown’s invitation to consider evidence across counts would lead to moral prejudice in the form of reasoning from bad character.

[105] I considered and dismissed the directed verdict application for reasons given orally. I did not need to, and did not, consider the evidence on the first sexual assault in relation to the second sexual assault to determine the application. I concluded that there was some evidence of the sexual nature of the second assault which, if believed by a reasonable trier of fact properly instructed, could result in conviction without needing to resort to the evidence on the first sexual assault.

[106] At the end of the trial, before I heard counsel’s closing arguments, I asked them to address the issue of admission of evidence across counts that had been raised by the Crown. After the end of trial, I wrote to counsel to seek further submissions in relation to several issues, including the question of whether I could consider evidence across counts. Counsel appeared before me on zoom and provided further submissions in relation to this issue, inter alia. The positions of the parties in their closing and further submissions were similar to the positions they had taken on the directed verdict voir dire.

[107] The defence submitted that because the Crown had chosen to prosecute two separate counts of sexual assault, it could not have evidence admitted across counts as if there were one single transaction. Defence counsel argued that the Crown could not have it both ways. Either there is one transaction here and no requirement of a cross-count similar fact evidence application, but Mr. Eze could only be convicted of one count. Or this is not a single transaction, a cross-count similar fact evidence application was required, and Mr. Eze could be convicted of both counts. If Mr. Eze faces the jeopardy of conviction on two separate counts of sexual assaults, the defence submitted, the Court should refuse to admit evidence across counts because the Crown did not make a formal application with notice. Mr. Abbey argued that the absence of notice unfairly prejudiced the defence: Mr. Eze might have elected to be tried by judge and jury had it known that the Crown would be advancing a cross-count similar fact evidence application. He argued that evidence was less likely to be admitted across counts in a jury trial because there is a greater risk of reasoning prejudice where there is a jury than where a judge is sitting alone. Finally, defence counsel submitted that the evidence was not admissible under the law governing cross-count similar fact evidence because: (a) Mr. Eze and J. K. were strangers, so no history or context was required to give meaning to what transpired between them in each assault; and (b) such evidence would invite prohibited reasoning from general propensity.

[108] The Crown submitted that this case really involved a single transaction because both assaults happened within two minutes between the same two parties in which there was effectively uninterrupted contact between them. Consequently, it would be artificial to separate out when the first assault ended and the second began. The Crown refined its position, saying that this could be considered to be a single continuous context but not a single continuous act, or one continuous transaction made up of smaller ones. Given a single transaction, the evidentiary rules governing admission of cross-count similar fact evidence were not engaged. Accordingly, the Crown argued, I could consider the evidence across counts (a) as context; (b) to infer animus on Mr. Eze’s part; and (c) if I concluded that the washroom assault was sexual in nature, to infer that Mr. Eze had the intention to sexually assault J. K. in the concourse. Mr. Parry emphasized that, because the cross-count evidence was relevant to the discrete live issues he identified, it would not involve reasoning from general disposition or bad character. He further argued, should I decide that the law governing admission of cross-count similar fact evidence applied (because this was not a single transaction), I was not barred from considering it by reason of the absence of a formal application on notice. This is because the defence was not prejudiced by the absence of a formal application: whichever mode of trial Mr. Eze elected, the evidence was admissible across counts. There was little risk of reasoning prejudice here, whichever mode of trial was elected. Mr. Eze could not have prevented the trier of fact from hearing the evidence on both counts in any event. Advance notice of a Crown intention to pursue cross-count admission of evidence would have been of no moment to possible prejudice, and therefore to Mr. Eze’s election. Finally, the Crown submitted that there was little or no risk of moral or reasoning prejudice in the context of this judge alone trial.

(ii) Was this a Single Transaction such that Evidence was Admissible Across Counts Without a Cross-Count Similar Fact Evidence Application?

[109] In R. v. Tsigirlash, 2019 ONCA 650, at paras. 23 - 25, the Court of Appeal for Ontario summarized the presumptive inadmissibility of evidence across counts, and the single transaction exception to it, as follows:

The general rule is that evidence of the accused’s discreditable conduct is inadmissible, unless that conduct is the subject-matter of the charge in question: Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5^th ed. (Toronto: LexisNexis Canada, 2018) at para. 11.1 This general rule operates both as a pure rule of admissibility and as a rule of restricted admissibility. When the proposed evidence relates to extrinsic misconduct – discreditable conduct for which the accused is not charged – the rule determines whether that evidence will be heard. When the request is to use evidence already admissible on one count to prove a separate count, the rule operates as a rule of restricted admissibility: the already-admitted evidence can be used only on the count to which it relates. In other words, evidence against an accused on one count of an indictment may not be used to prove the guilt of the accused on another count, unless the counts arise out of the same events: David M. Paciocco & Lee Stuesser, The Law of Evidence, 7^th ed. (Toronto: Irwin Law, 2015) at p. 88.

The general inadmissibility rule will not apply where the evidence of discreditable conduct meets the test for similar fact evidence. But, importantly, there are a number of steps that must occur, and a number of factors that must be considered, before the similar fact evidence test is met and evidence on one count can be applied to others or evidence of extrinsic misconduct can be admitted at all.

These steps and factors are critical because similar fact evidence is presumptively inadmissible, whether the evidence of similar acts is evidence of other counts in the indictment or is evidence of extrinsic misconduct: R. v. MacCormack, 2009 ONCA 72 at para. 48. [emphasis added]

[110] This means that if both counts here arise from the same events, or in a single transaction as argued by the Crown, evidence on each count may be considered on the other count. Even without satisfying the requirements of admissibility for cross-count admission of similar fact evidence.

[111] There is much law around the determination of whether two or more acts are part of a single transaction or separate incidents. I take s. 581(1) of the Criminal Code as a starting point:

581. SUBSTANCE OF OFFENCE – (1) Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified.

[112] On first read, this provision seems to suggest that two counts in a properly drafted and sufficient indictment will each relate to a single, separate transaction. However, deeper inquiry into the intent of the section reveals that this is not necessarily the case. As interpreted in the case law, s. 581(1) aims at ensuring that each count in an indictment is not multiplicitous: R. v. Hulan, 1969 CanLII 306 (ON CA), [1970] 1 C.C.C. 36 (Ont. C.A.); R. v. Goler, [1985] N. S.J. No 474 (N.S.C.A.). Read alongside ss. 581(3) and (4) of the Code, s. 581(1) generally limits each count in an indictment to charging a single transaction so that the defendant knows what he is charged with having done. The section supports the defendant’s ability to make full answer and defence: Goler at para 24. Courts have held that “single transaction” is not synonymous with “single offence.” See, for example, R. v. Selles, 1997 CanLII 1150 (ON CA), [1997] O. J. No. 2502 (Ont. C.A.) at para. 16:

While subsection 581(1) requires that a count relate to a “single transaction”, a “single transaction” is not synonymous with a single incident, occurrence or offence. Separate acts which are successive and cumulative and which comprise a continuous series of acts can be considered as one transaction and no objection can be taken to a conviction thereon on the basis of uncertainty: see R. v. Flynn (1995), 1996 CanLII 154 (SCC), 111 C.C.C. 129 at 136 (Ont. C.A.)

[113] Incidents that are sufficiently connected by time, place and circumstances, or that refer to a continuing course or a pattern of conduct may comprise a single transaction within the meaning of s. 581(1): Selles; R. v. Sandhu, 2009 ONCA 102 at para. 19; R. v. M. (G. L.), 1999 BCCA 467 at para. 11.

[114] Accordingly, it can generally be assumed that a valid count in an indictment charges a single transaction (which may be comprised of more than one incident or offence). But it cannot logically be assumed from this that separate counts in an indictment charge separate, distinct transactions. That is to say, the requirement that each count charge a single transaction does not equate to a requirement that each count charge a discrete transaction, different from that contained in the other counts. Indeed, the rule in Kienapple exists to prevent multiple convictions for the same act, offence, or transaction: R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729; R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480. There would be no need for the rule against multiple convictions if each count in an indictment had to charge a discrete and separate transaction. In this case, I cannot infer from the Crown’s decision to charge Mr. Eze with two counts of sexual assault that each count relates to a separate transaction.

[115] As a result, to determine whether the two counts form a “single transaction” such that evidence may be admitted across counts without resort to a cross-count similar fact evidence application, I must look at the substance of each count. The cases considering the meaning of a “single transaction” for the purposes of s. 581(1) referred to above are of assistance by analogy here.

[116] I have decided not to consider, at this stage, whether conviction for both counts of sexual assault would violate the Kienapple rule against multiple convictions. In my view, this is an issue for separate consideration with the benefit of full argument from counsel. I invite submissions supported by relevant authority as part of sentencing proceedings.

[117] In this case, the two assaults charged both occurred within a very short time, approximately two minutes in total. They occurred in rapid succession, between the same two parties, in different parts of the same place (the PATH level of the TD Centre), with virtually uninterrupted contact between the two parties for the entire duration. They could be characterized as forming part of a continuing course or pattern of conduct, in that there are no major intervening events or passage of time between them. And each alleged sexual assault is substantially similar to the other. On both occasions, Mr. Eze is alleged to have forced J. K. to the ground and forcibly kept her down while he used his hands to pull down her pants and touch her private parts, or attempt to do so. For these reasons, I conclude that the two assaults charged do constitute a single transaction. The evidence on each count is therefore admissible in relation to the other without resort to a formal application for admission of cross-count similar fact evidence.

[118] However, in the event that I am mistaken in my conclusion that the two offences charged constitute a single transaction, I proceed to consider admission of cross-count similar fact evidence.

(iii) Cross-Count Similar Fact Evidence

(a) Procedural/Fairness Issue

[119] The Crown did not serve or file a formal written notice of application for admission of cross-count similar fact evidence, and there was no pre-trial or other formal motion in relation to this issue. The defence objected to the admission of evidence across counts for this reason, arguing that it was thereby prejudiced.

[120] Similar fact evidence, including across counts, may be admitted if the Crown brings an application and succeeds in establishing on a balance of probabilities that the presumptive inadmissibility of such evidence has been overcome: R. v. M.R.S., 2020 ONCA 667 at para. 65; R. v. Nolan, 2019 ONCA 969 at para. 35; Tsigirlash at paras. 23 – 27; R. v. T.C., 2019 ONCA 898 at para. 58. The rules of this Court also require the Crown to file a notice of application if it is seeking to admit similar fact evidence or to use evidence called in relation to one count as proof of guilt on another: r. 30, Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7.

[121] But this need not necessarily be a formal written application by the Crown. The Court of Appeal for Ontario has recognized that an informal or implicit Crown request to admit the evidence, sufficient in the circumstances, may be adequate: Tsigirlash, at paras. 27, 44 – 47; R. v. L. (T. B.), (2003), 2003 CanLII 35769 (ON CA), 173 O.A.C. 159; R. v. Graham, 2015 ONCA 113. In Tsigirlash, at para. 27, the Court of Appeal offered guidance as to when an informal or implicit application has been made and when it will be sufficient in the circumstances:

When the Crown attempts to lead extrinsic evidence of similar acts or argues for certain uses of evidence across counts, the clear inference from that conduct may be that a request is being made for similar fact evidence treatment. When this inference is clear, the defence has a meaningful opportunity to respond, and the trial judge is in a position to properly assess the Crown’s request, the lack of a formal application may be excused because no prejudice will have occurred. But a request must have been made in some form so as to give the defence this opportunity and to lay the groundwork for a proper admissibility inquiry.

[122] In other words, the absence of a formal written application will not be fatal to the admission of cross-count similar fact evidence in all cases. It may not be fatal where Crown did request such admission in a manner that gave the defence a meaningful opportunity to respond, and the trial judge a meaningful opportunity to consider the proposed admission and rule on it: M.R.S. at para. 66.

[123] In this case, although the Crown did not give formal written notice that it intended to seek admission of evidence across counts, it did clearly raise the issue at trial. The Crown first asked me to consider evidence across counts at the close of the prosecution case, during the defence directed verdict application. I heard brief argument from both parties on the issue at that time. I then heard further submissions from both in closing argument. Finding myself with unanswered questions about whether I could and should consider evidence across counts, I wrote to counsel to elicit further assistance on point. Counsel then re-appeared before me via zoom and made further submissions.

[124] In these circumstances, even absent a formal application, the Crown did seek admission of evidence across counts and the defence had a meaningful opportunity to respond. Both counsel made submissions on this issue on three separate occasions. This satisfied the formal requirement that parties be given an opportunity to respond to legal issues raised against them. It also satisfied the requirement that the Court be put into a position where it can meaningfully assess the substance of the legal issues and make an informed decision. It only remains to be determined whether the defence was prejudiced by the absence of formal notice here.

[125] Mr. Abbey argued that the defence was so prejudiced because if formal notice had been given earlier, Mr. Eze might have elected trial by judge and jury instead of by judge alone. In a jury trial, according to the defence, cross-count similar fact evidence was less likely to be admitted because of the greater risk of reasoning prejudice where there is a jury. Mr. Eze might well have elected trial by jury if he had had notice because, in Mr. Abbey’s estimation, that mode of trial would have diminished the chances of evidence being considered across counts.

[126] Reasoning prejudice refers to “the risk that the trier of fact will be distracted from their proper focus on the offence(s) charged, including because they may be confused by evidence of multiple incidents or may put more weight than is logically justified on the similar fact evidence, and the risk that unwarranted trial time will be consumed”: Tsigirlash at para. 35. Assessment of the risk of reasoning prejudice is a case and context specific inquiry. It will depend on the “specific acts, the purpose of introducing evidence of them and the inferences sought to be drawn from that evidence”: Tsigirlash at para. 35.

[127] In this case, the trier of fact - whether judge alone or jury - was necessarily going to hear evidence in relation to both counts in the indictment. The risk of reasoning prejudice (and moral prejudice for that matter) arising from cross-count treatment is attenuated in multi-count indictments where the trier will hear already hear all of the evidence in relation to each count: Tsigirlash, at para. 38; MacCormack, at paras. 56, 68-69. Here there was little risk of distraction, confusion, undue weight on some evidence, or unwarranted additional trial time arising from cross-count admission of evidence in the context of this two count indictment where the allegations were relatively straightforward, involving the same two parties, the assaults occurred in rapid succession in broadly the same place, and both common assaults were admitted by the defence. No additional evidence needed to be called. No extrinsic discreditable conduct was relied on. The only additional time required was the time needed for argument: MacCormack at para. 69. There was little risk of reasoning prejudice in these circumstances, regardless of whether the trier was a judge sitting alone or with a jury.

[128] This conclusion includes consideration of the specific acts, the Crown’s stated purpose for seeking cross-count treatment of them, and the inferences the Crown asked me to make therefrom. The Crown asked me to consider the evidence on each alleged sexual assault in relation to the other as relevant to (a) context; (b) animus; and (c) intent to sexually assault. In brief, the Crown was asking me to infer from the evidence that each assault was sexual in nature that the other was too. Or, more precisely, to infer from the evidence that the first assault was sexual that the second assault was also sexual given the similarities between the two assaults; and that Mr. Eze must have had animus toward J. K. and an intent to commit a sexual assault that continued from one assault to the next. These proposed uses of evidence across counts raise little to no risk of reasoning prejudice. There is little risk in these circumstances that cross-count treatment of evidence to support the inferences advanced by the Crown would cause distraction, confusion, undue weight to be given to some evidence, or take unwarranted additional time at trial.

[129] For these reasons, I conclude that the Crown’s request for cross-count admission of evidence was unlikely to have been dismissed on the basis of reasoning prejudice, regardless of whether the trial proceeded before a jury or a judge alone. I recognize that there is less risk of both reasoning and moral prejudice where a case is tried by a judge sitting alone: R. v. B. (R.T.), 2009 ONCA 177 at paras 26-27, 31. But prejudice must be assessed even in judge alone trials: Tsigirlash at para. 39. In the circumstances here, cross-count treatment was not likely to be denied on the basis of reasoning prejudice in either mode of trial. The risk of reasoning prejudice here was so low that it would not have operated to bar reception of evidence across counts whether the trial had proceeded before a jury or before a judge alone.

[130] Accordingly, I find that the defence was not prejudiced by the absence of formal notice of the Crown’s application for admission of cross-count similar fact evidence. While it is possible that Mr. Eze might have elected a different mode of trial had he had notice, this would have made no difference to the success of the Crown’s cross-count similar fact evidence application.

[131] In my view, the Crown’s failure to file a formal notice of application does not prevent me from considering admission of evidence across counts. The Crown raised the issue; the defence knew that it was doing so, had a meaningful opportunity to respond, and was not prejudiced; the Court had ample opportunity to hear the submissions of both parties, and meaningfully consider and decide the issue. There is no procedural or fairness bar to determining the Crown’s request for cross-count treatment.

(b) Admissibility Inquiry

[132] At the admissibility stage, the Crown must demonstrate that there is a sufficiently strong case to support the inferences it says can be drawn from the evidence considered across counts. If the threshold for admission is met, the trier of fact must then determine what weight, if any, to accord the similar fact evidence: R. v. Handy, 2002 SCC 56 at para. 102; R. v. Shearing, 2002 SCC 58 at paras 39, 42. At the admissibility stage, the trial judge must assess the probative value and the prejudicial effect of the proffered similar fact evidence. This presumptively inadmissible evidence may only be admitted if its probative value outweighs its prejudicial effect: Handy at para. 102.

1. Probative Value

[133] In Handy, the Supreme Court identified three principal avenues of inquiry in determining whether similar fact evidence has probative value. These are: (a) the identification of the “issue/s in question”; (b) the degree of similarity; and (c) the relative cogency of the connecting factors.

The “issue/s in question”

[134] In this case, the overall “issue in question” was whether the assaults were sexual in nature. The Crown’s position was that evidence that each count was sexual was probative of whether the other assault was sexual. More specifically, the Crown argued that J. K.’s evidence that Mr. Eze held her down, pulled down her pants, and touched her buttocks and vagina in the washroom was probative of context, of animus on Mr. Eze’s part, and of his intent to commit the second sexual assault. Consideration of J. K.’s evidence across counts was thus argued to be probative of whether the second assault was sexual in nature. To paraphrase Shearing at para. 31, the Crown position was that cross-count consideration of evidence would enable me to make a “double inference,” firstly that Mr. Eze had a situation-specific propensity to sexually assault J. K., and secondly that his specific propensity so established gives rise to the further inference that he proceeded in that way in each assault.

[135] To assess the probative value of cross-count similar fact evidence in relation to the live issues in this case, I must consider what makes an assault “sexual” within the meaning of the Criminal Code. The two relevant provisions of the Code are ss. 265 and 271. In Handy at para. 118, the Supreme Court provided the following summary of the elements of sexual assault:

A conviction for sexual assault requires proof beyond a reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of, or wilfully blind to, a lack of consent: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 23.

[136] A sexual assault is an assault committed in circumstances of a sexual nature, such that the sexual integrity or dignity of the victim is violated: R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, [1993] S.C.J. No. 127 at para. 7 (Q.L.), R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293 at p. 302. The test for determining whether an assault is sexual is objective: “viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer”: Chase at p. 302, citing R. v. Taylor (1985), 1985 ABCA 51, 44 C. R. (3d) 263 (Alta C.A.), per Laycraft C.J.A. at p. 269; Litchfield at para. 8 (Q.L.). The factors for consideration in determining whether an assault is objectively sexual include: the part of the body touched; the nature of the contact; words and gestures accompanying the act; threats which may or may not be accompanied by force; intent or purpose of the person committing the act to the extent that this may be in evidence; and all other circumstances surrounding the conduct: Chase at p. 302.

[137] Sexual assault is a crime of general intent: Chase at p. 302. This means that there is no requirement of mens rea with respect to the sexual nature of a sexual assault: Litchfield at para. 7 (Q.L.). A defendant’s intent or purpose may be a factor for consideration in determining whether an assault objectively violated the victim’s sexual integrity, but it is only one factor of many for consideration: Litchfield at para. 7 (Q.L.).

[138] Similarly, whether the defendant’s motivation was sexual gratification or not may be a factor for consideration in determining whether the conduct at issue was sexual. But again, motivation is only one factor, the importance of which will vary depending on the circumstances: Chase at p. 302. The question remains whether the offence was committed in circumstances of a sexual nature, regardless of whether there is evidence of sexual intent or motivation: R. v. S. (P. L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, [1991] S.C.J. No. 37 at paras. 32-33 (Q.L.).

[139] In this case, Mr. Eze concedes that he committed the actus reus of two common assaults with the requisite mens rea. There is no separate or specific mens rea requirement with respect to the sexual nature of sexual assault. This means that the Crown is not required to prove that Mr. Eze had animus or the intention to commit sexual assault beyond a reasonable doubt in order to secure a conviction for that offence. But both animus and intention are relevant to whether an assault was sexual. For this reason, they are live “issues in question” at this trial.

[140] As a matter of logic, common sense, and experience, one sexual assault followed in rapid succession by another assault in more or less the same place, by the same person, on the same victim, may reasonably give rise to inferences that the assailant had the animus and the intention to commit another sexual assault. Courts have often admitted repeated acts of abuse of a victim as similar fact evidence because they yield “relevant and probative inferences,” including that the defendant had the animus or motive to engage in such conduct or that they were specifically disposed to do so: M.R.S. at para. 81. There are many examples in the case law of similar fact evidence being admitted because it is relevant and probative of whether the actus reus of an offence has been established. See, for example, B. (R. T.); R. v. J. M., 2010 ONCA 117; R. v. H. F., 2017 ONSC 2132.

[141] I find that the evidence in relation to whether each assault was sexual is probative of the live issue of whether the other assault was also sexual.

Degree of similarity and cogency of connecting factors

[142] In Handy at paras. 76-80, the Supreme Court held that the main determinant of probative value of similar fact evidence is the connectedness or nexus between the similar facts. In R. v. L. B.; M. A. G., 1997 CanLII 3187 (ON CA), [1997] O. J. No. 3042 (C.A.) at paras 37 – 39, the Court of Appeal for Ontario elaborated on the importance of similarities and dissimilarities to assessment of the probative value of similar fact evidence. There the Court held that the acts themselves in addition to all of the circumstances had to be considered to assess what similarities, if any, were present between the similar facts and whether these similarities give the similar fact evidence probative value. In the same vein, dissimilarities must be assessed to determine whether they diminish probative value. However, when considering similarities and dissimilarities of incidents of alleged sexual assault, dissimilarities in detail should not be overemphasized: “overemphasizing the dissimilarities in details, like the different locations of the assaults, the precise type of assault, or focusing on singular outstanding incidents, risks failing to appreciate the broader similarities in the substance of the incidents” (R. v. H. F., at para. 20, citing R. v. J. M., at paras. 3-4 and 91). Where similar fact evidence is proffered in support of proving the actus reus of an offence:

. . . it is not an invariable requirement that there be a strong peculiarity or unusual distinctiveness underlying the events compared. The underlying unity need not lie in the distinctive nature of the acts themselves but may reside in the circumstances in which those acts occurred (J. M. at para. 91).

[143] In this case, there are significant similarities between the two assaults. Both were attacks by Mr. Eze on J. K., who was a stranger to him. Both occurred late at night in the PATH level of the TD Centre. Both followed an initial chance encounter when Mr. Eze entered a washroom that J. K. happened to be cleaning. Both involved him forcing her to the ground and holding or keeping her down while she struggled and screamed for help. Both were of short duration, ending when Mr. Eze got up and walked away. Both assaults occurred in rapid succession, the entire interaction taking a total of approximately two minutes. By contrast, the dissimilarities across the two assaults are few. The first assault occurred in the men’s washroom after Mr. Eze entered and was asked by J. K. to use another stall or another washroom. The second occurred in the concourse area after Mr. Eze had left the washroom followed by J. K. and after he chased her down the hall. In the first assault, Mr. Eze held J. K. down on the ground with one hand, whereas in the second assault he got on top of her and straddled her. Overall, I find that the dissimilarities between the two assaults are of limited consequence to probative value here. The two assaults are very similar in almost every material respect. In addition, looking beyond the minutiae of each assault, the circumstances in which both assaults occurred are the same.

[144] I consider the similarity of the two assaults and the relative cogency of the connecting factors together here because these are overlapping considerations. The cogency consideration asks the trial judge to consider whether the evidence on each charge is appropriately connected to the other charge so as to give rise to inferences that have probative value on the other charge: Handy at paras. 81-82. The factors for consideration in determining the relative cogency of connection across counts include: proximity in time of similar acts; extent to which the acts are similar in detail; number of occurrences of the similar acts; circumstances surrounding or relating to the similar acts; any distinctive feature/s unifying the incidents; intervening events; and any other factor which would tend to support or rebut the underlying unity of the similar acts: Handy at para. 82.

[145] I have already considered most of these factors in determining that the two assaults are substantially and materially similar, that they were very proximate in time, and that there was a unity of circumstance between them. I add that there are distinctive features that unify them in that both were violent, unprovoked, and sudden attacks by a stranger that involved forcing the victim down to the ground where she was held down as she struggled to free herself. Finally, as acknowledged by the defence, there were no meaningful intervening events between the two assaults. In these circumstances I find that the evidence on each charge is appropriately connected to the other charge so as to give rise to inferences that have probative value on the other charge.

Summary of Probative Value

[146] I conclude that cross-count similar fact evidence is reasonably capable of supporting the inferences for which its admission is sought by the Crown. The two assaults were very similar, there was a unity of circumstances between them, and there is a high degree of meaningful connection between them. As a matter of logic, common sense, and experience, evidence of each assault is probative of whether Mr. Eze had the animus and the intention to commit a sexual rather than a common assault on the other. I now move on to consider the potential prejudicial effect of admitting similar fact evidence across counts.

2. Prejudicial Effect

[147] Similar fact evidence may give rise to two categories of prejudice. I have already considered the first category, reasoning prejudice, earlier in these reasons. I concluded that the risk of such prejudice is very low in this case.

[148] The second category is moral prejudice. This type of potential prejudice arises when similar fact evidence would induce the trier to conclude that the defendant is the kind of person likely to have committed the offence charged, or to wish to punish the defendant for bad conduct other than that charged: M. R. S. at paras. 60-61. Similar fact evidence is presumptively inadmissible to prevent reasoning from similar facts through bad character or general propensity. Instead, the Crown must prove that the defendant committed the specific acts alleged: M. R. S. at para. 59. Evidence that establishes only that the accused is the type of person likely to have committed the offence at issue is inadmissible: R. v. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716 at para. 63 citing R. v. B. (F.F.), [1993] 1 S.C.R. 679 at p. 730. Evidence that has been admitted for other, permissible purposes, but that also reveals the bad character of the accused cannot be relied on to infer that the accused is likely to have committee the offence in question because they are a bad person: Handy at para. 72; R. v. D. (L. E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111 at p. 129.

[149] While reasoning from general propensity is prohibited, reasoning from specific propensity may be permissible: T. C. at para. 50. Similar fact evidence may be admitted if it assists the trier to determine “situation specific behaviour” or “an observed pattern of propensity operating in a closely defined and circumscribed context” and its probative value outweighs its prejudicial effect: Handy at paras. 55, 90-92.

[150] In this case, the defence submitted that evidence should not be admitted across counts because this would result in prohibited reasoning from bad character. The Crown submitted that evidence is admissible across counts for specific, limited, and identified purposes that do not involve prohibited reasoning from general propensity or bad character. Instead, the Crown argued, the evidence across counts was probative of context, animus, and intent, without resort to reasoning from bad character. I agree with the Crown. Here, the evidence of each count is probative of whether Mr. Eze had a specific propensity to commit sexual assault on J. K., not of whether he should be convicted because he is a bad person who commits sexual assaults. In the context of this judge alone trial, there is a diminished risk that evidence properly admitted as probative of specific propensity will be used to infer that Mr. Eze was a bad person who was likely to have committed both sexual assaults: B. (R.T.) at paras 26-27, 31. I can also eliminate any abiding risk that, as trier of fact determining the weight to be given to cross-count similar fact evidence, I will reason from bad character by instructing myself not to do so. I conclude that there is limited risk of moral prejudice here.

3. Weighing Up Probative Value Versus Prejudicial Effect to Determine Admissibility of Cross-Count Similar Fact Evidence

[151] As I have concluded that the consideration of evidence across counts has meaningful probative value and little risk of prejudicial effect, I admit the evidence of each count across counts.

(c) Considering Cross-Count Similar Fact Evidence in this Case

[152] Having determined that the cross-count similar fact evidence was strong enough to pass the threshold admissibility stage and admitted it, I now move on to consider what weight to give that evidence. In particular, I must determine whether I can make the Shearing “double inferences” implicitly requested by the Crown. Does the evidence on each count considered across counts support inferences that: (1) Mr. Eze has situation specific propensity to commit sexual assault; and (2) that his propensity thus established gives rise to the inference that he committed sexual assaults on J. K. in each of the incidents charged?

[153] I have already rejected Mr. Eze’s testimony at large, and in particular his stated motive for committing what he maintained were common assaults. He did not assault J. K. because he was shocked and angered to find a woman in the men’s washroom. He assaulted J. K. for some other reason. I have already accepted J. K.’s evidence that Mr. Eze held her down, lowered her pants, and touched her buttocks and vagina in the washroom. On all of the evidence I accept in this case, I conclude that Mr. Eze committed a sexual assault on J. K. in the washroom. The Crown has proven beyond a reasonable doubt that Mr. Eze touched J. K. sexually without her consent, and that he did so intentionally, knowing that she did not consent. Whether he set out to commit a sexual assault when he left the Sports Bar, entered the PATH, or entered the men’s washroom is of no moment to this determination. At the time he sexually assaulted J. K., he did so intentionally. He could not have held her down with one hand, and pulled down her pants and underwear and touched her buttocks and vagina with the other hand by accident. Mr. Eze did not only intend to commit a common assault that was objectively sexual because it happened to violate J. K.’s sexual integrity. On all of the evidence in this case, I am satisfied that he specifically intended to sexually assault J. K. in the washroom.

[154] Mere moments later, Mr. Eze chased J. K. down the hall outside the washroom, grabbed her by the waist, tackled her to the ground, got on top of her, flipped her over to face him, and held her down by straddling her across her mid-section with his legs. J. K. cannot recall what happened after Mr. Eze forced her to the ground on this occasion, and the surveillance video does not reveal whether Mr. Eze touched her private parts or tried to at that time. The evidence in relation to the washroom assault is of assistance here.

[155] As discussed above, there is a high degree of similarity between the two assaults, a unity of circumstances across both, and a cogent connection between them. So it makes sense to consider Mr. Eze’s intentions and his actions in committing the first assault in determining his intentions and actions in committing the second assault. Given the speed with which the two assaults occurred, their similarities, and that they both occurred in the same circumstances, it can be inferred that Mr. Eze’s animus or intentions remained constant throughout both. In the absence of any passage of time or other meaningful intervening event, to infer otherwise would defy reason, common sense, and experience. I find, considering the evidence of the washroom assault across counts on the second assault, that the Shearing double inferences are available here. I find, considering the cross-count similar fact evidence, that (1) Mr. Eze had the animus, intention, or situation specific propensity to commit sexual assault on J. K.; and (2) that his animus, intention, or situation specific propensity thus established gives rise to the inference that he committed sexual assaults on J. K. on both counts in the indictment. To say the same thing another way, I find that Mr. Eze specifically intended to sexually assault J. K. in the washroom and that he still or again intended to do so when he chased her down the hall, threw her to the ground, and straddled her in the concourse. That his actions were intentionally sexual in the washroom and that he intended to sexually assault her in the concourse, also assists me in determining that his acts in the concourse were sexual.

[156] I note that I have specifically cautioned myself not to reason through bad character or general propensity here. I have consciously limited my consideration of cross-count evidence to whether it is of assistance in determining that Mr. Eze had the specific propensity to commit sexual assaults on J. K.

[157] The defence position was that Mr. Eze did not commit the second assault for a sexual purpose. Rather, the defence submitted, he committed the second assault because he was still angry with J. K. for being in the men’s washroom, and to stop her from screaming in the concourse. I have already explained my reasons for disbelieving and not being left in reasonable doubt by Mr. Eze’s evidence. I do not accept Mr. Eze’s evidence that he assaulted J. K. in the concourse because he was angry with her for her presence in the washroom or to stop her from screaming, and am not left in reasonable doubt by it. However, if I am mistaken in this determination, I find that even if Mr. Eze did not specifically intend to commit a sexual assault in the concourse, cross-count reasoning still assists me to conclude that the second assault was sexual in nature.

[158] As noted above, the sexual element of the actus reus of sexual assault is determined objectively. The Crown must prove beyond a reasonable doubt that the touching, viewed through the eyes of a reasonable observer, violated the complainant’s sexual integrity: Litchfield at para. 8 (Q.L.); Chase at p. 302. And there is no requirement of specific intent with respect to the sexual nature of a sexual assault, as long as there is an intent to commit an unwanted touching. In this case, by the time of the second assault, Mr. Eze had already committed a sexual assault on J. K. in the washroom by forcing her to the ground, holding her down, and touching her private parts. This is probative of whether the second assault, viewed objectively, violated J. K.’s sexual integrity. A reasonable observer would conclude that when Mr. Eze chased J. K. in the concourse, again forced her to the ground, and held her down, having just sexually assaulted her moments earlier, he again violated her sexual integrity, whether he specifically intended to do so or not.

[159] I am assisted in my conclusion that the second assault objectively violated J. K.’s sexual integrity by what I can see on the surveillance video, considered in light of the evidence in relation to the first assault. After Mr. Eze caught J. K. in the concourse hallway, he grabbed her with both hands on either side of her waist and forced her down to the ground with him. He got on top of her, putting his legs around her thighs or her mid-section. He put his hands on her shoulders and flipped her around to face him, all while remaining on top of her. In the Crown’s characterization, Mr. Eze “mounted” J. K. in a sexually dominating posture. While I cannot see exactly what Mr. Eze did with his hands – whether he attempted to pull down her pants or touch her private parts – I agree that his conduct could be interpreted not only as violent but also as sexually dominating. And, considering that the earlier assault was sexual, I do interpret this conduct in the concourse as sexually dominating. Considering that Mr. Eze had sexually assaulted J. K. moments earlier, a reasonable observer would conclude that his violent assumption of control over her body in the concourse similarly violated her sexual integrity.

[160] The manner in which Mr. Eze violently interacted with and controlled J. K.’s body, when understood in light of his earlier sexual assault, was sexual. Mr. Eze used his hands to grab J. K.’s torso and force her to the ground. He then got on top of her, straddling her thighs or mid-section with his legs. He did not grab her arm, punch her, slap her face, or otherwise assault her from further away. He did not merely trip her and walk away. Instead, he made contact with her core, using his hands, his legs, and his body to bring himself close to her, with his intimate body parts close to hers, while attempting to overpower her and overcome her resistance. Understood against the backdrop of the washroom sexual assault, these acts were objectively sexual in nature. They violated J. K.’s sexual integrity. I find beyond a reasonable doubt that Mr. Eze’s assault in the concourse was a sexual assault.

D. Conclusion

[161] For the foregoing reasons, on the basis of all of the evidence that I do accept, I find that the Crown has proven that Mr. Eze is guilty of both counts of sexual assault beyond a reasonable doubt.

V. DISPOSITION

[162] A finding of guilt will be entered on both counts of sexual assault in the indictment. Counsel are asked to make further submissions on the issue of whether convictions should be entered on both counts, or whether one conviction should be stayed under the Kienapple rule.

Presser J.

Released: January 13, 2022

COURT FILE NO.: CR-19-10000046-0000

DATE: 20220113

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

GREGORY OBI EZE

Defendant

REASONS FOR JUDGMENT

Presser J.

Released: January 13, 2022