COURT FILE NO.: 16-RA-19544

DATE: 2022/02/04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Plaintiff

– and –

PAUL DAVID BATCHELOR

Defendant

Jessica Carvell and Malcolm Savage, for the Crown

Oliver Abergel, for the Defendant

HEARD: May 27, 28, 31, June 1 – 4, 14 – 17, 22, July 26 – 30, September 1, October 12 – 15, and November 8, 10, and 12, 2021

Restriction on Publication

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding under section 486.4 of the Criminal Code of Canada directing that the identity of the complainants or witnesses and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way. This decision does not refer to the complainants or witnesses by names and may be published.

REASONS FOR decision

Roger J.

[1] The accused is charged with sexual offenses involving five female complainants. The alleged offences occurred between 2010 and 2015.

[2] The accused does not dispute that he is the person involved with each of the complainants in the offenses charged. In other words, identity is admitted by the accused.

[3] However, the accused testified and denied each of the complainants’ allegations of sexual assault, disputing their version of events and saying that they consented.

[4] The reliability and credibility of the witnesses are key issues.

[5] Two similar fact applications were brought by the Crown, and both were dismissed.

Background

Ms. B

[6] Ms. B testified that she met the accused on a dating website named Plenty of Fish in 2008 or 2009, she could not remember the specific year. She was 18 years old. They communicated online and by text but did not meet at that time. Later in 2009, she met her boyfriend and disconnected from that website.

[7] Ms. B said that probably in the summer of 2010, during a break from her boyfriend, she reached out and reconnected with the accused. This time, they made plans to meet. At trial, Ms. B did not remember what they spoke about nor any of the specifics of their plan, just that she ended up agreeing to meet the accused about mid-day at his apartment. At his apartment, they made light conversation that she does not really remember, other than about what they did. She said that the conversation could have lasted ten minutes or two hours, she does not remember. However, at some point, they were kissing. She does not remember how that started, but she remembers that she was “ok with the kissing”, and that she “reciprocated”. They kissed for about five to ten minutes, and the next thing she remembers is that their clothing is off. She does not remember how they undressed, or “who took what off”. She does not remember but assumes that undressing was consensual.

[8] She said she remembers that as the accused was about to penetrate her vagina with his penis, she thought that she no longer wanted to do this, and she put her hand on the accused’s hip to stop him. She testified in chief that although she does not recall what she said, she believes that she said something like “no wait, I don’t want to”. During her cross-examination, she repeated that she said no, and was certain that as soon as she changed her mind, she said something like “no wait”. She denied any implication that she said nothing. At trial she remembered and mentioned for the first time, that the accused’s face grew dark when she said no. She said that he did not respond. She remembers her hand on his hip to stop him, feeling his hip bone, and remembers the accused nonetheless penetrating her vagina. She said that she does not really remember her reaction, that she did not say anything else because she was in shock. She said that very shortly after penetrating her, she does not remember how but the accused turned her around and continued raping her vaginally. She remembers that she cried silently in the bed cover, and that he ejaculated on her back. Nothing else was said. When he finished, she went to the washroom, took a shower, and left without looking at him or talking to him. She said that she was in a state of disbelief and drove to her boyfriend to tell him that she had been raped. She said she never spoke to the accused again and went to the police in 2019 after she saw an article about the accused on Facebook.

[9] Mr. Batchelor testified that he met Ms. B online in 2008. He said that they went on an initial date in 2008, that Ms. B showed him where she went to school, and that they went shopping. He said nothing happened on this first outing. He testified that they continued texting, and that they talked often. About one month later, in October 2008 she attended briefly at his apartment, and nothing happened. After that, although he did not see her again, he said that they continued talking electronically and had a friendly relationship until 2009. He was aware that Ms. B was dating someone, and their communications were then as friends, with no flirting. He said that he did not see her in person again until she came over in 2010.

[10] Mr. Batchelor testified that Ms. B contacted him in April 2010. He testified that she told him she had just broken up with her boyfriend and wanted to have sex with him. The accused said that one morning, he received a text message from Ms. B, in which she asked if she could come over. Mr. Batchelor described a consensual sexual encounter involving oral sex and intercourse. He testified that he understood Ms. B consented because they spoke about sex and preference just before, that the kissing seemed consensual, that she undressed and performed oral sex on him, and that he asked her to move to specific positions and she did. He said that they chilled briefly after and she left. They texted for a few days and she told him that she went back with her previous boyfriend and they never reconnected.

Ms. CT

[11] Ms. CT also met the accused on Plenty of Fish. They exchanged messages for a few days and agreed to meet in person on April 8, 2015. Sex was an option if they were interested. He picked her up, and they drove to his apartment to watch a movie. She did not know his last name. In his apartment, they sat on a couch and started to watch a movie. She did not remember how it happened, but shortly after the movie started, they ended up on his bed. She said that he tried to make a move, but she was no longer interested because he was acting strange. She said that he grabbed her wrist and put his hand down her pants, “fingering” her vagina and telling her that she liked it. She said that she told him that she did not want to do this, that she did not want to sleep with him, but he kept penetrating her vagina with his finger, telling her that she liked it. She indicated that he also tried to penetrate her anus with his finger. She said she had told him before that she was not interested in anal sex, and she told him again that she was not interested (in anal sex), and he said “fine, we will work on that later”. She did not recall when, but, at some point, the accused removed her pants. She said that she “really did not want to but decided at this point to just let it happen”. They had vaginal sex for up to 20 minutes, she said that she “just let it happen”. She said that she did not say or do anything, other than when he tried to penetrate her anus with his finger, she told him not to do this. She did not remember how it ended or whether he ejaculated. When they were done, the accused drove her back to her home.

[12] Ms. CT said that she felt stupid that it had happened and spoke to her friend about it. She said that she let it happen because she did not want to get hurt. The accused continued to message her on Plenty of Fish for about five months. She said that she replied a few times telling him that she did not like that he had not respected her wish, and she eventually stopped replying. She reported the accused to the police in July 2019, after seeing an article about him in a local newspaper.

[13] Mr. Batchelor presented a very different version of events. He said that shortly after they had started to message on Plenty of Fish, they messaged about sexual preferences and about what she expected from sex. He said that she told him she did not like hugging, kissing or signs of affection, just sex. He said that she agreed to come over for a “hook-up” or casual sex. She gave him her home address and he picked her up. They sat on the couch to watch a movie and talked about how their sexual encounter was going to happen. They went to the bed. She undressed and he undressed. He said that he did what she wanted, and she asked him to “fuck me”. He said that she wanted sex in what was a new position for him. He described the way she directed him on when to penetrate her with his penis, and when not to. He described with details multiple orgasms by Ms. CT. He said that when they were done, he drove her back home. They had some additional discussions on Plenty of Fish, but never saw one another again.

Ms. F

[14] Ms. F and the accused met on Plenty of Fish, in or about October 2010. Ms. F was then 23 years old. She testified that they exchanged messages and decided to meet in person. She understood that the accused would show her around the city. Ms. F alleges that the accused sexually assaulted her in his car during this outing. She alleges touching, kissing, and vaginal intercourse.

[15] Ms. F testified that, a few days later, at most within a week of the assault, after having exchanged some text messages with the accused, Ms. F suggested another meeting with the accused. She testified that she wanted to see if on their previous outing, the accused had a bad day and if “he could be nice on a real date”. She met the accused, again in his car, and asked him if he would be able to have a relationship with her. She left after about five minutes of conversation when she realized that the accused was not interested in what she wanted, a serious relationship. She said that, shortly after this meeting, she blocked the accused from communicating with her because he insulted a television program that she enjoyed. She did not tell anyone what happened because she was embarrassed and felt that it was her fault for having met someone online.

[16] Ms. F interacted once again with the accused in 2013. She testified that she wanted to meet someone. Using again the dating website Plenty of Fish, she connected electronically with the accused, but said that she had not recognized him. She testified that she had blocked the accused from her memory, and that she had not yet recognized the accused; that she did not know that he was the same person with whom she had been involved in 2010. She said that they agreed to speak over the phone and spoke at about 1:00 a.m. Over the course of that conversation, Ms. F asked the accused if he wanted to “hang out”, and he said “sure”. They agreed to meet at his apartment “just to hang out and get to know each other”. She drove, arriving at about 1:30 or 2:00 a.m. Ms. F said that she only realized who she was with after she was in the accused’s apartment. Once she recognized him, she said that she spoke about their previous interactions, and how she had been uncomfortable at the time. She wanted to see where it could go, but again, she found the accused dismissive of having a serious relationship with her. She said that he was only interested in the “now”.

[17] The accused had a small apartment and they sat on his bed. He had kissed her unexpectedly when she entered his apartment and he was now touching her stomach and arm, “starting to make moves”. She was very uncomfortable but agreed to lie down on his bed. He continued touching her stomach under her shirt with his fingers and she said that she had to go. He verbally tried to convince her to stay the night, but she insisted that she had to leave, and she left. Shortly after, she texted him that it would not work, and she blocked him again from communicating with her.

[18] Ms. F came forward with her allegations after she heard that the accused had been arrested on earlier charges of sexual assault.

[19] Mr. Batchelor testified that he met Ms. F online in 2010, and that they messaged one another for a few days. He said that they flirted and agreed to meet. As agreed, he picked Ms. F up with his car and showed her some city sites. He said that they flirted. He returned books to a previous girlfriend, and Ms. F waited in his car while he did this. When he returned to his car, he did not immediately drive out of the parking lot. Instead, they talked about previous relationships and how they had ended. He testified that Ms. F wanted to meet someone who would take her seriously, and that they talked about this in his car, still in the parking lot. He said that Ms. F repeated that she “wanted to be a good girl”. He said that they were talking about their prior relationships when he held her hand and “tried for a first kiss”. He said that she kissed him back and that the kissing progressed to “heavier kissing”. He said the kissing was mutual as they were meeting in the middle of the car, and both used their tongue. He said that she agreed to give him oral sex and that they agreed to drive to a more secluded parking lot to have sex. He testified that once in this other parking lot, they had consensual sex, including intercourse.

[20] He said that they agreed to see each other again, and that they met the next day. He drove to where she resided, and they met in his parked car. He said that Ms. F wanted a serious committed relationship. He did not want a serious relationship and she did not take it well. Nonetheless, he said that they continued to message for about a month, and that she blocked him only after he insulted a television program that she was watching.

[21] He did not hear from her until 2013, when she sent him a message on Plenty of Fish. They talked online and spoke on the phone for about 30 minutes, it was after midnight. He said that they had a good call and that she asked to come over. She arrived at about 2:30 a.m. He said that he had recognized her right away and he assumed that she had recognized him as well. They talked about why it had not worked in 2010. He told her that he was interested in a relationship this time, but she did not believe him and left.

Ms. M

[22] Ms. M was ill and could not testify at trial. I admitted her evidence given at the preliminary inquiry on March 12, 2018, as permitted by s. 715 of the Criminal Code, R.S.C., 1985, c. C-46.

[23] In her police statement of January 20, 2016, which was part of her evidence at the preliminary inquiry, Ms. M indicated that the sexual assault probably happened early June 2010. She was about 22 years old at the time. She said that she had been hanging out with Mr. Batchelor, always with her other friends, for about one month, on about ten occasions. She said that they did activities together with her friends, like hanging out in a friend’s apartment, going to the beach or a bike ride, but always in a group, that they were getting to know each other, and that she had learned to trust him. She also knew him from school as they were briefly in the same program a few years before. She therefore accepted when one night he invited her to go watch a movie at his nearby apartment.

[24] Ms. M said that they were seated on the accused’s bed to watch the movie when the accused quickly leaned over to kiss her. She said that she was fine with kissing, that she kissed him back without hesitation, but that she became concerned when he started to touch her breasts. She said that she told him that she was not ready to go “that far tonight”, that “kissing was okay, but she would rather wait”. She said that he looked confused and just continued. That he went under her shirt, and that she told him “no, I would like to leave”. She said that he also put his hand down her pants, and that she said no for a third time, saying that she would really like to leave, that she did not like it, and did not want to go any further. She said that the accused then pushed her down onto his bed, face first, held her down, and raped her vaginally. She said that she froze and could not speak while this happened. After he had ejaculated inside her, without a condom, she asked if she could leave, and he said that she had to take a shower first. She took a shower and left after asking his permission.

[25] Ms. M said that she was upset after she left Mr. Batchelor’s apartment that evening. She said that the accused continued texting her, asking to hang out, but she told him that she was uncomfortable because of what had happened. He told her that he wanted to be friends with benefits. She saw him again unexpectedly at her friend’s apartment, but she immediately left without explaining her discomfort. She said that she did not want to see him again and she deleted him as a Facebook friend in July 2010. She went to the police in 2016 after she saw the accused’s picture and a headline about him in the paper. She said that prior to that, she did not fully realize that she had been a victim, that it hit her hard then.

[26] During her cross-examination at the preliminary inquiry, Ms. M said that she told the accused, probably through Facebook, that he should not have had sex with her that evening, that she did not want him to touch her or to have sex with him, that forcing himself on her without her consent as he did was wrong, that it made her feel horrible, and that she did not want to see him again.

[27] Mr. Batchelor testified that he met Ms. M in college in 2007. She was then just someone he knew. In 2010, he was pleased to notice that Ms. M was on Plenty of Fish and sent her a message. They started talking and she came to his apartment in May 2010. They talked and nothing more happened. He said that they talked constantly and that she came to his apartment on a second occasion that week; again, nothing more than talking happened. On May 23, 2010, he joined Ms. M and friends at the beach. He said that he and Ms. M were affectionate and did activities together. He later saw her at a friend’s party, and they went on a beach date. His evidence was generally that they were dating, seeing each other constantly, that they were romantically and sexually involved, and that they planned to have intercourse at his apartment. Mr. Batchelor described an occasion of consensual sex, including intercourse, in this apartment on June 26, 2010. He denied that he forced himself on her, denied her version of events, and denied that Ms. M took a shower or that he asked her to take one as she described.

[28] Mr. Batchelor testified that he thought that everything was going “fantastic”. He said that they continued seeing each other regularly until September 2010. He said that after, in June 2010, Ms. M sent him a text about birth control, asking him to wear a condom. He said that they agreed on another method of contraception, and that they continued seeing one another regularly, including at her apartment, until they broke up at the end of August.

Ms. R

[29] Ms. R testified that she met the accused on Tinder. They exchanged text messages for a week or two, but she could not recall what they talked about in those texts. She remembered that they agreed to meet for a drink in or around August or September 2014 and that they met at a bar. They chatted for one or two hours, pleasant, normal conversation, and went for a walk. The accused lived nearby, and, at some point, he suggested they go up to his apartment. She agreed.

[30] Ms. R remembered no discussion about what they would do in his apartment. She said that she had no intention of anything physical. They sat on a couch and, very quickly, the accused made physical advances. Ms. R said that she was “ok with kissing”, that she reciprocated. However, the accused started to lift her shirt and she said “no”. The accused persisted and she said something that she could not recall at trial to communicate that she did not want to go further. The accused was reaching under her shirt, exposing, and touching her torso. She could not recall precisely what she said but she repeated that she was not interested. He persisted. To revert to conversation, she went to the washroom. When she came out, the accused continued attempting to lift her shirt, and trying to remove her pants. She said that she was scared at this point; that if he was kissing her, she would no longer be kissing him back. The accused told her, “What did you think would happen? We met on Tinder”, and she got her purse and left.

[31] She said that it happened very quickly, that she was in the accused’s apartment for five to ten minutes. She indicated that the accused texted her a few days later to say that he would like to see her again if it was for sex. She said that she had no interest and did not talk to him again. In 2016, she learned that the accused had been charged with sexual assault, and she called the police.

[32] Mr. Batchelor confirmed that they met on Tinder, and later in person for a drink at a bar. They eventually went for a walk and he invited Ms. R to his nearby apartment. He said that he was in the process of moving and that his apartment was a mess. They sat on his couch. He said that he put his arm around her and that his hand touched the skin on her side because she was wearing a short top. He kissed her and she kissed him back. His hand was on her side, touching her stomach. He did not realize this made her uncomfortable. She said that she needed to go to the washroom, and she went. While she was there, he said that he kept himself busy by packing some of his things. He said that when she came out of the washroom, she noticed that he appeared busy and said that she should be going. She seemed normal to him. He went to her, put his hands on her hips, and kissed her. They kissed for about one minute and he denied touching anything else. He said he “had no intention of things going further” because he had things to do the next day, and she left. They never spoke after that.

Issue

[33] The issue in this case is whether the Crown has proven beyond a reasonable doubt that the accused committed the offences charged. More particularly, the issue is focused on consent, or credibility and reliability with respect to the evidence surrounding consent, as each of the complainants says that she did not consent, and Mr. Batchelor disputes each version of events.

Legal Principles

General Principles

[34] Accused persons are presumed innocent and the burden of proving their guilt beyond a reasonable doubt always lies on the Crown.

[35] Proof beyond a reasonable doubt is a doubt based on reason and common sense that logically arises from the evidence or from the absence of evidence. A reasonable doubt is not far-fetched or frivolous; it does not involve proof to an absolute certainty or proof beyond any doubt.

[36] To be convinced beyond a reasonable doubt means to be certain that an offence has been made out. A finding of not guilty is required where the evidence only manages to convince the decision-maker that an offence probably or likely occurred.

[37] In R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, and cases that followed, the Supreme Court provides guidance to the analysis of reasonable doubt when an accused testifies. Although W.(D.) addressed a jury charge on reasonable doubt, and although its applicability depends on the context, it provides a helpful map to the analysis of reasonable doubt:

a) In the context of all the evidence, consider whether you believe the accused. If you do, you must acquit (unless of course the evidence of the accused does not negate criminal liability).

b) If you disbelieve the accused, consider whether this evidence, in the context of all the evidence, nonetheless leaves you with a reasonable doubt about the guilt of the accused. If it does, you must acquit.

c) Even if you disbelieve the evidence of the accused, and even if you are not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proven its case. If the accused’s evidence does not leave you with a reasonable doubt, you must determine whether the totality of the evidence has proven the accused’s guilt beyond a reasonable doubt – whether, on all the evidence called, the Crown has proven each element of the offences charged beyond a reasonable doubt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. However, the evidence does not have to answer every question raised in the case, but only those matters essential to prove the crime. The onus is always on the Crown to prove the guilt of the accused beyond a reasonable doubt.

[38] The accused’s evidence must be considered in the context of the other evidence, including that of the complainants. In R. v. Hull, 2006 CanLII 26572 (Ont. C.A), at paras. 4-6, the Court of Appeal stated, “W.(D.) and other authorities . . . do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment”.

[39] Moreover, the W.(D.) analysis does not require a court to find some flaw or inconsistency in the accused’s evidence to decide that it rejects it. It can be rejected based on a consideration of the totality of the evidence, and solely based on the acceptance of the complainant’s evidence: see R. v. R.A., 2017 ONCA 714, 355 C.C.C. (3d) 400, at paras. 53-56, aff’d 2018 SCC 13.

[40] The functional analysis outlined in W.(D.) applies where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence (or even arising out of evidence favourable to the defence in the Crown’s case). In such instances, the Court “must relate the concept of reasonable doubt to those credibility findings” such that to have reasonable doubt, it is not necessary “to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in the context of all of the evidence – the conflicting evidence leaves [the Court] in a state of reasonable doubt as to the accused’s guilt”: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114; see also R. v. Fogah, 2018 ONCA 564, 362 C.C.C. (3d) 4, at paras. 49-56, leave to appeal to SCC refused, 39069 (June 4, 2020).

[41] It is important to note that in deciding a case, a judge is not comparing each account and deciding which account he or she believes: see e.g. R. v. Esquivel-Benitez, 2020 ONCA 160, 61 C.R. (7th) 326. A judge can believe or disbelief a witness, but still be left with a reasonable doubt considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony. The Crown is not required to point to something inherently contradictory or demonstrably false in the evidence of the accused for his or her evidence to be rejected. Similarly, frailties and inconsistencies in a complainant’s evidence do not necessarily mean that his or her evidence should be rejected: see R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 46-48, leave to appeal to SCC refused, [2007] S.C.C.A. No. 69.

[42] What the above means is that a trial judge cannot treat the criminal standard of proof beyond a reasonable doubt as a credibility contest. A judge cannot conclude that something has been proven beyond a reasonable doubt simply because the judge prefers the evidence of the Crown witnesses. However, this does not mean that it is inappropriate for a trial judge to compare the evidence of the accused with that of the complainant or other witnesses. To the contrary, it is important for the trial judge to assess the evidence of the accused in the context of all the evidence given at trial: see e.g. Hull, at paras. 5-6.

[43] Proof beyond a reasonable doubt is not a choice between two alternatives; a court need not resolve conflicts in evidence. As indicated by the Court of Appeal: “There was, of course, a third alternative, namely, if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal”: R. v. Nimchuk (1976), 1977 CanLII 1930 (ON CA), 33 C.C.C. (2d) 209 (Ont. C.A.), at p. 210.

[44] As well, a reasonable doubt can arise from evidence that the court ultimately does not accept. For example, in R. v. Danks, [1994] O.J. No. 143 (C.A.), at para. 8, even if the evidence relating to the alibi was ultimately not accepted, this evidence could nonetheless leave the court with a reasonable doubt: “if you do not accept that evidence, but you also do not reject it so that you have a reasonable doubt whether that evidence is true then clearly you would have a reasonable doubt about whether Mr. Danks was the shooter and you would be required to acquit Mr. Danks.”

[45] Our law has developed this way because of the risks that accused people face when they are charged with criminal offences. Before a person is required to face the consequences of a criminal conviction, a judge must be sure that the accused committed the offences with which the accused is charged. If the evidence is not strong enough to convince the judge with that degree of certainty that the accused committed the offence, the accused must be acquitted.

[46] However, a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible Crown evidence may constitute enough explanation for the rejection of the evidence of an accused: see R. v. T.M., 2014 ONCA 854, 318 C.C.C. (3d) 421, at para. 68; R. v. J.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 22-23, rev’d on other grounds, 2011 SCC 17, [2011] 1 S.C.R. 628. A judge may accept the evidence of a complainant despite its potential frailties and may disbelieve the evidence of the accused even if the judge finds no specific defect with the accused’s evidence: see R. v. J.J.R.D., at para. 48.

[47] I also point out that there is no onus on an accused to prove that a witness or complainant has a motive to lie. People may accuse others of committing a crime for unknown or no reasons and it therefore does not necessarily follow that because there is no apparent reason for a motive to lie, a witness must be telling the truth: see R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 22-23.

[48] In a case like this one, the assessments of the credibility and reliability of the witnesses’ evidence are particularly important.

[49] Credibility relates to a witness’ veracity, whereas reliability concerns the accuracy of the witness’ testimony. Both require a careful assessment. Indeed, a witness may believe his or her evidence to be true, yet that evidence may not be reliable.

[50] Caution is required in considering favourable or unfavourable demeanour evidence. As indicated in R. v. M.M., 2016 ONSC 5027, at para. 59, and R. v. D.M., 2016 ONSC 7224, at para. 23, whether demeanour is related to in-court or out-of-court behaviour, it can be easily misinterpreted. As noted in R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at para. 27, demeanour evidence has been known to play a role in wrongful convictions. Indeed, demeanour evidence alone can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness as “the law does not clothe the trial judge with divine insight into the hearts and minds of the witnesses” and demeanour should not be sufficient where there are significant inconsistencies and conflicting evidence: R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), at p. 314, citing Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C. C.A), at p. 357.

[51] More valuable means of assessing witnesses are to consider the consistency of what they have said on a material matter (internal and external contradictions) and improbabilities (exaggerations or illogical propositions). However, inconsistencies vary in their nature and importance; some are minor or concern peripheral subjects, others are more important or involve a material issue or something material.

[52] Demeanour evidence is however not completely irrelevant; for example, the way that a witness testifies, such as unanswered questions, hesitations, challenging counsel, or run-on and unresponsive answers, may in certain circumstances be prudently considered by judges in their assessment of witnesses in conjunction with their assessment of all the evidence: see e.g., Hull, at paras. 8-9; R. v. Boyce, 2005 CarswellOnt 4970 (C.A.), at para. 3. Regardless, trial judges should not unduly rely on demeanour to make credibility findings, and any reliance on demeanour must be approached cautiously because looks can be deceiving. Importantly, a witness’ demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: see R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at paras. 44-45. Indeed, it is often difficult to accurately understand why a witness, whom the judge has never met before, exhibits certain behaviours: see R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 99, 101. Demeanour is therefore often of limited value because it can be affected by many factors, including the background of the witness, stereotypical attitudes, and the artificiality of, and pressure associated with, a courtroom or virtual courtroom. A perceived positive demeanour can equally be difficult to assess.

[53] This brings us to myths and stereotypical thinking which must be avoided. The Court of Appeal warns us in R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286, that the use of a common-sense approach to credibility assessments can be dangerous because it can “mask reliance on stereotypical assumptions”: at para. 13, citing R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634, at para. 7. It reminds us that “it is an error of law to rely on pre-conceived views about how sexual assault victims would behave… These are the ‘myths’ of appropriate behaviour that the law seeks to eradicate”: Cepic, at para. 14.

[54] Credibility assessments cannot be founded on myths and stereotypes. For example, a complainant’s failure to avoid the accused following an alleged sexual assault does not give rise to a presumptive adverse inference. Assessments of credibility and reliability relating to conflicting facts based only on some assumptions about who would or would not do this or that risk being based on behavioural assumptions, myths, and stereotypes (rather than on an analytical assessment of the evidence) and could as such constitute an error of law: see Cepic, at paras. 13-16, 24, 27; A.B.A., at para. 5. Rather, the analysis must relate to the evidence, and not to some stereotypical understanding: see Cepic, at paras. 13-14.

[55] There are several myths and/or stereotypes identified in the caselaw that may be relevant to this case, for example:

a. There is a right or an expected way for a victim of sexual assault to behave before, during, or after the sexual assault: see A.B.A, at paras. 4-12; see also R. v. Rose, 2021 ONCA 408, 73 C.R. (7th) 223, at para. 39, for the proposition that there is no inviable rule on how a victim will process a traumatic event.

b. A real victim would immediately report a sexual assault: see R. v. Lacombe, 2019 ONCA 938, 59 C.R. (7th) 390, at paras. 40-42.

c. A real victim would take steps to avoid the person who assaulted her and would not continue to associate with him or her willingly or enthusiastically: see A.B.A., at para. 11.

d. A real victim would be distraught and visibly upset following the assault: see R. v. Nyznik, 2017 ONSC 4392, 40 C.R. (7th) 241, at para. 193.

[56] It is important to distinguish between impermissible uses of myths and stereotypes and permissible lines of inquiry. Broadly speaking, courts are not permitted to make assumptions about how people in general would behave. However, they are permitted to make credibility assessments that are tethered to the evidence in the case which involve assumptions or conclusions about what a particular person would do in the specific circumstances of the case that are supported by the evidence.

[57] This distinction is highlighted in Cepic. The Court of Appeal found that the trial judge erred in rejecting the accused’s evidence that the complainant acted in a sexualized manner at the strip club. The court found that the trial judge relied on assumptions about how a young woman would act in a strip club. In rejecting this reasoning, the court outlined that a trial judge is permitted to assess credibility based on evidence about what a particular person would do in the specific circumstances of the case: see Cepic, at para. 20.

[58] The court in Cepic cited R. v. F.B.P., 2019 ONCA 157, as an example of basing a credibility assessment about a particular person on the evidence in the case. In F.B.P., the accused had argued that it would be an impermissible assumption to say that the complainant would never have sex on the balcony. The Court of Appeal rejected this argument. The trial judge had not used stereotypical reasoning about what women would or would not do. Instead, the trial judge relied on evidence that the complainant had shown no interest in the accused, and there was a bedroom nearby: see F.B.P., at para. 9.

[59] As such, trial judges are permitted to rely on common sense or human experience to identify or draw inferences that arise from the evidence: see R. v. J.C., 2021 ONCA 131, 70 C.R. (7th) 38, at paras. 59-60.

[60] Importantly, it is not an error to assess credibility based on evidence that may also support an impermissible stereotype. In R. v. J.C., at para. 69, the court held that “it is not an error to admit and rely upon evidence that could support an impermissible stereotype, if that evidence otherwise has relevance and is not being used to invoke an impermissible stereotype”. Trial judges can err by excluding an inference that they conclude is based on stereotype when it is also based on the evidence: see R. v. J.C., at para. 75. For example, if there is an evidentiary basis to suggest that the complainant had a motive to fabricate because she had a jealous boyfriend, then the judge could err by rejecting that evidence only because it can also reflect a common stereotype.

[61] Overall, when assessing credibility, the court must not ask the general question, is this what any man, woman, or sex assault victim would do? However, the court is permitted to ask based on the evidence in the case that it is dealing with, is this how this particular man, woman, or sex assault victim behaved?

Sexual Assault

[62] For a conviction of sexual assault, the Crown must prove beyond a reasonable doubt that the accused committed the actus reus of the offence – touching another person in a sexual way without his or her consent – and that the accused had the necessary mens rea – the intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched.

[63] Consent is treated differently at each stage of the analysis outlined above. For the actus reus component of the offence, consent refers to the subjective mind of the complainant. Did the complainant subjectively consent to the activity in question? The complainant does not have to express her lack of consent. At this stage, the focus is on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. The complainant’s assertion that she did not consent is a matter of credibility, but if the judge accepts that the complainant did not consent, then there was no consent. There is no defence of implied consent to sexual assault. For the mens rea component of the offence, the focus shifts to the mental state of the accused. Sexual assault is a crime of general intent and, as a result, to establish mens rea the Crown need only prove that the accused intended to touch the complainant and knew of, or was willfully blind or reckless as to, the complainant’s lack of consent: see R. v. Ewanchuk, [1999] 1. S.C.R. 330, at paras. 23-26, 41-42.

[64] Because of the conflicting versions of events, the crux of this trial focuses primarily on the third element of the actus reus, consent. The complainants testified that they did not consent to the sexual activity in question and most testified that this lack of consent was communicated to Mr. Batchelor. Mr Batchelor testified to a different version of events, including that each complainant consented to the activity.

[65] When assessing the actus reus elements of this offence, whether the complainant consented is limited to her subjective mind. This is defined in s. 273.1(1) of the Criminal Code: “Subject to subsection (2) and subsection 265(3), “consent” means […] the voluntary agreement of the complainant to engage in the sexual activity in question.”

[66] Consent is required for each sexual act. Consent can also be withdrawn at any point before or during a sexual encounter: see R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 34-41.

[67] A complainant does not have to express a lack of consent. The question is not, did the complainant say no? Similarly, a lack of resistance cannot be equated with consent. The question is, did the complainant say “yes”: see R. v. M. (M.L.), 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3at p. 4; R. v. J.A., 2011 SCC 28, at para. 41.

[68] Consent may also be vitiated. This requires a two-step process for evaluating whether a complainant consented in law: see Ewanchuk, at paras. 61-62. If, after weighing all the evidence, the judge believes the complainant that she did not subjectively consent, the Crown has proved the absence of consent. However, if the judge finds that the complainant consented or if the judge has a reasonable doubt about the complainant’s subjective non-consent, then the judge must consider whether there are any circumstances that might vitiate consent under ss. 265(3) or 273.1(2) of the Criminal Code.

[69] Relevant to the circumstances of this case, s. 265(3)(b) provides that no consent is obtained where the complainant submits or does not resist by reason of threats or fear of the application of force to the complainant. Fear is separate and distinct from threats, and fear of the application of force will vitiate consent even in the absence of threats.

[70] In this regard, the complainant does not need to communicate her fear to the accused. As well, the complainant’s fear does not need to be reasonable. When assessing whether a complainant’s apparent consent is vitiated by fear, the only concern is whether the complainant’s fear is honestly held. There is no need to determine if the fear is objectively reasonable: see Ewanchuk, at para. 39.

[71] As indicated above, it is not enough for the Crown to prove the actus reus: that there was touching, of a sexual nature, and that the complainant did not consent to the sexual activity. The Crown must also prove intention or mens rea: that the accused intended to touch the complainant and knew of, or was willfully blind or reckless as to, the complainant’s lack of consent.

[72] Honest but mistaken belief in communicated consent is a denial of mens rea that is generally considered as a defence. However, the defence of honest but mistaken belief in communicated consent is not always available. In this regard, the importance of communicated consent, whether by words or conduct, cannot be overstated.

[73] Section 273.2(c) holds that the defence of honest but mistaken belief in consent is not available where there is no evidence of the complainant affirmatively communicating consent, by words or actions, to the accused: see e.g. R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 121-122.

[74] Section 273.2(b) also creates an obligation on the accused to ascertain if the complainant is consenting; it imposes a precondition to the defence – no reasonable steps, no defence. It states that belief in consent is not a defence where “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”.

[75] What constitutes reasonable steps is highly contextual and fact specific. It is a quasi-objective test that depends on the circumstances known to the accused. As stated in Barton, at paras. 106-107,

Keeping in mind that "consent" is defined under s. 273.1(1) of the Code as "the voluntary agreement of the complainant to engage in the sexual activity in question", what can constitute reasonable steps to ascertain consent? In my view, the reasonable steps inquiry is highly fact-specific, and it would be unwise and likely unhelpful to attempt to draw up an exhaustive list of reasonable steps or obscure the words of the statute by supplementing or replacing them with different language.

[76] The court in Barton goes on to say, at para. 107,

[I]t is possible to identify certain things that clearly are not reasonable steps. For example, steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. As such, an accused cannot point to his reliance on the complainant's silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law (see Ewanchuk, at para. 51, citing M. (M.L.)). Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step (see Sheehy, at p. 518). Accordingly, an accused's attempt to "test the waters" by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step.

[77] R. v. Ewanchuck, at para. 52, also provides some useful comments relevant to this case:

Common sense should dictate that, once the complainant has expressed her unwillingness to engage in sexual contact, the accused should make certain that she has truly changed her mind before proceeding with further intimacies. The accused cannot rely on the mere lapse of time or the complainant's silence or equivocal conduct to indicate that there has been a change of heart and that consent now exists, nor can he engage in further sexual touching to "test the waters". Continuing sexual contact after someone has said "No" is, at a minimum, reckless conduct which is not excusable.

[78] This point is further echoed in R. v. R.G. (1994), 1994 CanLII 8752 (BC CA), 38 C.R. (4th) 123 (B.C. C.A.), at para. 29:

However, that does not conclude the matter, for s. 273.2(b) clearly creates a proportionate relationship between what will be required in the way of reasonable steps by an accused to ascertain that the complainant was consenting and "the circumstances known to him" at the time. Those circumstances will be as many and as varied as the cases in which the issue can arise, and it seems to me that the section clearly contemplates that there may be cases in which they are such that nothing short of an unequivocal indication of consent from the complainant, at the time of the alleged offence, will suffice to meet the threshold test which it establishes as a prerequisite to a defence of honest but mistaken belief. On reading his reasons for judgment as a whole, I am not persuaded that the trial judge intended to say anything more than that this was one such case.

[79] The defence of mistaken belief in communicated consent is not automatically available in all cases. There must be an evidentiary basis upon which a properly instructed jury could accept the defence; it must have an “air of reality”. Where the versions of the accused and the complainant are diametrically opposed, there may be no evidentiary record for a defence of mistaken belief in communicated consent. Indeed, when the complainant testifies to active resistance and the accused testifies to enthusiastic participation, the issue is credibility as between the accused and the complainant. In such circumstances, the court should not address mistaken belief in communicated consent: see R. v. Orwin, 2017 ONCA 841, at para. 31; R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836 at para. 26. However, there may be cases where the judge accepts part of the accused’s testimony and part of the complainant’s testimony and arrives at findings that may give rise to this defence.

Collusion

[80] In R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, the Supreme Court of Canada discussed concocted evidence outside of the context of similar fact evidence. The Court held that the trial judge must determine what weight, if any, is to be given to evidence that is alleged to have been concocted by means of collusion or collaboration. Under this approach, the trier of fact is obligated to scrutinize the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose: see Burke, at para. 45; R. v. E.M.M., 2021 ONCA 436.

[81] Collusion can arise from both a deliberate agreement to concoct evidence, as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events. It can lead to inadvertent tainting of a witness’s evidence or the creation of a false memory: see R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321, at para. 81.

[82] The reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns. This includes information consumed by the witness between the alleged event and trial that could shift their perception of the incidents from what they were at the time they occurred and at the time of trial: see R. v. F.(J.) (2003), 2003 CanLII 52166 (ON CA), 177 CCC (3d) 1, at paras. 77, 85.

Analysis

[83] In conducting my analysis of the evidence, I apply the W.(D.) analytical framework to the evidence applicable to each of the five complainants.

Ms. B

[84] When I consider the evidence of Mr. Batchelor relating to Ms. B, in the context of all the evidence relating to Ms. B, I do not believe Mr. Batchelor, and his evidence does not leave me with a reasonable doubt.

[85] Mr. Batchelor testified reasonably, he did so throughout this trial, but his detailed memory of the events that he says occurred with Ms. B is not credible. As well, Ms. B was a solid witness who did not deviate from the essence of her narrative, and she was not seriously contradicted despite a thorough cross-examination.

[86] During the police interview on November 19, 2019, the investigating officer provided Mr. Batchelor a rough and summary version of the allegations of Ms. B. During that interview, Mr. Batchelor did not recognize the name of Ms. B; her name did not “ring a bell”. He said at trial that he knew her by a different name, but I find his explanation about this too convenient to be credible considering the more extensive relationship with Ms. B that Mr. Batchelor described at trial. Further, during that police interview, Mr. Batchelor did not recognize this event or associate the allegations about this event with this complainant. He said that he did not “recall that at all”. Although I appreciate that the allegations that the officer mentioned to him differ from his version of events, he was still provided some details about meeting Ms. B on Plenty of Fish, about exchanging messages with her, and about meeting her later in his apartment in 2010, yet, he had no recollection. I also appreciate that, upon being arrested more than nine years after the alleged events, it would be difficult to remember what happened in 2008 and 2010.

[87] However, by contrast, at trial Mr. Batchelor had acquired a clear recollection of Ms. B and of his interactions with her. He described a longer and more involved relationship with Ms. B than Ms. B did. At trial, he testified clearly and without hesitation about events that happened in 2008 and 2010. For example, he described in detail how they communicated in 2008. He has no written record of their interactions, yet, he remembered not only meeting Ms. B for an initial date in September 2008, but also described in detail their interaction that day. He also described with an unbelievable amount of detail an attendance by Ms. B at his apartment in October 2008. Moreover, at trial, Mr. Batchelor had a surprisingly clear recollection of the content of their text messages leading up to their meeting in his apartment when the alleged assault occurred, and he had a very detailed recollection of their sexual encounter that day.

[88] I find Mr. Batchelor’s clarity of recollection about these events improbable to the point of being not credible. I do not believe his version of events, and it does not leave me with a reasonable doubt.

[89] Next, when I consider the totality of the evidence, I conclude that the Crown has proven beyond a reasonable doubt each element of the offence of sexual assault involving Ms. B. I arrive at this result for the following reasons.

[90] Ms. B was a believable witness. She was not seriously contradicted during her cross-examination. She answered questions reasonably, whether she was questioned by the Crown or by defence counsel. She attempted to answer questions as best she could, and she admitted when she did not remember. She conceded points even if it might be against her interests to do so. For example, when it was put to her during cross-examination that communications with the accused continued after the alleged assault, even if she did not remember, she did not simply deny these instances of communication; she agreed that they could be suggestive that she had more of a relationship with the accused than she remembered.

[91] I am not surprised that Ms. B did not precisely remember when she started to exchange messages with Mr. Batchelor, because these events go back to 2008 and 2009. Similarly, and for the same reasons, not remembering when the sexual assault occurred, how long she was in the accused’s apartment, precisely what they did before, or what they talked about before the assault does not mean that Ms. B does not remember the sexual assault.

[92] Ms. B testified that she consented to the initial kissing, she said that she reciprocated. She admitted that she does not remember how their clothing came off, but she consistently admitted that up to that point she was consenting. However, she was also consistent in her evidence that she then changed her mind and no longer wished to have sex with the accused. She was consistent and was not contradicted on this during her cross-examination. She unwaveringly testified that she changed her mind, and she was unshakable that she no longer consented.

[93] The defence argues that Ms. B hesitated when she was asked in chief whether she said anything out loud, as if she was not certain that she did say something. Ms. B was asked in chief, “Did you say anything out loud?”, and she answered “ Umm, at this very moment I don’t recall if I said no – I believe said, no, wait, I don’t – like, wait no, I don’t want to”. During her cross-examination, Ms. B explained that she was thinking to try and remember her exact words. She said that every time she goes back to the events of that day, she remembers her hand going out and remembers saying “no wait” or “wait”, in that moment that she changed her mind. She consistently said that she is certain that she said something like “no wait”, although she admitted that she does not remember precisely what she said or if she said anything else. She believes that she said it once. She said that it is “not possible I did not say no wait. . . and put my hand out” on his hip.

[94] The defence also argues that a hand on a hip does not indicate a change of mind, that it could mean many things. This argument omits that Ms. B testified that she also sat up. She said that when she put her hand on the accused’s hip, with some slight pressure, to stop him, she also sat up. It also omits her evidence that the accused “moved” her hand out of the way just prior to penetrating her vaginally with his penis.

[95] Ms. B’s admission that she does not remember the exact words that she said to the accused at that very moment just before vaginal penetration is not surprising, as these events occurred more than ten years ago. Further, at law, Ms. B did not have to communicate her non-consent. Ms. B was, however, clear that she changed her mind, that she no longer consented, and that she communicated this to the accused by her actions and words. She said that she put her hand on his hip, applied a little pressure, sat up, and said something like “no” or “wait”. She was also clear that from that point on she no longer participated, said nothing else, cried silently, and waited for it to end.

[96] I do not find reliable Ms. B’s recollection at trial that the accused’s face became dark when she said no because I find this new memory improbable at this time. I put no weight on that evidence.

[97] I also find of no consequence whether Ms. B initially intended to have sex with the accused. It is clear on the evidence that she consented until right before vaginal intercourse, when she changed her mind. Not remembering much of their conversations prior to changing her mind and not remembering all the details of an event that happened more that ten years ago does not mean that it did not happen. Ms. B changed her mind, and she communicated this to the accused, who removed her hand and proceeded to penetrate her vaginally without asking her any question about why she put her hand on his hip with slight pressure, why she sat up, or why she said “no” or “wait”. Ms. B explained why, immediately after the assault, she locked the door to the bathroom and took a shower to wash her back. Although someone else might have reacted differently, there is no inviolate rule on how a victim of a sexual assault will react.

[98] As well, considering all the evidence, I am not concerned that Ms. B came forward only after reading a newspaper article about the accused’s acquittal on a previous charge. Ms. B testified that she realized at the time that she had been raped. She testified that she told her boyfriend at the time and that she sent the newspaper article to her ex-boyfriend saying “hey, do you believe this”, as he was the only person who knew what had happened to her. I have considered the evidence relating to this, and the accused’s allegations of collusion, and it leaves me with no reasonable doubt.

[99] At best for the accused, Ms. B’s conduct suddenly and at a very crucial moment became ambiguous. Suddenly faced with this, the accused took no reasonable steps to ascertain that Ms. B was still consenting. There is no evidence from which the accused could honestly have believed that consent had been re-established as the evidence of the complainant is that she became silent and stopped participating. Ambiguity and passivity do not constitute the communication of consent. The accused knew of, or was wilfully blind or reckless as to, the complainant’s lack of consent.

[100] As a result, the elements of the offence at count seven have been proven beyond a reasonable doubt by the Crown.

Ms. CT

[101] When I consider the evidence of Mr. Batchelor relating to Ms. CT, in the context of all the evidence relating to Ms. CT, I do not believe Mr. Batchelor. Mr. Batchelor testified reasonably, but I find that his narrative, that he did exactly what Ms. CT wanted, is contradicted by his subsequent exchange of messages with Ms. CT. Mr. Batchelor asked Ms. CT to meet again, but Ms. CT responded that she did not want anything in her butt and that she did not trust him to “just keep doing it normally”. The accused repeatedly tried to convince Ms. CT to meet again, but she eventually stopped responding and refused his invitations to meet or have sex again. I am not making assumptions about this based on stereotypical thinking because Ms. CT said that she did not want to see Mr. Batchelor again because of what he had done. As well, the accused’s evidence that he considered dating Ms. CT is contradicted by his evidence that his offer to date Ms. CT was a “white lie”, and by the general content of his messages to Ms. CT, which are more focused on sex than on dating.

[102] However, the evidence of the accused and the totality of the evidence relating to Ms. CT leave me with a reasonable doubt about the guilt of the accused on the count of sexual assault involving Ms. CT.

[103] Mr. Batchelor described a casual, sexual hookup with Ms. CT. He convincingly described how they both got undressed, what Ms. CT said, and what she asked. He gave specific and convincing details about what could constitute active participation by Ms. CT. For example, he described how Ms. CT positioned herself and what she said, which contradict her evidence that she just lied on the bed, did not say anything, and let it happen. While there is evidence that the complainant reached an orgasm, as Ms. CT admitted during her cross-examination that she may have orgasmed or have had multiple orgasms as per the evidence of the accused, this is not evidence of consent. While such an assumption could constitute a stereotypical assumption about rape victims, that evidence contradicts the evidence of Ms. CT given during her examination in chief when she did not mention this possibility. I note as well that Mr. Batchelor was not successfully challenged or contradicted during his cross-examination about Ms. CT.

[104] Moreover, Ms. CT had significant memory issues which render her evidence not reliable. The unreliability of her memory, in the context of all the evidence relevant to her, leaves me with a reasonable doubt about her assertion that, at the time, she subjectively did not consent, and about whether she consented because of an honestly held fear.

[105] For example, Ms. CT did not remember the content of the messages exchanged on Plenty of Fish with the accused prior to their agreeing to meet, she has no memory of these conversations, but agreed that sex and sexual preferences were possibly discussed. This possibility could explain her subsequent messages about “butt stuff”, about not wanting “anything in my butt”, and “I don’t trust you on that”; these topics could have been discussed as per the evidence of the accused. She believed but does not really remember how she arrived at the accused’s apartment, and how she left. She deduced that he must have picked her up and driven her back home. She has no memory of their conversation up until and when entering his apartment and was unable to confirm or deny whether the accused made any sexual advances while they were seated on the couch; she does not remember. She remembered conversations about fitness and diet and remembered that she disagreed with the accused’s limited diet, but she does not remember other conversation. She does not remember how she came to sit on the couch but agreed that she was not forced to sit there.

[106] She has no memory of how she got from the couch to the bed of the accused. In cross-examination, she agreed that she could have ended up on the bed simply because the accused politely asked her to go to the bed. This concession is troubling because in her statement to the police Ms. CT said that the accused had dragged her to and thrown her down on the bed to sexually assault her. In cross-examination, she admitted that it was equally possible that she had been asked nicely to lie on the bed. She said that she has a “vague memory” about this, she does not remember.

[107] Ms. CT could not explain why it was equally possible that she voluntarily agreed to lie on the bed when she had apparently already decided that the accused was creepy and that she did not want to have sex with him; she does not remember. However, Ms. CT agreed that the accused did not start grabbing her, sexually touching her, and pulling her pants down almost immediately after entering the apartment, which contradicts the evidence of her friend who testified at trial that this is what she understood. As well, Ms. CT does not remember how it ended or what they talked about after the alleged sexual assault.

[108] I agree with defence counsel that Ms. CT puts the reliability issue best when, during an attempt to articulate her memory problems, she said during her cross-examination that “there’s memory and there’s facts”.

[109] The reliability issues with the evidence of Ms. CT are concerning. These concerns about the reliability of her evidence are not helped by the apparent contradictions between her evidence and her subsequent text messages with her best friend, with whom she said she shared secrets.

[110] Ms. CT testified that, immediately that evening, there was no doubt in her mind that she had been raped by the accused. She also testified that she texted her best friend that evening, both prior to the date as a matter of safety and after, where she told her best friend exactly what happened with the accused.

[111] There is no inviolate rule on how a victim of a sexual assault will behave or process such a traumatic event. Similarly, there is no formula for what a complainant in a sexual assault case will or will not say to a close friend. However, in this case, Ms. CT testified that she told her friend what happened to her by text, and that she told her friend all about the accused’s “creepy” behaviour. Examined in this context, her text messages contradict her evidence. For example, immediately after the alleged sexual assault, Ms. CT texted her friend, “too late LOL I slept with him”. She also described the negatives of her interaction with the accused but left out what she now alleges. As well, about two weeks later, she repeated that “I shouldn’t have slept with slutty, weird Paul”. In the context of a complainant who testified that she told her friend by text that she had been sexually assaulted, these messages are difficult to reconcile with her explanations that she was embarrassed and still in denial.

[112] Finally, the evidence of Ms. CT is contradicted by the evidence of her best friend. For example, the best friend of Ms. CT, referred to above, testified at trial that she was told by Ms. CT that as soon as Ms. CT entered the accused’s apartment, the accused started to try and undress her and started “fingering her”. Ms. CT testified at trial that this never happened, and that she would not have told anyone this version of events. As another example, her best friend said at trial that she was not told Ms. CT’s version of events, that upon entering the accused’s apartment their interaction started by them sitting on a couch and watching a movie briefly.

Ms. F

[113] When I consider the evidence of Mr. Batchelor relating to Ms. F, in the context of all the evidence relating to Ms. F, I do not believe Mr. Batchelor.

[114] Mr. Batchelor’s narrative is not supported by the evidence. Ms. F repeatedly testified that she was interested in dating relationships. There is no evidence that Ms. F or Mr. Batchelor agreed to a sexual encounter. Mr. Batchelor said that they flirted a lot but that there was nothing sexual in their messages. He said that they agreed to meet with no concrete plan, “to get out of the house”. He said that the conversation in the car was not so much about sexual interaction, but that they flirted a lot. As a result, I find the sexual activities described by Mr. Batchelor, occurring in his car within less than about two hours of first meeting Ms. F, inconsistent with the evidence that this was not a planned sexual hookup, and inconsistent with the evidence of Ms. F that she was interested in dating relationships. I therefore do not believe Mr. Batchelor.

[115] Next, I consider whether the evidence of Mr. Batchelor leaves me with a reasonable doubt, and, if not, whether the totality of the evidence that I accept relating to Ms. F has proven Mr. Batchelor’s guilt beyond a reasonable doubt.

[116] It is not disputed that there was touching of a sexual nature. The only questions are whether the Crown has proven that the complainant subjectively did not consent and whether the Crown has proven the mens rea element of the offence.

[117] Relevant to those questions, the evidence of Mr. Batchelor and that of Ms. F is contradictory.

[118] Mr. Batchelor testified that on his first attempted kiss in the parking lot, Ms. F kissed him back. He said that the kissing grew progressively heavier, and that they met in the middle of his car. He said that she put her hand on his erection, over his clothing. He said that as they were kissing, she was rubbing his erection over his clothing, and fumbling with his belt and zipper. He moved his car to the end of the parking lot. She undid his belt and gave him oral sex. He testified that she said that she “wanted to be a good girl” in a flirty way. He testified that he asked her if she would prefer to finish giving him oral sex, or if she wanted more. She allegedly responded that she “would prefer to get something out of this”. He therefore drove to a more secluded parking lot.

[119] He said that when they arrived, she removed her pants and top, but kept her underwear on and they continued kissing. He stimulated her with his hand, and he thought that she was enjoying it. He said that there was no discussion, but she was making noises and he had no concern that she was consenting. He said that he put on a condom, that she pulled her underwear to one side, and that they had intercourse for about ten minutes. He testified that she had her hands on his head and back and that he thought that she was “enjoying herself”. He said that she was making noises and moving around. He then mentioned doing it “doggy style”. He said that he got out of the car, that she turned around, and that they had vaginal intercourse from behind. He testified that he told Ms. F that he has difficulty ejaculating in a condom, and that by way of response she turned around, he removed his condom, and she gave him oral sex until he ejaculated. He said that Ms. F seemed fine after, that they were still flirting, and that they agreed to see each other soon.

[120] As indicated in the background section of this decision, they did see one another either the next day or within the next week, and briefly in 2013.

[121] Ms. F testified that her focus was on dating and getting to know people, not sex. She was however uncertain what her Plenty of Fish profile would then have indicated. She said that this was a first date, that she wanted to visit the city and possibly go to a public location, like a restaurant, where they could have a normal date.

[122] Ms. F said that almost as soon as Mr. Batchelor returned to the car from returning books to a previous girlfriend, he started to make advances, tried to kiss her, and tried to touch her leg and neck. She said that she repeatedly pushed his hand many times and she was surprised that he would kiss her so suddenly.

[123] She testified that the accused continued to kiss her and touch her leg and shoulder, while she continued telling him “no”, that she did not want this, that she wanted to be a good girl, but said he did not respond and continued to kiss and try to touch her for at least ten minutes in two different areas of this parking lot. She said that she told the accused that she would like to go to a public place to socialize, and she asked the accused to go elsewhere.

[124] However, during her cross-examination, Ms. F ultimately conceded that she kissed Mr. Batchelor back while in the car. She had said during her 2016 police interview the following: “I was, I was kissing him. I wasn’t like, I went with it, with the kisses.” Questioned about this, Ms. F initially denied reciprocating, but she eventually conceded that she had kissed the accused back. She nonetheless explained that she was not an active participant, that she had said “no”, said that she “wanted to be a good girl”, said many times that she did not want to do this, said that she wanted to continue with their date, said she did this because she felt that she had no other choice, and eventually, she decided to “take it”, but I question the reliability of this evidence considering how reluctantly Ms. F admitted that “kissing him” meant “kissing him back”.

[125] The accused then left the first parking lot and drove to a more secluded parking lot. Ms. F testified that she told the accused she thought they would go to some “public place” to “walk and socialize”. She said that the accused continued to “kiss me and caress me” and tried to be romantic and “suave” to convince her to have sex. She said that she kept repeating to the accused that she “wanted to be a good girl” until she “felt I had no other option” and “at this point I just accepted it” because “she just wanted it to be done”. She said that she was 23 years old, afraid, and did not realize that she had other options.

[126] However, during her cross-examination, Ms. F admitted that she ultimately consented to have intercourse with the accused and admitted that his persuasion may have worked. She was asked whether the accused had been using words and romantic gestures to try and convince her to consent to sexual intercourse. She was asked “By conceding he may have smoothed his way in, you’re conceding that you may have – it may have worked. His persuasion may have worked, and you were convinced to agree to it? She answered, “Yes”.

[127] She admitted that she probably removed her pants and underwear without being directed by the accused as this would have been difficult for him to manage. She also could not rule out the possibility that she helped remove the accused’s pants. She admitted in chief that she participated in trying to encourage the accused to be done with the intercourse. She said that at the end she just actively played along with the intercourse so that “it would be done”. She said that she was faking sex, faking enjoyment, and that “I pretended I was engaged”.

[128] Ms. F said that she was “shocked, numbed, confused”. She said that she was “kind of scared”, that “she did not know what kind of guy he was”, that she “wanted to get home safely”, so she “just played along” and had sex with him, removing her pants and underwear, letting him have sex, and faked it.

[129] Although Ms. F asserted that she did not consent, when I consider the totality of the evidence, I am left with a reasonable doubt about Ms. F’s assertions of subjective non-consent. Ms. F reluctantly admitted that she kissed the accused back while in the car and admitted that she may have consented to the vaginal intercourse, and participated, as described above.

[130] The question then becomes whether the Crown has proven beyond a reasonable doubt that Ms. F’s apparent consent is vitiated by fear, as provided at s. 265(3) of the Criminal Code. That assessment is also subjective. The complainant’s fear, or her state of mind, must be honest, but does not need to be reasonable nor must it be communicated to the accused. If the court finds that Ms. F’s decision to consent was motivated by fear, then there was no consent and the actus reus of the sexual assault offence has been established.

[131] On this point, Ms. F had no memory of what they talked about in the car prior to these events. She does not remember how the accused ended up on top of her in the more remote parking lot. She agreed that the accused was trying to “romance her pants off” with words and romantic gestures.

[132] More importantly, she agreed during her cross-examination to the possibility that the accused’s words and romantic gestures convinced her to agree to have sex with him. Being convinced by words and romantic gestures is very different from consenting because of an honestly held fear. I am therefore left with a reasonable doubt about whether Ms. F consented because she subjectively felt fear.

[133] In addition, with regards to the third meeting, the encounter of 2013, I find improbable that Ms. F had not recognized Mr. Batchelor. She reconnected with him using the same dating site. She agreed that his profile and picture would have been essentially the same as in 2010. She spoke with Mr. Batchelor by telephone prior to attending at his apartment. And finally, she did not look him up on social media in the manner that she claimed she always did for safety reasons before meeting people from the Internet. On her narrative, she agreed to meet a stranger that she just met on a dating website, at his apartment at 2 a.m., without following her safety protocol of at least checking him out on social media. All of this is improbable, which puts the reliability of her memory further into question. It leaves me with a reasonable doubt about her entire narrative.

[134] I am left with a reasonable doubt about Ms. F’s subjective non-consent.

[135] I find the Crown’s arguments that Ms. F would not otherwise have engaged in sex in the accused’s car because this was a first date and because Ms. F stated that she wanted to be in a relationship not sufficient to attenuate my reasonable doubt, as Ms. F nonetheless admitted that she may have consented because of the accused’s romantic words and gestures.

[136] I give no weight and make no findings based on the fact that Ms. F wanted to meet the accused, and met the accused briefly, either the following day or within the next week, because Ms. F explained why she did this and because any assumption contrary to her explanation would not be based on the evidence, but rather on myths and stereotypes about how victims of sexual assault should behave. Similarly, I find of no consequence that Ms. F subsequently blocked the accused from communicating with her possibly because he insulted a television program that she was watching, not because he had allegedly raped her. As we well know, there is no inviolable rule on how victims of sexual assault will behave.

Ms. M

[137] With regards to Ms. M, after considering the totality of the evidence, I am unable to decide whether I accept the evidence of Mr. Batchelor or whether his evidence leaves me with a reasonable doubt. In either case, I find Mr. Batchelor not guilty of counts one and two of the indictment.

[138] Mr. Batchelor testified reasonably, and I find his evidence with regards to Ms. M reasonable. His police statement, given on June 16, 2016, is generally consistent with his evidence at trial. There are some inconsistencies, but I agree with defence counsel that the inconsistencies are on minor points and that overall, his police statement is consistent with the crux of his narrative at trial.

[139] Ms. M’s version of events is that she was hanging out with Mr. Batchelor, always with other friends, for about a month when he invited her to his apartment to watch a movie. She described the relationship as “very friendly”. They were heading down a relationship path and she had come to trust him. However, the gist of her evidence is that she did not expect and did not wish to have sex or intercourse with Mr. Batchelor that evening when he raped her vaginally. During the preliminary inquiry, Ms. M said that she thought that the assault most probably occurred at the end of June, possibly in July. In her police statement, Ms. M said that immediately after the alleged assault she was uncomfortable with Mr. Batchelor and told him so.

[140] Ms. M also testified that prior to the alleged assault, Mr. Batchelor had been to her apartment only once and briefly. She said in that regard that the accused came once to pick her up with another friend. She said: “he came inside [her apartment] … They came up to my room, knocked on the door and then we – left”. She said that he was never in her bedroom.

[141] Mr. Batchelor said that Ms. M had attended at his apartment on several occasions and that he had attended at her apartment on many occasions, that they were involved in a romantic and sexual relationship.

[142] Contradicting the evidence of Ms. M, that Mr. Batchelor had been to her apartment only once, and very briefly, Mr. Batchelor gave a detailed and uncontradicted description of Ms. M’s apartment and bedroom. For example, he described personal items in her bedroom and described the setup of her bathrooms. He also drew a diagram of her apartment. This contradiction goes to the core of Ms. M’s narrative because it shows that Mr. Batchelor knew her better than she said, which supports Mr. Batchelor’s evidence.

[143] As well, messages between Ms. M and Mr. Batchelor were admitted for a limited purpose, and they also importantly contradict Ms. M’s narrative. The admitted messages show that Ms. M and Mr. Batchelor exchanged messages at least from May 22, 2010 until July 31, 2010. Mr. Batchelor testified that these are not an exhaustive list of their communications. The messages are about activities and interests until a final message sent by Ms. M at 3:21 p.m. on June 27, 2010. In that message, Ms. M asks Mr. Batchelor to wear a condom:

ya so i have been thinking and if possible if you want to cum inside me plz wear a condom cuz I have. . . ya thats all i gotta say probably the most messed up email u have ever received but w.e. lol

[144] Mr. Batchelor responded at 6:26 p.m.:

ha ha ya a little random but ya im good with that. I cant get off in condoms so I guess its no cumin in u then. Dunno if u swallow or not but there is always ur tits or something lol

[145] The above messages contradict Ms. M’s evidence that her relationship with Mr. Batchelor was not about or did not yet involve sex. If Ms. M sent this message prior to the alleged sexual assault, it contradicts her narrative generally to the effect that although she and Mr. Batchelor were on a relationship path, she was not attending Mr. Batchelor’s apartment expecting or contemplating a sexual encounter. They rather tend to support Mr. Batchelor’s narrative.

[146] The above message from Ms. M is her last message on the record to Mr. Batchelor. If she sent that message before the alleged assault and if Mr. Batchelor assaulted her as she describes, the fact that it is her last communication on the record could support her narrative that she avoided Mr. Batchelor thereafter. However, on Ms. M’s narrative of events, there would have been no reason for her to send that message to Mr. Batchelor. On her narrative of events, Mr. Batchelor would also not be expected to respond as he did. Her version was that they were seeing one another but always with friends present, and that she was not expecting sex that evening.

[147] The messages seem more aligned with Mr. Batchelor’s version of events. Mr. Batchelor’s evidence is that these messages were sent after some sexual encounters between himself and Ms. M. The messages seem to imply some familiarity between Ms. M and Mr. Batchelor going beyond friendship. They seem to imply that they had shared some level of intimacy. Ms. M says in that message that she has been thinking about this, which tends to support Mr. Batchelor’s version of events that they had intercourse before. Indeed, on Ms. M’s version of events there would have been no reason for her to be thinking about this, at least not at this stage of their relationship if you accept her narrative of events.

[148] If the above messages were sent after the alleged sexual assault, which seems more probable, then they completely contradict Ms. M because they imply a consensual next time. Ms. M testified that immediately after the alleged assault she was uncomfortable with Mr. Batchelor and told him that she was uncomfortable. On her narrative, she would not have sent Mr. Batchelor that message after being sexually assaulted by him.

[149] In any event, the evidence leaves me with a reasonable doubt about the guilt of the accused on counts one and two.

Ms. R

[150] When I consider the evidence of Mr. Batchelor relating to Ms. R, in the context of all the evidence relating to Ms. R, I do not believe Mr. Batchelor, and his evidence does not leave me with a reasonable doubt.

[151] Mr. Batchelor’s precise memory of his brief interaction with Ms. R is improbable. During the police interview on June 16, 2016, the investigating officer provided Mr. Batchelor a summary version of the allegations made against him by Ms. R, and the officer questioned Mr. Batchelor about this. However, during that interview, Mr. Batchelor did not recognize the name of Ms. R. Her name “doesn’t ring a bell”, he said. Further, during that police interview, Mr. Batchelor did not recognize the alleged facts surrounding this event. Although I appreciate that the allegations that the officer mentioned to Mr. Batchelor differ from Mr. Batchelor’s version of events, the accused was still provided some details that are similar to his version of events, about how they met and what they did, yet, he had no recollection. I appreciate as well that, upon being arrested and almost two years after the alleged events, it would be difficult to immediately remember. Nonetheless, by contrast, the accused’s vivid memory of Ms. R at trial seems improbably clear.

[152] Mr. Batchelor’s narrative is inconsistent with the brief timeline of Ms. R’s visit to his apartment, and results in contradictions in his evidence. It is undisputed that Ms. R was only in Mr. Batchelor’s apartment for a matter of minutes – five to ten minutes at most. Mr. Batchelor agreed that this was an aborted visit to his apartment; it was not intended to be so short. Indeed, Mr. Batchelor invited Ms. R to his apartment after they had shared a drink at a nearby bar and had enjoyed a walk not far from his apartment. It makes sense that this visit was expected to last longer than ten minutes. Mr. Batchelor’s explanation that Ms. R, shortly after going to the washroom, was suddenly put off somehow by the fact that he was packing and moving his apartment, results in the following contradictions in his evidence:

a. The fact that Mr. Batchelor was so busy moving is inconsistent with his extending an invitation to Ms. R to attend his apartment. Mr. Batchelor agreed that the purpose of extending this invitation was to “extend the date”. Why extend this invitation and prolong the date if, minutes after entering his apartment, he agreed with Ms. R that he was suddenly so busy moving that it would be preferable if she left because he had a lot of things to do that evening?

b. Why was his moving suddenly such a concern to Ms. R that she left so shortly after arriving? Mr. Batchelor’s evidence was that he had warned Ms. R about the state of his apartment and about the fact that he was moving. If Ms. R nonetheless accepted his invitation, why was she put off when she exited the washroom and saw him packing, to the point of leaving within minutes after arriving?

c. Mr. Batchelor contradicted himself when he explained that Ms. R left because of his packing. In chief, his evidence was that when Ms. R came out of the washroom and suggested that she should leave when she saw him packing, he said that he agreed with her and told her that he had to finish packing, and that he had a lot of things to do that evening. However, under cross-examination, Mr. Batchelor said that he believes that he sent a mixed signal to her by packing while she was in the washroom, and that he told her that it was no problem, and that she should stay. This inconsistency arose while he was pressed to explain the inconsistency of inviting Ms. R over when he was so busy packing. This inconsistency exposes an issue of credibility with his explanation about why Ms. R left so suddenly after arriving.

[153] As well, Mr. Batchelor’s evidence that he had no sexual intention when he invited Ms. R back to his apartment is not credible. It is not credible because his assertions to that effect are contradicted by his haste in kissing and touching Ms. R, almost as soon as they entered his apartment. More specifically, Mr. Batchelor testified that he had no intention of things going further with Ms. R because he had things to do the next day, he was moving he said. He said as well that he told Ms. R, before he invited her to his apartment, to reassure her, that he did not intend to sleep with her, that nothing would happen. However, Mr. Batchelor’s assertions that he had no sexual intentions that evening are contradicted by how quickly he kissed and touched Ms. R, almost immediately after entering his apartment. Both agree that Ms. R was in his apartment for no more than five to ten minutes. Mr. Batchelor’s evidence is that within minutes after they entered his apartment, he put his hand around Ms. R and kissed her. It seems improbable that he would kiss her so quickly if he had no sexual intention of things going further, because his evidence does not disclose anything occurring between them that would otherwise explain why he kissed her so quickly.

[154] The brief timeline of Ms. R’s attendance at Mr. Batchelor’s apartment is more consistent with Ms. R’s version that she left because of Mr. Batchelor’s unwanted sexual advances. It is not disputed that the apartment visit was aborted. Ms. R’s evidence that she left so quickly because Mr. Batchelor made unwanted sexual advances is cogent and a rational explanation that fits well with the evidence. Furthermore, Ms. R’s actions are consistent with her stated lack of consent. Ms. R testified that she went to the bathroom to remove herself from Mr. Batchelor as a signal that she was not interested. She then left within minutes of arriving.

[155] As well, Ms. R’s evidence was consistent and not shaken on cross-examination. She was a believable witness. The accused argues that Ms. R’s evidence is inconsistent with her police statement when she did not mention that Mr. Batchelor put his hand down her pants while in the kitchen. However, Ms. R explained that for her, this was part of the accused’s attempt to unbutton her pants. On her evidence, Mr. Batchelor’s hand was near her bellybutton, around her waist and never extended much farther than her waistline. It was part of the same transaction as his attempting to undo her pants, and her explanation was therefore credible.

[156] Next, when I consider the totality of the evidence involving Ms. R, I conclude that the Crown has proven each element of the charge of sexual offence involving Ms. R beyond a reasonable doubt.

[157] Ms. R testified convincingly that she was initially “okay with the kissing”, but that she said “no” or something to that effect when the accused quickly thereafter tried to lift her shirt and briefly touched the area of her stomach. She consistently said that within about ten seconds of kissing her, the accused was “lifting and reaching inside my shirt”. Her narrative was consistent that she immediately said no, or something that meant that she was not interested. She consistently explained that the accused nonetheless persisted in both trying to lift her shirt and reaching inside her shirt, touching her stomach. She consistently said that despite her saying no, or words expressing that she was not interested, the accused continued his actions and told her to relax, that they were just having fun. She consistently said that if the accused was still kissing her, at some point she became uncomfortable, was no longer reciprocating, and was no longer consenting to the kissing. As a further signal, she left the accused and went to the washroom. She consistently explained that as soon as she exited the washroom, the accused approached her and continued his attempts at lifting the bottom of her shirt, reaching inside around the area of her stomach, and, as well, trying to remove her pants, fumbling with its button with his hand in the area of her waist, under her bellybutton. She testified consistently that she was scared, froze, worried what might happen next, and therefore quickly left his apartment. She convincingly explained the alleged inconsistency with her police statement relating to the accused’s hand down her pants, as outlined above. She consistently testified that she twice “told him to stop very clearly”, and that he did not.

[158] As I did with the other complainants, I considered for Ms. R’s evidence how the accused’s allegation of inadvertent collusion relating to media articles might impact the credibility and reliability of her evidence. Ms. R testified that these events occurred about August or September 2014. She did not report this to the police until she heard something about Mr. Batchelor being charged with sexual offences in January 2016. She then looked up some articles about him, confirmed that he was the same person, and called the police. Ms. R testified that she did not report this at the time because she did not think that anyone would take her seriously. She said that she nonetheless spoke to some friends about it. Ms. R consistently described the facts surrounding the alleged sexual assault. I am not left with any reasonable doubt when I consider all the evidence relating to Ms. R and assess these allegations or the possibility that media coverage inadvertently tainted her present recollection of these events or tainted her present recollection of her subjective thinking or belief at the time of these events. Further, the fact that Ms. R did not retain any of the emails or texts exchanged with the accused also does not leave me with a reasonable doubt, considering all the evidence, the strength of her testimony, and the fact that both agreed that they had no further interaction (other than possibly one follow up email by the accused). That she does not remember exactly when this happened or the state of the accused’s apartment is also of no consequence; not remembering such details about an assault that happened about two years before she reported it to the police does not mean that the assault did not happen, nor that Ms. R does not reliably remember that she was kissed and touched by the accused without her consent, to the extent that she feared for her safety and left within minutes of arriving.

[159] The evidence of Ms. R, outlined above, established beyond a reasonable doubt that Ms. R did not consent to the accused lifting and reaching inside her shirt with his hand, briefly touching her stomach with his hand while seated on the couch, and again in the kitchen, and trying to remove her pants, briefly touching her skin under her bellybutton in the area of her waistline and trying to lift her shirt and briefly touching her stomach. I am convinced beyond a reasonable doubt that this touching was in circumstances of a sexual nature. These events occurred after the accused invited Ms. R to his apartment, while on a first date. They were seated on his couch when he suddenly kissed her. He was kissing her when he attempted to lift the bottom of her shirt and touched her on her stomach. In the kitchen, the accused continued to try to lift Ms. R’s shirt and touched her stomach. He also tried to undo her pants and touched her with his hand as he fumbled with her button. He told her to relax, that they were just having fun. Clearly, the context was sexual. The evidence also establishes beyond a reasonable doubt that the accused intended to touch Ms. R and knew of, or was willfully blind or reckless as to, Ms. R’s lack of consent because Ms. R said no or words to that effect at least twice and the accused persisted with his actions: see Criminal Code, s. 273.2(a)(iii). Moreover, the accused took no reasonable steps in the circumstances to ascertain that Ms. R was consenting.

[160] The accused is therefore guilty of count four.

Conclusion

[161] Consequently, the accused is found guilty on counts four and seven of the indictment, sexual assault on Ms. R and on Ms. B, contrary to s. 271(1) of the Criminal Code, and not guilty on the other counts.

[162] Finally, I wish to thank all complainants and to remind each of them that a finding of not guilty does not mean that you were not heard. All the best.

Mr. Justice P. E. Roger

Released: February 4, 2022

COURT FILE NO.: 16-RA-19544

DATE: 2022/02/04

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Plaintiff

– and –

PAUL DAVID BATCHELOR

Defendant

REASONS FOR decision

Roger J.

Released: February 4, 2022