COURT FILE NO.: CR-18-1165-00

DATE: 20220114

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RICHARD SULER

Ryan Mushlian, for the Crown

Catherine Szpulak, for the Accused

HEARD: December 1, 2 and 3, 2021

REASONS FOR JUDGMENT

F. Dawson J.

[1] Richard Suler is charged with one count of sexual assault contrary to s. 271 of the Criminal Code and one count of sexual interference contrary to s. 151 of the Criminal Code. The offences arise out of an alleged interaction between the accused and Ms. K.P.A., who goes by the first name of G., on January 7, 2017 at the accused’s condo in Mississauga. The case proceeded as a judge alone trial. The complainant and the accused were the only witnesses. A brief agreed statement of fact (ASF) was also filed.

[2] In brief, G. claims that the accused forcibly raped her in his bedroom following a social gathering at his condo. The accused testified and denied that he had any sexual or physical contact with G. at any time. He testified that he slept alone in his bedroom and that, as far as he knew, the complainant slept on a couch in his living room.

[3] The details of how this allegation came to the attention of the police are not in evidence. However, G. gave a video recorded statement to the Peel Regional Police on October 28, 2017. That statement was admitted at trial as part of the complainant’s examination-in-chief pursuant to s. 715.1 of the Criminal Code.

Factual Background

[4] At the time of the alleged offences G. was 15 years of age. She lived with her mother and sister. She testified that she liked to party and had purchased fake identification which she used to gain access to nightclubs and bars. G. had become friendly with a woman named Lauren, who G. believed to be in her 30’s and testified that she had been out to nightclubs with Lauren on several occasions prior to January 7, 2017.

[5] At the time of the alleged offences the accused was 36 years old. He was employed during the week by a remote asset tracking and management business. On the weekends he worked as a nightclub promoter. He explained that he was paid approximately $10 for every person he brought or attracted to the nightclubs he had an arrangement with.

[6] The accused testified that on the evening of Friday, January 6, 2017 he was promoting for a nightclub in downtown Toronto called EFS. He said his roommate, Nikola, drove them to EFS in the accused’s work pickup truck.

[7] On the evening of January 6, 2017 G. had plans to go out with her older friend, Lauren. She took public transit to downtown Toronto to meet Lauren. They ended up at EFS. G. testified that after arriving at the nightclub, Lauren approached a woman other evidence shows is named Marjorie. I am satisfied that Marjorie was with the accused, his roommate Nikola and two other males, who the accused testified were named Niko and David.

[8] G. testified that she had never met the others before. However, both G. and the accused testified that Lauren and Marjorie knew each other. The accused testified that earlier in the evening Marjorie had texted him that she was “bringing five”, including two guys, to the club. As Lauren and G. would be required to make five, I infer that Lauren and Marjorie must have communicated before G. arrived at EFS with Lauren. However, G. gave no evidence that she was aware prior to arriving at EFS that she and Lauren would be meeting with the others.

[9] I am satisfied from the evidence that the others were all considerably older than G. I observe, however, that based on photos taken later in the evening, G. did not appear to me to be as young as 15 and Marjorie and Lauren could easily pass as being in their 20’s. I observe that Marjorie, Lauren and G. are all of East Asian or South East Asian descent. As I am not, I recognize that it may be more difficult for me to accurately estimate the ages of the women. The accused testified that he had no reason to think G. was as young as she was. He said that the nightclubs were very strict about requiring everyone to produce photo identification to prove their age. He said EFS had an older clientele and I observe that G. was with Lauren. The accused also testified that identifications were checked again when they attended another club later that night.

[10] To this point there are few conflicts in the evidence. However, some conflicts start to emerge from the point where the group of seven people came together at EFS. For example, G. testified that while she has tasted alcohol, she does not drink. She denied drinking alcohol at EFS. The accused testified that everyone was drinking. He explained that the nightclub provided him with a complimentary bottle of vodka for he and his guests. He testified that he was pouring shots for all, including G. However, in cross-examination he agreed that he was not paying careful attention to what G. was drinking. G. testified that she drank only from a glass of water she obtained at the bar.

[11] The accused testified that he spent most of the night talking with the two men, Niko and David, who Marjorie had brought with her. He testified they were from Slovenia, as was he. It turned out one of them knew some people from the accused’s street in his hometown in Slovenia. One of the men had just finished playing basketball for the Raptors 905 and the other was visiting from Slovenia. The accused said he spoke basic Slovenian and spoke to them in Slovenian at times.

[12] G. testified that she did not interact with the group. She spent her time dancing and walking around the club with Lauren.

[13] Probably around 1:00 a.m. on January 7, 2017 the group left EFS and attended another nightclub nearby. Again, the accused said everyone was drinking and that he spent most of his time focused on his two new Slovenian friends. G. testified that she did not drink alcohol. She again said her interaction with the others in the group was limited.

[14] At 2:30 a.m. the second nightclub was closing and the group left the club. G. testified that she told Lauren she was tired and wanted to go home. G. also said she had a cold and was not feeling well. She said she understood from Lauren that she would be dropped off at her home, so she got into a black SUV with the rest of the group. G. said the accused’s roommate was driving, and one of the men who spoke a foreign language was in the front passenger seat. She testified that she and the other women, as well as the accused, were all in the back seat. She said the accused asked where she lived and she provided the street names of the main intersection near her home in central north Toronto. She said she thought she would be dropped off near her home. However, she testified that instead the vehicle proceeded to Mississauga, entering the underground parking garage of a high-rise condominium. G. further testified that Lauren repeatedly assured her that she would be dropped off at home later.

[15] The accused testified that he had learned that his new Slovenian friends were leaving on a flight to Cuba at 5:30 a.m. When the club was closing, he invited them to come to his place in Mississauga as it was close to the airport. He testified that it was his new friends who wanted the women to come along.

[16] The accused testified that he and his roommate returned to Mississauga in his pickup truck. He said he was never in the SUV with the others. He described that SUV as a silver BMW X5. He said he did not know anything about G. asking to be dropped off at her home.

[17] The accused testified that on the way to Mississauga he texted two other women who live in his building to come and join the party. Everyone ended up in his condo on the 24th floor at around 3:00 a.m. There were nine people in total, four men and five women. He said the group drank, danced and ate. He said he had no interaction with the complainant, except for drinks and food.

[18] The accused testified that Marjorie left first. She told him she was not feeling well and asked him to order an Uber for her, which he did. He said that he thought his new Slovenian friends and the two women who lived in the building left at around the same time. He thought that was around 4:15 a.m. He testified that he then went into his bedroom alone, closed his door and went to bed. He denied offering his bed to G. and said he did not see her again until the next morning. He said he got up at around 9:00 to 9:15 a.m. and saw her sitting on the living room couch. He testified that his roommate had left for work before he got up. Lauren had apparently spent the night with his roommate. He said Lauren asked him to Uber G. home, and he did. G.’s address was entered into the Uber app on his phone and she left his condo.

[19] G. testified that after arriving at the condo she was tired, not feeling well and just wanted to go home. She said she had little interaction with anyone other than Lauren. At first Lauren assured her that the others would arrange to get her home. However, she came to realize that was not going to happen. G. testified that she had an Uber account but it was linked to her debit card and she had no money so she could not take an Uber home. She felt she could not call her mother and tell her she was in the condo “of some random guy” in Mississauga. She did testify, however, that it was not unusual for her to stay out all night on weekends when she was partying. Her mother was aware of that.

[20] G. testified that after the others left her friend Lauren was with the accused’s roommate. She said the accused made her a sandwich, which she ate, and pressured her to drink alcohol. She took a single sip of a shot due to that pressure. She described the accused as drunk but able to manage himself.

[21] G. said she told Lauren she wanted to go to sleep. Lauren spoke to the accused. G. said the accused then offered his room to her. She said she thought she was going to sleep alone, and she walked into the accused’s bedroom. She testified that the accused walked in behind her and she heard the bedroom door lock. There were no lights on. She testified the accused came straight to her and grabbed both her hands. She was scared. The accused tried to kiss her, but she turned her face away.

[22] G. testified that the accused then pushed her onto the bed. She said he pulled up her dress and started touching her vaginal area. She said she was scared and could not move. She tried to scream but the accused covered her mouth with his hand and squeezed her face. She said the accused flipped her over, put on a condom, pushed her underwear to the side and started to rape her. His penis was in her vagina for five minutes or less. During intercourse he was grabbing her mouth and pulling her hair. She described feeling like she was out of her body. At times she described the accused as holding her hands forcibly behind her back. She said that during intercourse he repeatedly asked her if he could take the condom off and that she responded, “no, no, no”.

[23] G. said that after the accused ejaculated, she saw him enter the ensuite bathroom, take the condom off and throw it in the trash bin. She said he then got into bed and quickly fell asleep. She said she then went into the bathroom and locked the door. She looked at her phone but did not think she could call or text anyone. She urinated and looked at herself in the mirror. She said she was crying and felt helpless. She said she then got into bed with the accused and slept briefly.

[24] G. estimated that she entered the bedroom at 5:00 a.m. She based that on the time stamp of a brief video she had taken on her phone at 4:30 a.m. She said she could not sleep long and woke up at 6:00 a.m. She then went to speak with Lauren who was asleep in the accused’s roommate’s bedroom. She said she waited on the couch for Lauren to get up. The accused then came out of his room, did not say anything to her and walked into his roommate’s bedroom. She said that when Lauren got up, she asked Lauren to call her an Uber to go home. She did not want to speak to the accused.

[25] Lauren spoke to the accused. Although G. thought from the look on the accused’s face that he did not want to call her an Uber, he did so. She left the condo and found the Uber waiting downstairs.

[26] The accused produced a screen shot from the Uber App on his cell phone. It was made Exhibit 4. It shows that the Uber arrived at his building at 9:29 a.m. and dropped a passenger off in north central Toronto at 9:52 a.m. It shows the route travelled, the address where the trip ended and that the accused’s account was charged $35.48.

[27] The accused testified that he did not really want to pay for an Uber for G. because he felt G. was Lauren’s responsibility. However, he did so because Lauren asked him to and he was a nice guy. He said he had called an Uber for Marjorie and often did that for people as that was “part of the gig”.

[28] G. testified that she told Lauren that morning what the accused did to her, without the details. She said she went out with Lauren a few times after the incident but “cut her off” later, as she began to think that Lauren had set her up. However, she told the interviewing officer during her s. 715.1 video interview that she knew how to contact Lauren. I am unaware whether the police made any attempts to contact Lauren, Marjorie, or the accused’s roommate.

Analysis

[29] The only case cited to me during closing submissions was R. v. D.(W.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26. As is well known, that case emphasized the already established principle that a trier of fact must not approach its decision-making task by simply making a choice between competing versions of events. As set out at para. 28 of D.(W.), where an accused has given an exculpatory explanation of events, if the trier accepts the accused’s testimony, the accused must be found not guilty. However, even if the trier does not accept the accused’s evidence, if, when considered in the context of all of the other evidence, it leaves the trier in a state of reasonable doubt, there must be an acquittal. Finally, even if the accused’s evidence does not leave the trier with a reasonable doubt, the accused must be found not guilty unless the trier is satisfied on the basis of the evidence which the trier does accept, that the accused’s guilt has been established beyond a reasonable doubt. I instruct myself accordingly.

[30] Before applying D.(W.) I must assess the credibility and reliability of the evidence. I will do so guided by the closing submissions of counsel. Counsel on both sides did an admirable job of succinctly summing up their positions. There are important aspects of the evidence I have not yet mentioned which I will refer to during this portion of my judgment.

[31] Defence counsel points out that there is no evidence to corroborate or support the complainant’s version of events. While that is correct, and I take that into account, I observe that there is no requirement for confirming or corroborating evidence. Counsel emphasizes that there is no onus on the accused to demonstrate that the complainant had a motive to lie and that the absence of a motive to lie cannot be used to add weight to the complainant’s testimony. I agree and have instructed myself accordingly. Defence counsel then points to a number of inconsistencies in the complainant’s testimony and to circumstances related to the complainant’s conduct which counsel submits should impact negatively on my assessment of the complainant’s credibility.

[32] In terms of the last-mentioned point, counsel notes that the complainant was only 15 and used fake identification twice on the night in question. She had also used it in the past. Counsel points out that the complainant was hiding things from her mother about her partying activities and her drug use. Although drug use was not part of the events leading up to these allegations, the complainant admitted she had used cocaine and MDMA on occasion in connection with her partying activities. She said she used marijuana more frequently. The complainant said her mother was not aware of her drug use or that she was hanging out with 30-year-olds.

[33] I will deal with the material inconsistencies alleged momentarily. In terms of drug use on other occasions and the failure to disclose her drug use and partying activities to her mother, I agree with Crown counsel’s submission that these are of little value in assessing the credibility of the complainant’s account of a violent sexual assault. G. was 15 and it would be surprising if she had disclosed her drug use or the details of her partying activities to her mother. If anything, I find that her willingness to disclose her drug use on other occasions makes it more likely that her testimony that she does not drink alcohol is credible.

[34] The use of fake identification to gain access to nightclubs in the context of the complainant associating regularly with Lauren, who was in her 30’s, is somewhat more problematic. The use of fake ID by teenagers to gain access to alcohol or locations restricted to adults is common and not of much value on its own in terms of a general credibility assessment of a young person who engages in such activity. However, the context of using fake ID to enter nightclubs with 30-year-olds is something which leaves me with a lingering unease about aspects of this case. As the complainant said, she started to wonder about whether Lauren set her up. Yet she continued to go out with Lauren. I make no finding of fact, but feel I should acknowledge that I have an uneasiness about what was going on here.

[35] In this regard, I mention that during the accused’s testimony he acknowledged in cross-examination that he was in contact with both Marjorie and Lauren after he was charged with these offences more than nine months after the events. That is not surprising to me; I think it would be expected. The accused explained that he had slept with Marjorie on a few occasions prior to the alleged offences but had decided she was “unstable” and a “loose cannon”. He had been trying to cool his relationship with Marjorie. He said that in his contact with Marjorie following his being charged, she suggested on more than one occasion that the charges could “go away” if he paid her significant amounts of money. The accused added that he did not know whether this was coming from the complainant. This was not a centrepiece of the accused’s defence. However, as I indicated earlier, I draw an inference that Marjorie and Lauren knew each other, and Lauren was connected to the 15-year-old complainant. I make no factual finding beyond the connection, but this is the context in which I am called upon to decide this case on the basis of only two competing witnesses.

[36] I return to the other aspects of the complainant’s testimony which are alleged to be inconsistent or problematic.

[37] Defence counsel submits that there are inconsistencies in the complainant’s description of the sexual assault itself. In her video interview, which constitutes virtually all of her examination-in-chief, G. said that as soon as she entered the bedroom the accused grabbed her hands and tried to kiss her. Counsel submits that at the preliminary inquiry the complainant said the accused pushed her onto the bed right away. Counsel submits that in cross-examination the complainant said that the accused trying to kiss her did not occur until she was on the bed. In addition, at the preliminary inquiry the complainant did not mention being flipped over on the bed or that the accused touched her vaginal area.

[38] There is a degree of inconsistency of the nature described by counsel. However, I am not prepared to put much weight on these inconsistencies. These are the sorts of inconsistencies that might be found in a truthful account of a sexual assault that was unexpected, took place quickly in a darkened room and created understandable fear. I also find it difficult to discount the explanations given by G. for some of these inconsistencies.

[39] I would add here that I found parts of the complainant’s testimony to be compelling, in the sense that her testimony fits with modern understandings of how some sexual assault victims feel or react in the moment of the assault. I am referring to the complainant’s description of being unable to move, of feeling helpless, worthless and of feeling like she was out of her own body.

[40] All of this said, there are aspects of the complainant’s evidence which I do find problematic in the context of the evidence as a whole, including the accused’s denial that he had any sexual or physical contact with the complainant.

[41] First, it was a consistent feature of G.’s evidence that she was sick, tired and wanted to go home. That was particularly so in respect of her attendance at the party. She also consistently described having little to no interaction with the others, with the exception of Lauren. However, in cross-examination she was confronted with two photos taken at the party which tend to belie that testimony. The photos show G., Marjorie and Lauren huddled together with the two Slovenian men on a couch. G. is smiling and leaning in to one of the men, Marjorie is smiling and is sandwiched between the two men. Lauren is leaning across the second man’s chest and lap with her leg up making a kissing motion against her fingers. The man has his arm around Lauren. The photo, which I recognize represents but a second in time, oozes a happy party atmosphere. A second similar photo was also produced showing the same people in a slightly different pose. There is also a very brief video taken by G. in which loud music, singing and good times can be heard, although I note the video shows only food and alcohol on a table. It does not show what G. was doing.

[42] When G. was confronted with the photos she appeared to be seriously taken aback. She agreed it was her in the photo but denied any recall of the circumstances. She said she had never spoken to the men in the photo and did not know who they were.

[43] While these photos do not have a direct bearing on whether G. was sexually assaulted by the accused, the photos are quite inconsistent with how the complainant portrayed herself as acting that evening, which impacts my assessment of her credibility.

[44] G. testified that after the sexual assault she watched as the accused went into the ensuite bathroom and removed and threw away the condom. She testified that after he went to his bed, she entered the bathroom and locked the door. In cross-examination she was asked to describe the bathroom. She described a bathroom with a glass shower enclosure. Defence counsel then produced two photos of the ensuite bathroom. They show that there is a bathtub with a shower curtain. They also show that the sink and other items in the bathroom are not in the position G. recalled. The accused testified that G. was describing the common area bathroom in his condo. He took the photos of the ensuite bathroom. In one of the photos, part of the bed can be seen, confirming that the photos are indeed of the ensuite.

[45] The accused testified that the entrance to the common area or main bathroom was located off the hallway not far from his bedroom door. It would be understandable that the complainant may have gone to that bathroom after being sexually assaulted. However, when it was suggested to her that she was describing the common area bathroom G. emphatically denied that she had ever been in the common bathroom. That all but eliminates the possibility of innocent error. While some possibility of innocent error remains, I conclude this is a significantly problematic aspect of the complainant’s evidence given the accused’s denial of any contact with the complainant in his bedroom.

[46] During her description of the alleged sexual assault, G. testified more than once that during the act of forced sexual intercourse the accused repeatedly asked her if he could take the condom off. She said she told him no and he kept the condom on. This is perhaps the most problematic aspect of the complainant’s version of events. She describes the accused, who is a large man, forcibly grabbing her hands, pushing her onto the bed, flipping her over more than once, covering her mouth and squeezing her face, pulling her hair and holding her hands behind her back with force while sexually assaulting her. It makes no sense that someone acting with that degree of overpowering force in order to commit what the complainant consistently described as “rape” would ask permission to remove a condom or respect his victim’s wishes that he not remove it.

[47] The complainant also testified that after she left the bathroom she got into bed with the accused and tried to sleep. I agree with Crown counsel’s submission that experience has shown that it is difficult to predict how victims of sexual assault will act after the event. For that reason, I do not place as much weight on this as defence counsel suggests I should. However, I do take it into account. The accused was a stranger to the complainant. She alleges a very violent interaction between them that left her very afraid and wanting to leave. The complainant knew there was a couch in the living room. The other party goers had left. Lauren was with the accused’s roommate in the other bedroom. G. had the obvious option of sleeping on the couch. In these circumstances I cannot completely discount that it seems unlikely she would have gotten into bed with the man she consistently described as “the rapist”.

[48] Defence counsel also places considerable emphasis on the time when the Uber was called to take the complainant home. G. testified that she had trouble sleeping and awoke at around 6:00 a.m. The tenor of her evidence was that she wanted to leave as soon as possible. In cross-examination she said the sexual assault was at around 5:00 a.m., that she barely slept and got up at 6:00 a.m. and left the condo soon thereafter. Yet the screen shot of the Uber record taken from the accused’s phone shows that the Uber ride was from 9:29 to 9:52 a.m.

[49] I am not prepared to put as much emphasis on this as defence counsel submits I should. To the extent there is a discrepancy, I find it reflects more on the complainant’s memory of how long she remained in the condo than on her credibility. G. consistently said that she had no money and was reliant on Lauren and the accused to get her home. In her video recorded statement she said that after she got out of bed she went to Lauren and then waited on the couch for Lauren to get up and speak to the accused. The accused testified that he did not get up until 9:00 or 9:15 a.m. All I can conclude from this part of the evidence is that G.’s impression of how long she waited is inaccurate or that she slept in the accused’s bed for longer than she thought she did. When cross-examined on this point, G. said she never checked a clock.

[50] I turn now to the accused’s evidence. Defence counsel submits that the accused testified in a clear and consistent manner and was not shaken in cross-examination. Crown counsel submits that the accused was slightly combative in cross-examination, that he was shaken in cross-examination and that his evidence is both internally inconsistent and illogical.

[51] Crown counsel points out that the accused agreed that the ensuite bathroom would only be visible to someone who was inside his bedroom. The accused also testified that, as far as he was aware, the complainant was never inside his bedroom. Crown counsel suggests this demonstrates that G. must have been in the bedroom.

[52] While this is a worthy submission, my notes do not indicate that the complainant was ever asked whether she was in the accused’s bedroom at any other point during the party. The accused was not aware that she had been but did say it was possible she may have gone into his bedroom when he was in the common bathroom or did not notice for some other reason. The complainant said the condo was large. When considering this submission, I cannot overlook that the complainant did not accurately describe the inside of the ensuite but rather described the common washroom which she was adamant she had never been in.

[53] Crown counsel also submitted that the accused was intoxicated on his own evidence and that his intoxication would be consistent with passing out quickly after sexually assaulting the complainant. I do not recall the accused agreeing that he was intoxicated. The accused testified that he had perhaps nine drinks over the course of the evening. He said it was important that he not become intoxicated when working as a club promoter because the club management did not like that. He also indicated that he was 6’4” tall, weighed 215 lbs. at the time and could drink a lot. I do find that the accused exaggerated when he said he could drink 40 or more drinks in a day. But overall, the evidence of his consumption and degree of intoxication do not seem to me to be circumstances which make it so significantly more likely that he committed the violent sexual assault alleged by G. that it assists much in proof of the Crown’s case.

[54] The accused was cross-examined on a statement he made to the police on the basis of alleged inconsistency. As previously mentioned, the accused testified that he sent Marjorie home in an Uber because she said she was feeling sick. However, in his police statement he said Marjorie was “kind of mad” at him because he wasn’t “hooking up with her anymore”, so he sent her home in an Uber. When this inconsistency was put to the accused he provided an explanation which I find makes sense. He said he was trying to cool things off with Marjorie. He thought she was mad at him as a result, but she did not tell him that, rather she said she was not feeling well as an explanation for leaving. He said he told the police she was mad at him because he thought that was really why she was leaving, although she told him she was not feeling well.

[55] Crown counsel then put to the accused that Marjorie left because she was jealous of G., suggesting that the accused was interested in G. The accused disagreed. He pointed out that he had not paid any attention to G. He said he had been focusing his attention on his two new Slovenian friends all night. I observe that G. herself did not indicate that the accused ever paid any attention to her until he pressured her to drink and offered her a sandwich well after Marjorie had left. This evidence shows that there would be no basis for Marjorie to be jealous of G. and undermines the submission that jealousy by Marjorie is circumstantial evidence of the accused having a sexual interest in G.

[56] In terms of Marjorie, the accused explained that he was trying to distance from her. He said on most nights he would have ignored her texts saying that she could bring others to the club. However, he said it was slow in the clubs soon after New Year’s and it was not busy that night, so he did not ignore her text saying she could bring five people. He also said that as she would show up at the club with her friends anyway, he felt he might as well get credit for it as a promoter. He said he was surprised when Marjorie said she wanted to leave his condo as he had been thinking she would want to stay all night.

[57] During his testimony the accused was somewhat inconsistent about when others left the party and about when he went to bed in relation to the others leaving. However, in re-examination he agreed, after being referred without objection to his police statement, that he recalled his new friends leaving for the airport and still being up at that time. He adopted that as accurate.

[58] The accused’s defence is a simple and straightforward denial of any sexual or physical contact with G. This can be a difficult defence for a prosecutor to challenge due to its simplicity. Mr. Mushlian, for the Crown, showed considerable ingenuity in his efforts in cross-examination challenging the accused on all aspects of his testimony. Overall, I thought the accused withstood that cross-examination very well.

[59] At the end of the day, I must consider all of the evidence together. There are the contextual circumstances I previously mentioned which form the backdrop to my deliberations. While I find some of the central parts of the complainant’s evidence to be compelling, there are also aspects of her evidence which, in the context of the accused’s relatively unshaken evidence denying her allegations, I have difficulty with. In particular, her description of her rapist, which was the term she repeatedly used, asking for her permission to remove the condom during forced sexual intercourse and respecting her request to leave it on is inconsistent with a common sense assessment of the circumstances as described by the complainant. Her inability to describe the ensuite bathroom when she was adamant it was the only bathroom she was ever in, is another.

[60] I do not conclude affirmatively that the complainant has fabricated her allegations. Nor do I outright accept the accused’s denial. However, the accused’s evidence, considered in the context of all of the other evidence leaves me in a state of reasonable doubt. For that reason, the accused is found not guilty of both offences charged.

F. Dawson J.

Released: January 14, 2022

COURT FILE NO.: CR-18-1165-00

DATE: 20220114

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

-and-

RICHARD SULER

REASONS FOR JUDGMENT

Dawson J.

Released: January 14, 2022