COURT FILE NO.: 17-5129

DATE: 2022/08/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Brian Landry

Accused

James Kavanagh and Khorshid Rad, for the Crown

Samantha Robinson for the Accused

HEARD: June 6, 10, 2022

Oral decision given July 27, 2022

Restriction on Publication

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.

REASONS FOR DECISION

sOMJI J.

Overview

1The accused is charged with one count of sexual assault of A.V. on the night of November 30, 2016. At the time of the alleged offence, the accused and the complainant were both first year students at Algonquin College. The complainant went to the accused’s house at 11 pm. They talked for a few hours and shared some drinks. Later, around 2 am, they went to the accused’s bedroom. They engaged in consensual mutual massages and oral sex. At this juncture, the accused and complainant’s version of events diverge.

2The complainant alleges that the accused rubbed his penis against her vagina, and she told him no, not without a condom. He proceeded to have vaginal sex with her anyway and after a few minutes turned her over and forcefully penetrated her anus. She shouted “ow”. The accused stopped immediately and apologized.

3According to the accused, following the massages and oral sex, the complainant was straddled on top of the accused and asked for a condom. When he said he didn’t have one, she said okay and guided his penis into her. They had consensual vaginal sex in various positions. During the vaginal intercourse, the complainant turned. While trying to enter her from behind, the accused’s penis struck the complainant’s perineum and she said “ow.” He stopped immediately, told her it was a mistake, and apologized. He had no intention of having anal sex with her.

4The Crown called three witnesses: the complainant A.V., her brother R.V., and nurse Natalie Bilodeau who administered a sexual assault evidence kit on the complainant the following day. The accused testified in his own defence. Defence admitted the date, jurisdiction, and identity. Facebook messages between the complainant and the accused preceding and following the encounter were also admitted as an exhibit.

5The primary issue in this case is whether the complainant consented to the vaginal sexual intercourse and the sexual activity thereafter. Counsel for the accused and the Crown agree that the case turns on the credibility and reliability of the witnesses. The Crown concedes that if I accept the accused’s version of events, the sexual activity as described by him was consensual sexual activity based on the gestures and words communicated by the complainant. If I accept the complainant’s version of events, there can be no consent as the complainant expressly said “no.”

6I have set out below a summary of the facts as recounted by the witnesses. It is divided in three sections outlining the complainant and accused’s versions in the following areas: a) the communications and relationship of the complainant and the accused; b) the sexual encounter; and c) the events following, the medical evidence, and the criminal charges. This is followed by a credibility assessment of the witness evidence under the applicable legal principles.

Facts as recounted by the witnesses

a. The communications and relationship of the parties preceding the sexual encounter

i. The complainant’s version of events

7On the night in question, the complainant and the accused were both students enrolled in the Algonquin Fitness and Health Program. The complainant was one of two class representatives for first-year students and disseminated her contact information to her classmates including the accused. The complainant knew the accused from classes, but they first spoke at a friend’s birthday party on November 26, 2016. The complainant arrived late to the party at which time the accused yelled out that the class representative had arrived. The complainant testified the accused was quite intoxicated. A group of students went to the basement. When the mini cupcakes were passed around, the complainant states the accused took her hand and stuck her fingers in his mouth.

8In cross-examination, the complainant was challenged on her account of events at the party. It was suggested to her that it was in fact she who took the accused’s fingers in her mouth and licked off the whipped cream on his fingers. The complainant denied this happened and testified she would never do that.

9The complainant testified that she spoke to the accused in class the following Wednesday November 30th. It was a short conversation lasting a couple of minutes and they discussed their interaction at the party and the cake. That same evening, at close to 7 pm, the accused messaged the complainant stating, “I did not wink” and she replied, “I’m almost positive you winked.”

10Around 9 pm, further messages were exchanged which the complainant described as “friendly”. The accused told her his friends had been in a tragic car accident. The complainant asked him if he would like to come over and talk and he replied he did not want to go out, but that he needed to have some drinks. He was going to have some gin, and she was welcome to come over and join him.

11The complainant agreed, and the accused went to pick her up at the college soccer dome. The two walked over to his house which was about 10 minutes away. They arrived at his place shortly before 11 pm. The complainant testified that she was expecting to talk to the accused and work on an essay that was due the next day.

12Upon arrival, the complainant testified that they went through the hallway to the kitchen. One of the accused’s roommates and his girlfriend were in a room nearby watching tv. The complainant did not state in-chief that she had gone to the accused’s bedroom on her way to the kitchen but acknowledged in cross-examination that they may have stopped by the accused’s room first for a short period. From the kitchen, the accused grabbed the gin and tonic as well as a mason jar and they returned to another living room in the house. They sat on the couch and the accused poured the first drink. They both drank from the same mason jar. Compared to when she had seen him at the previous birthday party, the complainant described the accused’s level of intoxication as a 7 out of 10. His eyes were glazed, but his speech was not slurred, and his balance was fine.

13The complainant estimates she drank about 1 ½ ounces of gin while he drank 2 ½ ounces of gin followed by a beer. The two talked about friends, the accused’s experience in the military, hockey, and other things. She testified that while they were seated their legs were outstretched and touching. They talked for about two hours during which time another roommate appeared for a short visit. At around 2 or 2:30 am, the accused suggested they go to his room so they would not wake up his roommates. As they were walking, he mentioned something about a massage.

ii. The accused’s version of events

14The accused provided a slightly different account of the parties’ encounter at the birthday party and the events that followed. He acknowledged that he was intoxicated at the party. He recalls being in the basement when the cupcakes were handed out. He testified that he took the whipped cream off his cupcake, and as he was doing this, the complainant took his fingers, put them in her mouth, and licked off the whipped cream. He was surprised by it. The accused testified that at class on Monday and Wednesday, he and the complainant talked about the party. He could not recall the exact conversations, but they were friendly and flirtatious. On Wednesday evening November 30th at 6:56 pm, the accused messaged the complainant starting with a comment that he did not wink. The start of the text message exchange is as follows:

Accused: I did not wink

Complainant: I’m almost positive you did

Accused: I do not wink. End of story, now I’m out of whip cream so where’s yours at?

Complainant: In this store called loblaws…care to make a trip (emoji)

Accused: Kidding me, I’m about to do my essay. But hey, if ya wanna go pick some up and bring me some then blessed

Complainant: Lol and what the hell would I get out of bringing YOU whip cream

Accused: What would like to get out of it. I mean you do get whip cream…

15The accused testified that the text about winking was in reference to and a continuation of the conversation they had earlier that day in class about whether he had winked at her when she licked the whipped cream. The accused explained that it was because she had done this that he sent her the subsequent texts telling her he was out of whipped cream, he had no more, and could he have some of hers.

16The accused testified that on that same date, he had learned that two of his best friends had been in a tragic car accident. One friend had died on impact, and the other was in hospital fighting for his life. The accused was processing what happened. In the text exchanges, the accused told the complainant he needed some drinks. She offered for him to come to her residence, but he had not wanted to leave the house or talk about it too much. They had a further text exchange and she agreed to come over.

17The accused went to retrieve the complainant from the soccer dome between 10:45 and 11 pm, and they walked over to his place. Once at the house, he showed her his bedroom before they made their way to the kitchen and then the living room where they shared some gin and tonics out of a mason jar. He was measuring the gin in a shot glass. She was taking sips from the same mason jar. He could not say for certain they drank equal amounts. It is possible he drank about 60% and she 40%. He denied, however, that he drank any beer because at the time he had just exited the army. He was fairly fitness conscious and was avoiding carbs.

18The accused testified that he and the complainant talked for a few hours in the living room. They were sitting with their legs crossed on the table. He told her about his future plans, his time in the military, his desire to possibly go into acting. She told him about her hometown, plans for school, and why she had selected the college program. He did not want to talk about what had happened with his friends but believes they did likely talk about it. He recalls telling her about a memory of his friend and him at a hockey tournament.

19According to the accused, the complainant brought up the topic of massages during their conversation. He had told her in their text exchanges earlier that he was great at massages and wanting to go to school for that. During their conversation in the living room, he told her he was pretty good at them, and she replied she wanted him to prove it and she would be the judge. They then went to his bedroom so he could give her a massage. He denies there was any discussion about going to his bedroom because it was too noisy for his roommates. On the contrary, the living room was in the area of the house furthest away from the bedrooms. The bedrooms were all down the hall about 10 to 15 feet away from the living room and in close proximity to each other. Noise in the living room would not be an issue.

b. The sexual encounter

i. The complainant’s version of events

20The complainant testified that when they got to the accused’s room which would have been around 2:00 or 2:30 am, she offered to help the accused with an essay which was due the following day, but the accused declined saying he just wanted to lay down and cuddle. She laid on the bed and the accused put on a movie. He put his arm around her. Towards the end of the movie, he sat straddled on her back and started to give her a massage under her clothes. He massaged her shoulders and upper back. She testified she was fine with this as he had talked about massages earlier. When he tried to pull her pants down, she said, “what are you doing?” He replied, “it’s fine” but returned his hands to her back area. He then said it was her turn and laid down on his back. With his assistance, she then got on top of him and was sitting straddling the front part of his body. She proceeded to massage him in the chest. He cupped her face with his hands and pulled her down for a kiss. She acknowledged she was surprised but kissed him back.

21The accused told her he would give her a full body massage. The complainant then asked the accused “do you think we are going to have sex?” to which he replied, “what do you want?” She said she didn’t know yet. In cross-examination, she acknowledged that the exact words she had used were “I don’t know yet, maybe yes, I don’t know.” His reply was “I’ll give you a massage and we will decide then.”

22When defence counsel asked the complainant if at this point sex was a possibility, the complainant replied that she wasn’t sure and that she was “still processing” things. When defence counsel asked if she was still deciding, the complainant stated that she didn’t want to have sexual intercourse with the accused but agreed that this was not what she had communicated with the accused, and that she had indicated to him she did not know yet. She acknowledged that when she asked about sex, she was referring to sexual intercourse.

23According to the complainant, the accused proceeded to massage her again while straddling her back. He eventually pulled down her pants and underwear at which time she asked again, what are you doing, and he said it was fine, it was part of the full body experience. He massaged her butt and then inserted two fingers into her vagina. When asked what her response was, she said she was surprised, but could not remember if she said anything. The complainant acknowledged in cross-examination that she had not mentioned in her statement to Officer Cranton that the accused had penetrated her vagina with his fingers. Her explanation for this omission was that she felt rushed, uncomfortable, and intimidated by Officer Cranton. In Reply, she confirmed that she had referred to digital penetration in another statement to the police.

24Eventually, the complainant ended up again on her back. The accused gave her a quick kiss, and then performed oral sex on her for a few minutes. When asked about her reaction, the complainant testified she was processing what was happening. There were a million questions going through her head, but she did not say anything.

25In cross-examination, counsel asked the complainant if she consented to the oral sex. She replied she did not say anything, and she was “processing” what was happening. When counsel put to the complainant that she had told Officer Cranton in her statement that she was comfortable with the massaging, the kissing, and the oral sex, she agreed she had said this to the officer. When it was put to her that she had told the officer she was consenting to these acts, she replied that is not how she understood the question. Counsel pressed the complainant further and suggested to her that when the officer asked her if she was comfortable with those sexual acts, she had understood the officer was effectively asking her if she was consenting to those acts. The complainant replied the officer was asking “in a way” whether she was consenting but had not asked her outright if she was consenting. There was a further exchange between defence counsel and the complainant. The complainant ultimately agreed that she had not verbalized consent, but that she was agreeable to the acts because they did happen. She acknowledged she did not say no, she was not forced, and that she was a willing participant in those acts because she did it.

26After performing oral sex on her, the accused went onto his back and helped the complainant get on top of him. According to the complainant, he guided her with his hand at the back of his head towards his penis to perform oral sex on him which the complainant did for a few minutes. According to the complainant, nothing was said by either of them. There were a lot of thoughts going through her head, and she was processing what was happening. She acknowledges she did have oral sex. She did not want to have intercourse. She thought it was going to end there.

27The complainant could not recall when the accused took off his pants for her to perform oral sex. She stated her own pants and underwear were down to her legs. After the oral sex, the accused helped her onto her back and opened her legs with his legs. She had her hands up near his chest. He started touching her vaginal area with his penis and she said “no, I don’t want sex, not without a condom.” He replied, “no, it’s fine…you will like it.” She states that she said no, I don’t know you, you could have an STD” at which time he replied, “I swear on my nephew’s head I’m clean.” She had her hands on his chest area and was pushing him. She stated “no” that she didn’t want to but did not finish the sentence. The accused had already put his penis inside her and had vaginal intercourse with her. He did not ask her, and she did not consent.

28The complainant testified that she felt heart broken. She was trying to process what was happening. She was looking up at the ceiling and digging her nails in. She felt disgusted and gross as he was thrusting her. She felt really numb. She does not know how long it went on for, but at one point, she was on her stomach with her right cheek on the pillow. She was hoping it would be done. She then felt a sharp pain up her rectum, and she said “ow.” She said it loud enough and he got off. She knew it was her rectum because she just felt it. She went to the end of the bed and curled up in a fetal position. The accused said he was sorry and that it was an accident. He told her they could do other things to make her feel better. The accused tried to kiss her vaginal area and she pushed his head away. She said she did not want that and told him she wanted to go home. He said something about having a shower and trying again but she told him she wanted to go home. She does not believe he showered and if he had, she would have left.

29According to the complainant, the accused told her to stay the night and stop being ridiculous. He would drive her home in the morning, but she said she wanted to walk home. He told her it was late and that he would walk her home. He told her to get over her independence and that he would walk her home. He walked her to her residence. She lit a cigarette, and he took it out of her hand and said he’ll have some too. He told he respected her for being a girl to say “no” and other comments. Once at the residence, he thanked her for taking his mind off things and making him feel better. He grabbed her by the arm and brought her in for a hug, but she did not hug him back. It was about 4 or 5 am when she arrived at the residence.

30On the issue of consent to the vaginal sex, the complainant testified that the accused had not taken her emotions into account. When asked what she meant by that, she testified that he knew she had said “no” at the start and he did not take her emotions into account when putting his penis into her vagina. She stated that after the STD conversation, he could have stopped, but he didn’t. He wanted sexual intercourse with her. He didn’t listen.

ii. Accused’s version of events

31The accused testified that when he and the complainant got to his bedroom, he put movie on his computer partly to have background noise, so it was not so quiet in the room. They laid on the bed together and talked, but it was fairly quickly after entering the bedroom that he started to massage her. He was straddled on her back. He started massaging her back and shoulders, then underneath her shirt, and was making his way down to her rear end. The complainant was wearing leggings, and he slipped them down just slightly. When he did this, she stated, “What do you think you’re doing” and he replied that her pants are in the way. She said, “okay then.” He proceeded to take off her leggings. She lifted her hips so that he could slip down her pants. He then continued to massage her legs down to her ankles. He understood she was consenting to the pants coming off and continuing the massage.

32According to the accused, it was at this juncture and not later after oral sex, that the parties discussed sexual intercourse. The complainant asked if he thought they were going to have sex. He replied that he would like to, and she said, words to the effect of “well if you want to, then let’s do it.” He understood that by sex she meant sexual intercourse, foreplay, and sexual activity.

33The accused testified that he then pleasured the complainant with his fingers. She then turned onto her back, he took off her underwear, and he performed oral sex on her. He and the complainant then switched positions. He went onto his back, and she went on top of him. She started massaging his shoulders, chest area, abdomen. He then took off his pants, and she performed oral sex on him. He denies that he pushed her head down but acknowledges he would have had his hands on her head playing with her because he was in pleasure in the same way that she had her hands on his head and in his hair while he performed oral sex on her. The complainant had not asked him if she could perform oral sex on him.

34The oral sex on him lasted a few minutes. The accused then helped the complainant up so that she was straddled over his mid-section. According to the accused, she asked him if he had a condom, and he stated “no, but I swear on my nephew’s head I am clean.” He could not recall how she responded precisely to the nephew comment, but she said words to the effect of “oh, okay then.” The complainant was on top of him. She then proceeded to take his penis and assisted him in entering her vagina. They proceed to have sexual intercourse for about 20 to 30 minutes. While it had started with her on top of him, they varied their positions with her on him and him on her. There wasn’t much discussion. It was more him saying “do you want to bend over for me, now.”

35At one point, the complainant was on her knees on the bed with her forearms out. The accused was having vaginal intercourse with her from behind. The accused explained that he came out too far and as he was going back in, he hit a sensitive spot between the complainant’s vagina and rectum. She yelled “ow” and he immediately backed off. He asked her if she was okay. He told her he was sorry, and it was an accident. It had also hurt him.

36The complainant sat up against the wall with her legs out. He laid beside her with his head on her lap and was rubbing her legs. He asked her if she wanted to continue, and she didn’t. He asked her if she wanted to join him in the shower, and she declined. He showered. When he came out, she was dressed. There was a discussion about walking her home which he did.

37When asked about the complainant’s demeanor after she said ow, the accused testified the complainant was uncomfortable and in a little bit of pain, but nothing stood out. She was not angry. Later when he walked her home, he didn’t think she was in anymore pain. It was a 10-minute walk to her residence, and she was walking fine. He didn’t notice anything unusual. They made small talk and were joking around because he had picked up the wrong boots on his way out. They were too big, and his feet were flopping around. Once at her residence, he thanked her for coming over to get his mind off things. He apologized again for what happened. It was awkward and embarrassing for her. He told her he would see her in class. He believes it was the early morning hours, sometime between 4 and 5 am, when he dropped her off. Later when he returned home, he sent her a video of his feet with blisters and a message saying next time I will be wearing my own boots. The message was sent at 4:51 am.

38On the issue of consent, the accused testified that during the massages and oral sex, he relied on her saying okay to taking her leggings down, that she lifted her hips to assist him, and that she participated in both receiving and then giving him a massage. With respect to the digital penetration, he relied on the fact they had a conversation while he was on her back about whether they would have sex and she had indicated “well if you want to, let’s do it” at which time he proceeded to pleasure her vaginally with his fingers and then continued to have oral sex on her. Later she went on top of him, massaged him, and performed oral sex on him.

39With respect to the vaginal sex, the accused explained that once the complainant had effectively said let’s do it, he took it that she was consenting. She was participating voluntarily and taking active pleasure during the sex. She was moaning and seemed pleased. As they moved into various positions of vaginal sex, there were no specific discussions. They went back and forth. She was on top of him and then he was on top of her. When asked if at any point in time he had reason to believe she was not consenting, he replied absolutely not. The accused testified there was no discussion about anal intercourse and that he had no intention of engaging in anal intercourse.

c. The events following, the medical evidence, and the criminal charges

i. The complainant’s version of events

40When she got back to her residence, the complainant testified that she fell down and started crying. Her buttocks hurt and she saw a “little bit of blood” in the toilet or floor. It also hurt to pee. She described the amount of blood as a “light period” and “It was noticeable, but it wasn’t a lot.” She believed it came from her rectum or vagina but was not sure. She felt her vaginal and anal area were throbbing.

41In cross-examination, defence counsel questioned the complainant about her testimony at the preliminary hearing where she had described, in contrast to trial, the amount of blood as filling half a Styrofoam cup. The complainant’s response was that she wasn’t referring to half the cup being filled, but half of the bottom surface area of the cup. As discussed further below, I found this to be a significant inconsistency in her evidence.

42The complainant testified that she took a shower and then called a friend. Her friend messaged the complainant’s brother. Several hours later, around 8 am, she spoke to her brother. She had called him. He told her he was on his way to pick her up at her residence. He arrived less than 30 minutes later. The complainant testified that in the car to her brother’s place, she did not talk much. She described herself as traumatized and sitting silently. She believed her brother had an idea of what had happened. She was feeling low on energy, nauseous, and wanted to go home to her mother. She felt traumatized and heartbroken. Her butt was hurting. They were alone in the car to his house, but later when they went to the hospital, her brother picked up a friend.

43Upon arrival at her brother’s place, her brother gave her a bag of frozen peas and she placed it against her butt area as it was hurting. Her brother asked if she was ready to talk. She was lying down and was tired. She started crying. Her brother called their mother. Her brother then asked her general questions about what happened and typed out her responses on his laptop. She answered as best as she could. She testified that she did not really want to talk about it. This went on for about 30 minutes.

44After the questions, her brother told her they should go to a hospital to get a sexual assault kit administered. The first hospital didn’t have a forensic nurse, so they went to a second hospital and then a third. Once at the Civic Hospital, the complainant was taken to emergency where she met with a nurse. The complainant testified that by this time, she was feeling numb, shocked, nauseous, and achy in her anal area. She described the pain as initially a sharp pain that turned into a throbbing pain and then an ache. It hurt more during the administration of the sexual assault kit.

45After the hospital, the complainant returned to her brother’s place until her mother arrived from Burlington. After speaking to her mother, she decided to report the incident to the police. This was corroborated by the complainant’s brother who stated that there was some discussion as a family about what the complainant should do next. The brother testified that the complainant was apprehensive about bringing the matter forward but made her own choice to go to the police. No one had pressured her. On December 2, 2016, the complainant attended the police detachment and gave an initial statement to the police. She then provided an audio recorded statement in January 2017 to Officer Jennifer Cranton.

46Following the incident, the complainant had limited contact with the accused. He messaged her several times. The first message was sent just after he returned home from dropping her at the at residence. The accused asked her if he could add her on “Snapchat”, a social media platform. He then sent her a short video clip and a message at 4:51 am that he would wear the correct boots next time. The video was in reference to the fact that as they were leaving the house, he had grabbed the wrong pair of boots which were too big, and his feet were flopping around in them, and they had laughed about it on the way home. The accused sent another message to her at 9:46 am saying “hey presi” and provided her an update of the situation of his friend. He told her he was going to the hospital and that he would not be at class and asked her to relay this to the professor. She replied “Sure” and “I hope he’s okay.” At 11:25 am, the accused reported his friend had passed. The accused messaged at 2:51 pm indicating he had spoken to Amanda, their professor. The accused messaged her again on December 3 and 7, 2017, asking if he had missed things at class. She did not reply. He then wrote on December 10, 2016, asking if he had done anything to offend her. He reached out to her again on January 9, 2017, asking how her break had been at which time she informed him she did not want to talk to or see him. The complainant testified she did not want to talk to the accused, and it had been suggested by Officer Cranton that she could message the accused and tell him that which she did.

ii. Evidence of the complainant’s brother

47The complainant is fortunate to have a caring older brother. R.V. testified that he spoke with the complainant’s friend around 8 am and learned something was wrong. He did not know what had happened, but understood his sister needed help. He called his sister, and she asked him to come over which he did. In contrast to his sister’s testimony, he testified there was someone with him when he went to retrieve his sister. Because of the gravity of the message he received, R.V. felt it was important to take his roommate as both a support person and sort of witness to the events. In contrast to his sister’s testimony, he had no recollection of looking for something in the trunk of his car at the time he picked her up or why he would do such a thing.

48R.V. picked up his sister from her residence. His account of her demeanor was strikingly different from what the complainant testified to. He described her as crying and hysterical. She was crying so much she could barely form sentences. She was like this for the whole car ride. He would not have described her as calm or stoic or someone trying to hold their emotions in. He also testified that she lay down in the back seat and could not sit up or put on her seatbelt because something was hurting her. R.V. testified he had to pry out of the complainant what exactly had happened, and she finally stated she had been sexually assaulted.

49When they got to his place, R.V. observed the complainant had difficulty walking up the stairs. He gave her a bag of frozen vegetables to use as an icepack which she placed in her buttocks area. The complainant’s account in the vehicle of what had happened brought back for R.V. his own traumatic experiences. In addition, from his experience working at a bank and being victim of hold ups and dealing with the police, R.V. recognized it was important for the complainant to make a record of events. R.V. had his sister recount what had happened while he took notes, and they prepared a timeline of sorts on his computer. He described his sister’s demeanor at this juncture as hysterical, distraught, traumatic, crying, and fumbling her words. He believes they finished the timeline around 9:45 or 10 am.

50R.V. then encouraged his sister to go to the hospital or a sexual assault crisis center. He testified that she was reluctant but did agree. At the first hospital, there was no forensic nurse and so they were directed to another hospital and then a third hospital where the complainant was eventually able to meet with a nurse and have a rape kit administered at the Civic Hospital. At each hospital where they got rejected, R.V. had to persuade his sister to continue and try another hospital. R.V. described the complainant as highly emotional, crying, but then at other times shell-shocked and not wanting to speak. R.V. remained in the emergency waiting room and several friends came by to provide additional support.

51Even considering that the complainant and R.V. went to two hospitals before arriving at the Civic, neither R.V. nor the complainant could account for the lengthy passage of time between the complainant completing her timeline with her brother at 10 am and her admission in emergency around 5:13 pm, a period of over seven hours. R.V. testified that it was only his sister and himself who travelled in the car to the various hospitals and that his friends arrived later by bus at the Ottawa Civic. He also testified that he had taken it up upon himself to call their mother who indicated she would drive down to Ottawa from Burlington after work. He said his sister was not surprised by the call and had wanted her mother.

iii. Evidence of Nurse Bilodeau

52Nurse Bilodeau is the Sexual Assault Coordinator at the Ottawa Hospital, Civic Campus. She was designated a sexual assault examiner in 2013 and has administered over 50 sexual assault kits on patients. She testified that the complainant had presented herself at emergency triage around 5:13 pm and she met with her later around 5:45 pm on December 1, 2016. Her only recollection of her meeting with the complainant is based on either her nurse’s notes or on a Physical Examination Form (“Form”) dated December 1, 2016, filled out while administering a sexual assault kit. According to the Form, she did not observe or note any visible injuries on the complainant. Dr. McCormick, the attending emergency physician, had made a notation on the Form that the complainant and had some arythema, meaning redness, in the cervix area but did not record any other trauma or injury to the body from the examination. While there was a notation of “tender” on the form, this notation was the result of the patient’s own reporting and not something the nurse or the doctor observed.

53The Crown stated to Nurse Bilodeau that they anticipated hearing the complainant testify to having blood from the anal or rectum area. Nurse Bilodeau explained that it is possible to have microtears in the anal area that are not visible. To see them, one would require an anal scope. An anal scope is painful, and therefore, only administered if a patient has any form of bleeding from the area. This was not the case here as there was no visible bleeding on the complainant.

iv. The accused’s version of events

54Although the incident was reported to the police as early as December 2, 2016, the accused was not charged with sexual assault until almost a year later in November 2017. On the day following the events with the complainant, the accused received a call from his own family that his close friend had passed away. He did not go to class that day. He drove home to Cornwall, Ontario, immediately and remained there until the new year.

55Later, the accused messaged the complainant a few times, but received minimal responses. Initially, he asked her if he had missed anything in one of the classes. This was also partly because she was a co-president and one of the people you could contact if you missed anything or needed help. On January 9, 2017, he reached out again asking her how her break was. She replied that she didn’t want to talk to him. It came as quite a shock. He did not know why, but he respected it. He told her he didn’t mean to hurt or offend her in any way. Prior to getting that response from her, he did not think she was even upset with him.

56In late January/February 2017, the accused was called into the Dean’s office at Algonquin College in. The Dean told him to stop communicating with the complainant since she had alleged verbal or cyber harassment against him because he had sent messages to her even when she did not reply. He was informed that he could not be enrolled in any classes with her. He was not provided any further information about the allegation nor was he informed that he was being criminally investigated by the police for sexual assault. No explanation was provided at trial as to why it took the police one year to lay charges against the accused for sexual assault.

Analysis

a. Applicable General Legal Principles

57The test in a criminal trial is not which side, Crown or defence, I believe more but whether the Crown has proven the offences beyond a reasonable doubt.

58The accused is presumed to be innocent unless and until the Crown has proven the offence(s) charged beyond a reasonable doubt.

59In this case, the accused is charged with one count of sexual assault. The requisite elements of the offence of sexual assault are as follows:

a. Touching which is met by the direct or indirect application of force on another person;

b. Touching is of a sexual nature;

c. The absence of consent;

d. Intention to touch; and

e. Knowledge, recklessness or blindness about the lack of consent.

60It is not disputed that the parties engaged in sexual touching on the night in question, that it was intentional, and that this sexual touching took various forms: kissing, massages, oral sex, and vaginal sex.

61The complainant alleges that the accused also engaged in anal sex with her whereas the accused testified that he made limited contact with the complainant’s perineum or anal area while the parties were engaged in consensual vaginal sex.

62The Crown concedes that some of the sexual activity consisting of kissing, massages and oral sex was consensual. The only legal issue in dispute is whether the complainant consented to the vaginal sexual intercourse and the sexual activity that followed. In short, the primary legal issue in this case is whether the Crown has proven beyond a reasonable doubt the absence of consent or knowledge, recklessness or blindness on the part of the accused about the lack of consent in relation to the vaginal sexual intercourse and sexual touching thereafter.

63Consent must be present at the time the sexual activity takes place: s. 273.1(1.1) Code.

[64] Consent must be given for each and every act engaged in: R v JA, 2011 SCC 29 at para 34; s. 273.1(1) Criminal Code. Agreement to one form of penetration is not agreement to any or all forms of penetration and agreement to sexual touching on one part of the part of the body is not agreement to all sexual touching: R v Hutchinson, 2014 SCC 19 at para 54; R v Barton, 2017 ABCA 216 at para 183.

65Consent may be established by words and gestures. In assessing consent, the trier of fact is entitled to consider the complainant’s direct evidence as to her state of mind at the time as well as other evidence, including the complainant’s words or actions, before and during the alleged sexual assault. However, consent cannot be implied as the accused’s perception of the complainant’s state of mind is irrelevant: As stated in R v Ewanchuk 1999 711 (SCC), [1999], 1 SCR 330 at para 29.

While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.

66In assessing the issue of consent, I must consider the credibility and reliability of the witness evidence against the totality of the evidence and in accordance with the legal framework set out in R v W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. The principles from W.D. as reformulated in J.H.S. 2008 SCC 30 (S.C.C.) are as follows:

i. If you believe the evidence of the accused, obviously you must acquit.

ii. If after careful consideration, you are unable to decide who to believe, you must acquit.

iii. If you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

iv. Even if you are not left with a doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable of the guilt of the accused.

67The law is clear that I cannot decide the case by determining which conflicting version of events is preferred. I must consider the evidence of the complainant and the accused in the context of the whole of the evidence.

68The sequence of steps in the W(D) instruction suggests that the accused’s evidence be considered first, and it is not uncommon that trial judges follow this structure in their reasons. However, appellate authorities have found it is not an error for a judge to analyze the complainant’s evidence first which is what I have done in this case in my credibility assessments below: R v Carrière, 2001 8609 (ON CA), [2001] OJ No 4157 (C.A.) at paras 47-50; R. v Vuradin, 2013 SCC 38 at para 21.

b. The complainant’s credibility and reliability

69The complainant is a young woman in her mid-20s, intelligent and articulate. The complainant’s testimony before me was the sixth time she was retelling the events and the third time testifying under oath and subject to cross-examination. In this case, the complainant prepared a timeline with her brother immediately following the encounter, provided two statements to the police on December 2, 2016, and again on January 5, 2017, testified at a preliminary hearing in July 2018, and testified again at the original trial in May 2019.

70In reviewing the complainant’s evidence, I have been mindful of the complainant’s youthful age at the time of the events, the emotional impact on her of both the sexual encounter and these ongoing legal proceedings, as well as the challenge of having to recount details of such an intimate encounter after the passage of five years. Even so, I find the complainant’s testimony is neither credible nor reliable for the following reasons.

71First, the complainant’s evidence at trial on the injuries she suffered is inconsistent with her previous testimony. During this trial, the complainant stated in-chief that upon arriving home, her butt was hurting. She tried to pee, but it hurt a lot and she saw a little blood on the toilet or floor. She then proceeded to take a shower. In cross-examination, defence counsel confirmed with the complainant that this was her evidence at trial, i.e. that she had seen a small amount of blood similar to a light period either on the floor or toilet. The complainant confirmed it was.

72Defence counsel then questioned the complainant about her evidence at the preliminary hearing where she was asked whether she had suffered any bruises or scratches or injuries as a result of the incident to which the complainant had replied that she had adhesions up her rectum and that when she got home, she was bleeding on the bathroom floor from her anus. She also stated that she had some bruising near there, but nowhere else. The complainant was then asked at the preliminary hearing how much blood she had observed, and she replied “I would say for the white Styrofoam cup that you guys have in that courtroom that I would fill it up a little less than halfway. So less than half of the cup, there’s about that much on the floor” and that she cleaned it up with some tissue and flushed it down the toilet.

73When defence counsel asked the complainant how it was that she had previously stated at the preliminary hearing there was half a cup of blood and was now saying a little bit of blood, the complainant replied that when she was referring to half a cup, she did not mean half the volume of liquid within a cup, but rather half the surface area of the bottom of a cup. Defence counsel then provided the complainant another opportunity to clarify her response and asked her again if she was suggesting that she had been previously referring to the bottom of the cup and the complainant replied yes. Defence counsel confirmed with the complainant again if this was her response even though she had had been referring in her preliminary hearing answer to “fill” the cup. The complainant maintained her response stating, “But I meant you have to fill the bottom of the cup first before you can go up.” When defence counsel suggested to her that what she clearly meant was the cup was half full, the complainant replied, “I am telling you what I meant by it.”

74I do not find the complainant’s explanation for the discrepancy in her answer as to the amount of blood witnessed as between this trial and her preliminary hearing testimony to be credible. There is nothing to suggest that the complainant misunderstood the question at the preliminary hearing or that the question was vague or confusing. Moreover, in her response to the amount of blood she had observed, the complainant herself referred to a measurement that was based on filling a cup. There had been nothing in her preliminary hearing responses to suggest she was referring to the bottom surface area of the cup. I find the complainant’s explanation of the discrepancy in her evidence between trial and the preliminary hearing to be a significant inconsistency that undermines her credibility as a witness.

75It is important to note that the medical evidence does not further assist in the matter. The complainant testified that she had a throbbing pain in the rectum and a little bit of blood from that area. However, the medical records and testimony of nurse Bilodeau disclose that no injuries were observed to the anal or rectum area of the complainant. In fact, Nurse Bilodeau’s notation on the Physical Examination Form beside the words anus and rectum was “normal.” Nurse Bilodeau testified that while there might be microtears in the anal area that are only be visible with an anal scope, they would not do such an examination unless first satisfied there was blood or visible injury to the anal area. If the complainant did have concerns about any amount of blood protruding from her rectum, she does not appear to have disclosed it to the medical team.

76Second, the complainant’s description at trial of her other injuries was inconsistent with her preliminary hearing testimony in respects other than just the quantity of blood. At the preliminary hearing, the complainant testified that she had suffered adhesions up the rectum and bruising whereas at trial, she only referred to feeling pain. When asked about the discrepancy in her responses, the complainant explained that she gave those responses at the preliminary hearing because that is what she believed to be true at the time. When it was suggested to her that she was now minimizing her injuries because she feared she had not been previously believed by the trial judge about the extent of her injuries, the complainant stated she was telling the truth and had not changed her evidence. When asked then why she had not referred to adhesions or bruising in her testimony at this trial when asked by the Crown what injuries she received, she stated she was not specifically asked about it.

77The complainant acknowledged she had never seen the medical report and was not aware that no medical injuries had been found. The complainant believes she heard the doctor or nurse use the words “adhesion” or “bruising” at the medical visit and that is why she referred to it. I find, however, that notwithstanding her youthful age and the trauma from the incident, the complainant was intelligent enough to understand that when she was being asked by any authorities – at the hospital, police interview, preliminary hearing, or trial - about her injuries, she was being asked about what she knew, observed, or experienced. If her understanding of her own injuries was premised on the information she overheard during her medical visit, it is difficult to understand why she would not have explained that to anyone until this trial 5 ½ years later.

78Third, the complainant’s testimony of the accused’s level of intoxication on the night in question was inconsistent with her previous testimony. The complainant testified in-examination in-chief that it was her opinion that the accused’s level of intoxication was a “7 out of 10.” When asked how she came about this opinion, she stated that the accused’s eyes were glazed over. On cross-examination, it was put to her that she was asked by defence counsel at the initial trial whether the accused exhibited any signs of intoxication, and she was unable to identify any. Her only reason at the original trial for why she scored the accused at a 7 out of 10 was because she found him less inebriated then when she had seen him at the birthday party the weekend before. The complainant agreed that this was the first time she mentioned the accused having glazed eyes. She could not provide an explanation for why she now remembered this detail 5 ½ years later.

79Fourth, the complainant’s account of her response to the sexual intercourse was also inconsistent with her statement to the police and her preliminary hearing testimony. The complainant testified that after the vaginal intercourse started, she lay still on her back and was not moving except for digging her nails into the accused’s arms. When counsel suggested that she was laying paralyzed, she argued with counsel’s use of the word “paralyzed”. When defence counsel then took her to the portions of her police statement where she had described herself as “paralyzed”, the complainant agreed she did use the word, but she thought she was being asked about her written statement and not her video statement. Counsel then confronted the complainant with her testimony from the preliminary hearing where she testified that she had been struggling during the vaginal intercourse, had attempted to kick the accused, was shoving and scratching and saying no, and only had her arms to fight. When counsel suggested to the complainant that she could not have been struggling and paralyzed at the same time, the complainant could not reconcile the difference. She disagreed she had been untruthful at the preliminary hearing.

80Fifth, the complainant’s testimony was inconsistent with certain aspects of her brother’s testimony. For example, the complainant described herself as being stoic in the car with her brother and not saying too much on the ride to his place. Her brother, on the other hand, described her demeanor as hysterical and in state unlike he had ever witnessed. The complainant stated that she called her brother to pick her up whereas he said he called her. The complainant testified that before she got into the car, her brother was looking for something in the trunk whereas he stated he pulled right up to the residence, and she got into the car. Finally, the complainant testified that she wasn’t certain if someone else was with them when travelling to the brother’s house, but maybe the brother’s roommate. She recalled in cross-examination that they picked a friend up on the way to the hospital. Her brother, on the other hand, testified, that he had taken his roommate with him when he went to pick up his sister but that it was only him and the complainant when they went to the hospitals.

81It is well recognized that inconsistencies with respect to peripheral details may be given less weight and are not necessarily determinative of a person’s credibility and reliability. As stated in R v Preston, 2017 ONSC 7034 at para 72:

Appellate authority has drawn a distinction between material inconsistency and inconsistency with respect to peripheral detail. No memory is perfect, and every repetition of the description of an event to various audiences will see changes: in points of focus, with respect to details, and in emphasis. This is especially true in contexts where questions are being asked of the narrator concerning hitherto unnoticed or incidental aspects of the account. Such an exploration can become oppressive, and mentally exhausting, where a witness is challenged to recall and explain inconsistencies among multiple statements given on multiple occasions.”

82I find that while the discrepancies in the evidence between the complainant and her brother may on their own constitute minor inconsistencies in relation to peripheral matters, when considered cumulatively and in conjunction with the other inconsistencies in the complainant’s evidence at trial, they undermine the reliability of the complainant’s evidence with respect to her recollection of the events of that night.

83Finally, there were also instances where the complainant was unwilling to concede non-contentious matters. For example, the complainant acknowledged in chief that she and the accused had given each other massages. When defence counsel put to her that the accused offered her a massage and she agreed, the complainant stated, “he told me he was going to give me a massage.” When defence counsel suggested that she had told the police that he asked her to massage him and she said “yes”, she acknowledged that is what it said in the statement. When asked if that’s what happened, the complainant testified I can’t remember if I said okay, but the statement was taken closest to the day of the occurrence. When defence counsel pointed out that the complainant also told the officer she was comfortable with massaging the accused, she acknowledged she had said this. When counsel stated up to this point there was cuddling and mutual massaging, she agreed.

84Following the questioning about the massages, defence counsel suggested to the complainant that during the massages she was free to get up and leave to which the complainant replied that she didn’t feel comfortable just leaving and that she didn’t remember wanting to get up and leave. When counsel suggested that she was prepared to “go with the flow”, the complainant replied she did not like that choice of words and that she was simply agreeing to what they were doing, i.e. the massaging. Counsel then pointed out to the complainant that the words “go with the flow” were her own words she used in her statement to the police, the complainant replied that is what she said when she was 21 and this is how she feels now.

85It is important to emphasize that the complainant’s decision to leave or not leave is not determinative to the issue of consent. What is relevant about this exchange is the complainant’s reluctance to acknowledge what she had previously stated to the police, i.e. that she had agreed to the massages, and moreover, that she had herself had used the same words “go with the flow” in describing the situation. Her responses to this line of questioning are relevant only to the assessment of her credibility and reliability as a witness.

86A further example of reluctance to concede or explain peripheral discrepancies in her evidence, was the testimony about what transpired at the house upon her arrival. The complainant testified in-chief that upon arriving at the house, she went directly to the kitchen where she met one of the accused’s roommates. On cross-examination, counsel suggested, and the complainant agreed, that she first went to the accused’s bedroom where she spoke to a roommate. When defence counsel asked for how long, the complainant said she could no longer recall. When counsel suggested that she told the police she had spoken to the roommate for five minutes, the complainant stated that she longer remembers how long. The complainant then reverted to her evidence in chief stating she only now remembers meeting one roommate in the kitchen and another later that night in the living room.

87Another example of the complainant’s refusal to concede a non-contentious issue was in relation to the presence of a pillow. The complainant testified that at the time of the anal penetration, she was face down on the bed and her face was in the pillow whereas in her statement to the police, she had not referenced any kind of pillow. When asked about the discrepancy in her evidence by defence counsel, the complainant explained that a pillow and mattress are one and the same because they have soft surfaces. While the inconsistency with respect to the presence of a pillow is a minor inconsistency of little import, what is of concern is rather than conceding the inconsistency, the complainant provided responses that were evasive. When such responses are examined cumulatively, they have the effect of undermining her reliability as a witness.

88Finally, I found that the complainant’s account of events was inconsistent with some of the text messages exchanged and furthermore, when confronted with these messages, the complainant was either evasive or appeared to have limited recall of the events surrounding the messages. For example, the complainant was confronted with a text message exchanged wherein she stated to the accused “and you said it yourself…not looking for anything but Netflix and chill.” Counsel suggested to the complainant that by stating “and you said it yourself” it would imply that she and the accused had an earlier conversation about the same subject. The complainant agreed it would suggest that but that she could no longer remember the conversation.

89For all these reasons, I find there are issues with respect to the complainant’s credibility and reliability in this case.

c. Accused’s credibility and reliability

90The accused was charged approximately a year after the sexual encounter. Unlike the complainant, the accused did not have the opportunity to reconstruct the events of the night immediately after the incident. Nonetheless, the accused testified that he has a very clear recollection of that time period. Two of his good buddies had died at the time. He recalls the phone call from his mother informing him. He testified that he has been dealing with and going over the call regarding his friends continuously since it happened. It is a day that he will never forget.

91The accused was subject to a rigorous cross-examination by the Crown. He was asked, sometimes in rapid-fire succession, questions about every aspect of the events before, during, and after the sexual encounter. At all times he maintained his composure. He was never argumentative with the Crown. He fairly conceded things he could not remember.

92I find the accused provided an account of the events both preceding and during the sexual encounter that was consistent, in large part, with the complainant’s own testimony, the text messages, and the medical evidence filed. His testimony was also internally consistent as between examination in chief and cross-examination.

93The accused’s account of the events and conversations prior to the sexual encounter was plausible and consistent with the text messages and lends reliability to his evidence. For example, it is of no import who licked whose fingers at the birthday party prior to the sexual encounter. However, the accused’s explanation that it was the complainant who licked the whipped cream from his fingers is consistent with the text messages where he teases her about how he is out of whipped cream and that she should be going to the store to get him some whipped cream. Similarly, the accused was able to explain that the reason why the text exchange on the night in question started with him stating “I did not wink” was because the complainant had told him in class earlier that day that he had winked at her when she licked the whipped cream.

94Similarly, the accused’s testimony that the topic of massages did not arise as an off-the cuff comment by him while they were walking to the bedroom was consistent with the earlier text messages and the events that followed in the bedroom. The accused testified, and the texts show, that he had told the complainant in the earlier text messages that he was great at massages. It was this that prompted her to ask about massages while they were in the living room. It also explains why, on his version of events, the accused and complainant proceeded rather quickly to engage in mutual massages once in the bedroom and while the movie was on.

95Furthermore, the accused’s explanation that the reason he and the complainant left the living room was to go engage in the massages and not because of noise is consistent with the layout of the house. The accused explained that the bedrooms are further down the hall from the living room and noise would not be an issue. This is corroborated by the picture of the long hallway and bedrooms on either side that was filed as an exhibit.

96The accused’s explanation of what transpired in the bedroom, including the sequence of sexual activity, is also temporally consistent. Both the complainant and accused testified they went to bedroom at 2 or 2:30 am. The accused sent a text to the complainant at 4:51 am after he dropped her off and returned home. This suggests that the accused and the complainant were likely in the bedroom for at least two hours. The accused account of events which was that they engaged in mutual massages, oral sex, and then, 20-30 minutes of consensual vaginal intercourse in different positions, is consistent with the overall time frame.

97The accused’s explanation that the sexual activity ended with him trying to enter the complainant vaginally from behind and that he hit her perineum is consistent with the complainant experiencing pain. It is also consistent with the medical evidence filed which showed no visible injury to the complainant’s anal area.

98The Crown argues that the level of pain experienced by the complainant was inconsistent with the accused’s explanation that he hit the complainant’s perineum and more consistent with the complainant’s testimony that he penetrated her rectum. However, it is unclear to me on what basis I am entitled to draw such an inference. Nurse Bilodeau testified that in her experience as a medical nurse striking the perineum with an erect penis would be painful for both the complainant and the accused. The accused testified the act also pained him, although his pain was for a short period. While Nurse Bilodeau testified she had never had a victim complain of pain in her perineum, this does not mean such contact does not occur.

99In addition, both the accused and the complainant testified that upon the complainant saying “ow”, the accused immediately stopped the sexual activity and apologized. I find that this is consistent with the accused’s evidence that the striking of the perineum was accidental.

100The accused was cross-examined on his testimony at the initial trial. Crown identified three material inconsistencies in the accused’s evidence.

101First, the accused testified in chief that during the vaginal intercourse he and the complainant were switching positions and that before shifting positions, he was saying things like, “do you want to get on your back” or “do you want to bend over.” In cross-examination Crown counsel put to the accused that he had not referred to these inquiries with the complainant in his previous testimony. The accused agreed. He explained that he has thought about the incident since the trial, that he was younger at the time, naive to the legal process, and that it was the first time on the stand. Consequently, he recognized he may have left things out and now going over events in his head, this is what he remembers. The accused denied that he was providing a description to make things look more consensual.

102I agree with Crown counsel that this omission in his description of the vaginal sex is not trivial. However, I find the accused’s explanation was clear and plausible. Furthermore, I find that aside from this issue of the inquiries, the accused’s account of the vaginal intercourse was otherwise consistent. The accused was clear at the original trial and before me that the vaginal intercourse lasted 20 to 30 minutes, that the parties switched up positions during it, and that the sexual activity came to an end when the accused struck the complainant in the perineum.

103Second, the Crown argues that the accused failed to mention at the original trial that he had digitally penetrated the complainant. The accused does not deny this omission at the initial trial. While it is an omission, I note that that it is consistent with the complainant’s own evidence that there was digital penetration during the sexual activity.

104Third, the Crown argues that during his first trial, the accused only referred to having a conversation with the complainant about a condom in cross-examination and that this undermines his credibility. It is important to note that during this trial, the accused testified that there had been a conversation about a condom prior to engaging in sexual intercourse. Hence, the accused’s evidence before me is neither new nor inconsistent with his evidence in the earlier trial because the accused had testified to the same conversation at the original trial, albeit in cross-examination. The accused also explained that he had not addressed the condom conversation in chief at trial because he was directly answering the questions his lawyer asked and not elaborating on his answers. When more detailed questions were put to him in cross-examination, he provided more elaborate answers. I find that while there may have been a discrepancy between the accused’s evidence in chief and cross at the original trial, he provided a plausible explanation for it at the time which he maintains. His evidence at this trial, 3 years later, is not inconsistent with his earlier testimony. For this reason, I do not accord much weight to the Crown’s argument that this discrepancy at the original trial undermines his credibility and reliability.

105In summary, I find the inconsistencies identified in the accused evidence were of little consequence. They do not undermine his credibility or reliability such that I should reject his evidence.

106Finally, the Crown argues that the accused engaged in a series of escalating steps through the course of the night with a view to sexually assaulting the complainant starting with suggestive or sexual text messages. The Crown refers to a text message where the accused states “Dripping before you even get here. Damn I’m good” and a tongue emoji followed by “Sorry lol inappropriate lol.” The accused testified he sent this message in response to the complainant’s text “…I’m also currently still dripping from the shower so I might be a bit” followed by an emoji.

107One could spend an inordinate amount of time trying to determine whether the text messages exchanged on the part of both the accused and the complainant could be characterized as flirty or suggestive. Ultimately, however, I find the messages are too remote from the events that occurred in the home and have little bearing on the sexual encounter that took place later that night and in particular, on the key issue of consent.

108For all these reasons, I find that upon examination of the evidence as a whole, the accused’s testimony was credible and reliable, and I believe the accused. Based on his version of events, I find that the complainant communicated by words and gestures consent to kissing, mutual massages, and mutual oral sex. I accept the accused’s evidence that prior to engaging in sexual intercourse, the complainant did ask him if he had a condom. When he replied no, but that he was clean, I find the complainant did indicate it was okay to proceed. I accept the accused’s evidence that she communicated consent not only by her words, but by her gestures which included taking hold of his penis and assisting him in entering her as well as in her participation in the various forms of vaginal intercourse. I find that the accused did not intend to have anal sex with the complainant and that he accidentally struck her perineum while engaging in vaginal intercourse from behind. I find the Crown has not proven the absence of consent beyond a reasonable doubt.

Conclusion

109In summary, based on the test established in R. v. W(D), I believe the accused. Even if I had rejected the evidence of the accused, I have concerns with the credibility and reliability of the complainant’s evidence as explained above. A finding of guilt beyond a reasonable doubt would not be possible in view of these concerns.

110I find the accused not guilty of sexual assault .

N. Somji

Released: August 2, 2022

COURT FILE NO.: 17-5129

DATE: 2022/08/02

ONTARIO

SUPERIOR COURT OF JUSTICE