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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.

1The accused Mahmood Ahmad and Salam Fadhil both stand charged with one count of sexual assault on the complainant O.T. in relation to events which took place at her residence on September 16, 2018. The onus is on the Crown to prove beyond a reasonable doubt the essential elements of the offence of sexual assault which are one, that the accused and the complainant engaged in sexual acts, and two, that the complainant did not consent to the sexual acts.

2The complainant alleges that the accused engaged in oral, vaginal, and anal intercourse with her and without her consent. The accused both testified. They do not dispute that they attended the complainant’s residence and engaged in sexual activity with her on September 16, 2018. However, they testified that the events did not unfold as the complainant describes and that all the sexual activity that took place was consensual.

3The primary issue in this case is whether the Crown has proven beyond a reasonable doubt that the complainant did not consent to the sexual activity.

4All legislative references are to the Criminal Code unless otherwise stated.

Brief factual background

5The complainant is 31 years of age. She is Indigenous. She lives with her son in a two-bedroom townhouse. She is a hairdresser by profession and currently works as a barber. The complainant met Mr. Fadhil on a dating website called Badoo in June 2018 where he went by the name Humam. They had previously met on two occasions. They were not strangers. On the other hand, the complainant did not know the accused’s real name. On September 15, 2018, she messaged Mr. Fadhil and the two started an exchange about getting together. Mr. Fadhil raised the possibility of a threesome. Details about the exchange and what each of them understood from the messages are discussed further below. Ultimately, the complainant and Mr. Fadhil agreed to get together at her residence on September 16, 2018, after work and when her 7-year old son had gone to sleep.

6Mr. Fadhil contacted the co-accused Mr. Ahmad to see if he would like to partake in a threesome. Mr. Ahmad was initially reluctant but agreed. The two men went to the complainant’s residence. However, prior to their arrival, the complainant had sent a message to Mr. Fadhil cancelling the get together which he did not appear to get until his arrival at the house. Consequently, he went to inquire further with the complainant while Mr. Ahmad stayed in the car. At the door, the complainant and Mr. Fadhil engaged in a long and passionate kiss. The kiss was consensual. The complainant acknowledged that while she had sent a message cancelling, she was open to having sexual activity with Mr. Fadhil after the kiss.

7It is at this juncture that the evidence of the witnesses deviates dramatically. Mr. Fadhil returned to the car to retrieve condoms and Mr. Ahmad. The complainant testified that she did not know Mr. Ahmad was in the car and that he was to join them. She testified that she resisted the entrance of the men into her home and repeatedly told them she did not want a threesome. She testified Mr. Fadhil picked her up and carried her to the couch. The men ripped her clothes off and both men proceeded to have non-consensual sex with her. According to the complainant, the entire incident lasted about 40 minutes. She believes the two men arrived around 9:05 pm and left the house by 9:45 pm.

8The accused describe the events differently. Mr. Fadhil returned to the car, retrieved the condoms, and told Mr. Ahmad to come with him. Both men testified that when they went to the door, it was partly open. The complainant was standing behind the door and invited them in. Introductions were made and then the three proceeded into the living room and onto the couch. There was a further conversation about sex on the couch, but Mr. Ahmad was candid that he could not remember what precisely was said. Both men testified that the complainant undressed herself, and they proceeded to have consensual sex with the complainant sometimes individually and sometimes together. Both men testified that the complainant initiated the sexual activity, played an active role in the sexual acts, appeared to enjoy the activity, and did not at any point tell them to leave, say no, or indicate she did not want to partake. The evidence of each of the witnesses on how and what sexual acts took place is discussed further below.

9The complainant testified she attended a medical clinic three days later. Defence called the attending medical physician. Dr. Kayode Adeleye testified the complainant came to see him on September 19, 2018. The complainant reported that she had been sexually assaulted by two guys. The complainant also reported she did not shout because her son was sleeping. The complainant reported she was not sure if the two men had used condoms. The complainant was asked in cross-examination why she reported she was unsure when she has acknowledged condoms were used. She replied she said unsure because the condoms were on and then came off during the sexual activity, and she did not know how to categorize that when explaining it to the doctor.

10The complainant acknowledged she was angry after the doctor’s visit because she had wanted a certain course of treatment and to have a sexual assault evidence kit administered. The doctor had told her to report the incident and to go to the Civic hospital. He had told her to come back in two weeks. She acknowledged in cross-examination that this was the main driving force to report the incident to the police

11The complainant reported the incident to the police on September 19, 2018. She initially spoke to Cst. Brazeau and provided a three page handwritten statement about what transpired. On that same day, Det. Ryan Smith attended the complainant’s residence and took photos of her home. The complainant retrieved the tank top and bike shorts she was wearing at the time of the alleged assault and placed them in a plastic bag. She did not include her bra. She also retrieved two condoms which she had initially put in the garbage and placed these in a Ziplock bag. Photographs of the items were taken and were filed as exhibits at trial. The items were seized, but not further analyzed.

12The complainant was taken on the same day to the Ottawa Hospital Civic Campus for a sexual assault evidence kit. Defence called Sarah Gregoire, a nurse of 10 years at the time, who administered the kit. In the course of taking various bodily samples from the complainant for forensic examination, the nurse questioned the complainant about what had transpired. Nurse Gregoire asked if the complainant had been penetrated in her anus by a penis and the complainant had said “yes” and she had marked “yes” on the form. Nurse Gregoire asked the complainant if she had been penetrated in the anus by a finger and based on the reply she received, she wrote “U/K” meaning “unknown”. She testified that she would have written unknown because the patient was unsure if the assailant had penetrated her anus with a finger.

13The complainant attended the police detachment and provided a further detailed audio-recorded statement on October 11, 2018, to Det. Dompierre, the lead investigator on the file. Based on Humam’s Badoo profile and telephone number, Det. Dompierre identified him as the accused Salam Fadhil. On November 27, 2018, the complainant identified Mr. Fadhil in a photo line-up as Humam and one of the two persons who had sexually assaulted her.

14Det. Dompierre contacted Mr. Fadhil. He told Mr. Fadhil he had reasonable and probable grounds to believe Mr. Fadhil had committed a sexual assault and asked him to turn himself in the following day which he did. On December 7, 2017, the police took an audio-recorded statement which I ruled was voluntary, 10(b) Charter compliant, and admissible.

15During the interview, Mr. Fadhil identified the second male that was present at the house as Mahmood Ahmad, commonly referred to as Moodie. Det. Dompierre contacted Mr. Ahmad at his place of work on a Friday and asked him to turn himself in on Monday which he did. Det. Dompierre took an audio-recorded statement from him Mr. Ahmad on December 10, 2018, which I ruled was voluntary and admissible. Details about the taking of each of these statements, including challenges each accused had with language comprehension, are set out in my rulings: R. v Ahmad, 2021 ONSC 1559 and R v Ahmad, 2021 ONSC 1564

Analysis

Issue 1: Has the Crown proven beyond a reasonable doubt that the sexual activity occurred?

16The fact that sexual activity took place is not in dispute. Mr. Fadhil testified that he engaged in vaginal and anal sex with O.T. and that she also performed oral sex on him. Mr. Ahmad testified that he engaged in vaginal sex with O.T. and that she performed oral sex on him. Mr. Ahmad denies that he engaged in anal sex and the complainant testified that she did not believe that the co-accused Mr. Ahmad had penetrated her anus.

17Based on the evidence from each of the witnesses, I find that sexual activity did take place at the complainant’s residence on September 16, 2018.

18The primary issue is whether the Crown has proven beyond a reasonable doubt that the complainant did not consent to the sexual activity in question

A. The W.D. test

19Both the accused testified and provided exculpatory evidence in this case. In assessing the issue of consent, I must consider 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.

20The principles from W.D. are as follows:

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

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

iii. Third, 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.

B. The Complainant’s Evidence

i. Testimony

21On September 15, 2018, the complainant messaged Mr. Fadhil on the Badoo App about getting together, and they had an exchange that continued into the next day (“Badoo messages”). The complainant had always communicated with Mr. Fadhil via the Badoo App and did not think he had any difficulty communicating with her in English and in writing. The admissibility of the Badoo messages was subject to Seaboyer, s. 276 and 278.92 applications: R v Ahmad, 2021 ONSC 682. The following portions of the Badoo messages were admitted at trial and both the complainant and Mr. Fadhil were cross-examined on their contents:

September 15, 2018

Complainant: Hey

Humam: Hello

Complainant: Was thinking we should meet up sometime this week?

Humam: You home…

September 16, 2018

Human: I’m free now

Complainant: Maybe tonight?

Humam: Oki

Complainant: :)

What are you up to today?

Humam: Working but night time free

Complainant: Sounds good

Humam: redaction

Complainant: redaction

(photo redacted)

Humam: redaction

redaction

Complainant: redaction

(emoji)

redaction

Humam: Are you alone

Complainant: Not til my son goes to sleep

Humam: Oki good

Do you want do this 3 some

I mean it’s ok if I bring my best friend so we can fuck you good

Complainant: Omg you lol

Humam: You gonna love it

Complainant: Whats your friend look like?

Humam: Little like me

Complainant: Lol

No pic?

Humam: I don’t have pic of him (emoji)

Don’t worry you well like it

Complainant: Idk

Lol

Humam: And we gonna fuck you right (emoji)

I’ll tell him if his not busy

Complainant: Sounds like a party lol

Humam: Haha

Complainant: What time you finish work

Idk about the 3 some hhh I’d definitely need some alcohol and weed to be relaxed hhhh

Humam: I’ll text you around 9

Hey

Complainant Hey

Humam: See you at 9:10

Complainant: I’m still working on getting my son to sleep

Humam: Ok than 9:30 good

Complainant: No 3some right

Humam: I ask him hi’s not sure if coming

Tellnow just me (emoji)

Look you still have condoms right

Complainant: Right

Humam: 2

Complainant: Lol

Humam: Hahaha

Complainant: Remember what brand lol

I will msg when the coast is clear

Humam: Loll you just said you have condoms

Complainant: I have to cancel my friend from mtl is coming so last minute sorry

Humam: I’m here! And ur friend coming now? u don’t have 2h

I could’ve tell ur friend that I have visitor hun

22During the exchange, Mr. Fadhil inquired with the complainant whether she was interested in a threesome. The complainant testified that Mr. Fadhil had mentioned something about bringing a friend. She was curious and asked if Mr. Fadhil if he had a picture of his friend but went on to testify she was never really considering it. She acknowledged in cross-examination that she was suggestive in the messages and did ask questions about the threesome, but that it was Mr. Fadhil, not her, who had proposed it.

23Ultimately, the complainant and Mr. Fadhil agreed that he would come over after work and after the complainant’s son had gone to bed. The Badoo messages include dates, but no time stamps. The complainant acknowledged that the portion of the messages wherein they agreed Mr. Fadhil would come over happened in the afternoon of September 16^th. Mr. Fadhil messaged that he would text her at around 9.

24Mr. Fadhil later messaged the complainant to say “hey” and “see you at 9:10.” Whether it was 9:00 pm at this time which is when he stated he would text her or earlier is unclear. The complainant replies, “I’m still working on getting my son to sleep.” Mr. Fadhil messages, “Okay than 9:30 good.” The complainant replies “no 3some right” and Mr. Fadhil replies that he asked his friend and he was not sure and that “tellnow just me.” There is a further exchange between them about condoms.

25Counsel cross-examined the complainant and suggested that it was only in this latter portion of the exchange that took place around 9:00 pm where the complainant indicates to Mr. Fadhil she is not interested in a threesome. Up until the that time, the complainant had made remarks to Mr. Fadhil in response to his proposal for a threesome such as “Idk about the 3 some hhh I’d definitely need some alcohol and weed to be relaxed hhhh” and had also asked for a picture of the friend. The complainant testified that she was not agreeing to a threesome in these responses. It was just a conversation. When pressed about the ambiguity of these answers, the complainant reiterated in cross-examination “it’s a grey area….I didn’t say yes…I didn’t say no.” She explained that on these dating apps, men ask this question, referring to threesomes, all the time. She didn’t take it seriously. She was clear she never agreed to a threesome.

26The complainant testified that she had a bad feeling in her stomach, a gut feeling, and decided to cancel the plan to meet with Mr. Fadhil. She signed in on Badoo and at 9:05 pm sent a message to Mr. Fadhil stating she had to cancel because she had a friend coming from Montreal. She believed this excuse would ensure Mr. Fadhil would not show up. In cross-examination she was asked how she knew it was 9:05 pm given there were no time stamps on the messages, and she replied because she wanted to give him enough time not to come as he was supposed to come at 9:30 pm. She acknowledged that in her statement to the police she had indicated she could have sent the message earlier at 9:00 pm. She believes there was a 10 to 15 minute delay before Mr. Fadhil attended the door.

27Mr. Fadhil testified that based on the message exchange, he understood the complainant was still up for a threesome. He contacted Mr. Ahmad to see if he wanted to participate. Mr. Ahmad agreed. Mr. Fadhil picked him up from his home and they drove to the complainant’s residence.

28Mr. Fadhil testified he did not get the message from the complainant indicating she wanted to cancel until he had already arrived at the complainant’s residence with Mr. Ahmad. He saw the message and replied, “I am here.” He asked Mr. Ahmad to stay in the car while he went to inquire on the status of things.

29The complainant testified that because the messages were sent through the Badoo App and because she did not have Wi-Fi, she did not always view messages sent online. She turned off her data after messaging Mr. Fadhil. She acknowledged in cross-examination that she did not get Mr. Fadhil’s reply stating he was at the house until several hours later. Consequently, she agreed it was possible that Mr. Fadhil did not receive her message cancelling the visit until he had arrived at the house.

30I accept Mr. Fadhil’s evidence that he did not receive the complainant’s message cancelling the visit until he was already at the house. It is consistent with the complainant’s own evidence regarding the timing and sequence of events, consistent with Mr. Ahmad’s evidence that upon arrival Mr. Fadhil checked his phone and had received a message from O.T. and also consistent with Mr. Fadhil’s evidence that upon reading the message, he told Mr. Ahmad to wait in the car while he went to inquire.

31The complainant was not expecting Mr. Fadhil. She had been cleaning her house when she heard a knock on the door. She looked through the peep hole and saw Mr. Fadhil. She opened the door and scolded him, telling him, “You’re not supposed to be here”. In cross-examination, she acknowledged she scolded him playfully. The complainant testified that Mr. Fadhil came in, placed her up against the wall, and they engaged in a 3-to-5-minute passionate kiss. When asked how she felt about the kissing, she testified it felt very passionate. It was a nice kiss. She had never felt that energy before. She testified that she “thought okay, we can move on.” She acknowledged in cross-examination that at this point she had changed her mind about cancelling the visit and was agreeable to having Mr. Fadhil come over.

32After the kiss, Mr. Fadhil told the complainant that he had to return to his car to get condoms, and she questioned why given that she had condoms in the residence. She pointed to the condoms in the living room and told him there were condoms here. She acknowledged in cross-examination that Mr. Fadhil had complained that the condoms were old. After Mr. Fadhil went back to his car to get condoms, the complainant went upstairs to the bathroom to look in the mirror. She testified she is a person who cares about appearance and she had no make-up on at the time and was still wearing her housecleaning clothes.

33While Mr. Fadhil had not specifically asked the complainant to kiss her, it can reasonably be inferred from the complainant’s testimony that she was agreeable to this activity at the front door, and moreover, was agreeable to moving forward with some level of sexual activity with Mr. Fadhil. She testified that Mr. Fadhil made no mention of his friend waiting in the car. The only discussion she could recall was about condoms. She acknowledged in cross-examination that that it was possible they discussed sexual activity and that she may have told him it had to be quick because she had friends coming.

34The complainant testified that when she returned downstairs, which she estimated was about 60 seconds later, she saw another person with Mr. Fadhil and she said, “no, no, no” and tried to slam the door on the other person. They both entered the home. She said, “this is not supposed to happen.” She testified that she said no “a million times” and “this is not happening.” She said this while standing in the kitchen which is immediately next to her front door. She was trying to lay down her boundaries and say no. The complainant testified that the friend went over to the couch in her living room. He tried to make an introduction and she did not catch his name because this was not supposed to have happened.

35When asked in cross-examination if she raised her voice while in the kitchen, she said she might not have been screaming, but she was not whispering either. She did not know how loud her voice was, but that Mr. Fadhil could hear her as there was not much space in the kitchen. When it was suggested by defence counsel that she told Cst. Brazeau she had yelled out, she replied she did not have any memory of telling him that. When it was suggested to her by defence counsel that she told the doctor that she did not scream, she replied that she did not “recall the conversation with the doctor as he was no help to me.” She denied that she had changed her words to suggest to the police she yelled because the doctor did not believe her. She acknowledged that she had told Det. Dompierre that she had raised her voice.

36The complainant testified that when Mr. Fadhil picked her up, she was in shock. In cross-examination she testified he held her in a bear hug and carried her a distance of 12 feet to the couch. When defence counsel asked whether she was facing him when he carried her, she stated she could not remember.

37The complainant testified her dog, a German Sheppard, was freaking out. It was barking and trying to get out of its crate. Counsel asked further questions about the dog’s responses in cross-examination. The complainant testified she told the dog to be quiet because she did not want to attract the attention of her neighbours and make a spectacle or be perceived as a problem neighbour. She testified the dog’s barking and agitation was not loud enough to wake her son. She testified the barking persisted even while she was on the couch, but she could not recall how many times she told it to be quiet. She disagreed that the dog had only barked once when the men entered. A photo of the living room was filed as an exhibit containing a picture of a full-size German Shepherd in its crate. The crate was in the living room opposite the couch.

38The complainant testified she was held down on the couch. Someone took off her shirt and bike shorts. She was asked if she was wearing any underwear and she replied, “Yeah, I don’t remember that part.” She testified that she was telling them the whole time no, please leave now. She was trying to barter her way out, hoping that they would come to some agreement, but they didn’t listen. She testified that they were saying things like “Relax, it’s going to be fun, it’s going to be nice” while she was saying, “No, please leave, please leave now.”

39The complainant testified that she did not know anything about Mr. Fadhil’s friend. She testified that there was no time for friendly chat. She did not recall him saying anything to her. She testified that they were not welcome there, “so I’m not gonna sit down and talk to somebody.” However, in cross-examination she admitted that she may have said something about Mr. Fadhil’s hair and that the friend may have said something about being a barber.

40The complainant testified that Mr. Fadhil was to her right and Mr. Ahmad was in front putting his hand between her legs, rubbing her clitoris. She did not want to spread her legs for them. She froze and was scared. She testified that someone was shoving their tongue down her throat and that this was not kissing. She believes it was the friend who first put his hand on her mouth and that Mr. Fadhil was holding her down by her shoulders.

41She was cross-examined on her statement where she had stated that Mr. Ahmad was seated to the right of her and Mr. Fadhil was standing in front of her. She acknowledged that both descriptions could not be true, but that her memory is not sharp and “don’t know what else to say”. When counsel suggested that perhaps she could not recall because both had been sitting beside her, she replied she could not remember because it was three years ago.

42She testified that Mr. Ahmad penetrated her vagina first while Mr. Fadhil put his penis in her mouth. She testified they switched, each taking a turn penetrating her vaginally and placing their penis in her mouth. This went on for minutes. She testified that they “raped me” and “it was not consensual.”

43On cross-examination, she was then taken to her police statement, and it was put to her that she had said Mr. Fadhil had vaginal intercourse with her fist and then there was a switch. She replied that she believes she was talking about Mr. Ahmad in that particular sentence. She was taken to another page of the statement where she had said the same thing, and she replied that she was pretty sure that it was Mr. Ahmad who went first even though the transcript does not read that way. When taken to another page in the statement where she had said again that Mr. Fadhil went first, she agreed that both versions could not be true. When asked if she was able to say who had vaginal intercourse first, she replied that she could not remember at this point.

44The complainant testified that at one point, the friend went upstairs. She was on top of the Mr. Fadhil on the couch. She testified that he lost his erection for which she was grateful. She hoped the men would leave soon. She testified, however, that she and Mr. Fadhil continued to kiss on the couch. In cross-examination, defence counsel asked if at this point she was still telling Mr. Fadhil “No, no, no, I don’t want this, can you just leave” and the complainant replied, “I’m playing nice. I want them out. The “no, no, no: does nothing.” When asked what did playing nice look like to her she, the complainant said she was sitting on top of Mr. Fadhil on the couch, that she was kissing him, and that this was something they were doing together.

45The complainant had said in chief that she was not interested in getting to know anything more about Mr. Fadhil. In cross-examination, counsel took the complainant to her statement with Det. Dompierre and asked her if that was the case, why did she tell the police that she asked Mr. Fadhil while straddling him on the couch if he was married or had children. The complainant replied it was because she knew he had committed a crime and thought maybe she could get some information because Mr. Fadhil was obviously not telling her the truth. When asked if this was not an unusual inquiry to make while someone is sexually assaulting you, the complainant replied, “Hey, man, I was grasping at straws.” The complainant had made no mention in-chief that she had a conversation with Mr. Fadhil while Mr. Ahmad was upstairs.

46The complainant also testified in-chief that Mr. Fadhil had given her a fake name. In cross-examination, she testified that she saw the court documents and can put two and two together. Defence counsel asked if in the previous times she had met with Mr. Fadhil whether she asked him his name. She testified I did ask him his real name and he said it was Humam. She did not inquire further as to whether this was his first or last name. She acknowledged that it was not unusual for people on dating apps not to use their full or legal name.

47The complainant testified that after a short while, the friend came back down and exchanged words with Mr. Fadhil, and all she knows is that she was on her hands and knees on the floor. She later testified that Mr. Fadhil had told her to go on all fours. Mr. Fadhil proceeded to have vaginal intercourse with her doggy style and then had anal sex with her. She testified that it was “so painful” and that “no lubrication nothing” had been used. She testified that he “just ripped me.” She testified that this was a very sensitive area of the body and he just jabbed her with an erect penis. She testified that Mr. Fadhil then went back to penetrating her vagina. She did not recall being asked to have anal sex or Mr. Fadhil asking her if he could penetrate her anus with his finger. She does not deny telling the nurse that she was unsure if there had been digital penetration in her anus.

48She testified in cross-examination that when she was on all fours, she was no longer on the couch, but in front of the coffee table in an area between a black dining chair and the couch. She testified in cross-examination that the men had moved the coffee table and that she had returned it in front of the couch by the time the officers had taken the photographs.

49The complainant testified in chief unprompted that she was not sure that the friend, Mr. Ahmad, had done anything to her while she was on all fours. Hence, there is no evidence before me that Mr. Ahmad engaged in anal sex with the complainant. Mr. Ahmad denies ever having anal sex with the complainant. The complainant testified that some point, they asked her to give Mr. Ahmad a “blow job” and she wouldn’t. She testified “I was done. I was just – I couldn’t do this no more. And I just wanted to bite down on his penis.” They were both standing in front of her while she was on her knees and they ejaculated on her face, into her mouth, or something.

50The complainant acknowledged that at some point during the incident, she told the accused to put on a condom. She explained that this was not her giving consent. She just wanted to be safe and that there was “no way I could stop these guys.” She believes Mr. Fadhil used two condoms and that his friend had a condom. She testified the condoms were coming off before the acts were done. She disagreed with counsel that the sexual activity was consensual or that she had agreed to the threesome and then later regretted participating in it.

51She testified that the two men congratulated each other, did high fives, put their clothes back on, and left. She acknowledged the two men were speaking in Arabic which she does not understand, but that she had inferred upon seeing the high fives that they were congratulating each other. They looked pretty proud of themselves. When asked what made her think that, she said …”they were all … they were being big boys. They were smiling.” As they were leaving, she stated to Mr. Fadhil “you will pay for that.”

52The complainant acknowledged she was mad and that she wanted them out of the house. She was not going to leave her son alone with those “creeps”. When asked how she felt, she explained she “felt like a prisoner.” They made this decision. They didn’t give a ‘shit’ about what she thought. She testified she felt ashamed, humiliated, and that “she never thought anyone would not respect her when she said no. We are in Canada we have laws.”

53She testified that after they left, she took a shower because she felt so disgusting. She walked the dog and went to bed.

ii. Credibility and reliability of the complainant’s evidence

54The complainant testified for several days and was rigorously cross-examined by two counsel. I found that the complainant’s version of events of what transpired varied from examination in-chief to cross-examination and also from her original statements to the police. Some of these inconsistences are as follows.

55First, in-chief, she testified that after she and Mr. Fadhil stopped kissing at the door, he had wanted to go get condoms, she told him she had condoms in the house, he replied they were old, and she told him fine, go get the condoms from the car. The conversation was limited to the subject of condoms. On cross-examination, she was asked whether other things could have been discussed. She acknowledged that it was possible that she and Mr. and Fadhil had further conversation about sex, but she could not recall it. She also agreed she could have told him to be quick because friends were coming. She acknowledged this was referenced in her earlier statement to the police, but she had forgotten about it when she testified.

56Second, in her testimony in-chief, the complainant testified that Mr. Fadhil picked her up, took her to the living room, undressed her, and proceeded to have non-consensual sexual activity with her. She emphasized in her testimony in-chief that there was no time for idle chatter, that she did not speak to the co-accused Mr. Ahmad, and that she did not know anything about him. Her description of events suggested a forceful and immediate foray into the sexual activity.

57On cross-examination, she was taken to a portion of her interview with Det. Dompierre where she stated that a comment was made about the friend cutting Mr. Fadhil’s hair. She testified she was unable to explain what she meant in that exchange with the detective. On a later date of her cross-examination, she was pressed about whether there had been a conversation with the accused and she conceded that she may have said something about Mr. Fadhil’s hair and that the friend may have said something about being a barber. She did not elaborate how and when these two pieces of information were elicited. She also agreed that she had not said this before in-chief. Her evidence on cross-examination is consistent with both the accused’s version of events that there had been a conversation on the couch prior to the sexual activity which included a discussion about what Mr. Ahmad did for work which was cut hair.

58Third, she testified that when she was carried over to the couch, the men already had their clothes off. She could not describe what they were wearing or when they took their clothes off. In cross-examination, however, she testified that she believed that Mr. Fadhil had his clothes on when he carried her over to the couch.

59Fourth, the complainant testified in-chief that after Mr. Fadhil carried her to the couch, the men had taken off her clothes which consisted of black shorts, a t-shirt, and a bra. However, in cross-examination, she suggested it was possible that she took her own bra off and hence, participated in undressing herself. This is consistent with the testimony of both the accused that the complainant undressed herself and they did not force her to.

60Fifth, the complainant description of the men’s departure suggested that it was as hasty as their arrival. She testified they both put on their clothes and left immediately after having sex with her following which she went upstairs to have a shower because she felt disgusted. When asked what she was wearing when she showed them to the door, she testified she might have put on something, a tank top, shorts, or maybe a blanket. She identified a blanket that she may have been wearing from amongst the photos.

61In cross-examination, she was taken to her statement to Det. Dompierre who asked her what happened when the sexual assault ended. The complainant told the officer that the accused asked her for a second round, she said look at my phone, my friend is on the way, and get out. When Det. Dompierre queried her about the phone being upstairs, the complainant acknowledged that she had gone upstairs to grab a towel and her phone, but it had only been 30 seconds. There was no reference to a blanket. The complainant acknowledged in cross-examination that contrary to her evidence in chief, she had gone upstairs before the men departed.

62Her evidence in cross-examination is consistent with the testimony of the accused who testified that after the sexual activity was complete, the complainant went upstairs and came down later wearing only a towel and that she had wet hair. They believed she had a shower. Mr. Fadhil asked her if she wanted to have a sex again and she said no which is when they got up to leave.

63Sixth, the complainant testified in-chief that except for telling the accused to put on a condom, she resisted the sexual activity, did not consent to any of the acts, and repeatedly said no. She testified in-chief that when Mr. Ahmad went upstairs, Mr. Fadhil had lost his erection and she was grateful. She hoped the men would leave soon. She testified that she and Mr. Fadhil kissed on the couch.

64However, in cross-examination she described the events somewhat differently. She stated that that when Mr. Ahmad had gone upstairs, she was on top of Mr Fadhil, straddling him, and kissing him and that this was something they were doing together. When pressed by counsel why she would kiss Mr. Fadhil if she was resisting and wanted them to leave, she replied that she was “playing nice” because saying no had not worked.

65She also testified that during this interval, she had a further conversation with Mr. Fadhil and asked him if he was married and had children, another piece of evidence she had not mentioned in-chief. When it was suggested to her that this was an unusual inquiry to have with someone who is sexually assaulting you, she suggested she believed Mr. Fadhil had committed a crime and wanted to collect information about him. It is unclear to me of what value this information would be other than an attempt to embarrass Mr. Fadhil. Furthermore, if it was the complainant’s purpose to gather this personal information about him for an alleged crime, there is no evidence that she ever disclosed it to the police.

66Finally, other pieces of evidence that emerged or that were altered in cross-examination included one, referring for the first time to the coffee table being moved; two, no longer being able to say who had vaginal intercourse with her first; three, agreeing that Mr. Ahmad did not have further sex with her upon returning downstairs where in chief she was unsure; and four, indicating that when the accused left, she said “you owe me” whereas in-chief she had stated, he said “you will pay for that”. When asked about the distinction in these phrases, the complainant testified they would be along the same lines, and it was something she said in a moment of anger.

67The Crown argued that these variations in evidence were simply reasonable concessions made in cross-examination when the complainant realized she may have been mistaken. I disagree. I find that the omissions in the complainant’s evidence in-chief undermine her credibility. Defence counsel suggested, and I agree, that the complainant’s testimony in-chief was directed at leaving the impression of an incident akin to a home invasion by two large men who pushed their way through the door, ignored the complainant’s repeated demands to leave, carried her forcefully to the couch, undressed her, had no discussion or conversation with her, proceeded with sexual acts while she said no a million times, and then abruptly left as quickly as they came.

68Following cross-examination, the complainant’s version of events was considerably altered and suggested a sequence of events, which apart from the issue of consent, was more consistent with the unfolding of events as described by the accused. The complainant acknowledged the possibility of conversations at various times, that she did learn information about Mr. Ahmad, that it was possible she took off her own bra, that she and Mr. Fadhil were kissing together when Mr. Ahmad went upstairs, and that the men did not abruptly leave as previously suggested, but awaited her return while she went upstairs.

69There was also evidence that the complainant’s version changed over time from her original police statements to trial. A few notable examples are follows. First, when the police initially came to her residence, she failed to mention that one of the accused had gone upstairs. She did not refer to it in her three page handwritten statement. Her explanation was that she was still in a state of shock at the time. When Officer Smith came to photograph the residence, the complainant told him both men never left the main floor area. This was a particularly important omission given that the officer was there to photograph and gather evidence from all areas where the accused would have travelled. For example, while no sexual activity occurred in the kitchen, Officer Smith still took photos of that area.

70Second, the complainant stated to Det. Dompierre that when Mr. Fadhil arrived at her door, she told him right away to leave. At trial, she testified that she scolded him playfully for being there and they shared a passionate kiss. When it was suggested to her in cross-examination that she did not immediately tell Mr. Fadhil to leave, she agreed.

71Third, in her statement to Det. Brazeau made a few days after the incident, the complainant stated that she had attempted to prevent both men from coming into the house. However, at trial, she testified that Mr. Fadhil walked in first and then she tried to shut the door on Mr. Ahmad.

72Fourth, the complainant was clear in her testimony that condoms were discussed and used by both men, but unsure if they were on at all times. However, according to Dr. Adeleye, the complainant reported to him she was unsure if the two guys used condoms. As counsel points out, there is a distinction between saying you are unsure if someone used condoms which can imply that none were used at all and saying condoms were used but not at all times.

73Fifth, the complainant was asked in-chief if she was wearing underwear and replied, “I don’t remember that part”. She was asked again in cross-examination why she didn’t give her underwear to the police and she explained because she was not wearing any at the time. On the other hand, it was put to the complainant that when Det. Dompierre asked her if she was wearing underwear, she replied that she didn’t know which underwear she was wearing. When pressed as to why she would say that if she was not wearing any underwear at all, she explained that she didn’t want to come out and tell the detective that she was not wearing underwear because it was an embarrassing detail. While it is understandable that the complainant might be seemingly embarrassed by this small detail at the time of the interview, I find that her continued inconsistent responses in-chief and in cross-examination on this issue undermines her credibility.

74Similarly, it is of no import whether the complainant screamed or yelled. There is no unique way in which people react to sexual encounters. The fact that a complainant does not scream, forcefully resist, or call for help is not indicative of consent or cannot be relied on to support the impermissible stereotypical inference that her failure to do so undermines the credibility of her claim or that she was not consenting: R v J.C., 2021 ONCA 131 at para 69; R v Kiss, 2018 ONCA 184 at para 101. However, the evidence of yelling or screaming, if contradicted, can be relevant to an assessment of the complainant’s credibility and warrants attention by a trial judge: Kiss at para 102.

75In this case, what is concerning is the complainant’s varied and contradictory answers about her response at the time. The complainant testified at trial that when the two men came in, she was like “No, No, No” and raised her voice. She testified the yelling was when they came into the residence. On a later date in her testimony, she testified that she was not saying no quietly and that her voice might have been raised. She testified that she did not know if she was yelling.

76This is contrary to what Cst. Brazeau testified to which is that the complainant had reported to him three days after the incident that she either yelled or shouted “no” on several occasions. He testified that if she had not reported that, he would not have used those words in his reports.

77On the other hand, Dr. Adeleye testified that the complainant had reported to him that she didn’t shout because of her son who was sleeping, and that she had used the words “shout” or “scream” with him.

78Finally, the complainant testified that when the dog was freaking out, she told him to be quiet because she did not want to make a spectacle with her neighbours. She made no reference to any concern about her son. In addition, counsel argues that her directing Mr. Ahmad to the bathroom upstairs is inconsistent with her evidence that she was concerned about noise and disturbing her son. However, I am not prepared to draw this conclusion or give weight to this argument because the complainant was not provided an opportunity to explain if she directed Mr. Ahmad to the bathroom, and if so, whether she was or was not concerned about disturbing her son who was also upstairs: R v Wylie, 2012 ONSC 1077 at para 90.

C. Mr. Ahmad’s evidence

i. Testimony

79Mr. Ahmad is 32 years of age. He was born in Iraq and lived there until the age of 18. He then went to Syria for a short period before immigrating to Canada in 2012. Mr. Ahmad lives with his parents and sister. Mr. Ahmad did his schooling primarily in Iraq. His mother tongue is Arabic. Upon his arrival in Canada, he studied English for two years at an adult high school. He has worked cutting hair all his life and presently works out of a barbershop. He met Mr. Fadhil as a client at the barbershop in 2014, and over the years, they became friends. He did not know the complainant prior to the events of September 16, 2018.

80Mr. Ahmad testified that on the day in question, he received a call from Mr. Fadhil asking if he would like to be in a threesome with a girl he was communicating with. Mr. Ahmad had no experience in this and inquired further. Mr. Fadhil told him there was a plan with him and the girl for a threesome and that he would pick him up. Mr. Fadhil came to his house and they drove to the girl’s home. Upon arrival, Mr. Fadhil looked at his phone and told him that he received a phone message from the complainant. Mr. Fadhil asked Mr. Ahmad to wait in the car and he would come back which he did. Mr. Ahmad does not know what transpired between Mr. Fadhil and the complainant, but a short time later, Mr. Fadhil returned to pick up the condom package from the driver’s side door and told him, “come on, let’s go.” They went to the door. He could not recall if they knocked, but he testified the door was halfway open.

81Mr. Ahmad testified that the complainant was just behind the door. She opened the door further and two men went inside. Mr. Fadhil introduced him as his friend “Moodie.” The complainant said hello. He testified she was somewhat shy. Her cheeks turned red, but she was smiling. After they entered, he was in front of them. Mr. Fadhil gave her a kiss on the cheek and a hug. He denied that the complainant ever tried to slam the door on the them or that Mr. Fadhil picked up the complainant.

82The Crown cross-examined Mr. Ahmad whether he knew the complainant’s name. He testified that she did tell him her name when they were introduced, but that it was a long and difficult name for him to pronounce. He did not ask her to repeat her name. He acknowledged that when he was interviewed by the police, he did not remember her name.

83Mr. Ahmad walked over to the sofa. He sat down and the other two joined him. The complainant was in the middle of the two men. Mr. Ahmad was seated to the right of the complainant closest to the door, and Mr. Fadhil was seated to the left. They had a short conversation where they introduced each other a little bit more. Mr. Ahmad talked about himself, his work, and specifically the complainant’s hair which he noticed was short, dyed, and a special cut. He testified the complainant was not hesitant in her responses to him. He testified she was wearing dark bicycle shorts, a t-shirt, and a bra. He was wearing tracksuit pants, a t-shirt, and sandals. Mr. Fadhil was wearing what he called cowboy pants and a t-shirt.

84Mr. Ahmad testified they then proceeded to have threesome sex. When the sexual activity began, they were all seated on the couch and dressed. Mr. Fadhil extended his hand and started rubbing the complainant’s vagina underneath her clothing. The complainant was smiling and making noises as someone who was “horny”. The complainant did not move Mr. Fadhil’s hands. Rather, he testified she turned her head towards Mr. Ahmad and started kissing him. Gradually, the complainant began to play with Mr. Ahmad’s penis over his clothing while Mr. Fadhil was still rubbing her vagina. Everybody still had their clothes on.

85After a few minutes of touching, Mr. Ahmad testified the complaint started to undress herself. While undressing, he and the complainant continued kissing and it was on the lips. He denied that he ever shoved his tongue down her mouth as she suggested. The complainant removed her shorts, shirt and bra together. He did not assist her with any of it and denies that he ever tore off her clothing. Once she removed everything, he and Mr. Fadhil started to undress themselves. He took off his track pants and boxers. He placed his sandals with his pants on the ground close to the couch. He kept his shirt on throughout the night. He testified that Mr. Fadhil removed his pants and boxers, but not his shirt. He said he did not pay attention to what kind of footwear Mr. Fadhil was wearing and what he did with it.

86Mr. Ahmad testified the condoms were on the table between the television and couch where Mr. Fadhil had placed them. They were in a blue box and still wrapped in package. He testified that many of the items on the table in the photographs taken by the police on September 19, 2018, were not present on September 16^th such as the DVD box, the blanket, and dental items. He also indicated that there was a beige chair with arms that was not in the photos. There was also a large dog. It was barking while they were on the couch, but the complainant talked to it and it stopped barking.

87Once everyone was undressed, he and Mr. Fadhil put on the condoms. Mr. Fadhil opened the package and took one and then he took one. After he put the condom on, he testified that the complainant assisted him in entering her vagina. He testified that she had opened her legs and was wet. He denies that he fondled her vagina aggressively with his fingers. She was seated on the couch and he was in front of her as he entered her. Mr. Fadhil was standing beside the two of them with one leg on the couch and one leg on the ground. Mr. Ahmad testified that while he was penetrating her, she was engaged in oral sex with Mr. Fadhil.

88After he was inside the complainant for a few minutes, Mr. Ahmad told her he was close to ejaculating. He exited her, removed his condom, and testified that she got close to him and put his penis in her mouth. He testified she held his penis with her hand and was sucking on him. He testified that Mr. Fadhil switched positions and was now having vaginal sex with the complainant. Mr. Ahmad ejaculated in the complainant’s mouth.

89Mr. Ahmad was cross-examined by the Crown about whether he touched other parts of the complainant’s body. He acknowledged that he touched the complainant’s breasts with his hands, but did not know for how long. He was also asked if she was pleading with the two men to stop during the sexual activity, and he replied, “no, she was enjoying it.” When asked what made him say that, he said “her voice…she seemed to want more.” He testified that had she told him at any time to leave, he would have left.

90After ejaculating, Mr. Ahmad asked the complainant where the washroom was. He took his pants and boxers and went upstairs. In cross-examination, he reiterated that it was the complainant who directed him to the bathroom. He washed up in the bathroom and got dressed. He believes he took the condom with him and possibly flushed it in the toilet which he sometimes does. He stated in cross-examination to counsel for Mr. Fadhil that he either flushed it or threw it in the garbage, but he was certain he took it with him. He does not know what she and Mr. Fadhil were doing at this time. He believes he was upstairs for 4-5 minutes.

91When he returned downstairs, Mr. Fadhil and the complainant were still having sex. She was in a 90 degree position with her legs on the ground and her hands on the couch. Mr. Fadhil was having sex with her from behind. He testified that the complainant was emitting sounds that suggested desire. In cross-examination by counsel for Mr. Fadhil, he explained that the sound is “a bit like a porno movie” and she was moaning. When asked what he understood the word “moaning” to mean, he said it was a sound that comes out when engaged in sexual activity. Mr. Ahmad testified that at this point, Mr. Fadhil told the complainant he was about to come and so she changed her position. She was still on her knees but facing him and Mr. Fadhil ejaculated in the area above her breasts but below her neck.

92Mr. Ahmad testified that he did not have any further sex with the complainant upon returning downstairs. He reiterated that contrary to the complainant’s version, he ejaculated in her mouth and Mr. Fadhil ejaculated on her chest. Following this, the complainant picked up her clothes and went upstairs alone. He and Fadhil remained downstairs and talked in Arabic. Before this time, and while in the complainant’s house, they had spoken in English. The complainant returned 15 minutes later with a towel around her. She was covered except her shoulders. Her hair was wet and her hairstyle different suggesting she had showered. She did not appear upset. Mr. Fadhil asked her if she would like to have sex again and she said no because she was expecting a guest from Montreal.

93Contrary to the complainant’s version of events, Mr. Ahmad testified that it was not he and Mr. Fadhil who high fived each other, but rather the complainant and Mr. Fadhil who high fived each other while the two men were exiting. He does not recall her saying anything like “you will pay for this” as they were leaving. She did not appear to him upset.

94Mr. Ahmad was cross-examined by counsel for Mr. Fadhil. He reiterated that there was a conversation on the couch with the three of them. When asked if it could have been more than five minutes, he said he did not know for certain how long, but 5 to 6 minutes. When counsel suggested there was some general discussion about sexual activity happening, he replied, “I do not remember the exact conversation.”

95Counsel asked Mr. Ahmad if he believed the complainant wanted to have sex with him and Mr. Fadhil on the sofa, he replied “yes”. When asked if she was participating in the sexual activity and enjoying it, he said yes. Counsel for Mr. Fadhil also asked him if during that evening the complainant had said “no” to anything, and he replied that she did not say that. He went on to state that the only time she said “no” was when she had come downstairs and Mr. Fadhil had asked her if she wanted to have sex again.

96Counsel for Mr. Fadhil also asked him Mr. Ahmad if he recalled seeing Mr. Fadhil rub the complainant’s upper leg. He stated it was possible, but when he saw him, he was rubbing her vagina. He acknowledged his concentration was on “me and her” and that he wasn’t paying close attention to what Mr. Fadhil was doing.

97In cross-examination, the Crown suggested to Mr. Ahmad that he went in without being invited. Mr. Ahmad replied the complainant opened the door for him and Mr. Fadhil to go in. When it was suggested that he didn’t know why she was opening the door, he replied she was opening the door because she had an arrangement with Mr. Fadhil, and knew they were coming. He agreed he went inside because of Mr. Fadhil but noted that when he walked in the complainant saw him fully. He testified he said hello as he went inside.

98When the Crown suggested to Mr. Ahmad that he should have asked if he could come in, he replied it is possible, but I was already invited for this thing. Mr. Ahmad testified that he understood that the complainant and Mr. Fadhil had an agreement, and he understood this agreement was for the three of them to have sex together. He acknowledged the agreement was communicated to him by Mr. Fadhil, and he had not himself spoken to the complainant about it. He added that it was also raised during the conversation that we had, but the Crown did not ask what conversation he was referring to.

99Mr. Ahmad added that when he came into the house, the complainant had not told him to leave. Based on the greeting, the agreement, and that he had not been directed him to leave, he understood they were invited. The men walked in, he sat down, and he felt welcome.

100Mr. Ahmad was cross-examined on whether he misunderstood the complainant’s demeanor. He testified she appeared comfortable because she was smiling. When suggested that some people smile when they are nervous, he agreed that was possible, but is also indicative of someone joyful and happy and that such a smile is different. He acknowledged he didn’t ask her how she was feeling, but that her reaction indicated that she was feeling comfortable.

101Mr. Ahmad testified that the men did not bring or consume alcohol or cannabis. This was corroborated by Mr. Fadhil. Mr. Ahmad added that he does not smoke marijuana.

102Mr. Ahmad reiterated in cross-examination that there was a discussion on the couch the subject matter of which was open. He had said something about her hair. When asked whether the subject of a threesome was discussed at the couch, he replied “It was one whole conversation, inclusive about sex, but don’t remember exactly the words.” He acknowledged again that he had not specifically asked the complainant if he could put his penis inside her, but that as soon as he put his condom on, she assisted him in entering her.

103The Crown suggested to Mr. Ahmad that there was a misunderstanding and he disagreed. When it was suggested that there were two of them and they were big guys who misunderstood what she wanted, he replied that I am taller than her, but that she is “huger” than me. He acknowledged that Mr. Fadhil may weigh less but is possibly stronger than the complainant.

104Mr. Fadhil told the Crown that he was not aware of Mr. Fadhil’s Badoo name “Humam” until the police interview and court proceedings.

105Mr. Ahmad was called in by the police for an interview. One of the principle issues in the voluntariness voir dire was whether the fact that the statement was conducted in English rather than Arabic rendered the statement inadmissible, and I ruled that it did not. Mr. Ahmad did not testify on the voir dire. At trial he indicated that had he been offered to have the police interview in Arabic, he would have taken the officer upon it because it was his mother tongue. He testified that his English has improved between 2018 and 2021 at the time of trial. Nonetheless, he testified at trial through the use of an Arabic interpreter.

106During his statement, Mr. Ahmad was forthcoming about his personal background. He acknowledged that he participated in the threesome but explained to Det. Dompierre that it was consensual. Det. Dompierre continued to suggest it was not and persisted to ask more detailed questions. At about two-third into the statement, Mr. Ahmad declined to provide further details. He stated “I would rather not to talk. I already told my story, sorry.”

107With respect to the issue of consent, Det. Dompierre had asked Mr. Ahmad if he and the complainant talked before having sex and he had replied “we talked kind….she knows….she didn’t mind anything happening.” When the detective asked him how he knew this, he replied “because she didn’t say no”. The Crown asked him if he was being truthful when he spoke to Det. Dompierre and he replied, “Not trying…this is what happened”. When the Crown pressed him whether it was his position that she didn’t mind having a threesome because she didn’t say no, Mr. Ahmad replied not only did she not say no, but her reaction through kissing and touch and the smile and that she was enjoying herself.

108The Crown returned to the statement where Det. Dompierre asked Mr. Ahmad if the complainant had made any direct statements to him and he had told the detective that this issue was better directed to Mr. Fadhil. Mr. Ahmad acknowledged this question and answer. He explained that he understood Det. Dompierre’s question to be whether he came to an agreement with the complainant. What he meant in his response was that it was not his agreement; it was Mr. Fadhil’s agreement, and he should be asked the questions. Mr. Ahmad repeated that Mr. Fadhil and the complainant came to an agreement and that based on that agreement he came to the house.

109Mr. Ahmad testified that there was also talk regarding this topic again while they were seated on the couch and she had said she did not mind, but he could not remember what was said. He testified the whole conversation on the couch was not just about this topic. They talked about hair and sex, but he could not remember the exact words. He testified that “we talked about the subject” and after that talk, there was no objection. He testified he never stated we agreed to have sex. When pressed further about whether there could have been a misunderstanding on the couch, Mr. Ahmad reiterated if there had been a misunderstanding, the complainant would not have been actively involved in the sex.

110The Crown cross-examined Mr. Ahmad on other portions of his statement where the officer had suggested that he sexually assaulted her. Mr. Ahmad indicated to the officer he was unsure what the meaning of sexual assault was. He asked, “Am I like a sexual assault that I force her to do something like she doesn’t want it or…?” Det. Dompierre explained that sexual assault is when you have sex with someone and she does not want it and that the complainant alleged she did not want a threesome. Mr. Ahmad replied, “she wanted that” and “And general like if you don’t wanna talk to me, that’s it. I leave you alone.” He went on to add that “…she doesn’t say, okay, no or something. She started, we started. She like…no issue.”

111The Crown asked Mr. Ahmad whether it was his belief that if someone does not want to have sexual contact with you, they will push you away. Mr. Ahmad replied words to the effect of “Also push me away, expression, body language, and the conversation, all these indicators to establish if comfortable or not comfortable. If don’t push you away, probably comfortable.” The Crown pressed Mr. Ahmad asking that if someone doesn’t push you away, are you suggesting that means they are probably comfortable to which Mr. Ahmad replied with words to the effect of “No…It remains to be seen. The expression of person, body language and words spoken.”

112The Crown cross-examined Mr. Ahmad on a passage of the statement where Mr. Ahmad had compared going to the complainant’s house to making a reservation at a restaurant. Mr. Ahmad explained that in using those words, he was trying to make a point that there was already an agreement between the complainant and Fadhil in advance. It was his understanding that Mr. Fadhil had talked to the complainant about it (the threesome) and there was an agreement. It was for this reason that when Det. Dompierre kept repeating questions to him about the arrangement, he told the officer that these questions should be directed at Mr. Fadhil. In Reply, Mr. Ahmad’s own counsel asked him if a situation arose where he made a reservation at a restaurant and his understanding was that it was for three people, but on arrival he was told he was not welcome, would he eat there anyway? Mr. Ahmad replied, no, I would leave. Mr. Ahmad testified that despite his issues with his English, he did understand what the word “no” meant at the time.

113Mr. Ahmad testified he had not seen any of the Badoo messages. When asked by the Crown if he wished he would have seen them, including one where the complainant had said no threesome, Mr. Ahmad replied, it is possible it would have been better because he could then have had an idea of what was going on between them. He testified that if he had seen the messages and it said no threesome, he would not have gone there. He added that while he did not see the messages, when he did attend, according to what happened, everything was normal.

ii. Credibility and reliability of Mr. Ahmad

114I found Mr. Ahmad to be a credible and reliable witness.

115His responses to questions were comprehensible. He explained the sequence of events as they unfolded. His descriptions of where each person was situated and what each person was doing at various times was clear and understandable. When challenged in cross-examination about the sequence of events, he was consistent in his responses. While the events were over three years ago, he was able to remember details of the incident including such things as what precisely was or was not on the coffee table at the time or the presence of an additional chair. While not much turned on these details, I find Mr. Ahmad was genuinely trying to accurately testify to his observations of the premises and events that transpired.

116Mr. Ahmad did not minimize any of the sexual activity that occurred. When asked about whether there could have been touching on other parts of the body in addition to the acts he described, he acknowledged it was possible and tried to explain what additional parts he could remember touching such as the complainant’s breasts, but was honest that he could not say for how long or at exactly which period.

117His demeanor at all times, including cross-examination, was calm. He listened carefully to the questions and answered thoughtfully and respectfully. There were times when the translation of his responses might appear crass to a fluent English speaking person, such as when he testified the complainant was making sounds like she was “horny” or “screaming in desire” or comparing the agreement to a restaurant reservation. However, I found that Mr. Ahmad was not trying to offend or embarrass the complainant, but genuinely trying to answer the questions as honestly and descriptively as possible.

118Mr. Ahmad was not shaken in cross-examination. His evidence at trial was largely consistent with what he said to Det. Dompierre three years earlier with respect to what he understood transpired that night and his understanding that the complainant consented.

119Mr. Ahmad’s evidence, save for one notable discrepancy, is corroborated by the evidence of Mr. Fadhil. His version of events is also consistent with aspects of the complainant’s own evidence following cross-examination except on the issue of consent. This lends further credence to his testimony. These issues are discussed further below in the analysis of Mr. Fadhil’s evidence.

120Mr. Ahmad did not guess at things he did not know, for example, what shoes Mr. Fadhil was wearing, whether he was certain he flushed the condom, what had transpired between the complainant and Mr. Fadhil prior to their arrival at the house, or what precisely was said at various times of the evening. Both in his statement to the police and at trial, he did not speculate on what was said in the Badoo messages. In fact, he testified that he had never seen the Badoo messages until court.

121Finally, but perhaps most importantly, Mr. Ahmad did not augment his evidence at trial to provide responses that might be more favourable to him including on the critical issue of consent. Mr. Ahmad has been steadfastly clear that he understood from speaking with Mr. Fadhil that the complainant was agreeable to a threesome and that this was his understanding when the two men went over to her house. He provided this same information to Det. Dompierre during his statement three years earlier and explained that questions about the agreement would be better directed to Mr. Fadhil.

122Mr. Ahmad did not offer any evidence at trial that upon arrival at the house he asked the complainant verbally whether she wanted to commit each of the sexual acts in question. He acknowledged there was an initial conversation between all three of them on the couch about the sexual activity, but he could not recall what precisely was said. He did not venture to guess the precise words of that conversation more than what he could remember for certain which was that it was about his work and hair, both of which relate to Mr. Ahmad’s profession as a barber and what the complainant was studying to become at the time. Thereafter, he did not ask the complainant if he could proceed with each sexual act.

123Crown argued that it was only at trial and in cross-examination that Mr. Ahmad first alludes to any conversation on the couch and that he had not made reference to it in his statement to the police. I disagree. In his statement which Mr. Ahmad provided in English and not Arabic, Det. Dompierre suggested to Mr. Ahmad that his understanding that she wanted a threesome was initially from Mr. Fadhil which he agreed. Det. Dompierre went on to suggest to Mr. Ahmad that he did not speak to the complainant “in regards to what’s gonna happen”, referring to the sexual activity. Mr. Ahmad replied “I think…I think we talk like that in person, not …because I…I never said…as you said, that’s first time., I never seen him (sic) before. So I wasn’t in contact with her so. So when we talk, we talk in person.”

124Det. Dompierre then continues and asks Mr. Ahmad “okay, but she …you say she knows, but did she mention it? Did she…? Mr. Ahmad replied, “I think…I don’t remember exactly the conversation, but I remember that she …we talk about that (unintelligible) doing that and she didn’t mind it.”

125I find that Mr. Ahmad did tell the detective there was a conversation with the complainant and that, as he testified to at trial, he does not recall the exact words of the conversation. Mr. Ahmad did not conveniently bring this up at trial for the first time nor did he augment the content of the conversation in order to bolster his evidence on the issue of consent.

126I find based on his evidence, which I accept, that Mr. Ahmad did not verbally inquire with the complainant about her consent, but relied on one, his understanding from Mr. Fadhil that the complainant had earlier agreed to a threesome and two, the complainant’s conduct upon his arrival and throughout the course of their stay, to conclude the complainant remained agreeable to the threesome and was consenting to the sexual acts in question.

127Consent is defined in s. 273.1(1) as the voluntary agreement of the complainant to engage in the sexual activity in question. Consent must be present at the time the sexual activity in question takes place: 273.1.1.

128The Criminal Code is explicit about what consent is not. Section 273.1(2) states consent cannot be obtained for the purposes of s. 271 where:

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(b) the complainant is incapable of consenting to the activity;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

129The onus is on the Crown to prove an absence of consent.

130As stated in Ewanchuk, for the purposes of determining the absence of consent as an element of the actus reus, the complainant’s actual state of mind is determinative. The analysis is solely from the complainant’s perspective; it is purely subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred: R v Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330 at p 348.

131While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trier of fact 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, the trial judge believes the complainant that she did not consent, the Crown has discharged its obligation to prove the absence of consent: Ewanchuk at p 349; R v Barton, 2019 SCC 33 at para 89.

132The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct: Ewanchuk at p 349.

133It is only upon being satisfied that the complainant did not consent to the sexual activity and there is evidence that the accused honestly believed that the complainant consented to it that the court must embark on a further analysis of whether the accused had an honest but mistaken belief in communicated consent: R v Butler, 13 CR (5th) 37 at para 8; Barton at para 90.

134It is clear that the law does not permit Mr. Ahmad to rely on Mr. Fadhil’s understanding that there was an agreement. Section 273.1(2)(a) specifically prohibits reliance on a third party for the purpose of establishing there was a consent. Furthermore, consent must be present at the time the sexual activity takes place: s. 273.1(1.1) If the reported agreement was the only basis upon which Mr. Ahmad understood consent, it would not be sufficient in law.

135However, Mr. Ahmad’s evidence was that the complainant words and conduct throughout the evening were indicative of her agreement to engage in the sexual activity which in his case, involved touching, vaginal intercourse and oral sex on him. The complainant’s conduct that he relied on for consent consisted of one, her welcoming him into her home; two, the friendly introductory conversation on the couch about work, hair, and sex; three, the complainant’s smiling disposition; four, the complainant undressing herself; five, the complainant initiating sexual acts with him including kissing him, taking hold of his penis, and assisting him in entering her; six, the complainant’s responses indicative of enjoyment; and seven, that throughout the course of the evening, the complainant never asked either accused to leave or said words like “no, no, no.” I find that if I accept his evidence, which I do, the conduct he described is sufficient to find consent in law.

D. Mr. Fadhil’s evidence

i. Testimony

136Salam Fadhil is 30 years old. He was born in Iraq and immigrated to Canada in 2008 at the age of 16. He also lived in Syria for a period of three years before his arrival in Canada. Mr. Fadhil went to elementary school in Iraq until grade five. He did not have any schooling in Syria, but completed high school in Sherbrooke, Quebec. His primary language is Arabic, but he was schooled in French in Quebec. In around 2015, he went to St. Patrick’s school in Ottawa where he studied English, his third language, for one month, but did not finish the course. At trial, he testified his French remains better than his English. He communicated with the complainant in English. He gave his statement to Det. Dompierre in French. He testified at trial in Arabic with the aid of an interpreter.

137Mr. Fadhil testified that he has had several jobs over the years. He has worked as a line cook, in roofing, and also worked in the oil sector in Alberta for a period. Mr. Fadhil was married to a woman from Iraq by way of an arranged marriage. At the time of these events, they had a newborn son.

138Mr. Fadhil testified that he met the complainant on the Badoo website and that they had previously met twice before. On September 16, 2018, they exchanged messages. He understood from the messages that they were getting together later that night for a threesome. When asked by his counsel why he asked if he could bring a friend, he replied “I asked her a long time ago…so was now to make sure she was certain to bring friend with me.” He picked up Mr. Ahmad and they went to the complainant’s house.

139Upon arrival at her house, he saw a message from her about canceling because a friend was coming. He wrote back to say he was here and inquired if she had still two hours. She did not respond to the messages and so he went to the door to inquire further. He told Mr. Ahmad to wait in the car. He knocked on the door and the complainant greeted him. They kissed at the door. He told her I got your message. He asked her if she still had time, and she said yes, I still have time. He asked her do you want me to bring my friend, and she said yes. He told her he was going to get condoms and his friend. She told him she would leave the door open for him. He then got Mr. Ahmad and they returned.

140In cross-examination, he testified that when they were having the conversation at the door, they spoke about the threesome. She had told him in the messages that she had condoms, but they were old and he did not trust them. He also did not know how many she had which is why he wanted to buy some. In cross-examination, he indicated he understood from the kiss that she was happy to see him. He acknowledged that in Syria as in Sherbrooke, someone kissing you is a sign that they are happy to see you.

141He went to get condoms and when he returned, the complainant had left the door open. He and Mr. Ahmad entered the home. Mr. Fadhil kissed the complainant again and he introduced Mr. Ahmad. They all went to the couch. She was seated in the middle. They had a further conversation about 5-10 minutes about work and the barber shop. He testified that the complainant asked questions about hair. He continued to believe she was comfortable. He put his hand on her leg in the area of the knee. In response, she turned towards him and they started to kiss each other on the mouth. He placed his other hand around her shoulders. He asked if Mahmood could be a participant with us and she said okay. Then he dropped his hand further and started to fondle her vagina. After a minute or maybe less he asked her if she wanted to take off her clothes and she proceeded to take off her clothes. She was wearing shorts, t-shirt, and bra. He took off all his clothes which was jeans and a t-shirt, but believes Mr. Ahmad only took off his pants.

142Mr. Fadhil testified that the three of them undressed. The complainant removed her clothes first, and he and Mr. Ahmad followed. Since Mr. Fadhil was wearing pants, he had to stand up. When he stood up, the complainant started having oral sex with him. He then grabbed a condom from the table where he had put them. These were the same condoms that he had brought from his car. The complainant put the condom on his penis. He asked her if she would like him to insert it in her and she indicated yes by nodding her head and emitting a sound akin to ‘mmm’. At this point Mr. Ahmad was sitting on the couch and Mr. Fadhil was standing behind her. He proceeded to have vaginal sex with her while she was having oral sex with Mr. Ahmad. He stated in cross-examination that he was having vaginal sex with her from behind.

143After some minutes, he testified they asked her if she liked this and she said yes. He and Mr. Ahmad then changed places. He sat on the couch and removed his condom. Mr. Ahmad put on a condom and had vaginal sex with her while she had oral sex on Mr. Fadhil. Mr. Ahmad was standing up and Mr. Fadhil was sitting on the couch. He testified that Mr. Ahmad was about to ejaculate and he does not recall exactly what happened, but that Mr. Ahmad finished having sex, took his things, and went upstairs to the bathroom. He testified that he did not do anything to force the complainant into this activity. In cross-examination, Mr. Fadhil reiterated that he was the first to penetrate the complainant, not Mr. Ahmad. This is a notable inconsistency between the evidence of the two accused which I address further below.

144After Mr. Ahmad went upstairs, Mr. Fadhil put on a condom again. The complainant was seated in front of him and her legs were straddled on either side of him. They continued to have sex in this position. They were talking about sexual things and making sounds. He asked her if she would like to have sex doggie style. She replied okay and went on the floor. He then had vaginal sex with her from behind.

145As time went by, he asked if she would like to have anal sex. Counsel pressed him on the exact words he used and he stated words to the effect of “would you like my dick to go in your asshole” and she replied okay. He testified that she did not object, say no, or say it is going to hurt. Before penetrating her anus, he asked her if he could put his finger in because it could hurt. He put his finger in her anus for a short while and then inserted his penis into her vagina. He told her he was going to ejaculate. He removed his penis from her, took off the condom and asked her where he should come. She gestured towards her chest and in the area above her breasts. She then started playing with his penis and he ejaculated on her chest.

146After they finished having sex, she picked up her clothes and said she was going to the bathroom. He cleaned himself with Kleenex and waited for her. She was upstairs for 10 to 15 minutes. When she came down and over to him, she saw they had got dressed. She was covered with a towel or a sheet, but not wearing any clothes and her hair was damp. He asked her if she wanted to have sex again and she said no, she had visitors coming. When asked if he could have used the words “round 2” he said possibly. He said okay, we will be leaving. As he was going out the door, he gave her a high five.

147When asked if he believed the complainant was agreeable to the sexual activity, he said certainly. If she was not agreeable, he said this whole thing would not have happened. When asked why he believed she was agreeable, he testified that she was interacting with us, talking sometimes, and sometimes telling me it’s okay, I want it here. In cross-examination he was questioned on what he asked and what she replied. He testified that they were talking while having sex. He could not remember the exact question he asked her but in general she would state she liked this and was giving words about it. He testified that at no time while they were in the apartment did the complainant ever say no to a threesome or to any of the sexual activity. He testified that had she said no, he would have respected this and left the place.

148Mr. Fadhil testified there was never any conversation in the kitchen. At the time, he was about 65 to 70 kgs and about 175 cm in height. He testified that the complainant weighed a lot more than him, but that he was a bit taller than her. He testified that he never carried her, took her took clothes off or held her down. She had taken off her own clothes.

149The complainant had testified that she had no further contact with Mr. Fadhil after September 16. On the other hand, Mr. Fadhil testified that while he did not see the complainant again after September 16, 2018, he had tried to contact her. He sent her messages through Badoo. When asked why, he said to see if she was doing well and to see if he could see her again. I note that these messages, had they been sent, were not retrieved from the complainant’s phone or the Badoo account. The complainant had testified that, in addition to communicating by way of Badoo messages, she and Mr. Fadhil had also minimally texted each other on their phones. The complainant’s phone was examined by police. No texts were introduced at trial.

150Mr. Fadhil was cross-examined at length by the Crown, starting with the topic of Mr. Fadhil’s weight, strength, and how much he could bench press. The Crown suggested that Mr. Fadhil was downplaying his weight from the time of the incident, but Mr. Fadhil insisted that he did not weigh himself at the time. His weight is always in the 60 kg range. Ultimately, I do not find this evidence to be of any significant weight. Even if Mr. Fadhil weighed less than the complainant at the time, it is not determinative of whether he did or did not pick her up. As Mr. Ahmad testified, even if Mr. Fadhil weighed less that the complainant, it is possible that he was stronger. I find it is plausible that Mr. Fadhil would have had the strength to carry the complainant despite the discrepancy in the weight between them.

151The Crown asked Mr. Fadhil if he told the complainant he was married that night. He testified she had not asked him, he had not told her, and that he had never discussed it with her. Mr. Fadhil was aware, however, that she had a young child in the house. Mr. Fadhil also testified that he did not bring to or consume any alcohol, marijuana, or hashish at the complainant’s home.

152The Crown questioned Mr. Fadhil about his English proficiency and whether it was possible he misunderstood the complainant. He denied this was the case. When asked how he was sure, Mr. Fadhil testified because he and the complainant had come to an understanding in regard to the sexual activity and the situation they were in and that the subject matter of their discussion was simple things.

153Mr. Fadhil was cross-examined about his whereabouts earlier in the day. He testified that he could not remember where he woke up that day, where he was living at the time, or where he went after the incident. He sometimes lived with his mother in Ottawa, but also had an address in Gatineau. Mr. Fadhil was able to provide his partial address for Gatineau.

154He later testified that this wife and newborn son lived with his mother at the time, but could not state for certain that he was living there at the time. He acknowledged that by October 2018 he was living in a hotel on Montreal Road and that he could also have been living there on September 16, 2018. He explained that he had been living in Gatineau, then moved to Ottawa, but because of some family issues, he moved into the hotel with a friend who had the same last name as him. He was working at the time at a restaurant of a friend, but not on a daily basis.

155Mr. Fadhil could not recall where exactly he was when he sent the Badoo messages to the complainant. He could also not recall where he was coming from that day before going to Mr. Ahmad’s place to pick him up, but that he did stop to get condoms.

156The Crown suggested to Mr. Fadhil that it wasn’t that he could not remember, but that he was unwilling to share the information with the court to which Mr. Fadhil replied, that it is not a matter of not sharing. If he remembered, he would share. The Crown queried how it was that Mr. Fadhil could remember what slippers Mr. Ahmad wore and details about what transpired at the complainant’s residence, but not what was happening before he went to the complainant’s home. Mr. Fadhil reiterated that he does not remember. He was queried why his memory at this time was so poor, to which Mr. Fadhil replied it was because three years had elapsed. He acknowledged that the statements he received had helped with his memory of the events and things he said. When asked if hearing the complainant’s testimony refreshed his memory, he replied it was not refreshing his memory, but that what she had stated was not correct.

157The Crown reviewed the sequence of events with Mr. Fadhil again. He confirmed that they were all first on the couch. Like Mr. Ahmad, he also made reference to their being a chair which was not in the photos. He said it was a bit like the couch material, but it had not been represented in the photos. He reiterated that he had vaginal sex first with the complainant and not Mr. Ahmad.

158Mr. Fadhil acknowledged that Mr. Ahmad was a good friend of his and at the time of the incident, a best friend. When asked if he spoke with him after he finished his interview with Det. Dompierre, he replied that he does not remember calling him. When asked if it was possible, he said it was possible he spoke with him, but in what way he could not remember. When asked if he had communicated with him since September 16, 2018, he replied no. When asked if he was sure, he said according to his memory, he did not talk with Mr. Ahmad. In Reply, he testified that after his interview with Det. Dompierre, his phone was taken away. Mr. Ahmad’s number was on that phone and he had not memorized it.

159The Crown cross-examined Mr. Fadhil on the Badoo messages. In the profile photo, he is wearing aviator glasses and his face is partially covered by a camera. Mr. Fadhil denied he was trying to obscure his identity by use of that photo or by use of an alternate name “Humam.” He testified that anyone who wished to know his identity could ask. He acknowledged that many people do not like to use their real name on dating apps but did not elaborate why.

160The Crown cross-examined Mr. Fadhil extensively on the Badoo messages and his understanding of them. The Crown asked Mr. Fadhil if he knew the term threesome, and he indicated verbally yes, but not necessarily in writing. Mr. Fadhil explained later in his cross-examination that that to have a threesome was to have group sex. Mr. Fadhil testified he knows the meaning of the word threesome, but not how it is written. The Crown asked him if he was familiar with the numbers one to ten. He confirmed he could count to ten, but could not necessarily spell the numbers one, two, three, etc. When it was suggested that he had to know how to spell to be able to exchange messages, his answer was unclear and non-responsive. When questioned again, he testified that he had some ability to spell, but it was difficult in English.

161Mr. Fadhil testified that he understood the complainant wanted a threesome and raised the topic with her. He was asked about his comprehension of various abbreviations in the messages like OMG. He understood OMG meant “Oh my God.” When asked if he knew what it meant in the context of the messages, he replied, “I felt she loved this thing,” referring to the threesome. When asked what LOL meant, he said, “something like laugh”, but did not know for sure. He understood when she used the word “pic” she was asking for a picture. He testified he did not know that “Idk” meant “I don’t know” and that it was possible he understood it wrong at the time. In Reply, Mr. Fadhil testified that there were also other words in the messages he did not understand such as “coast is clear” and “hhh.”

162When asked if he understood from the words “sounds like a party lol” that she was consenting to a threesome, he replied that in her words she states she consents. When asked what specific words in the messages caused him to believe she was consenting, he referred to the fact that the complainant had responded “OMG”, “lol”, “sounds like a party” and had asked for a picture of his friend. He also added that he believed from the words “would need alcohol and weed” that she wanted a threesome and needed alcohol and weed for that purpose. In his view, the complainant had not refused a threesome. He understood from the messages she wanted a threesome. He explained that had she not wanted a threesome, she would have indicated that.

163When it was suggested to him that perhaps the complainant was reluctant to a threesome when she wrote sometime after 9 pm “no 3some right”, he acknowledged that he saw the message, but was not sure what she intended to say about it. He did not understand from this that she was not interested. He acknowledged he did not ask for clarification. He disagreed with Crown counsel that it was pretty obvious that “no 3some right” means a person is not interested.

164He was cross-examined on this phrase again and reiterated that the term threesome was abbreviated and he did not understand what she intended to say with these words. It did not give him pause or ring any bells. If he knew these things and knew how the question was written and knew that was her intention, by then he would have talked to her and gone. When asked if he still believe today (at trial) that the complainant had consented to a threesome in the messages, he replied I don’t know what her belief is, but this is what I understand from the messages.

165In Reply, counsel asked Mr. Fadhil if consent means the same thing as agree or agreeing in Arabic. The interpreter indicated that while there may be some legal difference, the words are the same in Arabic. Mr. Fadhil testified that what he understands from consent is that the woman is agreeable and likes to do this thing, referring to the threesome.

166Mr. Fadhil testified that he called Mr. Ahmad earlier in the day and he told him he was busy. He had work and was unavailable and wanted to finish his work. He called after but could not remember when the call was made in the sequence of the Badoo messages. He denied there was any plan. When asked what he said to Mr. Ahmad, he said he told him he was going to go and sleep with a woman, and later that the woman wanted to sleep with two of them and that she was consenting as he understood from her words. He reiterated that he had told Mr. Ahmad that the complainant was agreeable to the threesome. When asked if he used the word “sex” with Mr. Ahmad, he explained that when we say she wants to sleep with us, this is what the intended meaning is.

167At the tail end of his testimony the Crown asked Mr. Fadhil “You told Mr. Ahmad she was consenting to sleep with or have sex with you” and Mr. Fadhil replied yes…that she loves these things and she is willing to do it. However, the Crown repeated the exact same question again and Mr. Fadhil provided the answer “I don’t remember”. I intervened and asked at this point if there had been an issue with translation and the interpreter indicated he did not believe there was an error, and that this was the accused’s answer.

ii. Credibility and reliability of Mr. Fadhil

168The manner in which Mr. Fadhil presented his evidence was not as clear and easy to follow as Mr. Ahmad’s evidence. There were several instances, including in chief, where questions had to be repeated because Mr. Fadhil’s initial answer was not responsive to the question. There were instances when one wondered if Mr. Fadhil had issues with comprehension or whether it was an issue of translation.

169There were also troubling aspects of the content of Mr. Fadhil’s evidence, more particularly his failure to disclose where he had been prior to or after the incident and where he had been residing. While it is possible that he truly did not remember, I find this is highly unlikely given that in preparing to testify for trial, he would have in all likelihood made a concerted effort to reconstruct from the circumstances of his life at the time some memory of his whereabouts and key events on the day in question. I find that Mr. Fadhil was, as the Crown suggested, being evasive on this aspect of his evidence.

170Why he was being evasive, however, is not so clear. Mr. Fadhil had acknowledged in his statement to the police and partly in his testimony that he had was married, that his wife and newborn baby were living at his mother’s residence, that he had family troubles that required him to leave his mother’s home, and that possibly by September 2018 he was living in a hotel with a friend. It might be that Mr. Fadhil was evasive because he was embarrassed by his own extra marital sexual activity and participation on a dating app or that he was involved in other problematic and possibly illegal activity. However, even if I accept he is lying about not remembering his whereabouts, I find it is not determinative in the overall scheme for two reasons.

171First, a trier-of-fact may accept some or all of a witnesses’ evidence. In this case, I do not accept Mr. Fadhil’s evidence that he does not remember where he was on the day in question. However, this does not preclude me from accepting other parts of his testimony provided that I am satisfied that evidence is credible and reliable. Second, the portions of his evidence that I find untrustworthy (where he was living, coming, and going) relate to matters that are ultimately, peripheral to the circumstances of the alleged sexual assault.

172With respect to the evidence of what transpired in the house, I found Mr. Fadhil’s evidence was consistent both in examination-in-chief and cross-examination. He did not waiver in his account of what happened inside the house. He had by this time heard the testimony of Mr. Ahmad and did not tailor his version of events to correspond to Mr. Ahmad’s version. For example, he was insistent in chief and cross-examination that it he first had vaginal intercourse with the complainant while she had oral sex on Mr. Ahmad and then they switched positions contrary to Mr. Ahmad’s recollection of the sequence of events.

173With respect to the sequence of the sexual acts, I prefer Mr. Fadhil’s evidence. First, his version does not undermine Mr. Ahmad because the sequence is still consistent with their evidence that that they each took turns and after Mr. Ahmad finished having vaginal sex, he went upstairs. Second, Mr. Fadhil’s version explains how it was that he came to use two condoms and offers a plausible explanation of why the complainant understood condoms had come on and off during the incident. Mr. Fadhil testified that he wore a condom the first time he had vaginal sex and then removed it while Mr. Ahmad put on a condom. Mr. Fadhil testified that when Mr. Ahmad went upstairs, he had further sexual activity with the complainant for which he put on a second condom.

174Mr. Ahmad testified he flushed his condom down the toilet or possibly placed it in the garbage upstairs. The complainant never testified that she retrieved anything from the upstairs’ garbage. The complainant provided two condoms to the police. She testified she had put two condoms that were left, where exactly is unknown, in the garbage and then retrieved them later from the garbage. She did not specify which garbage she retrieved them from. Given it was not on her mind at the time that Mr. Ahmad had gone upstairs, and this is why she failed to initially tell the police that Mr. Ahmad had gone upstairs, it is likely that the two condoms she was dealing with were the ones Mr. Fadhil had used and which remained downstairs. Third, the complainant’s own evidence on the sequence of events was unreliable. She gave inconsistent accounts of the sequence in her statement and at trial. By the end of cross-examination, she acknowledged she could no longer say which of the accused first had vaginal intercourse with her. For these reasons, I accept Mr. Fadhil’s version of the sequence of events, notwithstanding that it was inconsistent with the order of events testified to by Mr. Ahmad.

175Mr. Fadhil’s evidence was consistent with Mr. Ahmad’s evidence in many other respects. Both witnesses testified that 1) the complainant had welcomed them into the home, 2) that there was no discussion in the kitchen; 3) that Mr. Fadhil did not pick up the complainant; 4) that they were all initially seated on the couch; 5) there was a conversation about a barber shop and hair; 6) that there was some discussion about the sexual activity; 7) that the complainant undressed herself; 8) that the complainant initiated some of the sexual activity; 9) that Mr. Ahmad had gone upstairs after he was done; 10) that upon his return Mr. Fadhil continued to have sex with the complainant while she was on the ground; 11) that the complainant had gone upstairs to shower and returned with just a towel (or sheet) around her; 12) that the complainant had said she did not want to have sex a second time because friends were coming from Montreal; and 13) that the complainant and Mr. Fadhil high-fived each other on the way out. Both men testified that the complainant did not at any time say no to the sexual activity or ask them to leave.

176Mr. Fadhil’s evidence that he was completely undressed was inconsistent with Mr. Ahmad who testified that Mr. Fadhil had only taken off his bottoms. However, both men testified that their attention was not always on the other person. It is possible that either of them is mistaken on this point. However, I do not find that it is a significant inconsistency, and little turns on it.

177Save for the discrepancy around the sequence of the sexual activity, Mr. Fadhil’s evidence corroborates the evidence of Mr. Ahmed and vice versa and augments the reliability of both their version of events.

178In assessing the evidence of each accused, I am mindful of the possibility for advertent collusion or inadvertent tainting. Advertent collusion is where witnesses get together and fashion their evidence in concert to appear to be reciting a consistent and reliable story whereas inadvertent tainting can occur when one witness discusses the events with another witness with the consequence that the evidence of one or both of them may be altered: R v C.G., 2021 ONCA 809 at paras 28 to 32. Advertent collusion undermines credibility whereas inadvertent tainting can undermine reliability.

179Mr. Fadhil and Mr. Ahmad were good friends. Mr. Fadhil went so far as to characterize him as a best friend. They often spent time together and it is possible that after September 16, 2018, but before their police interviews they continued to communicate with each other. However, no evidence was presented that the parties met after their police interviews. On the contrary, Mr. Fadhil testified that he does not recall having contact with Mr. Ahmad after his interview with the police. His telephone, which contained Mr. Ahmad’s contact information, was also seized from him at the time. This is also consistent with the fact that Mr. Ahmad was placed on undertaking immediately following his interview with Det. Dompierre which included a condition not to have any contact with Mr. Fadhil. Mr. Ahmad was told that should he breach he would be facing another charge.

180Furthermore, while the evidence of Mr. Ahmad and Mr. Fadhil is largely consistent, it is not entirely aligned to suggest concoction of a reliable story. For example, as already indicated, each testified to a different order of the sexual acts and Mr. Fadhil was unwavering in his position even having heard the evidence of Mr. Ahmad. Notwithstanding their friendship, I do not find that the credibility or reliability of their evidence is undermined by either advertent collusion or inadvertent tainting.

181As already addressed earlier, except for on the issue of consent, the evidence of the two accused was also consistent with many aspects of the complainant’s own evidence, some of which she only conceded in cross-examination. The complainant agreed that 1) she did not tell Mr. Fadhil to immediately leave when he arrived; 2) that they engaged in a passionate kiss at the door; 3) that she had told the dog to be quiet while it was freaking out; 4) that there was conversation about hair and Mr. Ahmad being a barber; 5) that she may have partly undressed herself by taking off her bra; 6) that she and Mr. Fadhil were kissing together while she straddled him; 7) that one of the two men had ejaculated in her mouth and the other on her chest; 8) that Mr. Ahmad did go upstairs when he was finished; 9) that she did continue to have sex only with Mr. Fadhil on the couch while Mr. Ahmad went upstairs; 10) that she did have vaginal and anal sex with Mr. Fadhil while on the floor; and 11) that the two men remained downstairs while she went upstairs. I find the complainant’s own evidence lends credence and makes plausible the version of events presented by the two accused.

182Mr. Fadhil voluntarily agreed to turn himself in the day after he was called by Det. Dompierre. He was fully cooperative with the officer and readily provided the name of his friend Mr. Ahmad. Mr. Fadhil provided a statement to the police which was held admissible. Like Mr. Ahmad, he testified that he would have accepted an offer to give the statement in Arabic because it would have helped him understand the questions and he is more comfortable speaking in Arabic.

183Mr. Fadhil was forthcoming at the start of his interview and answered questions about himself and his background. He did not deny he was at the complainant’s house on the night in question but explained that the sex was consensual. However, as the statement progressed, he was reluctant to provide further details in the absence of his counsel and repeatedly told the officer this. Det. Dompierre continued to question Mr. Fadhil about details of the alleged offence, the content of the Badoo messages, and the issue of consent. Many of the questions were lengthy, sometimes a paragraph long. In response, Mr. Fadhil started to give one word answers like “okay” and “mmm”. Mr. Fadhil was asked by his counsel why he answered in that manner, and he testified that because the officer was pressuring him to give information, and he had told him he did not want to answer further in the absence of a lawyer. Mr. Fadhil testified that when he uttered those single words, he was not agreeing with what the officer was saying, but simply listening to him and responding okay. I accept his evidence as it accurately reflects the statement.

184I also find that the content of the police statement is not materially inconsistent with what Mr. Fadhil testified to at trial.

185Mr. Fadhil’s evidence on the issue of consent was that he understood that the complainant was agreeable to a threesome based on the Badoo messages, that he continued to inquire and obtain her consent during the sexual activity, and that her conduct at all times indicated consent.

186In understanding his belief as it stemmed from the messages, I am cognizant that an accused cannot legally act solely on a belief in consent; he must honestly believe that the other person has communicated consent by words or conduct her agreement to engage in the sexual activity: Ewanchuk at paras. 46 to 49; Barton, at paras 90 and 121.

187The complainant was clear that she had not agreed to a threesome in the Badoo messages. She testified that while she may have expressed curiosity in a threesome in the Badoo messages, this does not constitute consent. Furthermore, the complainant testified that when Mr. Fadhil texted her saying he would see her at 9:10, she wrote back “no 3some right”.

188The Crown argues that it was obvious from the complainant’s response “no 3some right” that the complainant was not consenting, that Mr. Fadhil understood those words, and that he was reckless in proceeding to the home with Mr. Ahmad. He suggested to Mr. Fadhil, which Mr. Fadhil denied, that he and Mr. Ahmad had a deliberate plan to go the complainant’s residence and forcefully have a threesome with her without her consent. I disagree with the Crown on this point.

189First, while the words “no 3some right” might suggest that the writer is confirming that they do not want to have a threesome, those words must be examined in the context in which they were written as well as the context of this case. Mr. Fadhil’s mother tongue was Arabic. While he did complete high school in Quebec, it was in French. When engaged in those Badoo messages he was operating in English, his third language. He testified he is not able to spell simple words like one, two, three, and that spelling in English is difficult. There were also other words in messages sent by the complainant that he did not understand such as “Idk” and “the coast is clear”.

190It is plausible, particularly based on the earlier messages, that Mr. Fadhil understood by “no 3some right” that the complainant was inquiring whether the friend was still coming. His response “I ask him hi’s not sure if coming; Tellnow just me (emoji)” could equally be understood as Mr. Fadhil informing the complainant after her inquiry that he is unsure if his friend is coming. This is consistent with his own testimony that he still understood after these messages that the complainant wanted to have a threesome. In addition, the conversation goes on to the topic of condoms and became, perhaps, even more confusing when there was reference to two condoms.

191In addition, this message “no 3some right” was sent at 9 pm several hours after the earlier exchange where the complainant, of her own admission, had expressed curiosity about a threesome. While it may be obvious to an average English speaker that the complainant had clearly communicated that she did not want a threesome when she wrote “no 3some right” I am not persuaded that Mr. Fadhil understood that.

192Second, Mr. Fadhil’s conduct upon arrival at the house is inconsistent with the Crown’s suggestion that the two men had a deliberate plan to have a non-consensual threesome. When Mr. Fadhil arrived at the house and saw the message about cancellation and that a friend was coming from Montreal, the two men did not immediately go to the door. Rather, he messaged the complainant he had already arrived, inquired if the friend from Montreal had arrived, and asked if the complainant might still have two hours before the friend’s arrival. He also included a message indicating to the complainant that “I could’ve tell ur friend that I have visitor hun” wherein he is telling the complainant that he has a second person with him. The complainant did not see the message as her Wi Fi was off. When he didn’t hear back from her, the two men did not proceed together. Rather, Mr. Fadhil asked Mr. Ahmad to wait in the car while he went to inquire with the complainant.

193I accept that it was the complainant’s intention when writing the words “no 3some right” to indicate to the accused that she did not want to proceed with a threesome. However, I am not prepared to reject the accused’s entire version of events simply on the basis that the complainant had indicated at one point in the Badoo messages that she was not consenting to the threesome. To do so would engage in stereotyping that a person who did not consent to a certain form of sexual activity at one point could not change their mind later. It is an error of law to rely on pre-conceived views about how sexual assault victims would behave and such pre-conceived views, whether they are favorable or unfavorable to the complainant, must be carefully assessed in the absence of an evidentiary foundation: R v Cepic, 2019 ONCA 541 at paras 14-15 and 23; R v JC, 2021 OCNA 131 at paras 63 and 72. In this case, just as the complainant admitted she had changed her mind about having sex with Mr. Fadhil after they exchanged a passionate kiss at the door, it is equally possible she could have changed her mind about the threesome at the same time.

194I also disagree with the Crown’s suggestion that the evidence of the accused should be rejected because it is not probable the complainant would agree to have sex with someone in Mr. Fadhil’s car whom she has never met. I find that to draw such a conclusion would be to engage in an impermissible stereotype that people do not have sex with strangers or with people they hardly know: Cepic at paras 14-15 and 23; JC at paras 63 and 72.

195Ultimately, however, whether Mr. Fadhil honestly believed that the complainant had consented to a threesome when he arrived at the complainant’s door on the basis of the Badoo messages is a moot point. The law is clear that consent must be obtained at the time of the sexual activity: 273.1(1.1). Regardless of what his belief in consent was on the basis of the Badoo messages, Mr. Fadhil was required by law once in the presence of the complainant to ascertain her consent to any of the sexual activity going forward.

196Mr. Fadhil’s evidence was that he and the complainant engaged in a passionate kiss at the door after which he told her that he was going to get condoms and his friend from the car. Upon his return, he testified that the complainant continued to indicate by her words and gestures that she was consenting to the sexual activity. In this regard, he relies on the following evidence: 1) that she undressed herself; 2) that he had is hand her leg while they were talking on the couch and she kissed him; 3) that he asked her if she wanted vaginal sex and she agreed; 4) that she put the condom on him; 5) that she sucked his penis; 6) that even after Mr. Ahmad went upstairs, she continued to sit on him and they were kissing and continuing to have vaginal sex; 7) that he asked her if she wanted to switch to doggy style and she agreed and went on the floor; 8) that he asked if she wanted anal sex and she indicated yes; 9) that he asked where he should come and she directed him to her chest; 10) that she had made noises indicative of enjoyment; and 11) that at no time did the complainant ever say no or ask he and Mr. Ahmad to leave. I find that if I accept Mr. Fadhil’s evidence, which I do, the complainant’s words and conduct as he describes is sufficient in law to constitute consent.

197In addition, Mr. Fadhil testified that before having anal sex with the complainants, he asked the complainant if he should penetrate her with his finger because he was aware it might hurt. The complainant testified in chief that the accused “jabbed her” with an erect penis, that he just ripped me” and that it was painful, and no lubrication was used. In cross-examination, she testified she did not recall if he asked her to put his finger in first and does not recall that he penetrated her with his finger, only his penis. However, the complainant acknowledged that when she was asked by Nurse Gregoire three days after the incident whether either of the men had penetrated her anus with their finger, she had replied that she was unsure. This was distinct from her other answers on the form about the sexual activity that happened which were either “yes” or “no”. The complainant’s response to the nurse leaves open the possibility that digital penetration did occur as described by Mr. Fadhil, and that he did first ask to penetrate with his finger because he was aware of the possibility that it would be painful. It lends further credence to the reliability of his version of events and evidence that he did seek further consent for other forms of sexual activity.

198Upon examination of the whole of the evidence, I find that the Crown has failed to prove the absence of consent beyond a reasonable doubt. Where there are significant inconsistencies or contradictions within a principal Crown witness’ testimony, or when considered against conflicting evidence in the case, the trier-of-fact must carefully assess the evidence before concluding that guilt has been established: R v Wylie at para 84. In this case, I find the multiple inconsistencies in the complainant’s testimony and the significant variation in her testimony on key points between chief and cross-examination undermines her credibility and reliability as a witness. When her evidence is weighed in light of all the evidence, including the evidence of the accused which I accept, I find her conduct is not consistent with her claim of non-consent.

199I accept Mr. Ahmad’s version of events who I found to be credible and reliable despite the discrepancy between he and Mr. Fadhil on the exact sequence of the sexual acts.

200I do not accept all of Mr. Fadhil’s evidence, but I do accept his evidence in relation to the circumstances surrounding the sexual assault upon his arrival at the house. Mr. Fadhil’s version of events was largely corroborated by Mr. Ahmad save for the one discrepancy discussed earlier. Furthermore, except on the issue of consent, many parts of Mr. Fadhil’s version of events were adopted by the complainant by the end of her cross-examination which lends further credence to his version.

201Finally, I find that the Badoo messages are ultimately irrelevant in this case. I find that on the basis of the evidence presented by each of the accused, the words and gestures of the complainant upon arrival at the house and throughout their stay was indicative of agreement to the sexual activity and sufficient to constitute consent in law.

202The accused are acquitted of the count charged.

Somji J.

Released: January 25, 2022

COURT FILE NO.: 18-5176

DATE: 2022/01/25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Mahmood Ahmad and Salam Fadhil

Accused

REASONS FOR JUDGMENT

Somji J.

Released: January 25, 2022

Her Majesty the Queen v. Mahmood Ahmad and Salam Fadhil, 2022 ONSC 504

Case Summary

Brief factual background

Analysis

Issue 1: Has the Crown proven beyond a reasonable doubt that the sexual activity occurred?

A. The W.D. test

B. The Complainant’s Evidence

i. Testimony

ii. Credibility and reliability of the complainant’s evidence

C. Mr. Ahmad’s evidence

i. Testimony

ii. Credibility and reliability of Mr. Ahmad

D. Mr. Fadhil’s evidence

i. Testimony

ii. Credibility and reliability of Mr. Fadhil

Cited By (1 case)

R. v. Waddling-Leeson, 2023 ONCJ 350

Brief factual background

Analysis

Issue 1: Has the Crown proven beyond a reasonable doubt that the sexual activity occurred?

Issue 2: Has the Crown proven beyond a reasonable doubt that the complainant did not consent to the sexual activity?

A. The W.D. test

B. The Complainant’s Evidence

i. Testimony

ii. Credibility and reliability of the complainant’s evidence

C. Mr. Ahmad’s evidence

i. Testimony

ii. Credibility and reliability of Mr. Ahmad

D. Mr. Fadhil’s evidence

i. Testimony

ii. Credibility and reliability of Mr. Fadhil

Cited By (1 case)

R. v. Waddling-Leeson, 2023 ONCJ 350