ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-21-2021

DATE: 20221103

BETWEEN:

HIS MAJESTY THE KING

– and –

JOSEPH CORDEIRO

Greg Skerkowski, for the Crown

Sarah Black, for the Accused

HEARD: June 20th, October 5th, 6th, and 7th 2022

muszynski J.

OVERVIEW

[1] The accused, Joseph Cordeiro, stands charged with one count on the indictment:

COUNT #1: On or about the 29th day of September in the year 2019 at the city of Kingston in the said East Region did commit a sexual assault on S.R., contrary to section 271 of the Criminal Code of Canada [Criminal Code].

[2] S.R. alleges that Mr. Cordeiro sexually assaulted her after they arranged a meeting via the app, Tinder. At the time, S.R. was an 18-year-old first year student at Queen’s University and Mr. Cordeiro was 22 years old.

[3] Specifically, S.R. alleges that Mr. Cordeiro attended at her university residence room where he had nonconsensual vaginal sexual intercourse with her without a condom, forced oral sex, as well as unwanted slapping, hair pulling, choking, and biting.

Motion for Directions / Midtrial Section 276 Application

[4] The defence brought a preliminary motion for directions on April 7, 2022 to determine whether messages between S.R. and Mr. Cordeiro where subject to the regime set out in s. 276 / s. 278 of the Criminal Code. The Crown and defence agreed that, since the messages formed part of the subject matter of the offence, they were not subject to the regime. I agreed. The messages were limited to the day of the alleged assault, with one message having been sent a few weeks later that was not of a sexual nature. I found, therefore, that no application was required in advance of trial.

[5] The judge alone trial began on June 20, 2022. After the examination-in-chief of S.R. concluded, counsel for the defendant advised that a mid-trial s. 276 application would be required due to comments made by S.R. in her examination-in-chief. Specifically, S.R. testified that she was a virgin before she was sexually assaulted by Mr. Cordeiro and there was, potentially, inconsistent information provided to the police about S.R.’s prior sexual history.

[6] The Crown agreed that, given the unanticipated evidence that S.R. was a virgin, it was appropriate to adjourn the trial to conduct a mid-trial s. 276 application. On consent of the parties, I abridged the timelines set out in the Criminal Code for delivery of materials. On the afternoon of June 20, 2022, I heard stage one of the s. 276 application. I determined that the proposed evidence was capable of being admissible under the test set out in s. 276(2) in that it would not invoke one of the twin myths. On the same day, I signed an order appointing counsel for the complainant.

[7] On July 25, 2022, stage two of the s. 276 application was heard. In advance of that date, counsel for the complainant had to opportunity to meet with S.R. and confirmed that cross-examination about prior sexual history was appropriate in these circumstances given the potential inconsistency. The Crown and defence agreed that, provided the cross-examination was limited to the potential inconsistency, this line of cross-examination would be appropriate. I allowed the defence application and held that defence counsel could cross-examine S.R. on the potentially inconsistent statements about her virginity versus her reports to her friend and police that she had prior casual “hook-ups”.

[8] The trial continued on October 5, 6 and concluded on October 7, 2022. Two witnesses gave evidence on behalf of the Crown:

(a) S.R., the complainant;

(b) E.M., a former friend of S.R.

[9] Mr. Cordeiro testified on his own behalf. There were no other witnesses called by the defence.

[10] It was conceded that Mr. Cordeiro’s statement to the police, which was used for cross-examination purposes, was given voluntarily.

[11] The Crown did not call any reply evidence.

[12] The only issue in this case is whether I am left with reasonable doubt with respect to whether the sexual assault occurred.

POSITIONS OF THE PARTIES

[13] The Crown submits that it has satisfied its burden of proving that Mr. Cordeiro is guilty of sexually assaulting S.R. beyond a reasonable doubt. Given the notable inconsistencies between his statement to the police and his evidence at trial, the Crown takes the position that Mr. Cordeiro is not credible and that his testimony should be afforded little weight. The Crown further submits that S.R.’s demeanor at the continuation at trial – which was admittedly aggressive – should not impact the weight given to her testimony in the circumstances. Finally, the Crown takes the position that there is an absence of evidence of a motive to fabricate which I can consider to some degree in reaching a conclusion that Mr. Cordeiro is guilty beyond a reasonable doubt.

[14] The defence submits that Mr. Cordeiro was honest, credible, and reliable with respect to his evidence that the sexual activity that took place between Mr. Cordeiro and S.R. was consensual and non-violent. If the inconsistencies in Mr. Cordeiro’s testimony are to a degree that I cannot accept his evidence as a whole, the defence submits that I should remain with reasonable doubt given the evidence that I do accept. Specifically, the defence takes the position that S.R. was combative and evasive in her testimony and that I should have credibility concerns arising out of inconsistencies between S.R.’s police statements and her evidence at trial. On this basis, the defence takes the position that I must find Mr. Cordeiro not guilty.

THE EVIDENCE AT TRIAL

Tinder Match

[15] It is not disputed that S.R. and Mr. Cordeiro met after they were matched on Tinder on September 29, 2019. They had never met one another prior to this time.

[16] Mr. Cordeiro’s Tinder profile, which includes several emojis, was entered into evidence at trial. There is no dispute that S.R. viewed this profile as well as several photographs of Mr. Cordeiro before they matched and ultimately met up.

[17] Mr. Cordeiro’s Tinder profile, as it was on September 29, 2019, is reproduced below:

“Need a dude who’s got

2 jobs 🤑🤑

2 cars 🚗🚗

2 hands to choke you 👐👐

Energy for round 2 💦💦

Communication skills 👻👻

5’9 👌👌

Thick &Huge 🍆🍆

Always got 420 💨💨

Then you stumbled across the right profile 😏

Don’t believe me 🍆

check out my vsco 😉 Kingstonstud”

[18] Mr. Cordeiro testified that he used his Tinder profile to advertise: that he liked rough sex through his comment about having “2 hands to choke you”; that he was well endowed (the eggplant emoji); had energy to satisfy a female partner and get her excited (water droplet emojis); had two cars and two jobs; always had marijuana (reference to 420 and the smoke puff emojis); and had communication skills through snapchat (ghost emojis).

[19] S.R. gave evidence that she thought that Mr. Cordeiro’s Tinder profile was “funny”, specifically the reference to “2 hands to choke you”. She understood the eggplant and reference to “thick and huge” as being related to Mr. Cordeiro’s penis, and that the water droplets referenced a woman being wet.

[20] After they matched, Mr. Cordeiro contacted S.R. on the Tinder app. There is no question that these messages were sent and received. The exchange started with Mr. Cordeiro messaging S.R. The conversation is reproduced below:

Mr. Cordeiro

Hey gorgeous 🤤

S.R.

Hello ☺️

Mr. Cordeiro

Supp tonight 😜

Wanna chill 👅🍆💦✋🍑

S.R.

Depends

Where u @/what do you wanna do?

I like your bio

Bc if ur dtf then same but we gotta talk abt it first 🤷‍♀️

Mr. Cordeiro

Yeah I am and we can talk for sure a bit first , just at a buddies can we chill st your place

[21] Mr. Cordeiro testified about the meaning of the emojis he messaged after “Wanna chill”. The tongue was intended to be playful and flirty; the eggplant was a penis and water droplets was to represent ejaculation; and a hand next to a peach was to represent “ass slapping”.

[22] Mr. Cordeiro further testified that when S.R. responded: “I like your bio”, he understood that she had read his biography and the fact that he was advertising rough sex. Further, he gave evidence that he understood that when S.R. mentioned “dtf” she meant down to fuck, but she wanted to “talk a bit” first. He understood “dtf” in a literal sense without conditions.

[23] S.R.’s evidence was that when she asked whether Mr. Cordeiro was “dtf” she meant to hang out with a possibility of a fun and consensual sexual encounter that included the possibility of intercourse. In cross-examination, S.R. initially appeared to downplay her intentions for the night by suggesting she thought “dtf” meant to hang out and watch a movie. She ultimately agreed that sexual activity was a possibility. With respect to S.R.’s comment about wanting to talk first, S.R. testified that she wanted to talk to someone about what sex was like and how it would feel. She also wanted to set some ground rules.

The Encounter

[24] Mr. Cordeiro and S.R. agreed to meet at a residence on Queen’s Campus where S.R. was residing. It is agreed that Mr. Cordeiro arrived at some point after 7:00PM. S.R. met him at the front door and walked with him through security and onto the elevator.

[25] Mr. Cordeiro testified that in the elevator ride to S..R’s floor, the two behaved awkwardly and made small talk about what courses they were taking in school. He testified that S.R. warned him that her floor senior would be close by, and they would have to be quiet, but that they did not talk about creating ground rules for sexual activity, nor was there any sexual activity on the elevator ride.

[26] S.R., on the other hand, testified that as soon as they got into the elevator, Mr. Cordeiro was immediately all over her. He pushed her up against the wall wrapped his hand around her throat and started to make out with her. S.R. felt anxious and felt like things were moving too fast, but she did not resist.

[27] On the way from the elevator to her dorm room, S.R. testified that she told Mr. Cordeiro that she wanted to set some ground rules and he responded “sure”. There was no real discussion, according to S.R.. They did not talk about having rough sex or set out any ground rules. Mr. Cordeiro took off his clothes, she took off hers, and they started making out immediately. S.R. testified that they got on the bed and things started to progress too quickly. S.R.’s evidence is that she asked Mr. Cordeiro to use a condom when it was clear that he was going to have vaginal intercourse with her. He put one on but then removed it after announcing it did not fit. He then proceeded to have unprotected vaginal intercourse with her. It was S.R.’s first time. She testified that it was painful and overwhelming, and that she told him to slow down. S.R. testified that the intercourse was not consensual as she had wanted to discuss ground rules first, but that discussion never happened. After the first round of intercourse, S.R. alleges that Mr. Cordeiro grabbed her by the hair and threw her to the ground on her knees and forced her to give him oral sex. He slapped her face approximately 4-6 times with his hand and with his penis. When she tried to pull back and tell him “stop, I can’t do this”, he would force his penis further down her throat and say “yes you can” while holding her head in place. At one point, S.R. alleges that she threw up from being gagged by Mr. Cordeiro’s penis. Mr. Cordeiro then pulled S.R. onto the bed again and started digitally penetrating her vagina aggressively. She told him that it hurt and to slow down, which he did. Mr. Cordeiro had vaginal intercourse with S.R. a second time and allegedly forced her to perform oral sex once more. Finally, Mr. Cordeiro sat on S.R’s chest and masturbated, ejaculating over her chest and face. She described feeling pinned down and uncomfortable with his legs on either side of her body.

[28] The incident took place over the course of 1-1.5 hours. During that time, S.R. estimates that Mr. Cordeiro ejaculated between 2-4 times. He slapped her, he used his hands to choke her, he held her wrists down, pinched her nipples and chest, and bit her butt cheek. She did not want to be touched in these ways. He called her a slut and a bitch. S.R. testified that she cannot recall if she specifically said no to the vaginal intercourse but does recall saying no to the oral sex. During the interaction, S.R. was fearful that he would hit her or perhaps have sex with her in more aggressive ways. After he appeared to be done and started getting dressed, S.R. asked Mr. Cordeiro whether he had ejaculated inside her vagina. He did not give her a clear answer. She then walked him out of the building. Once back in her room, S.R. noticed blood on her sheets that she testified was because of the assault. Photographs of S.R.’s blood-stained sheets were entered into evidence.

[29] Mr. Cordeiro’s account of the encounter with S.R. is drastically different. He denies talking about any ground rules and instead testified that once he was in S.R.’s room, he asked her something along the lines of whether she was still “dtf” and she responded positively. He testified that they engaged in small talk until they eventually started kissing a few minutes later when they were more comfortable with one another. They started making out, and S.R. was responding and appeared to enjoy it. He started digitally penetrating her and she asked him to stop, which he did. He grabbed a condom that he brought with him, put it on, and was about to start penetrating her vagina, when he lost his erection. He did not have intercourse with S.R. on this occasion. He was embarrassed and explained to her that condoms caused him to lose his erection but that he might still be able to have intercourse if she gave him oral sex. According to Mr. Cordeiro, S.R. appeared to understand how embarrassing this was and got onto her knees and performed oral sex willingly. While S.R. was performing oral sex, he stroked her hair and had one hand on her shoulder. He announced that he was ready to attempt sexual intercourse again and put on a second condom. He did penetrate her vagina with his penis on the second attempt but could not hold his erection. He apologized, got dressed, and left. Mr. Cordeiro denied ejaculating at all during the interaction. He denied slapping, choking, pinching, or biting S.R.. He denied sitting on S.R.’s chest and masturbating. He denied seeing any blood on S.R.’s sheets. It was Mr. Cordeiro’s evidence that S.R. was a willing participant in the sexual interaction.

Post Encounter Communication

[30] At 10:33PM, S.R. texted Mr. Cordeiro the following message: “Hey sorry to bug you. Do you have any STIs or anything?”. In response, Mr. Cordeiro replied that that he did not.

[31] The only other communication between S.R. and Mr. Cordeiro occurred on October 3, 2019. On that date, Mr. Cordeiro texted S.R.: “Heyy can I ask you something cutie.” S.R. did not respond and blocked Mr. Cordeiro’s phone number so that she would not receive any further messages from him.

Initial Disclosure

[32] Sometime after Mr. Cordeiro left the residence, S.R. met up with friends at a nearby restaurant for dinner. She testified that she told her friends bits and pieces about her experience with Mr. Cordeiro but not everything. She felt anxious about whether she had a sexually transmitted infection or could be pregnant. Further, she worried about disclosing too much as this was a new group of friends that she had just met when she started school in early September. It was because of her conversation with her friends that she decided to text Mr. Cordeiro and inquire about STIs.

[33] E.M. testified at the request of the Crown. E.M. was one of the friends that S.R. met for dinner after the alleged assault. E.M. recalled the dinner in question. During the dinner S.R. shared that she met up with a man. Without getting into specifics, E.M. testified that S.R.’s energy was “off”, that she was making jokes that she would not normally make, and that she was more timid than usual. E.M. had suspicions about what had occurred and told S.R. that she could reach out if she needed anything.

S.R.’s Hospital Attendances

[34] On September 30, 2019, S.R. went to Kingston General Hospital after experiencing vaginal pain and to report the sexual assault. By that time, S.R. testified, she understood that what had happened with Mr. Cordeiro “wasn’t cool”. E.M. went to the hospital with her to provide support. While she was at the hospital, a sexual assault evidence kit was completed by a nurse and photographs were taken of the injuries that S.R. claims were caused by Mr. Cordeiro. E.M. was present for everything aside from the vaginal examination.

[35] A few days later, on October 2, 2022, S.R. returned to the hospital as she continued to experience vaginal pain and a yeast infection.

Physical Injuries

[36] The photographs of S.R.’s injuries taken by hospital staff on September 30, 2019, were entered into evidence. The photographs show: bruising on the right and left sides of the neck; bruising on the right chest, just below the collar bone; scratches on the back of the right shoulder; and bruising on both wrists.

[37] S.R. testified that, in addition to the injuries documented in the photographs, she also had bruising on one of her breasts from the pinching. She experienced vaginal pain after the assault and developed a yeast infection.

[38] E.M. gave evidence that she has a recollection of seeing bruising on S.R.’s neck when she accompanied her to the hospital. She does not recall seeing the other bruises that were documented in the photographs.

[39] Mr. Cordeiro denies seeing any bruising on S.R.. His evidence was that the bruising around S.R.’s neck could have been from a hickey as he recalls kissing her neck around her ear. He further testified that it is possible he scratched her shoulder, but he has extremely short nails that he “bites down to the cuticle”.

THE ESSENTIAL ELEMENTS AND LEGAL PRINCIPLES

Essential Elements of the Offences Charged

[40] To find Mr. Cordeiro guilty of sexual assault, the Crown must prove each of the essential elements of the offence charged beyond a reasonable doubt:

a. That Mr. Cordeiro intentionally applied force to S.R.;

b. S.R. did not consent to the force applied;

c. Mr. Cordeiro knew that S.R. did not consent to the force applied; and

d. That the force that Mr. Cordeiro intentionally applied to S.R. took place in the circumstances of a sexual nature.

[41] It is conceded that Mr. Cordeiro intentionally applied force to S.R. and that it took place in a sexual nature. The Crown is therefore left to prove that S.R. did not consent to the force applied and that Mr. Cordeiro knew that S.R. did not consent to the force applied.

Credibility

[42] Trials involving allegations of a sexual nature typically involve an assessment of credibility of witnesses. The Court of Appeal for Ontario has confirmed that:

Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with the truth: R. v. M.G., 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (Ont. C.A.) at p. 6.

Presumption of Innocence and Reasonable Doubt

[43] In a criminal trial, an accused is presumed innocent until the Crown has discharged its burden to prove the accused’s guilt beyond a reasonable doubt. A reasonable doubt is “a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, 150 D.L.R. (4th) 733 at para. 30.

[44] At the conclusion of the trial, if I am left with any reasonable doubt on any of the essential elements of the offence of sexual assault, I must acquit Mr. Cordeiro.

[45] The primary witnesses in this case are the complainants and the accused. I must therefore follow the approach set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 at p. 758.

1. I must first determine whether I believe Mr. Cordeiro’s version of events when considered in the context of the evidence as a whole, if so, he is entitled to an acquittal.

2. If not, I must then consider whether Mr. Cordeiro’s version of events although not believed, raises a reasonable doubt. If so, he is entitled to an acquittal.

3. If not, I must then consider whether the remaining evidence proves Mr. Cordeiro’s guilt beyond a reasonable doubt. It is only in then that Mr. Cordeiro can be convicted.

Myths and Stereotypes in Sexual Offences

[46] In the not-too-distant past, myths and stereotypes about how sexual assault victims should behave, react, or disclose an assault, played a role in how our criminal justice system adjudicated these sorts of cases. With legislative reform and guidance from courts across the country, it is now well accepted that there is “no inviolable rule on how people who are the victims of trauma like sexual assault will behave”: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, 191 D.L.R. (4th) 60 at para. 65.

[47] Further, evidence of a complainant’s prior sexual history is not admissible at trial if its purpose engages one of the prohibited twin-myths: that the complainant was more likely to have consented to the sexual activity or is less worthy of belief: Criminal Code, R.S.C. 1985, c. C-46 at s. 276.

ANALYSIS

[48] I have carefully considered all of the evidence, the exhibits filed, and the submissions of the Crown and the defence. Any failure by me to refer to a specific witness, exhibit, or argument is not a reflection that I have not considered the witness, exhibit, or submission of either counsel.

[49] This case turns largely on the credibility of the witnesses and the reliability of their evidence.

Assessment of Mr. Cordeiro’s Evidence

[50] At trial, Mr. Cordeiro painted the picture that the sexual interaction with S.R. was a flop. He claimed that they were awkward with one another initially until they started making out, that he lost his erection twice, and that he left without ejaculating. He alleged that he has erectile dysfunction that he attributes to being sexually abused himself, which is why, he claims, that he would never sexually assault anyone else. He denied that there was any violence whatsoever involved in the sexual encounter and testified that he never spoke to S.R. about whether she was consenting to rough sex.

[51] In cross-examination, Mr. Cordeiro was confronted with his statement to police that was given on February 12, 2020. There had been a concession that the statement was given voluntarily at the outset of trial. In his statement to police, Mr. Cordeiro told police:

a. If people do not like his Tinder profile, specifically the “2 hands to choke you”, they do not have to match with him.

b. S.R. said she was into rough sex.

c. In the elevator, S.R. told him that it was okay to be loud because her roommate was away.

d. S.R. was bad at giving him oral sex so he just left.

e. He had rough sex with S.R, including hair pulling and slapping in the face.

f. He thinks that he may have bit S.R.’s backside.

[52] In attempting to explain the significant discrepancies between his trial evidence and what he told police in the videotaped statement, Mr. Cordeiro testified that he was not given an opportunity to speak to a lawyer prior to giving the statement. Further, Mr. Cordeiro testified that he was incredibly nervous, under extreme pressure, and intimidated while he was being interviewed. He also claimed that he must have confused his interaction with S.R. with another one of his Tinder “hook-ups” when talking to police. In his examination-in-chief, Mr. Cordeiro testified that he had two Tinder “hook-ups” before he met S.R.

[53] The Crown played the first several minutes of the video statement. At the outset of the interview, Mr. Cordeiro confirmed to the investigating officer:

a. He attended at the police station voluntarily after speaking with the officer on the phone the day before;

b. He had been treated well;

c. He understood that all of his rights still apply and he does not have to speak with the officer; and

d. He spoke with a lawyer and was satisfied with the advice given by the lawyer.

[54] While I accept that it might have been stressful, I do not accept Mr. Cordeiro’s evidence that he made mistakes when giving his police statement due to pressure or intimidation. Mr. Cordeiro, I find, was dishonest with the court when he testified that he had not had an opportunity to meet with a lawyer and was under extreme intimidation at the time he gave his police statement.

[55] On occasion, Mr. Cordeiro’s evidence simply did not make sense. He admitted that his Tinder profile advertised rough sex, the ability to satisfy a sexual partner, and referenced ejaculation, but claims that none of those things happened in his interaction with S.R.

[56] Mr. Cordeiro’s evidence – that this was a non-violent, consensual encounter - can also be starkly contrasted with the evidence of S.R. and the photographs of the bruising that were taken in the days following the alleged assault.

[57] For all these reasons, I find Mr. Cordeiro to be an uncredible witness and find that Mr. Cordeiro was being untruthful about his interaction with S.R.

[58] With respect to the first stage of the W.(D.) analysis, I do not believe Mr. Cordeiro’s version of events when considered in the context of the evidence as a whole that I do accept.

[59] With respect to the second stage of the W.(D.) analysis, I find that Mr. Cordeiro’s version of events does not raise a reasonable doubt when considered in the context of the evidence as a whole that I do accept.

[60] I now turn to the remainder of the evidence at trial to assess whether it satisfies me beyond a reasonable doubt as to Mr. Cordeiro’s guilt.

Assessment of S.R.’s Evidence

[61] There was a stark difference between S.R.’s demeanour in June, when the trial started, and October, when the trial resumed. Again, the delay was due to a mid-trial s. 276 to permit cross-examination on S.R.’s prior sexual history. The cross-examination with respect to S.R.’s prior Tinder “hook-up” and her testimony in-chief that she was a virgin did not reveal an inconsistency after all. While I accept that defence counsel was left with no choice but to pursue the mid-trial application, I also acknowledge the unfortunate delay it had on the trial and impact that it may have had on S.R.

[62] When the trial resumed, four months after it started, S.R. was angry. She expressed frustration about the process and how long it had taken to get to trial. She was blunt in her answers, often raised her voice, and used offensive language. In re-examination, S.R. threatened to kill herself.

[63] I do not find S.R. less credible due to her anger, frustration, or her demeanor generally. There is no question that S.R. is struggling. There is also no question that this process is frustrating, but it is necessary to ensure that justice is served. S.R. is not less worthy of belief because she expressed her frustrations on the stand.

[64] At trial, S.R. expressed hostility towards E.M., and her other friends from the material time at Queen’s. She accused them of lying and testified that she was not friends with any of them anymore. S.R. has dropped out of her program at Queen’s and moved home. It is unclear exactly why she harbors such resentment towards her former friends. In any event, I am not persuaded that it is sufficiently relevant in a way that would negatively impact my assessment of S.R.’s credibility.

[65] The defence raises potential inconsistencies between S.R.’s testimony at trial and statements that she gave to police on November 13, 2019, and January 10, 2020.

a. S.R. told the police that Mr. Cordeiro ejaculated twice. At trial, she estimated that he ejaculated between 3-4 times.

b. At trial, S.R. initially reported that there was only one condom. She told police, and agreed in cross-examination, that Mr. Cordeiro attempted to use two condoms.

c. S.R. told the police that everything up to the oral sex was consensual. At trial, there was confusion as to what parts of the interaction were consensual or not.

d. S.R. reported to police that, prior to Mr. Cordeiro, she had another casual “hook-up”. At trial, she testified that she met one man through Tinder before Mr. Cordeiro, that they made out, but that he started crying and she left.

[66] S.R. was forthright about her difficulty with the sequence of events of the alleged assault. When she was reminded that she told police there had been two condoms, she agreed that there had been two instead of only one. I accept that S.R. may have an imperfect recollection of this traumatic event. With respect to the ejaculation, S.R. specifically recalls Mr. Cordeiro ejaculating at least once in her mouth and once on her chest and face. She did not know whether he ejaculated in her vagina, and testified she asked Mr. Cordeiro this very question and was not provided with an answer. I accept S.R.’s evidence that she was a virgin before her encounter with Mr. Cordeiro and her evidence that her prior Tinder “hook-up” was in fact a single uneventful make-out session. Accordingly, I am not convinced that some of the inconsistencies in S.R.’s testimony, as alleged by the defence, are inconsistencies at all.

[67] The defence submits that S.R. is less worthy of belief because she admitted to shoplifting from Shoppers Drug Mart in and around the same time as the alleged assault and which establishes a “pattern of dishonest conduct and disregard for the law”. I was not presented with any evidence about the nature of the shoplifting, such as what was shoplifted or why. When confronted about the shoplifting at trial, S.R. readily admitted that it took place. In these circumstances, I am not prepared to give S.R.’s evidence about her interaction with Mr. Cordeiro less weight because she shoplifted. A “pattern of dishonest conduct” has not been established.

[68] It is further submitted that I should consider the fact that, at trial, S.R. downplayed her intentions when she matched with Mr. Cordeiro on Tinder. S.R. agreed that, in her Tinder messages, she asked Mr. Cordeiro whether he was “dtf” and said that she was as well, if they talk first. In cross-examination, S.R. initially testified that she meant to invite Mr. Cordeiro to hang out or watch a movie. On further questioning, S.R. agreed that sexual activity could have been an option. S.R. seemed similarly reluctant to agree that she downloaded the Tinder app to try and explore her sexuality, even though she had mentioned this objective to police. I find that S.R. downplayed her reasoning behind downloading Tinder and her “dtf” message to Mr. Cordeiro. However, I am not surprised, nor does it significantly impact my assessment of S.R.’s credibility. This is particularly so given the mid-trial s. 276 application. I accept that S.R.may have been defensive in these circumstances.

[69] I accept that S.R. seemed confused at times as to when she withdrew consent. Consent is confusing. S.R.’s confusion enhances, not diminishes, her credibility in my view. What started as consensual sexual activity, at some point, became non-consensual. S.R. was clear that she did not consent to violence, she did not consent to having unprotected vaginal intercourse, and she did not consent to oral sex.

[70] S.R. was questioned about a notation in the emergency department record wherein it is documented: “Engaged in consensual intercourse with male partner…was seen by SADV nurse the same day as partner became aggressive”. S.R. denies that she told hospital staff that intercourse was consensual. The author of the report was not called to give evidence at trial. The report was not admitted into evidence for the truth of its contents. The notation of “consensual intercourse” in the hospital record does not negatively impact my assessment of S.R.’s credibility.

[71] After the incident, S.R. messaged Mr. Cordeiro to ask whether he had any STIs. I find that she did so because she was concerned about a possible sexually transmitted infection following unprotected sex.

[72] Photographs were taken of S.R.’s body by hospital staff when she attended following the assault. The photographs document bruising in the areas where S.R. alleges she was struck, held, pinched or choked by Mr. Cordeiro.

[73] Overall, I find S.R. to be both a credible and reliable witness and I accept her evidence that on September 29, 2019, what started as a consensual sexual encounter with Mr. Cordeiro, became non-consensual and violent. I accept S.R.’s evidence that she did not have a discussion with Mr. Cordeiro about having rough sex nor establish any ground rules for the encounter despite asking to do so. I accept S.R.’s evidence that she did not consent to sexual intercourse without a condom. I accept S.R.’s evidence that she did not consent to being slapped, to having her hair pulled, to being bit or choked. I accept S.R.’s evidence that she told Mr. Cordeiro repeatedly that she could not continue giving him oral sex but that he continued to force his penis in her mouth.

Assessment of E.M.’s Evidence

[74] E.M. and S.R. are no longer friends. They have no ongoing relationship. S.R. was downright hostile about her relationship with E.M. E.M.was more neutral about the friendship.

[75] E.M. gave evidence about S.R.’s demeanour on the night of the assault and as a witness to the bruising on S.R.’s neck.

[76] I accept the evidence of both E.M. and S.R. that they became fast friends when they were placed in the same frosh group in early September of 2019. They had only known one another for a few weeks before the assault occurred. I am not convinced that E.M. had established such a relationship with S.R. that she can reliably testify about her “energy being off” on the night of September 29, 2010. For this reason, I have not considered E.M.’s evidence regarding S.R.’s demeanour in reaching my decision in this case.

[77] I do accept, however, E.M.’s evidence that she observed the bruises on S..R’s neck when she accompanied her to the hospital.

[78] I find E.M. to be a credible witness insofar as she observed bruising on S.R.’s neck as it is supported by the photographs taken by hospital staff.

Motive to Fabricate

[79] The Crown submits that I can consider that there is an absence of evidence of any motive S.R. may have to fabricate the events of September 29, 2019.

[80] There is no obligation on Mr. Cordeiro to offer an explanation for S.R.’s accusations. In reaching my decision, I have not considered whether there is an absence of motive to fabricate or an absence of evidence of motive to fabricate whatsoever.

Assessment of the Remainder of the Evidence

[81] The final stage of the W.(D.) analysis requires me to consider whether the remainder of the evidence provides proof of Mr. Cordeiro’s guilt beyond a reasonable doubt with respect to each element of the offence of sexual assault.

[82] At trial, Mr. Cordeiro testified that he understands that there cannot be advance consent to sexual activity. Indeed, this concept is set out in Canadian jurisprudence: R. v. Barton 2019 SCC 33, 2019 S.C.C. 33 at para 99.

While Mr. Cordeiro may have this understanding now, I find that on the night of September 29, 2019, he made the erroneous assumption that by matching with him on Tinder, given his advertisement for rough sex, S.R. consented to the violent sexual encounter they had later that night.

[83] Determination of consent is a subjective inquiry into the complainant’s state of mind: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, 169 D.L.R. (4th) 193 at para. 27. I find that S.R. and Mr. Cordeiro did not have a conversation about having rough sex at all and that S.R. did not consent to having rough sex. I find that Mr. Cordeiro slapped, choked, bit and pinched S.R. I find that S.R. asked Mr. Cordeiro to use a condom if they were going to have sexual intercourse, which Mr. Cordeiro ignored. I find that Mr. Cordeiro continued to force his penis in S.R.’s mouth after she told him that she could not continue.

CONCLUSION

[84] I am satisfied beyond a reasonable doubt that Mr. Cordeiro intentionally applied force to S.R.; that S.R. did not consent to the force applied; that Mr. Cordeiro knew that S.R. did not consent to the force applied; and that the force that Mr. Cordeiro intentionally applied to S.R. took place in the circumstances of a sexual nature.

[85] Accordingly, I find that the Crown has proven each essential element of the offence of sexual assault as charged in Count #1. The verdict is guilty.

Muszynski J.

Released: November 3, 2022

COURT FILE NO.: CR-21-2021

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

JOSEPH CORDEIRO

REASONS FOR JUDGMENT

MUSZYNSKI J.

Released: 2022-11-03