Court File and Parties

COURT FILE NO.: CR-21-10000390-0000 DATE: 20230210 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – SIMON HO-ON

COUNSEL: M. Gharabaway, for the Crown A. Mamo, for Mr. Ho-On

HEARD: December 12-14, 2022

Reasons for Judgment [1]

SCHRECK J.:

[1] In August 2017, 16-year-old B.W. spent a few days with Simon Ho-On, a man she had recently met, at a condominium belonging to his friends and at his home. At some point, B.W. consumed Xanax and she and Mr. Ho-On had sexual intercourse twice, once at the condominium and once at his home. Almost two years later, B.W. went to the police and alleged that Mr. Ho-On had forced her to take the Xanax and that she had not consented to the sexual activity. As a result, Mr. Ho-On was charged with sexual assault, sexual assault with a weapon, administering a noxious thing and unlawful confinement.

[2] Mr. Ho-On was tried in this court without a jury. He and B.W. were the only witnesses. While they both agreed that she consumed Xanax and had sexual intercourse twice, they gave diametrically opposed accounts as to the circumstances in which these events took place. The outcome of this trial turns entirely on an assessment of the credibility and reliability of the witnesses.

[3] For the reasons that follow, I do not accept Mr. Ho-On’s evidence, nor does it raise a reasonable doubt. While I find B.W. to be a credible witness, her memory with respect to some of the events was seriously impaired, likely as a result of consuming Xanax. As a result, I am unable to rely on her evidence about some of the events to the requisite degree of certainty to support a conviction. With respect to other events, however, I am satisfied that her memory was reliable. As a result, Mr. Ho-On is found guilty of sexual assault with a weapon and unlawful confinement, but not guilty of sexual assault and administering a noxious thing.

I. Evidence

A. B.W.’s Testimony

(i) Meeting Mr. Ho-On

[4] B.W. testified that she first met Mr. Ho-On on Queen Street West in Toronto when she was out with her friend, M. At that point, she knew him only by the nickname “Goon.” She did not learn his real name until much later. B.W. initially told the police that her interactions with Mr. Ho-On had taken place in the summer of 2016. At the preliminary inquiry, she at first testified that the events had taken place in 2016, but after a break changed her evidence and said that they occurred in 2017.

[5] When B.W. first met Mr. Ho-On, he was with two other men and a woman. B.W. and M. accepted an invitation to go to the condominium where one of the men lived. When asked why they agreed to go, B.W. explained that she and M. had smoked marijuana earlier and were “high.” B.W. had smoked a gram and a half to two grams, which was more than she usually smoked. In cross-examination, B.W. agreed that prior to going to the condominium, the group went to the Eaton Centre, which she had not mentioned in her examination-in-chief.

(ii) Taking Xanax

[6] According to B.W., they arrived at the condominium at around 2:00 p.m., although she was not keeping track of the time. About half an hour after they arrived, Mr. Ho-On gave her two Xanax pills and some “lean,” which she believed to be codeine. He told her she should take these drugs because everyone else was doing so. She took the drugs because “he kind of persuaded” her to do so. B.W. had consumed Xanax before, but only half a tablet at a time.

[7] According to B.W., at the time she was consuming marijuana two or three times a week but was otherwise not a heavy drug user. She agreed that she had referred to herself as a “heavy drug user” in an Instagram post in August 2017, but maintained that she was referring to her drug use after the incidents involving Mr. Ho-On.

[8] After taking the Xanax and lean, B.W. began to feel “woozy” and was blacking in and out of consciousness. At some point, her friend M. told her that she was going home and left. Mr. Ho-On and the others were making music.

(iii) The First Alleged Sexual Assault

[9] B.W. needed to use the bathroom. She walked to it, but stumbled because of the drugs she had taken. When she entered the bathroom, she did not turn on the light or lock the door because she “didn’t really comprehend” the light switch or the door lock.

[10] According to B.W., Mr. Ho-On came into the bathroom. He bent her over such that she was on her knees facing the bathtub, pulled her pants and underwear down, and then penetrated her vagina with his penis from behind. B.W. was “blacking in and out” and could not recall if he said anything, but believes he said that it felt good or something like that. B.W. believes that she said, “what’s going on?” or something similar. While penetrating her, Mr. Ho-On slapped her buttocks and pulled her hair to steady her as she was swaying from side to side. B.W. could not recall how long this went on, but it ended with Mr. Ho-On ejaculating onto her back. He then left the bathroom.

(iv) Events Following the First Sexual Assault

[11] B.W. remained in the bathroom for 10 to 15 minutes and tried to clean off her back. She then went to the couch in the living room and fell asleep. She testified that she was by herself on the couch and knew for sure that Mr. Ho-On never joined her there. After being shown a photograph and a video of her sitting on the couch with Mr. Ho-On in which she was kissing him, B.W. agreed that her recollection was wrong.

[12] B.W. initially testified that her next interaction with Mr. Ho-On was when he woke her up and told her that they had to leave. It appeared to her that he was having some type of altercation with one of the other men. Mr. Ho-On picked her up and they left the condominium.

[13] In cross-examination, B.W. was asked whether she ever left the condominium prior to leaving for Mr. Ho-On’s residence to go for a drive. She denied doing so. B.W. was then confronted with a video which depicted her and Mr. Ho-On in a car. B.W. can be seen in the video laughing and shouting while hanging out of the window. B.W. agreed that in light of the video, she must have gone on a drive but maintained that she had no recollection of doing so.

(v) Taking More Xanax

[14] During her examination-in-chief, B.W. was asked if she consumed any more drugs before leaving, to which she responded, “Not that I can remember.” After being directed to a specific portion of a transcript of her statement to the police, she testified that Mr. Ho-On put a Xanax tablet in her mouth.

(vi) Going to Mr. Ho-On’s Home

[15] After leaving the condominium, Mr. Ho-On and B.W. got into a taxi and went to his residence, which was somewhere near Bathurst Street. Mr. Ho-On lived in a small room in the basement of a building. There were other rooms nearby rented by other tenants and a shared washroom across the hall. He carried B.W. into the room, where she passed out.

[16] B.W. woke up in Mr. Ho-On’s room the next day, still feeling “out of it.” She did not know what time it was because her phone battery was dead. Mr. Ho-On was sitting on the bed and appeared to be upset about something. B.W. asked him for a phone charger so that she could charge her phone and call her parents. Mr. Ho-On, who was occupied doing something, told her that he would give her one “in a bit.” When B.W. asked for a charger again, he said something like, “Shut the fuck up, you don’t need a phone charger, you have me.”

[17] According to B.W., she felt like she could not leave Mr. Ho-On’s room because he was being aggressive towards her. He told her that she could not leave. B.W. noticed knives on the desk, which caused her to be more frightened.

(vii) The Second Alleged Sexual Assault

[18] B.W. testified that at one point, Mr. Ho-On picked up one of the knives and used it to touch her lips and her shirt. He told her that he knew that she “liked it last night,” to which she replied that she did not know what he was talking about. He then put her in the same position she had been in previously with her knees on the bed and penetrated her vagina from behind with his penis while holding the knife near her face. He said something like, “This feels good and I know you like it.” This ended with him ejaculating on her back. He did not wear a condom.

(viii) Departure From Mr. Ho-On’s Home

[19] Later, B.W. told Mr. Ho-On that her parents would call the police if they did not know where she was. He told her to text her parents and gave her a phone charger. She charged her phone and sent a text to her father saying that she would be home soon. She then put the phone on “airplane mode” because she did not want her father to call back while Mr. Ho-On was there.

[20] B.W. left the room when Mr. Ho-On went into the bathroom and she heard the shower running. She ran out of the building to a subway station and went home. She did not tell her parents or anyone else about what had happened. She explained that she was worried that nobody would believe her.

[21] In cross-examination, B.W. agreed that the narrative she had provided during her examination in-chief had her spending one night at Mr. Ho-On’s residence and that she had told the police that she had spent two nights there. She explained that this was because she was “very overwhelmed” and because Crown counsel had not asked her about spending two nights there. She maintained that she actually had spent two nights there.

(ix) Report to the Police

[22] In April 2019, B.W. read a newspaper article about Mr. Ho-On and that it had been alleged that he had given a woman substances which had rendered her unconscious. The article also said that individuals should “come forward if you had anything to do with it.” After reading this, she went to the police and made a statement, resulting in Mr. Ho-On being charged with the offences now before the court. She agreed that when she went to the police, she did so in the hope that this would result in Mr. Ho-On being “locked away” for as long as possible.

[23] After B.W. reported her allegations to the police, she assisted them in locating Mr. Ho-On’s rooming house and went there with them. A videorecording was made of B.W. showing the building to the officers and pointing out the hallway leading to Mr. Ho-On’s door. B.W. is obviously emotionally distraught and crying on the video.

B. Mr. Ho-On’s Testimony

(i) Meeting B.W.

[24] Mr. Ho-On was 19 years old in the summer of 2017 and living in a rooming house in Toronto. He testified that he first met B.W. in the summer of 2017 through “Tinder,” a dating app. They exchanged messages on Tinder and Snapchat which included “small talk” and “flirting.” He first met her in person in June or July at a street festival they both happened to be at, but the meeting was brief as B.W. had to be somewhere.

[25] According to Mr. Ho-On, he and B.W. continued to communicate on Snapchat and eventually arranged to meet. She provided him with her address and he picked her up there in an Uber and went to his friend’s condominium, a place Mr. Ho-On frequently spent time at during the summer. On the way to the condominium, they engaged in “small talk” and “flirting” and held hands.

(ii) Visit at the Condominium

[26] Upon arriving at the condominium, Mr. Ho-On introduced B.W. to his friends. Everyone was “hanging out” and listening to music and some people were consuming alcohol, although Mr. Ho-On was not. Mr. Ho-On did not see B.W. consume any alcohol or drugs, although she had earlier told him that she had some Xanax with her. He thought she may have consumed alcohol because she became more talkative and “flirty.” He denied providing her with any type of intoxicant. In cross-examination, Mr. Ho-On stated that B.W. told him that she had taken Xanax. Later, he testified that he assumed that she had taken it.

(iii) The First Sexual Encounter

[27] According to Mr. Ho-On, while at the condominium he and B.W. were cuddling and “making out” on the couch. At some point, he asked the owner of the condominium where he and B.W. could “hook up” and was told that he could not do so in the bedroom. Mr. Ho-On asked B.W. if she wanted to “hook up” in the bathroom and she replied that she did.

[28] In cross-examination, Mr. Ho-On testified that he first asked B.W. if she wanted to “hook up” in the bathroom, after which he asked the owner of the condominium where he could “hook up” and was told not to use the bedroom. When asked why he asked B.W. if she wanted to go to the bathroom if he had not yet asked the owner which room he could use, Mr. Ho-On explained that he did so in case they could not use the bedroom. He then explained that although he said he asked her about “hooking up” in the bathroom, he had meant to say that he asked if she wanted to “hook up in general.”

[29] B.W. went into the bathroom and Mr. Ho-On went in after her. The lights were off. According to Mr. Ho-On, they “made out” and engaged in small talk. They both ended up on the floor. He took his clothes off, as did she. Mr. Ho-On then asked B.W. if he could perform oral sex on her. She agreed. He performed oral sex on her, after which she performed oral sex on him. In cross-examination, he testified that they performed oral sex on each other at the same time. After this, they engaged in sexual intercourse. B.W. was on her knees, facing the bathtub.

[30] When asked whether he was wearing a condom, Mr. Ho-On replied that he was not, adding that he had asked earlier if this was okay with her and she had said that she did not mind. When asked in cross-examination when this conversation took place, he responded that it was immediately after the oral sex.

[31] Mr. Ho-On testified that they had intercourse in the first position for about 10 minutes. They then changed positions such that B.W. was on top of him. They continued in this position for about another 10 minutes. After this, they returned to their initial position, following which Mr. Ho-On ejaculated after less than five minutes. B.W. was conscious and acting normally throughout the sexual encounter.

[32] In cross-examination, Mr. Ho-On agreed that it was possible that he pulled B.W.’s hair and hit her buttocks during sex. He could not recall if he discussed this with her.

(iv) Events After the First Sexual Encounter

[33] Mr. Ho-On testified that he got dressed and told B.W. that he was going to smoke a cigarette on the balcony. She told him to hold on while she got her clothes ready. He then left the bathroom and went to the balcony and she joined him afterwards. After they both smoked cigarettes on the balcony, they returned to the couch and engaged in further small talk and cuddling.

[34] Later in the day, Mr. Ho-On asked B.W. if she wanted to sleep at the condominium and she said that she did. They slept on the couch in the den. The next day, everyone continued to “hang out” and listen to music. Everyone left and went to the Eaton Centre, where they engaged in “window shopping.” They then returned to the condominium. At one point, Mr. Ho-On, one of his friends and B.W. decided to go for a drive, as depicted in the video.

[35] In the evening, one of B.W.’s friends, M., arrived at the condominium to bring her some clothing. Mr. Ho-On believed that B.W. had texted her earlier. This was the first time M. was at the condominium. She stayed for a couple of hours and then left.

(v) Going to Mr. Ho-On’s Home

[36] Mr. Ho-On asked B.W. if she wanted to spend the night with him at his home and she agreed. They took the night bus from the condominium to where he lived. It was Mr. Ho-On’s impression that B.W. was “probably buzzed from drinking all day.” He formed this opinion because she was “more talkative, more flirty” but had not actually seen her drinking.

[37] Upon arriving at Mr. Ho-On’s home, he and B.W. spent some time listening to music and “making out,” after which they went to sleep.

(vi) The Second Sexual Encounter

[38] The following day, Mr. Ho-On and B.W. spent more time “making out” and cuddling. He asked her if she wanted to have sex again and she replied that she did. They then had intercourse, initially with her on top of him, then changed positions such that she was face-down on the bed and he was penetrating her from behind. Mr. Ho-On testified that they were in each position for about 10 minutes. Eventually, he ejaculated.

[39] After having intercourse, Mr. Ho-On and B.W. spent time talking and listening to music. He denied ever holding a knife or having a knife within view.

(vii) B.W.’s Departure

[40] Eventually, B.W. told Mr. Ho-On that she had to leave because she had soccer practice. He walked her to the subway station and she left.

[41] According to Mr. Ho-On, he and B.W. communicated a few times after this by Snapchat but this eventually “fizzled out.” Later, he learned from social media that she had a boyfriend and as a result stopped trying to contact her. He never saw her again.

II. Analysis

A. The Burden of Proof

[42] Mr. Ho-On is presumed innocent of the charges against him and cannot be convicted unless the Crown proves his guilt beyond a reasonable doubt. There is no onus on Mr. Ho-On to prove anything, least of all his innocence. Proof beyond a reasonable doubt is a high standard. It is far higher than proof of likely or probable guilt.

[43] The determination of this case turns almost entirely on an assessment of the credibility and the reliability of the witnesses. B.W. testified that Mr. Ho-On gave her intoxicating substances, sexually assaulted her and prevented her from leaving his residence. Mr. Ho-On denied giving her drugs or confining her and testified that the sexual activity between them was consensual.

[44] The correct approach to take in cases like this has been expressed in various ways. One well-known articulation is that set out in R. v. W.(D.), [1991] 1 S.C.R. 742, at para. 28. The trier of fact should first determine whether he or she believes the accused’s version of events when considered in the context of the evidence as a whole. If so, he is entitled to an acquittal. If not, the trier of fact should consider whether the accused's version of events, although not believed, raises a reasonable doubt. If so, he is again entitled to an acquittal. If not, the trier of fact must consider whether the remaining evidence proves the accused's guilt beyond a reasonable doubt. Then, and only then, can there be a conviction.

[45] The W.(D.) approach has been the subject of some criticism: R. v. Ryon, 2019 ABCA 36, 84 Alta. L.R. (6th) 1, at paras. 20-54; R. v. Achuil, 2019 ABCA 299, 92 Alta L.R. (6th) 270, at paras. 17-18. Clearly, the approach in W.(D.) is not intended to be a “magic incantation” that must be followed word-for-word: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13. Nor must the steps set out in W.(D.) necessarily be performed in any specific order: R. v. J.M., 2018 ONSC 344, at paras. 4-20.

[46] Whatever approach is taken, the important points to keep in mind are that the burden of proof is always on the Crown and a trier of fact has three options with respect to exculpatory evidence: he or she can reject it, accept it, or be unsure whether the evidence is true or false: see R. v. L.K., 2020 ONCA 262, at paras.18-19. Either of the latter two options leads to a verdict of not guilty. Even if the exculpatory evidence is rejected, a finding of guilt can only occur if the evidence that the trier of fact does accept proves the charge beyond a reasonable doubt.

B. Assessment of Evidence

(i) Preliminary Considerations

(a) Demeanour

[47] In weighing the evidence of the witnesses, I have considered what I view to be objective measures of reliability, such as the plausibility of the evidence, whether it was internally and externally consistent, and the witness’s ability to recall events. I have assigned little, if any weight to the demeanour of the witnesses while they testified as it can be an unreliable indicator of credibility or reliability: R. v. J.L., 2022 ONCA 271, at para. 6; R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at paras. 44-45; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 85-89; Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66.

(b) The Rule in Browne v. Dunn

[48] In reaching my conclusions respecting Mr. Ho-On’s credibility, I have not relied on any supposed lack of compliance with the rule in Browne v. Dunn (1893), 6 R. 67 (U.K.H.L.) although I was invited to do so by Crown counsel. Crown counsel submitted that the rule was violated because counsel for Mr. Ho-On failed to put to B.W. the details respecting the various positions in which Mr. Ho-On described them having intercourse and failed to put to her that Mr. Ho-On had asked her about not using a condom.

[49] It has been suggested that Browne v. Dunn “could be one of the more misunderstood decisions in our jurisprudence”: P.J. Sankoff, Law of Witnesses and Evidence in Canada (Toronto: Thomson Reuters, 2022), at § 12:19. The rule is rooted in basic principles of fairness and is designed to ensure that the witness and opposing counsel are aware that certain aspects of the evidence are not being accepted: at paras. 76-78. The rule in Brown v. Dunn does not require counsel to put “every scrap of evidence” that may be contradicted to the witness. Where it is apparent that the cross-examining party does not accept the witness’s version of events and the witness’s view of the contradictory account is apparent, the requirements of the rule will be fulfilled: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 81-82.

[50] In this case, it was apparent from the tenor of counsel’s cross-examination of the complainant that her evidence about having non-consensual intercourse while in an impaired state was not accepted by the defence. Once B.W. denied having consensual intercourse with Mr. Ho-On, there would have been little utility in defence counsel going on to make suggestions about the various positions in which she had consensual intercourse. It would likewise have been futile to suggest to her that she had agreed to have intercourse without a condom.

(c) Other Charges Against Mr. Ho-On

[51] There was evidence that Mr. Ho-On was charged with other serious offences, some of which involved allegations similar to those made in this case. This evidence was adduced without objection because it was relevant to the narrative about when B.W. disclosed her allegations to the police. It was not admissible for any other purpose. There was no evidence that Mr. Ho-On was in fact guilty of any of those charges, nor does the evidence permit an inference that he has a propensity to commit offences of this nature.

(ii) Mr. Ho-On’s Evidence

[52] There are several reasons why I do not accept Mr. Ho-On’s evidence and conclude that it does not raise a reasonable doubt.

[53] First, in the circumstances of this case, it is simply not credible that Mr. Ho-On would have such a detailed recollection of the events. On his account, this was a very brief and mostly casual relationship with a person he did not know well and whom he never saw again. He would have had no reason to recall the details of these events prior to being arrested almost two years later. Despite this, he professes to remember not only what positions he and B.W. had sex in, but the order in which they did and the length of time they spent in each position. Although he is able to remember all of these details, he is unable to recall whether he pulled B.W.’s hair or smacked her buttocks while having sex. It is clear that Mr. Ho-On is not genuinely recounting his memory of the events.

[54] Second, Mr. Ho-On’s evidence about his knowledge of B.W.’s consumption of intoxicants was inconsistent. He testified that she appeared to be under the influence of alcohol at the condominium because she was more talkative and “flirty,” yet despite being with her for hours he never saw her consume any. At one point in his testimony, he said that B.W. told him that she had taken a Xanax, but at another point said that he had simply assumed that she had done so.

[55] Third, there were significant inconsistencies in Mr. Ho-On’s evidence about the circumstances in which he asked B.W. whether she wished to “hook up” in the bathroom. He initially testified that he asked the owner of the condominium where he could “hook up” and was told not to use the bedroom, after which he asked B.W. whether she wanted to “hook up” in the bathroom. He later said that he first asked her whether she wanted to “hook up” in the bathroom, was told that she did, and then asked the owner where he could “hook up.” When asked why he had suggested “hooking up” in the bathroom before asking the owner where he could do so, he explained that when he had said “hook up in the bathroom,” he had meant to say “hook up in general.”

[56] Based on these problems in Mr. Ho-On’s testimony, I reject his evidence. That, of course, does not end the matter as the burden remains on the Crown to prove his guilt beyond a reasonable doubt.

(iii) B.W.’s evidence

[57] It is clear that B.W.’s memory in inaccurate in many respects. She denied sitting on the couch with Mr. Ho-On and kissing him and also denied going on a car ride with him, although she later accepted that these events must have happened. Of even greater concern was the inconsistency in her evidence about the number of days she spent at Mr. Ho-On’s home. The chronology she recounted during her examination in-chief clearly implied that she spent one day there, but she later adopted her prior statement to the police in which she said she had spent two days there. In the result, her evidence contains no details about the events of the first day at Mr. Ho-On’s residence.

[58] Inconsistencies in a witness’s evidence are always a cause for concern. However, what is important with respect to any assessment of credibility and reliability is not the fact of the inconsistency, but the reason for it. Where an inconsistency is the product of a dishonest witness’s inability to keep his or her story straight, it will often lead to a rejection of the witness’s testimony. But where the inconsistency has other causes, such as an honest mistake or a faulty memory, it may affect the reliability of the witness’s evidence depending on the circumstances.

[59] I do not believe that the inconsistencies in B.W.’s evidence are the result of an attempt by her to mislead the court. She seemed genuinely surprised to see the photograph of herself on the couch and the video of the car ride, and after seeing them made no effort to explain them away.

[60] More importantly, there is an obvious explanation for B.W.’s faulty memory. There is no dispute that she consumed Xanax while at the condominium, although there is a dispute about how she came to consume it. The fact that she was impaired by drugs explains why she is unable to remember certain details, including the amount of time she spent with Mr. Ho-On.

[61] Notably, all of the problems with B.W.’s memory relate to the period of time at the condominium, and possibly the first day at Mr. Ho-On’s residence (if she in fact spent more than one day there). There is no suggestion of any inconsistencies or gaps in her memory with respect to the last day at Mr. Ho-On’s residence where they had intercourse and following which she left and went home.

[62] Counsel for Mr. Ho-On also pointed out that B.W.’s evidence about her drug use is inconsistent with her description of herself in the Instagram post as being a “heavy drug user.” I do not view this as significant. I accept B.W.’s evidence that her drug use increased after her encounter with Mr. Ho-On.

[63] B.W.’s evidence about how she met Mr. Ho-On was inconsistent in some respects with her statement to the police, where she seemed to have no recollection of how she met him. However, the circumstances in which they met is not of great significance. In all the circumstances, I am satisfied that any inconsistences in her evidence on this issue do not detract from the credibility or reliability of her evidence as to the events that occurred at Mr. Ho-On’s residence.

[64] Having considered all of the circumstances, I am satisfied that B.W. is a credible witness and that her memory of the events at Mr. Ho-On’s residence is reliable. I draw a different conclusion with respect to her memory of the events at the condominium, which is clearly not reliable. While I do not find that she was attempting to mislead the court, it is clear that she does not remember some events and her memory of other events is simply not accurate.

C. The Counts

(i) Count 30 – Sexual Assault [2]

[65] This count relates to the alleged non-consensual sexual activity in the bathroom of the condominium. For the reasons outlined earlier, I am not satisfied that B.W.’s memory of the events of that day is sufficiently reliable to establish Mr. Ho-On’s guilt beyond a reasonable doubt. As a result, Mr. Ho-On is found not guilty on Count 30.

(ii) Count 31 – Sexual Assault With a Weapon

[66] This count relates to the alleged non-consensual sexual activity at Mr. Ho-On’s home which B.W. testified included the use of knife. For the reasons I have explained, I find B.W.’s evidence with respect to the events of that day to be credible and reliable and I reject Mr. Ho-On’s denials. As a result, he is found guilty on Count 31.

(iii) Count 32 – Administer Noxious Thing

[67] This count relates to the Xanax B.W. testified Mr. Ho-On gave her while at the condominium. As with Count 30, I find that B.W.’s evidence with respect to the events of that day is not sufficiently reliable to ground a conviction. Mr. Ho-On is found not guilty on Count 32.

(iv) Count 33 – Unlawful Confinement

[68] Count 33 is based on B.W.’s testimony that while she was at Mr. Ho-On’s residence, he told her that she could not leave and did so while being aggressive towards her and in circumstances where there were knives visible in the room. As a result of his conduct, she felt that she could not leave.

[69] The offence of unlawful confinement is defined in s. 279(2) of the Criminal Code. It does not require proof of physical restraint or overt acts of violence and includes confinement resulting from fear or intimidation: R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 64. The Crown must prove that the defendant intentionally engaged in conduct that prevented the complainant from “mov[ing] about according to her own inclination and desire”: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24. The evidence which I accept establishes that Mr. Ho-On did so in this case. As a result, he is found guilty on Count 33.

III. Disposition

[70] For the foregoing reasons, Mr. Ho-On is found guilty on Counts 31 and 33 and not guilty on Count 30 and 32.

Justice P.A. Schreck

Released: February 10, 2023.

Footnotes

[1] An abbreviated version of these reasons was read in court. In the event that there is any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.

[2] For reasons that were not disclosed, Mr. Ho-On was arraigned on Counts 30 to 33 of a multi-count indictment but not on the other counts. I take nothing from this, and the fact that there are other counts on the indictment is of no significance.