Introduction

[1] The accused, Mohammed Ulusow, is charged with one count of sexual assault on N.S., alleged to have occurred between the 18^th^ and 19th day of October, 2018, at the City of Mississauga, in the Central West Region, contrary to section 271 of the Criminal Code of Canada. For the same dates he is also charged with breach of his recognizance to remain at his residence contrary to section 145(3) of the Criminal Code of Canada. Mr. Ulusow pleaded not guilty to the first charge, but guilty to the second one.

[2] There is no dispute that the accused and the complainant had sexual intercourse in the late evening of October 18, 2018. Defence counsel suggested that there were two issues to be decided: i. Did the complainant consent to the sexual activity? and ii. If the complainant did not consent to the sexual activity, did the accused know that she was not consenting or hold an honest belief in communicated consent?

[3] Given Mr. Ulusow’s unequivocal testimony that Ms. N.S. “verbalized” her agreement to have sex with him, her only condition being that he use a condom, the second question about Mr. Ulusow holding an honest but mistaken belief that Ms. N.S. consented does not arise. At no time did Mr Ulusow say that he misunderstood Ms. N.S. He described her as a willing participant and stated that he understood the meaning of consent to require a verbal “yes”, which he said that she gave.

[4] The Crown submitted that it met its burden of proving beyond a reasonable doubt that Ms. N.S. did not consent to sexual intercourse in the back of a vehicle parked at the back of a Shisha Lounge, (the Lounge). Ms. N.S. was adamant that she never said “yes” to any sexual activity with Mr. Ulusow. She also said that her actions did not matter. In the Crown’s view, Mr. Ulusow was attracted to Ms. N.S., he hoped to have sex on the night of the incident, he brought her out from the Lounge to a vehicle, he drove to the back of the Lounge and isolated her in the vehicle, he forced himself onto her and had vaginal intercourse.

[5] Although the Crown acknowledged Ms. N.S’s difficulties with her memory over the specific activities leading up to the alleged incident, counsel cautioned that those difficulties reflected a poor memory, as opposed to any attempt to lie to the court. Moreover, the difficulties related to irrelevant details and they did not eclipse Ms. N.S.’s consistent evidence that she did not consent to sexual intercourse with Mr. Ulusow. The Crown also denied the existence of any motive by Ms. N.S. to lie about her activities that evening.

[6] The defence submitted that the Crown failed to meet its burden of proof. Counsel invited the court to believe Mr. Ulusow ‘s evidence that Ms. N.S. was a willing participant. Although her willingness was conditional on Mr. Ulusow obtaining a condom, once Mr. Ulusow acquired one from his friends, Ms. N.S. clearly agreed to the sexual activity. She agreed to join Mr. Ulusow in the cream-coloured vehicle, she agreed to drive to the back of the Lounge, and she voluntarily moved to the back seat of the vehicle, where the sexual activity then occurred. Ms. N.S. then fabricated the allegations against Mr. Ulusow because she regretted the events of that evening, and she feared her mother’s reaction to her decision to stay out all night. Counsel concluded that Ms. N.S. was incredible and unreliable and therefore, her evidence was incapable of belief.

[7] Separate and apart from any motive to lie, defence counsel invited the court to examine the evidence concerning Ms. N.S’s conduct to evaluate her subjective state of mind. He added that her actions that night did not reveal any disagreement to engage in the sexual activity. Finally, counsel submitted that if the court were to find a lack of consent by Ms. N.S., as an alternative to the defence that Ms. N.S. consented to the sexual activity, if the court were to find that Ms. N.S. did not consent to the sexual activity, the court could find that Mr. Ulusow operated under an honest and mistaken belief over Ms. N.S.’s consent, with reference to her actions.

[8] For the reasons that follow, the Crown has failed to satisfy me beyond a reasonable doubt that Mr. Ulusow is guilty of sexual assault. In my consideration of the totality of the evidence, I am not certain who to believe. Although I find that there was no unequivocal “verbalized” “yes”, as Mr. Ulusow suggested, I also find a number of difficulties with Ms. N.S.’s evidence and am therefore left with doubt over her subjective intent. Accordingly, I am obliged to acquit.

Summary of the Relevant Evidence

[9] To begin with, the parties agreed to the following facts:

a. On the afternoon of October 19, 2018 the complainant N.S., contacted police about an alleged sexual assault that happened the previous night and earlier that morning.

b. Later that day, Ms. N.S. attended Chantels Place for a sexual assault examination kit.

c. On November 28, 2018 the Centre for Forensics Report from the Sexual Assault Examination Kit indicated that a Male DNA profile was found during the examination and specifically that male DNA was found in the form of semen both on the outside and inside of Ms. N.S.’s vagina.

d. On December 4, 2018, a further Centre of Forensics report indicated that there was a match to the Male DNA found. The results that came back indicated that the sample was from Mr. Ulusow.

e. While the Sexual Assault Examination was taking place, police officers attended the hospital and seized as evidence Ms. N.S.’s underwear, shoes, a jacket, and a bra.

[10] The parties also agreed that Ms. N.S. and Mr. Ulusow encountered each other on the evening of October 18, 2018. Although they agreed that they met at the Lounge that night, they disagreed on many of the details concerning how they first met, the sequence of activities that night, and whether or not they took an interest in each other. In a nutshell, Ms. N.S. said she agreed to meet with Mr. Ulusow and some other guys because she hoped to smoke weed with them. She denied having or showing any interest in Mr. Ulusow, though she agreed that they talked. Mr. Ulusow said that he was attracted to Ms. N.S., that in the course of the evening they shared intimate details about each other, he started to flirt with her, and when he told her he wanted to have sex with her, she agreed. A summary of their respective evidence follows.

a. The Crown’s allegations

[11] Ms. N.S. testified that she never said “yes” to any sexual activity with Mr. Ulusow. At the time of her testimony, she was 21 years old. On October 18, 2018 she would have been 17 years old. She lived with her mother and two younger siblings, she went to school, and she worked after school, on a part-time basis at McDonalds. Typically, school would end at 3:00 pm, she would return home to change and then head off to McDonalds, where she would work until 6:00 or 7:00 p.m.

[12] During her testimony, Ms. N.S. admitted to having difficulties with her memory. She said she smoked weed “religiously” since the age of 15 and that affected her memory. During her examination in chief, she asked to review her police statement to refresh her memory. That review did not help her remember the names of the guys she met or the sequence of events both before and after the sexual activity. When in cross she was asked if she had the opportunity to review the transcript from her evidence at the Preliminary Inquiry, she said she read some of it, but that she had to do so on the small screen of a phone because she did not have access to a computer or a paper transcript. In any event, with an intervening period of four years between the date of the incident and the trial, she confirmed that her memory of the events of October 18 / 19, 2018 was poor.

[13] Ms. N.S. said she was walking home from school, when she encountered some guys who seemed to be fixing a flat tire. She stopped to talk to them, and they complemented her on what she was wearing. In her cross-examination, Ms. N.S. recalled that one of the guys went by the name “Jay” and the other guy was Mr. Ulusow. She also recalled that her hair was coloured blue. They exchanged phone numbers and she went on her way. Either that day, or a few days later, one of the guys called her to arrange to meet. Although she could not take the call because she was working, she recalled calling them back once she was done with work.

[14] Ms. N.S. said her primary goal for meeting these guys was to smoke weed and she arranged to meet them at the John Garland Plaza on Martin Grove. She went home from McDonalds to change and told her mother she would be going out for only a short while. She then went to the Plaza and waited for about 25 minutes before some guys arrived. Although she could not remember the guys’ names, she said recognized one of them from her encounter earlier in the day. She alsocould not remember their ages, but she thought they were between 20 and 28 years old. During her cross, she was shown her statement to the police where she gave some names, but that did not help her recollection. She thought that Mr. Ulusow went by the nickname “O” or “Olio” and denied that his nickname was “Mo”, short for Mohammad. She did not recall anyone by the name of Lusso. She eventually recalled that the driver of one of the vehicles was “Jay” and another individual went by the initial YG.

[15] Ms. N.S. was also not entirely certain of the guys’ plans for that evening. When they met her, they told her they would be picking up food and one more person. Ms. N.S. said she did not care all that much, as long as she got the weed she was hoping to smoke. She sat in the back of the vehicle but did not engage in any conversation. She recalled that the guys offered her cognac and she took a number of sips. She also recalled that one person was dropped-off and another one was picked-up. Then they went over to the Lounge.

[16] The first thing Ms. N.S. remembered about the Lounge was that the guys were looking for parking and she needed to go to the bathroom. She did not recall going into the Lounge, other than to use the facilities. As she tried to get out of the vehicle, Mr. Ulusow, picked her up and started to run around in the parking lot. He lost his balance and dropped her, causing her to get hurt. She said she had blood on her jacket. She went into the bathroom at the Lounge to clean up and to see if she was ok. She said thought that because she was drunk, she did not feel much pain, though she noticed blood on her clothes. She recalled limping and feeling embarrassed over what happened. She did what she could to make herself presentable and went back out. At one point in her testimony she said she was “vexed” by what happened to her, she returned to the vehicle and wanted to go home. She said she was hungry and upset that she still had not received any weed.

[17] When she got back to the vehicle, she was under the impression that they would going into the Lounge to drink and to smoke Shisha. Instead, she saw Mr. Ulusow leaving the vehicle and going around to his friends to ask for protection, i.e., a condom. She thought that was awkward and in her mind she thought “it is not going to go down the way you think it is going to go down”.

[18] Mr. Ulusow then asked her to join him in a different vehicle and they drove to the back of the Lounge. When asked to explain her response to Mr. Ulusow’s invitation, Ms. N.S. said she did not like the idea of going to the back, unless it was to smoke. When Mr. Ulusow brought up the subject of a condom, she said to the court that she was not interested but she agreed to go with him because she wanted to see what it was that he thought he could do. In that moment, she did not say whether she told Mr. Ulusow that she was not interested in any sexual activity.

[19] Once at the back of the Lounge, Ms. N.S. recalled talking about certain designers that she liked. Mr. Ulusow raised the possibility of having sex and she told him she was not interested. She said she started to laugh and considered the ask ludicrous. Since she had just met him. She said she did not do sex with strangers. In response, Mr. Ulusow started to touch her, but she pushed him away. He continued to touch her on her chest and waste. He then reached under her shirt to get to her boobs. She moved again and told him that she did not want him to touch her. To get away, Ms. N.S. said she got out of the front passenger seat and went to the back seat. Mr. Ulusow followed her to the back. She said that her waist was still hurting because of her fall. She tried to position herself to minimize the pain. She also showed Mr. Ulusow the various cuts she sustained from the fall. He apologized. At this point she just wanted to feel better.

[20] The next thing she recalled was her pants coming off and her underwear being ripped off. Mr. Ulusow was trying to get her to get comfortable. He told her to chill and that he was clean. She became concerned because she knew that he did not have a condom. She said that she told him “I don’t know you from nowhere. Why would I sleep with you from nowhere?” She assumed that when somebody says “stop” that person would listen.

[21] When asked to provide details on how her pants came off, Ms. N.S. said she fought to keep them on. He was pulling them down and she was trying to keep them up. She was annoyed, irritated, and angry. But she was also feeling sore from her fall. Eventually, his strength overwhelmed her and she did not have the strength to resist him. She concluded that she had no choice but to lay back. She explained that she removed the shoes voluntarily for fear that otherwise he would get angry.

[22] Ms. N.S. expressly denied that she ever changed her mind and agreed to the sexual activity. She said that Mr. Ulusow did not tell her that he wanted to have sex with her and she denied saying to Mr. Ulusow that she wanted to have sex. She said that she told him to stop but it did not make a difference. When asked about whether or how she reacted to his refusal to stop she said she did not react at all.

[23] At the conclusion of the sexual activity, she recalled pulling up her pants and getting out of the car to throw up. She also recalled that the vomit was all over her shoes and her clothes. She attributed that to the drinking and said she had not realized how drunk she was until she threw up. In cross-examination, Ms. N.S. could not recall if she threw up in the vehicle or if she was standing outside. She also could not recall if the vehicle she was talking about was the black vehicle or the cream vehicle. However, she agreed that the vomiting happened after the sexual activity.

[24] She and Mr. Ulusow then returned to the front of the Lounge and reconnected with the rest of the guys. At some point, Ms. N.S. discovered that her money and a bank card were missing. She thought that the guys then brought her to a hotel where she used the washroom facilities and threw up again. From there, one of the guys brought her to a seniors’ residence near her home, and from there she walked home. Ms. N.S. could not recall when Mr. Ulusow left or if she, together with the other guys, dropped him off at his home at around 1:00 a.m.

[25] When asked about what she remembered about returning home, Ms. N.S. asked to review the transcript of her police statement to refresh her memory. Following her review, she recalled getting home at around 8:00 a.m. and her mom “was pretty pissed’ and kept asking her what happened. At first, she did not want to say anything to her mother. She recalled throwing up some more, taking a shower, and going to sleep. When she woke up, she thought she spoke to her uncle and her sister and possibly her dad about what happened. She also talked to her mom, who basically told her, “that will teach you”. Her mother and sister told her to call the police, which she did.

b. The Defence challenges to the complainant’s evidence

[26] Defence counsel challenged Ms. N.S. on her inability to remember what occurred as well as the opportunities she had to prepare for her testimony. Ms. N.S. agreed that her preparation was limited by her inability to have regular access to a computer and to a quiet place to review the transcripts of her statement to the police and her testimony at the Preliminary Inquiry. Counsel also suggested to Ms. N.S. that she was prepared to say just about anything to get her testimony over with and she agreed. Specifically, Ms. N.S. said, “Yes, because I don’t see the need of me being here if you want me to be quite frank”.

[27] Counsel persisted with the suggestion that “at its heart, your allegations about Mr. Ulusow come because by eight o’clock in the morning you were beginning to confront your own embarrassment in being out all night, contrary to the stated intention that you had given your mother the night before, what do you say to that?” Ms. N.S. responded that the only embarrassment she felt was related to throwing up on herself. She said that she was not embarrassed about anything else and added that “nobody has the right to be violated, especially when it is not wanted”.

[28] Counsel then pressed Ms. N.S. on her relationship with her mother. Ms. N.S. said her mother was tough on her. She agreed that when she went out that night, she told her mother that she would only be gone for a few minutes. In response to her mother’s repeated attempts to call her on the phone, Ms. N.S. she ignored the calls and eventually turned off her phone. She also thought that her phone battery died at some point in the evening. When asked if she did not want to be harassed by her mother for staying out late, Ms. N.S. responded that it was part of the context.

[29] Ms. N.S. agreed that when she returned home in the morning, her mother was furious with her for lying about where she was going the night before and for staying out all night. She also agreed that as she walked home, she was anticipating her mother’s anger, particularly since her mother could be physical with her. However, in response to the suggestion that she feared her mother, Ms. N.S. got defensive and said she knew how to get around her to avoid her anger. When challenged further, Ms. N.S. conceded that it was possible that her mother would get physical with her for staying out, as she had been on past occasions. Ms. N.S. added that when her mother did not get her way or when she felt disrespected, “buyer beware”.

[30] Defence counsel then put to Ms. N.S. the suggestion that she manufactured the allegations against Mr. Ulusow to avoid the confrontation that she expected would come from her mom. Ms. N.S. did not expressly deny the suggestion. Rather, she said that her mother still blamed her for coming home late and for giving her number to strangers. In re-examination, Ms. N.S. was asked about fearing her mother for breaking curfew. She responded that she broke her curfew more than five times but her mother did not do or say anything. Ultimately, in reply, Ms. N.S. said that her mother cared for her. Her mother would not react the way she did unless it were for a good reason.

[31] As to how drunk she actually was that night, following some back and forth with counsel, Ms. N.S. agreed that she was feeling a burning sensation, that she was not “fully drunk”, that she was feeling a buzz, and that she was feeling good. She also agreed that she was sober when she was with Mr. Ulusow. At a different point in her cross-examination, she elaborated that she was not so drunk that she did not know what was going on. Eventually, she also clarified that her drinking had nothing to do with the sexual activity or her reaction to Mr. Ulusow’s advances.

[32] Counsel also challenged Ms. N.S. on her evidence that she only went into the Lounge to use the washroom facilities. He suggested to her that she went there to socialize together with the guys and that she went inside with the guys. Ms. N.S. insisted that she only entered the Lounge to use the bathroom and added that she did not care if the guys followed her inside. Counsel persisted with questions about “conversations generally at the Shisha lounge” and suggested that she and Mr. Ulusow were having friendly and relaxed conversations there. Ms. N.S. said that the guys were having conversations, but that she was not saying much. She stated that everyone, including Mr. Ulusow were taking sips out of the cognac bottle.

[33] Ms. N.S. denied that she and Mr. Ulusow confided in each other. Ms. N.S. said she did not remember telling him any of her business. She became combative in her responses related to her understanding of Mr. Ulusow’s bail conditions and his house arrest. She eventually agreed that he told her that he was on bail but that he did not tell her that he was under house arrest. She also said that he did not tell her that he was facing charges involving a gun. When asked if she remembered telling the police that she knew that Mr. Ulusow was on a curfew, Ms. N.S. agreed that she knew but quickly differentiated it from being on house arrest.

[34] Counsel took Ms. N.S. back to the sequence of events between her time with Mr. Ulusow in the black vehicle and then their movement to the cream-coloured vehicle. Ms. N.S. agreed that she went voluntarily from one vehicle to the other. However, she denied that Mr. Ulusow was being affectionate in the black car. She said “he was trying something, trying to get to me”. She also agreed that she knew that Mr. Ulusow had stepped out of the car to look for a condom, before she agreed to go to the second car. Ms. N.S. denied that she asked Mr. Ulusow to go find a condom.

[35] Counsel then turned his attention to the activities in the second car and asked Ms. N.S. about the reason for her movement from the front seat to the back seat. Ms. N.S. reiterated that she did not want Mr. Ulusow to touch her. When it was suggested to her that if she did not want Mr. Ulusow to touch her, she would not be moving from the front of the vehicle to the back, but would leave altogether and walk away, Ms. N.S. said she was being polite because she was under the impression that Mr. Ulusow would simply be parking the vehicle.

[36] Counsel suggested to Ms. N.S. that her story was the result of her regret over the events of the evening. Ms. N.S. disagreed and accused counsel of trying to put words in her mouth. She became particularly combative and tried to wrest control of the questioning. Ultimately, she said that what she told her mother about the events of the evening were the truth and nothing but the truth.

[37] Counsel pressed on with the further suggestion that the incident that caused her to walk away, to get up and leave and to bring an end to her partying was not a non-consensual incident between her and Mr. Ulusow, but her discovery many hours later that somebody took advantage of her and took her cash and her card. Ms. N.S. responded that she was angry at the whole situation and did not want to be there. She then offered her understanding of what in her mind constituted consent:

Counsel: Ms. Smith, really, this is your last opportunity. You’re here as a witness, obviously it is important to you, it’s also important to Mr. Ulusow, it’s important to the court, and it’s important to our community, and so I want to urge you to agree with me that now, four years later, upon reflection of the events that you testified to, today and yesterday, you are at least uncertain whether the sexual activity between you and Mr. Ulusow was consensual or not.

Ms. N.S.: It was never discussed. It was never the topic of the conversation.

Counsel: Ok

Ms. N.S.: The only thing that was discussed was the fact that he was going to look for a condom and I looked at him and I looked at him and well, where did this come from?

Counsel: Is it your idea that unless it is actually discussed in words, you aren’t expressing consent?

Ms. N.S.: Pretty much.

Counsel: Is it your belief that your actions can in no way constitute consent?

Ms. N.S.: No. Me sitting down does not say, yes I want sex. Me, walking around does not say, yes I want sex. Me, verbally saying it and expressing it and saying out of my mouth, this is what I want, then that’s consent. But if I am not verbalizing it showing you that, okay, get this, get that, put this aside, what are you doing? This is all my views. You doing it, your own actions, not me. (my emphasis)

c. The Defence Evidence

[38] Mr. Ulusow testified in his defence. At the time of the incident, he was 23 years old. He was facing charges for armed robberies and for shoplifting and was under house arrest. He was living with his mother and sister, as they were his original sureties. He said he pleaded guilty to shoplifting on February 21, 2019. On February 3, 2020, he was convicted on six counts of armed robbery. Because of COVID19, he was not sentenced until October 2, 2020. He was sentenced to 7 years, 29 days. At the time of this trial, he was still serving that sentence.

[39] Mr. Ulusow recalled that in October 2018, he and two friends were together in a vehicle when they heard a tire pop. The vehicle was a cream-coloured Nissan that his friend Simran rented from a garage. They pulled over to fix it. While doing so, Mr. Ulusow noticed Ms. N.S. walking on a pathway. She had food in her hand and she was wearing headphones. When he caught her attention, he told her that he liked her outfit, asked her for her name and her number. Ms. N.S. gave him her Snap Chat handle and asked for weed. She hung out for a bit but then said she said she had to go to work. Mr. Ulusow told her that they might be going to a Shisha Lounge and asked her if she would want to go with them. She said she would let them know.

[40] Mr. Ulusow explained that his main goal in that conversation was to get her number. He told her that he wanted to hang out together and she agreed to give it to him. She also told him that she lived in the neighborhood, in Jamestown. He said he lived in a different social housing community. He said she was cute, was easy to talk to and described her as “jolly”. He also said she was very different from the way she presented in the courtroom. Before she left, he recalled giving her a hug and she hugged all the guys.

[41] Mr. Ulusow said they continued their communications on Snap Chat. If he “snapped” her while she was at work, she would respond a few hours later. They talked about simple things in life such as “how are you?”, “how’s work?”. A few days later, on Thursday morning, he told her that he and his friends would be going to the Lounge and he invited her to come along. He called her from “Jay’s” phone but she did not answer. Later in the evening, she called back. She told them that she would be working until 8:00 pm but could meet them at 9:00 pm.

[42] Indeed, she called them at 9 pm. Mr. Ulusow and his friends Esab, Mohammed, and Simram were hanging out at Humber College as this was one of the permitted locations for him to be. Ms. N.S. indicated that she was back home and wanted to come out to meet them. Although Mr. Ulusow said he was worried about his curfew, he and Simran agreed that they would go ahead to the Lounge to get a table. He arrived there around 10:00 pm. Mohammed and Esab had something else to do and they arranged to meet Ms. N.S. and bring her to the Lounge. They arrived at the Lounge in a black vehicle.

[43] Ms. N.S. was sitting in the back of the vehicle. When Mr. Ulusow saw Ms. N.S. he gave her a hug. When asked if Ms. N.S. came into the Lounge, Mr. Ulusow responded, “of course she did”. He described how they were all having a good time smoking a hookah pipe. He recalled talking to Ms. N.S. and liking her a lot. He said that he was interested in her. She talked to him about her depression and having troubles in school. He told her about the charges against him and his stresses. She was supportive. As he was talking to Ms. N.S., he noticed that his friends were talking to two or three girls at another table.

[44] At some point, they all went outside. One of his friends brought a bottle of Crown Royal whisky and alcohol and they all had a swig. He acknowledged that his mother was very religious and would not allow him to drink alcohol. He said that he was trying to be sneaky. As for Ms. N.S., he said he did not see her having any drink. In cross-examination he gave a different answer and said that she also had a swig. When asked about his and Ms. N.S.’s sobriety levels he said that he was in a good mood. He referenced having his Smart Serve certificate and knew the signs to look for to assess somebody’s level of sobriety. He said that Ms. N.S. was not drunk, that she did not have red eyes, she was able to walk normally, and she was happy and jolly.

[45] After that 10-15 minute break, they all went back into the Lounge, including Ms. N.S. They continued to laugh and talk. She told him about her relationship with a boy friend and he told her she had to be more confident. He then suggested that the two of them go back outside. When they got out, he had another cigarette. As it was cold, he suggested that they go sit in the black car. They sat in the back seat and then he started a heavy flirt. He leaned forward to give her a kiss and she reciprocated. They then started to make out. He whispered in her ear that he wanted to have sex. She paused and thought about it and asked him if he had a condom. In cross-examination Mr. Ulusow varied his answer and said that first she said yes to having sex and then she asked him if he had a condom.

[46] Mr. Ulusow said he thought he had one, but he did not. He looked in the car for one, but he did not find anything. He returned to the Lounge to ask his his friends for a condom. He thought that Mohamed, also known as “Jay” gave him one. At the same time, his friend Esab, who was the owner of the black car, told him he had other plans and had to leave. Jay understood that a request for a condom meant that he would be having sex and he gave him the keys to the cream-coloured Nissan. He then went back outside where Ms. N.S. was waiting by the black vehicle. He told her that he found a condom and she giggled. He then told her to go to the cream-coloured vehicle and he drove it from the front of the Lounge, where it was busy, to the back of the Lounge, where they could have privacy.

[47] Initially, Mr. Ulusow was in the driver’s seat and Ms. N.S. was in the front passenger seat. Then, they went to the back seat. She took off her clothes and he took off his. He expressly denied that there was any struggle to remove Ms. N.S.’s underwear and he did not know how the underwear ripped. They proceeded to have sex in multiple positions. He said that she was riding him in the missionary position and then they had sex in the dog position. First, he thought that they were intimate for 15 minutes. Then he said they had sex for 25-30 minutes. When they were finished, he took a tissue, removed the condom, and threw it away. They got dressed, went back to the front seats, and drove back to the front of the Lounge. He said that he was happy, she was laughing, and they had music going. He suggested that he also felt a bit tired. Once at the front of the Lounge, he recalled seeing Mohamed with a girl. When Jay asked him where they had gone, he said they went to McDonalds.

[48] Mr. Ulusow recalled that after the sexual activity and their return to the front of the Lounge, Ms. N.S. found herself on the hood of the car. He tried to pick her up to show how strong he was. Instead, he tripped, and they both fell and injured themselves. She went into the Lounge to use the washroom. He reached into his pocket for his phone but could not find it. He wondered if his phone fell in the black vehicle but Esab was gone. He went back to the cream-coloured vehicle and found it under the passenger seat. When he looked at the time, he panicked because it was past his curfew. He knew that he had to go home. Mohamed, Simram and Ms. N.S. took him home. He said that he and Ms. N.S. sat in the back and made plans to go to Yorkdale on the following day.

[49] In short, Mr. Ulusow said that at no time did Ms. N.S. resist his advances. She remained a willing participant at all times and never changed her mind. In cross-examination he stated that he did not sexually assault anyone, that he was not a rapist and that he understood what consent meant. In response to questions about not being able to remember certain details, he acknowledged that after four years, there were things he could not remember, but consent was not something he could be mistaken about because he was not a rapist. He said he was 100 per cent sure that the sex was consensual.

d. The Crown’s challenges to Mr. Ulusow’s evidence

[50] In cross-examination Mr. Ulusow was asked if having sex with Ms. N.S. was his goal when he first met Ms. N.S. Although he denied it as a goal, he said that if it came along, sure, he would welcome it; he wanted to have sex. He agreed that he was having a good time at the Lounge and that it crossed his mind that they might have sex with Ms. N.S. He said, “of course it is always possible”.

[51] Mr. Ulusow agreed that he was breaching his curfew rules when he went out with the guys and Ms. N.S. He said it was tough living under restrictions and he was stressed out. It was not until he was committed to trial for the armed robberies that he started breaching his bail conditions, though he did not do it often. That night he looked forward to going out, to a night of freedom, and enjoying himself. He said he enjoyed the drinking and he described himself as a social person.

[52] When asked about what stuck out in his mind from that night, Mr. Ulusow said that when he was charged with sexual assault his whole life stopped before his eyes. He likened it to a first-degree charge. He agreed that he was arrested 4 months after the incident. But he said that he went back to evaluate everything, and he remembered because he could remember. Everything that happened came back to him.

[53] In response to questions about what he and Ms. N.S. were wearing, Mr. Ulusow said he could not remember any colours but that Ms. N.S. had a puffy jacket. He believed he was wearing sweat pants.

[54] Mr. Ulusow recalled that on the night he and his friends got together at the Lounge, he was flirting with Ms. N.S. When it was suggested to him that Ms. N.S. was probably flirting back, he responded, “She didn’t push, she didn’t like she was ignoring me; it takes two to have a conversation going”. At some point during their conversation, he asked her to go back out to the vehicle and she agreed to go with him. During the cross-examination, he initially suggested that he wanted some privacy and that he could have a better conversation in the vehicle. He eventually agreed that the Lounge was warm and cozy and there was nothing he would say in the vehicle that he could not say in the Lounge. In response to the suggestion that the real reason for going to the car was to get Ms. N.S. alone, Mr. Ulusow resisted it and said, “Not like you are suggesting”. When counsel asked Mr. Ulusow to explain what he meant, he agreed that he wanted to be alone, one-on-one with Ms. N.S:

Counsel: And the reason you want to be alone with her is because at this point, you’re thinking about physical intimacy with her.

Mr. Ulusow: I agree that was possible because she was showing interest in me too. She was flirting with me too, rubbing her hands on my thigh as well, playing with the back of my head, curly, touching my ears and what not, playing the back, it is not like I was the only one showing an interest. She was showing interest to me as well.

Counsel: That’s right. I didn’t ask you what she was doing, I asked you what was going on in your head, sir.

Mr. Ulusow: That’s my answer.

Counsel: So, um, you went to the car, you hoped to go to the car because you thought you were going to get lucky and have sex with her that night, correct?

Mr. Ulusow: Actually, when we went to the car, yeah actually I did ask her if she wanted to have sex, but this was after we started making out. I mean, I’m, I’m like, I’m not like obviously if a girl wants to have, I see a girl that’s attractive, I am physically attracted to her, I am not one of those guys where if obviously sex is a possibility, yeah, sex is a possibility to have, yeah I want that sex. I think that’s quite normal, yeah.

[55] About the signs of somebody wanting to have sex, Mr. Ulusow said that “[A] sign of her wanting to have sex with me is when I ask her if you, if we could have sex and she looks at me and she pauses for a couple of seconds and asks if I have a condom and tells me to go get a condom, that is a sign that she wants to have sex.” He agreed that somebody wanting to hang out is not a sign of wanting to have sex. He also agreed that putting one’s hand on one’s thigh is not an invitation to have sex. He volunteered that the sign had to be “verbal”. At the same time, he added that she was showing an interest in him. Otherwise, why would she be touching him and cuddling with him.

[56] On the precise moment when Ms. N.S. agreed to have sex, Mr. Ulusow confirmed that in the Lounge, they did not discuss sex and therefore, he did not know if she was interested in having sex. He denied that he took the cuddling and the touching of his head, ears and thighs, as an invitation to initiate sex. But he also stated that she was clearly comfortable enough with him to agree to follow him to the car. At the same time, he resisted the suggestion that the reason he asked Ms. N.S. to move from the Lounge to the car was because he intended or hoped to have sex. In response to repeated questions about why he brought Ms. N.S. to the vehicle, Mr. Ulusow changed his narrative and redirected the exchange to the beginning of the evening by indicating that he did not intend to have sex when he and his friends came to the Lounge. He then suggested that it was only once he was in the black vehicle and they started making out, that sexual intercourse became a possibility. He repeated that it was only once she agreed to having sex and told him to go out to get a condom that he got excited about that prospect. The back and forth on this issue culminated in the following exchange:

Counsel: And you thought, hey she is into me because she is giving me all these signs, I think she wants to have sex with me.

Mr. Ulusow: I think she wanted to have sex with me because she told me, yes. If she would have told me “no, I don’t want to have sex with you”, then that means no, it is not because she touched my neck I think or because she is flirting me that I think that these are signs of ok, we are going to have sex.

Counsel: So I am going to go back and just ask the question I asked earlier because I am a little confused. I am confused, why is it that you want to be alone with her then, if you did not have any evidence that she wanted to have sex with you yet, and you guys were already being physical in the Hookah Lounge?

Mr. Ulusow: Like I said sir, I suggested for us to go to the car. I didn’t want to go back to the Shisha Lounge. I wanted to go to the car, to be me and her, so yes, we did go to the car. I don’t like, I don’t know what more are you asking.

Counsel: I am going to suggest to you one more time, and feel free to disagree, it was because you had taken her interest in you as a sign that she wanted to have sex with you.

Mr. Ulusow: I disagree. I, I, her interest in me showed me that she was comfortable with me. Clearly, she was comfortable enough with me to come to the car. It was, it’s her, it’s when she agreed, and I asked her if we could have sex, she told me yes, that’s when I knew that we were going to have sex. I did not know we were going to have sex before that.

Counsel: And, so it’s your evidence that up until you had a conversation about sex, you did not have sex on your mind, is that your evidence?

Mr. Ulusow: Like I said earlier, I knew that sex could always be a possibility, I mean we are all human, but like I didn’t go to the Shisha Lounge saying that okay me and [Ms. N.S.] are going to have sex. These are things that grew throughout the night. These are not something like, I didn’t come to the Shisha Lounge [with] the idea that me and, Na… like I didn’t come to the Shisha lounge and tell my friends to pick up [Ms. M.S.] to bring her to the Shisha Lounge to have sex with her. These are things that gravitated throughout the night and happened.

Counsel: But you agree with me that that’s the direction you wanted the night to go in once you were getting some positive feedback from [Ms. N.S.], right, that’s the direction you wanted the night to go in.

Mr. Ulusow: After we start making out, I asked her if we could have sex, she said yes, and yes, I was aroused, I was excited.

Counsel: I am going to suggest to you, and you are free to disagree that it was before you started making out and it was even before you left the Shisha Lounge that you are already deciding that that is the direction you wanted the night to go in.

Mr. Ulusow: I don’t know what the direction was going. I asked her and if she would have said no to me, I don’t know what her response was going to be. That’s why I asked, that’s why I want to go to look for a condom, ‘cause she told me to go get a condom. That’s why I left the car.

Counsel: Yeah, I am not asking you to predict where the night was going. I am asking you to explain to the court where you hoped the night was going, not where you thought the night was going. Where you hoped the night was going.

Mr. Ulusow: Like I said, once we were making out and I asked her to have sex, she said yes, then yes, that is where I hoped it was going, I was excited.

[57] Mr. Ulusow was then asked about his use of the condom and the fact that his DNA was found in Ms. N.S.’s vagina. He confirmed that he got the condom from his friend “Jay” and used it. He said that he did not notice anything wrong with it but obviously it did not do the job it was supposed to do. In response to the suggestion that he actually did not use a condom, Mr. Ulusow vehemently denied it. He said that condoms can rip and they are not 100% effective.

[58] Following the sexual activity, Mr. Ulusow said he felt satisfied. Although he initially resisted the suggestion that he got what he wanted, i.e., he had the sex that he wanted to have, he eventually agreed that after the sex, he no longer had any interest to be alone with Ms. N.S.; he wanted to return to his friends. When it was suggested to him that since on his evidence they originally went to the car to talk, they could have continued talking, he responded that his plan was to return to the Lounge to continue the night.

[59] On the question of how he thought that Ms. N.S. would get home, Mr. Ulusow indicated that he expected his friends to drop her off, since they were the ones who brought her there. He agreed that he did not follow-up with her that night to see if she got home alright because he was tired. However, he said that he tried to call her the following day, but he did not get a response. He thought that she ghosted him. Only later at the Preliminary Inquiry did he learn that the police told her not to take his calls.

Applicable Legal Principles

[60] Mr. Ulusow, like all people charged with a criminal offence in this country, is presumed innocent. The burden of proof is on the Crown. It is for the Crown to prove beyond a reasonable doubt that Mr. Ulusow is guilty of sexual assault. There is no onus on Mr. Ulusow to prove anything.

[61] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. Ultimately, I may find the accused guilty only if I am sure that he committed the alleged sexual assault.

[62] Although he was not required, Mr. Ulusow chose to testify. His version of what occurred is very different from what Ms. N.S. said occurred. That however does not set up a credibility contest between the two individuals. In other words, I am not to choose between the two versions. To do so would amount to a reversal of the burden of proof.

[63] What is required in my assessment of whether the Crown has proven Mr. Ulusow’s guilt beyond a reasonable doubt, is to apply the principles set out by the Supreme Court of Canada in R. v. W.(D), 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 as follows:

i. If I accept Mr. Ulusow’s evidence that the complainant consented to the sexual activity and that he did not sexually assault her, then I must acquit him.

ii. Even if I do not accept Mr. Ulusow’s evidence, if it leaves me with a reasonable doubt, I must acquit him;

iii. If after careful consideration of all of the evidence, I am unable to decide whom to believe, I must acquit Mr. Ulusow: R v. H.(C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C.(3d) 146 (B.C.C.A.)

iv. Finally, even if I am not left with a reasonable doubt by Mr. Ulusow’s evidence, I must ask whether, on the basis of the evidence that I do accept, I am persuaded beyond a reasonable doubt of Mr. Ulusow’s guilt.

[64] To prove sexual assault, the Crown must prove beyond a reasonable doubt the actus reus and that the accused had the requisite mens rea.

a) The actus reus of sexual assault

[65] The actus reus of sexual assault requires proof of three elements: touching, the objectively sexual nature of the touching, and the absence of consent: R. v. G.F., 2021 SCC 20 at para. 25. There is no issue in this case respecting the first two elements. The issue is whether the Crown has proven beyond a reasonable doubt that the complainant did not consent to the sexual activity.

[66] Whether the actus reus, i.e., the absence of consent is proven is subjective and determined with reference to the complainant’s state of mind about the sexual touching at the time that it occurred. The only source of direct evidence as to the complainant’s state of mind is the complainant’s evidence. The question to decide is whether the complainant, in her mind, wanted the sexual activity to take place. The focus at this stage of the analysis is on the complainant’s state of mind. The accused’s perception as to the complainant’s state of mind is not relevant. As a result, if the complainant testifies that she did not consent, and that evidence is accepted as proven beyond a reasonable doubt, there was no consent and that element of the offence is proven: R. v. Ewanchuk, 1999 SCC 711 at paras. 25-31; R. v. J.A., 2011 SCC 28 at paras. 23,34; R. v. Barton, 2019 SCC 33 at paras. 88-89; R. v. G.F., at para. 29.

[67] The meaning of “consent” is set out in s. 273.1(1) of the Criminal Code as the “voluntary agreement of the complainant to engage in the sexual activity in question”. The Code provides that consent must be present at the time that the sexual activity takes place. It also sets out a non-exhaustive list of circumstances in which no consent is obtained:

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

(a.1) the complainant is unconscious;

(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);

(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.

[68] As Campbell J. pointed out at para. 15 of R. v. Mirzadegan, (2018), ONSC 3449; affirmed 2019 ONCA 864, because the complainant’s consent is subjective, “the Crown need not establish that the complainant communicated his or her lack of consent to the accused in order to establish the actus reus of the offence of sexual assault”.

b) The mens rea of sexual assault

[69] Sexual assault is a general intent offence. To prove the mens rea, the Crown must prove both that the accused intentionally touched the complainant and that he knew that the complainant was not consenting, or was reckless or wilfully blind to the absence of consent on the complainant’s part: R. v. G.F. , at para. 25; R. v. Ewanchuk, at para. 42; R. v. J.A. at para. 24; and R. v. Barton, at para. 87. An accused may not rely on consent being implied by their prior relationship. “[C]ontemporaneous affirmatively communicated consent must be given for each and every sexual act”: R. v. Goldfinch, 2019 SCC 38 at para. 44.

[70] The defence may challenge the Crown’s evidence of mens rea by asserting that he had an honest but mistaken belief in communicated consent. The relevant question for this defence is whether the accused honestly believed that the complainant effectively said “yes” through her words and/or actions: R. v. Barton, at para. 90. The principal considerations are, first, the complainant’s actual communicative behaviours and, second, the totality of the admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent, Barton, at para. 91.

[71] When an accused seeks to advance of honest but mistaken believe in communicated consent, the first question to consider is whether there is an air of reality to such a defence. If there is, then the onus shifts to the Crown to negative the defence.

[72] The Criminal Code precludes an accused from relying on the defence of honest but mistaken belief in communicated consent in certain circumstances:

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused’s belief arose from

(i) the accused’s self-induced intoxication,

(ii) the accused’s recklessness or wilful blindness, or

(iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or

(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

[73] Paragraph 273.2(b) of the Code precludes an accused from relying on this defence unless he took reasonable steps in the circumstances to ascertain that the complainant was consenting. This precondition to the defence has both an objective and a subjective element, requiring the accused to take steps that are objectively reasonable. The reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time: Barton, at para. 104. Paragraph 109 of Barton is particularly helpful:

109 Overall, in approaching the reasonable steps analysis, trial judges and juries should take a purposive approach, keeping in mind that the reasonable steps requirement reaffirms that the accused cannot equate silence, passivity, or ambiguity with the communication of consent. Moreover, trial judges and juries should be guided by the need to protect and preserve every person's bodily integrity, sexual autonomy, and human dignity. Finally, if the reasonable steps requirement is to have any meaningful impact, it must be applied with care — mere lip service will not do.

c) Assessing credibility

[74] My findings on the actus reus and mens rea turn on my assessment of the credibility and reliability of Ms. N.S., and Mr. Ulusow. Credibility and reliability are different concepts. Credibility considers the sincerity and honesty and whether a witness testified as to what he or she believe. Reliability considers whether what the witnesses said was accurate, often decided on the basis of a witness’s ability to observe, recall and recount events as they occurred: R. v. G.F., at para. 82.

[75] In my assessment of Ms. N.S’s evidence, especially given the defence submissions concerning her conduct before and after the sexual activity, it is important to remind myself of the imperative to avoid any assumptions and stereotypes as to how alleged victims of sexual assault should or do behave: R. v. A.R.J.D., 2018 SCC 6; R. v. A.B.A., 2019 ONCA 124. Credibility findings are not to be made on the basis of my own understanding of “common sense and logic” as this may mask improper reliance on prejudicial generalizations.

[76] I also recognize the need to be cautious about reliance on the complainant’s demeanour alone when she testified. Demeanour alone cannot support a conviction if there are significant inconsistencies and conflicting evidence on the record. While demeanour evidence may be a factor in assessing the credibility of a witness, care must be placed on the reliance of this evidence: R. v. W.H., 2013 SCC 22 at para. 41; R. v. N.S., 2012 SCC 72 at para. 22. It is important that undue weight not be given to demeanour because of its “fallibility as a predictor of the accuracy of a witness’s testimony”: R. v. Hemsworth, 2016 ONCA 85 at para. 44.

[77] The law recognizes that one of the most effective means of assessing a witness’s credibility is to consider consistency between what the witness said when testifying and what that witness has said on other occasions: R. v. M.(A.), 2014 ONCA 769 at para. 12. As the Court of Appeal observed in R. v. G.(M.), 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 at para. 23; leave to appeal to S.C.C. refused, [1994] S.C.C.A. 390:

23 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. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

[78] Inconsistencies in a witness’s evidence vary in their nature and importance. Some relate to material issues, others to peripheral issues. Where an inconsistency is about a material event about which an honest witness is unlikely to be mistaken, that inconsistency may be indicative of “a carelessness in the truth about which the trier of fact should be concerned”: R. v. M.(G.), at para 13.

Analysis

[79] I will summarize my findings respecting the credibility and reliability of Mr. Ulusow and Ms. N.S.

Credibility of Mr. Ulusow

[80] Mr. Ulusow testified in his defence. He presented a relatively straight forward narrative over what occurred on the night of October 18, 2018. He told the court that understood the meaning of consent and he was adamant that he told her that he wanted to have sex with her and that she agreed on the condition that he use a condom. Mr. Ulusow was clear that he did not rely on Ms. N.S.’s actions to infer consent. He denied being confused over her consent or misapprehending her actions to infer consent, when she clearly was not consenting.

[81] Although Mr. Ulusow’s explanation of what occurred sounded credible and reliable, on a closer review of Mr. Ulusow’s evidence, there were certain areas of concern that caused me to question his credibility. To begin with, for an event that took place four years ago, Mr. Ulusow had a remarkable memory of those details that enhanced his narrative but a muted one for those details that were inconvenient to remember. An example of that related to Ms. N.S.’s fall in the parking lot. Ms. N.S. said it occurred prior to the sexual activity and explained that her injuries prevented her from resisting Mr. Ulusow’s advances. Mr. Ulusow said that the fall occurred afterwards. Given Mr. Ulusow’s own evidence that both he and she were injured from the fall, he had to situate the fall after the sexual activity to amplify his portrayal of Ms. N.S. as a willing participant. Were he to situate the fall prior to the sexual activity, he would then have to contend with questions concerning the degree of Ms. N.S.’s participation in the sexual activity and any attempts by her to resist his advances.

[82] At the same time, perhaps rather unwittingly, when Mr. Ulusow situated the fall to a moment following the sexual activity, he surfaced certain troubling inconsistencies. First, he said that leading up to the fall, he was “show-boating” his new friend in the parking lot, trying to show how happy he was. He lifted Ms. N.S. and was running around the parking lot to show-off his new friend when he tripped and fell. And yet when his friend asked him where he and Ms. N.S. went, Mr. Ulusow told him that they went to McDonalds. If he were on such a high over his new friend, it makes no sense that he would downplay his liaison, especially to his friend who gave him the condom and the keys to the cream-coloured vehicle.

[83] Secondly, although Mr. Ulusow situated the fall after the sexual activity and described it as “show-boating, in a different part of his testimony, he said that following the sexual activity he was tired, he had no reason to stay in the vehicle any longer, he was done with Ms. N.S., and he wanted to rejoin his friends. But somebody wanting to get back to his own friends would not have any reason to be show-boating. Lifting somebody in the air and trying to run in the parking lot is more consistent with somebody trying to impress, to create a positive impression, on the way to a possible sexual liaison. But that would lend credence to Ms. N.S.’s suggestion that she was not strong enough to resist Mr. Ulusow’s advances. Mr. Ulusow therefore had reason to move the fall to a different part of his narrative. Simply put, Mr. Ulusow’s indication that he felt tired immediately following the sexual activity made sense. His response to his friend about just going to McDonalds, was also consistent with wanting to move on from the activity. The energy he would have required to lift Ms. N.S. and run around with her is inconsistent with the feeling of being tired and wanting to get back to the guys.

[84] Finally, apart from the possibility that the fall was not serious, Mr. Ulusow’s inability to remember any details concerning Ms. N.S.’s injuries, was consistent with a fall occurring prior to the sexual activity. Given Mr. Ulusow’s admitted focus on becoming intimate with Ms. N.S., it stands to reason that he would not have paid attention to any blood stains or other minor injuries, especially since Ms. N.S. agreed that she cleaned herself up and tried to look normal. Although this particular detail, on its own would not be sufficient to question Mr. Ulusow’s credibility, when combined with the related inconsistencies, Mr. Ulusow’s situation of the fall to a point following the sexual activity simply does not make sense. Instead, it underscores an attempt by Mr. Ulusow to distance himself from relevant details that may have impacted Ms. N.S.’s resistance to his advances.

[85] In the same vein, Mr. Ulusow’s remarkable details over the sex they enjoyed in the back seat was designed to bootstrap the narrative in favour of two willing participants. The problem is that Mr. Ulusow’s overshot the mark by presenting a fantastic quality to the experience. Mr. Ulusow’s description of the sex in multiple sexual positions, including ones more suited to a bedroom than the cramped space in the backseat of a small vehicle, was nothing more than an exaggeration, designed to enhance his portrayal of Ms. N.S. as a willing participant.

[86] The foregoing concerns would be sufficient to find Mr. Ulusow incredible. However, the concerns did not end there. The more serious difficulties with Mr. Ulusow’s credibility revealed themselves in relation to the inconsistencies in his explanation of how and when Ms. N.S. consented to the sexual activity. Although Mr. Ulusow went into substantial detail on his exchange with Ms. N.S., the weaknesses in his own memory may have betrayed him altogether, causing him to stumble over the issue of when it was that Ms. N.S., verbalized her consent.

[87] In his examination in chief and during the first part of his cross, Mr. Ulusow was unequivocal that when he and Ms. N.S. were in the car and started making out, he whispered into Ms. N.S.’s ear that he wanted to have sex. According to him, she looked at him for a few seconds and asked him if he had a condom. His repeated his specific description of their exchange and how matters evolved at various times in his testimony. He said:

Counsel: That’s right. So you agree with me that her making plans to see you is not necessarily a sign that she wants to have sex with you tonight right?

Mr. Ulusow: A sign of her wanting to have sex with me is when I ask her if you want, if we could have sex and she looks at me and pauses for a couple of seconds and asks if I have a condom and tells me to go get a condom, that’s a sign to me that she wants to have sex. (my emphasis)

[88] A bit later Mr. Ulusow described his specific exchange with Ms. N.S. about having sex as follows:

Mr. Ulusow: I do remember me telling her that I really like her, that I’m really interested in her, I’d like to get to know her, and that you know like, and then I remember leaning in for a kiss and I leaned in and she kissed me as well while making out, I’d say about 5 minutes.

Counsel: Sir, that’s 5 minutes?

Mr. U: That’s my estimate.

Counsel: Yeah

Mr. Ulusow: And then what I do recall is me, while we’re kissing, me asking her that, now, like I wanted to have sex. And like I said earlier, she stopped for about 5 seconds and kind of thought about it and asked me if I had a condom. And that’s when I left, that’s when I actually, before I left, that’s when I reached into my pocket, realized I didn’t have one, kinda checked the front of the car and see if any in there and that’s when I left back to the Shisha Lounge. (my emphasis)

[89] Mr. Ulusow said that he when he returned to the car with the condom, he showed it to her, she giggled, and she agreed to follow him to the cream-coloured car. Remarkably, at no time in these two descriptions, did Mr. Ulusow say that Ms. N.S. verbalized a “yes” to having sex. Later in his cross, as Crown counsel challenged Mr. Ulusow on Ms. N.S. ever saying “yes” to sex, Mr. Ulusow modified his story and inserted the word “yes” by Ms. N.S. before she required him to get a condom. When confronted with that contradiction in his testimony, Mr. Ulusow became agitated and insisted that Ms. N.S. said “yes” prior to requiring him to get a condom, even though he did not say that in either his chief or even most of his cross.

[90] As I considered these two versions, it was far from clear that Mr. Ulusow ever obtained Ms. N.S.’s verbal consent to have sex, as he suggested. On Mr. Ulusow’s first version, contrary to his overall evidence that she gave him a verbal “Yes” and that he was not under any misapprehension over her consent, Ms. N.S. did not actually say “yes” when he told her he wanted to have sex with her. She considered his request for a few seconds and then, the furthest she went was to ask him if he had a condom. Given his own evidence that a request for a condom could not be equated to consent, there was no “yes” by Ms. N.S.

[91] Mr. Ulusow’s second “corrected” version resulted from Crown counsel’s challenge to him that Ms. N.S. never said “yes” to the sexual activity. Only then did Mr. Ulusow twig to the problem with his evidence and amended his narrative to insert an express “yes” from Ms. N.S. between he telling her that he wanted to have sex and Ms. N.S.’s question about a condom. On this second version, if I were to believe Mr. Ulusow, that sequence in his exchange with Ms. N.S. would amount to an unequivocal “yes”, as he alleged. But given Mr. Ulusow’s late correction, that second version suggested an attempt to repair his testimony. I cannot be certain that he didn’t mistake the request for a condom for consent.

[92] My reservation over this inconsistency and Mr. Ulusow’s actual understanding of the exchange is amplified by his evidence of how excited he said he became at the prospect of having sex, once he got a condom. On his own evidence, he did not renew his question to Ms. N.S. about going ahead with the sexual activity. He said that she giggled when he showed her the condom and she then agreed to go with him to the cream-coloured car, where they then drove to the back of the Lounge and engaged in the sexual activity. Although their movements to the cream-coloured car raises questions about Ms. N.S.’s subjective intentions and could form the foundation for a finding that Mr. Ulusow was mistaken in his belief that Ms. N.S. consented to having sex, Mr. Ulusow expressly denied that he relied on any of Ms. N.S.’s actions to conclude that she consented. He was adamant that she “verbalized” her consent, and expressly said “yes” to the sexual activity. He therefore precluded a defence of any honest but mistaken belief.

[93] My reservations over Mr. Ulusow’s credibility were compounded further by his combative exchange with Crown counsel over the point in time he either hoped or developed an intention to have sex with Ms. N.S. and the reason for moving from the Lounge to the car. Although he was otherwise clear and respectful in his responses to the questions that were put to him, when counsel sought to confirm that the reason for moving to the car was to be intimate with Ms. N.S., Mr. Ulusow resisted the suggestion and insisted that the only reason for going to the car was to continue to talk.. What made his resistance curious was that Mr. Ulusow had already testified to a progression in their communications and his growing interest in Ms. N.S. In other words, on his own evidence, he and Ms. N.S. were enjoying each other’s company in the Lounge. They shared intimate details about each other, and Ms. N.S. started to arouse him with her touching of his ears, his head and his thighs. Asking Ms. N.S. to move to a more private space where he could be more intimate suggested a reasonable progression of events.

[94] In contrast to the reasonableness of the suggested progression, Mr. Ulusow’s resistance to those questions and his response that he only wanted to move to a different place to continue talking was peculiar and incongruent with everything else he said about that night. If Mr. Ulusow only wanted to talk, he had no reason to leave the Lounge. Such backtracking in the evidence to just wanting to talk more, can only be explained by Mr. Ulusow’s attempt to distance himself from the Crown’s theory that he brought Ms. N.S. out to the two vehicles to isolate her and proceed with his advances.

[95] Mr Ulusow’s resistance to the Crown’s suggestion was even more troublesome in the face of his repeated indication that he understood the meaning of consent, that signs of affection could not amount to consent and that consent would have to be verbalized. Leaving aside Mr. Ulusow’s misunderstanding of what constitutes consent, on his own understanding of consent, he ought not to have been resisting the idea that his feelings for Ms. N.S. and his desire to have sex developed very quickly that night. There was nothing wrong to that development, and there would be nothing wrong to being intimate and engaging in sexual activity, provided Ms. N.S. consented. Mr. Ulusow would have been far more credible if he agreed that moving to the car was for the purpose of being intimate with Ms. N.S. By insisting that he only wanted to go out to the vehicle to continue his conversation with Ms. N.S., when he also stated that their communications had advanced to a stage of heavy flirting, he compromised his credibility. Although he eventually conceded that he suggested that they go to the vehicle because he wanted to be one-on-one with Ms. N.S., his preceding answers had already cast a shadow over his credibility.

[96] Finally, and perhaps most pointedly, even without his eventual admission to wanting to have private time with Ms. N.S., Mr. Ulusow’s explanation that he merely wanted to talk when he invited Ms. N.S. to the vehicle imploded by his further admission that after the sexual activity, he no longer had any reason to remain in the car. He talked about his plan being to return to his friends and he mocked the idea of staying in the car, just to talk. One gets an especially clear sense of his disposition from the following exchange in his cross-examination:

Counsel: Yeah you had no interest in being alone with her anymore, is that accurate?

Mr. Ulusow: No, its just finished having, like what were we supposed to be doing in the Shisha, at the back of the Shisha, just sit down there all day? (my emphasis)

Counsel: Well, you originally got in the car where you told us to talk, right?

Mr. Ulusow: Yup. My plan was to go back inside the Shisha Lounge and continue the night.

Counsel: So, you had gotten what you wanted and your idea was that you, you know you would continue…

Mr. Ulusow: You keep saying I got what I wanted. I don’t understand why you keep saying that.

Counsel: I mean, you are free to disagree with me sir. I am suggesting that

Mr. Uluso: Ok, go ahead.

Counsel: You got what you wanted, you wanted to have sex. You got that.

Mr. Ulusow: Okay

Counsel: And then because of that, you decided that it was now time to return back to your friends.

Mr. Ulusow: That’s fair.

[97] Given the totality of Mr. Ulusow’s inconsistencies, it makes it difficult to find him credible, even if certain aspects of his narrative made sense. That he took an interest in Ms. N.S, that he hoped to be intimate with Ms. N.S., and that he even went looking for a condom, when things looked promising, all made sense. Absent his resistance to issues that should not have been contentious if Ms. N.S. had consented to the sexual activity, Mr. Ulusow would have been credible. However, the noted flaws in his testimony made it difficult to know just what to believe.

Ms. N.S.’s credibility

[98] Ms. N.S.’s potential motive to fabricate the allegations against Mr. Ulusow to mitigate her mother’s anger and various inconsistencies in her version of what happened compromised her credibility resulting in reasonable doubt. Ms. N.S.’s difficulties with her memory and the manner in which she testified were not nearly as concerning as the defence suggested.

[99] Beginning with Ms. N.S.’s admitted difficulties with her memory, and specifically, her inability to remember the names of the individuals who were implicated, the colours of the vehicles, and the sequence of certain events put the court on high alert over the reliability of her testimony. Gradually it became evident that those difficulties tended to relate to minor issues and only moderately relevant details.

[100] What was more important to my findings was the recognition that on the sequence of events on the night of October 18, Ms. N.S.’s evidence coincided with much of what Mr. Ulusow said. Specifically:

• The parties met by a roadside. Ms. N.S. had difficulties remembering whether the meeting was on the same day that she later went out or a few days earlier. In my view, whether the initial meeting was on the same day or earlier is irrelevant. What is relevant is that Ms. N.S. met Mr. Ulusow and one or two other guys.

• The parties exchanged contact information. Ms. N.S. could not recall if she shared her SnapChat handle. Apart from that, there is no disagreement that she and the guys communicated and made arrangements to meet on October 18, 2018. Whether she remembered sharing her SnapChat or not was not relevant.

• Ms. N.S. had difficulties remembering the names of the guys and needed to have her memory refreshed several times. Given that it was through Forensics that Mr. Ulusow was identified as the individual whose DNA was found on Ms. N.S. and not through any other identification, Ms. N.S.’s inability to remember the guys’ names actually lent credibility to just how little she knew the guys. Four years later, it is not surprising that her recollection would be that much more weakened.

• Ms. N.S. thought she met all three guys, including Mr. Ulusow at a plaza near her home, before going together to the Lounge. Although Mr. Ulusow said only two of his friends went to the Plaza and he and another friend went directly to the Lounge, what is relevant was that they all eventually ended up at the Lounge. When combined with Ms. N.S.’s evidence that she was not really paying attention to the guys and sat in the back of the car, her confusion over who she met at the first plaza supports her evidence that she was not particularly interested in Mr. Ulusow.

• The parties shared alcohol from a single bottle. There was agreement over this evidence. Although Ms. N.S.’s conflicting testimony over how drunk she was that night may go to her overall credibility and the possibility that she exaggerated certain parts of her evidence, Ms. N.S. did not suggest that she was unable to consent or was unaware of what was happening to her because she had too much to drink.To the contrary, Ms. N.S. was adamant that she did not consent to the sexual activity. What she therefore said about her level of sobriety is only minimally relevant to my assessment of her credibility.

• Mr. Ulusow expressed an interest in Ms. N.S. In her evidence, Ms. N.S. agreed that he expressed such an interest.

• Ms. N.S. agreed that she and Mr. Ulusow went into a cream-coloured vehicle. Although she was initially not certain of the colour of the vehicle, on the relevant point that they moved from one vehicle to another, she had no difficulty remembering that movement and effectively corroborated Mr. Ulusow’s evidence.

[101] Soon after the sexual activity, Mr. Ulusow was dropped off at his home. Although Ms. N.S. could not remember if they all dropped him off at home or if he left on his own, what is relevant to my findings is Mr. Ulusow’s departure. From a reliability standpoint, Ms. N.S.’s evidence that he did not stay with her through to the morning corroborated Mr. Ulusow’s evidence that he left. Her inability to remember if he left on his own or if she and the other guys dropped him off raises questions about the extent, or lack thereof, of her interest in Mr. Ulusow.

[102] As for Ms. N.S.’s demeanour in court, counsel’s criticism of her behaviour and the suggestion that I could take that as an additional source to find doubt in her evidence was unfair and harsh. Even if counsel said that he did not mean to invoke stereotype thinking, his criticism of her being rude and disrespectful to the court was excessive. There can be no doubt that Ms. N.S. did not want to be in court. She interrupted both counsel and the court, she tried to seize control of the cross-examination, she spoke under her breath, and it was clear that she was very angry with her circumstances. Although the level of her frustration was unfortunate, Ms. N.S.’s demeanour and behaviour was not unusual for a young witness being scrutinized in court. I did not take her combativeness as a sign of weakness in her credibility.

[103] The various inconsistencies in Ms. N.S.’s evidence compromised her credibility in material ways. To begin with, Ms. N.S.’s indication that she never entered the Lounge, other than to use the facilities was peculiar. She agreed that she was made aware of the intention to go to the Lounge to hang out. Even if on her evidence, her primary interest rested with obtaining weed, it makes no sense that she would remain outside, in the parking lot of the Lounge, when everyone else went inside. That made no sense, especially when the night was cold. The only way to explain this is to find a deliberate attempt by Ms. N.S. distance herself from Mr. Ulusow and to disassociate her from any suggestion that she would have had the opportunity to get close to Mr. Ulusow and share intimate moments and conversations. However, in his closing submissions, even Crown Counsel seemed to concede that Ms. N.S. and the guys spent some time in the Lounge, before she and Mr. Ulusow went out to the black vehicle.

[104] The inconsistency associated with the Lounge fed into additional difficulties and contradictions. Ms. N.S.’s repeated comments that she neither liked nor took any interest in Mr. Ulusow was incongruent with her willingness to follow Mr. Ulusow out to not only one vehicle, but to two. If Ms. N.S. did not go into the Lounge, if she did not get to know Mr. Ulusow, and if she were disinterested, it makes no sense that she would agree to be alone with Mr. Ulusow, first in the black vehicle, and then in the cream-coloured one. This internal inconsistency in Ms. N.S.’s logic is compounded by Ms. N.S.’s own admission that by the time she and Mr. Ulusow moved to the cream-coloured vehicle, he had made his intentions clear about wanting to have sex with her. In the face of him seeking out a condom, and then suggesting that they switch vehicles and drive to the back of the Lounge, where they could be alone and have privacy, it makes no sense that somebody who was disinterested would accede to Mr. Ulusow’s invitation. I also find it difficult to believe Ms. N.S. when she said that all she expected was to go to a quiet place to talk. More to the point, even if she did not want to be intimate with Mr. Ulusow, she knew that Mr. Ulusow was interested in her, and had made his intentions very well known by letting her know that he would go look for a condom. Ms. N.S. had to have known that going the back of the Lounge would not have been simply to talk but could evolve into something more intimate.

[105] An additional, but related inconsistency in Ms. N.S.’s evidence rested with her evidence on when she learned of Mr. Ulusow searching for a condom. In chief she said that she learned that he was looking for a condom when she came out of the Lounge. She explained that she had gone inside to clean herself up after she fell. When she came out, she learned that Mr. Ulusow was looking for a condom. In cross-examination, Ms. N.S. conceded that she knew that Mr. Ulusow went looking for a condom after they were together in the black vehicle and before they went together to the cream-coloured vehicle.

[106] On the first explanation, I am prepared to give Ms. N.S. the benefit of the doubt that Ms. N.S may have become aware of Mr. Ulusow’s search for a condom. On her evidence, she had just fallen, she had cuts and was bleeding, her back was hurting, and she was coming out of the Lounge after using the washroom facilities. It would therefore not be surprising if she did not pay as much attention to Mr. Ulusow’s search for a condom. However, on the second explanation, namely, that she learned of Mr. Ulusow’s search after they were together in the black vehicle but before she agreed to follow Mr. Ulusow to the cream vehicle, it is difficult to believe that Ms. N.S. would not have appreciated the nature of Mr. Ulusow’s his intentions for the balance of the evening. Given the competing narratives, I do not know what to make of what was in Ms. N.S.’s mind, but it cannot be that she simply went along to see what would happen next.

[107] Ms. N.S.’s narrative about her fall and the extent of her alleged injuries raised additional peculiarities and suggested that aspects of that incident were contrived to explain Ms. N.S.’s alleged inability to resist Mr. Ulusow’s advances. In my view, the fall described by Ms. N.S. is a double-edged sword. A fall prior to the sexual activity would support Ms. N.S.’s explanation that she was unable to resist Mr. Ulusow’s sexual advances. But it would not explain why she would follow Mr. Usulow to the second vehicle particularly since he caused her fall and took no part in making sure that she was ok. To the contrary, it stands to reason that if she did not like Mr. Ulusow to begin with, the fall would cause her to be that much more disinterested. So why would she even follow him? A fall after the sexual activity would eliminate Ms. N.S.’s explanation that she lacked the strength to resist Mr. Ulusow’s advances. But it would explain why Ms. N.S. would not have had ill feelings against Mr. Ulusow and therefore agree to go with him. In the result, the timing of the fall raises more questions than it answers.

[108] Finally, and most significantly, in addition to these various inconsistencies, Ms. N.S.’s motive to fabricate the allegations against Mr. Ulusow to mitigate the consequences of her mother’s anger for staying out all night, was the most problematic aspect of her testimony and could go as far as to explain the inconsistencies in Ms. N.S.’s narrative. Although Ms. N.S. was combative in her responses concerning her mother’s actions, on a close read of her evidence, Ms. N.S. did not actually deny the possibility of such a motive. To the contrary, Ms. N.S. effectively conceded that whatever she told her mother, did not make a difference to her mother’s reaction:

Counsel: I am going to suggest to you ma’am that you manufactured this story in order to avoid the confrontation that you knew was coming with your Mom. What do you say to that suggestions?

Ms. N.S.: What about my Mom?

Counsel: You knew,

Ms. N.S.: Okay,

Counsel: that you could expect her wrath for being out all night, contrary to what you had told her the night before.

Ms. N.S.: Yeah

Counsel: And you knew that you could expect your mother to be physical because she had been physical with you before?

Ms. N.S.: Yeah

Counsel: And I am going to suggest to you that that, no matter the bravado that you portray here in court, that was an impetus for you to create this story because if you told her that you were instead a victim instead of a perpetrator of the night out she would have sympathy on you, what do you say to that?

Ms. N.S.: Well first of all, it is not a story. It is a fact. And secondly even if I told her whatever I told her, she still blamed me. She blamed me for not coming home. She blamed me for first of all giving strangers my number. She blamed me for almost everything because in her eyes, as her daughter she expects better. So, my mom has a very high expectation of me. And that does not lower at any cost. (My emphasis)

[109] In this exchange, Ms. N.S. did not deny a motive to fabricate. Rather, the thrust of her response was to obscure what it was that she said to her mother and to shift the focus on the outcome of that effort, namely that her story did not work. Her mother still blamed her for not coming home and blamed her for everything. The only way to make sense of Ms. N.S.’s comment that her mother “still” blamed her is to infer a failed attempt by Ms. N.S. to manage her mother’s anger. Ms. N.S. boasted about how she knew how to manage her mother’s anger. It is reasonable to infer that portraying oneself as a victim would not have been a farfetched approach to managing her mother’s anger. Except that the strategy did not work.

W(D) Analysis

[110] Given my difficulties with the credibility of both Mr. Ulusow and Ms. N.S., on the totality of the evidence, I do not know who to believe.

[111] Ms. N.S. said that she never verbalized her consent and denied that her actions might otherwise be consistent with a state of mind consistent with consent. Having used the term “verbalized”, when Mr. Ulusow testified, he adopted that term and insisted that Ms. N.S. “verbalized” her consent when she said “yes”. Rather ironically, although Ms. N.S.’s actions, could, at least in part offer some insight into her subjective state of mind and lay the groundwork for the defence of a mistaken belief, Mr. Ulusow pre-empted it by insisting that she agreed to having sex and was a willing participant.

[112] And yet, I am not certain that Ms. N.S. ever said “yes” to the sexual activity. On Mr. Ulusow’s evidence in chief, there was no “yes”. There was a question about a condom, some giggling, and then an agreement to go to the back of the Lounge.

[113] The reality is that both parties had confused notions of consent. These notions led each of them to spin tales to support their respective positions. But those tales proved to be shallow, with numerous contained inconsistencies and contradictions that ultimately became sources of doubt. Both parties had credible and incredible aspects to their narratives.

[114] Against the totality of the evidence, I doubt very much that Ms. N.S. “verbalized” a “yes” to Mr. Ulusow, as he suggested. I do believe Mr. Ulusow when he says that he told her he wanted to have sex and that she asked him about a condom. In his enthusiasm of the moment, once he got the condom, he did not renew his question about whether Ms. N.S. would agree to take the next step. He simply proceeded to the next step and Ms. N.S. agreed to go along.

[115] For her part, given her idea that consent required a “verbalized” “yes” and that her actions suggested otherwise. Ms. N.S. may have played down her interest in Mr. Ulusow, but I have little difficulty concluding that she took more than an interest in Mr. Ulusow and wanted to be alone with him. However, I am not certain that wanting to be alone with Mr. Ulusow extended to a consent to going all the way and having sex. Ms. N.S. left me with the impression that part of her wanted the intimacy and part of her did not. That said, as much as Ms. N.S.’s final remarks in her evidence concerning the significance of saying “yes” were compelling, her implicit admission that she offered a story to her mother, that ultimately did not “work”, to mitigate her mother’s anger, is the greatest source for my doubt and that cannot be ignored.

Conclusion

[116] Having considered totality of the evidence and having identified my concerns with the parties’ competing narratives and the resulting findings, I ultimately do not know who to believe. In the result, the Crown has failed to prove his case against Mr. Ulusow beyond a reasonable doubt. Mr. Ulusow is therefore acquitted of the sexual assault against Ms. N.S.

Tzimas J.

Released: March 24, 2023

R. v. Ulusow, 2023 ONSC 1873

Case Summary

Introduction

Summary of the Relevant Evidence

a. The Crown’s allegations

b. The Defence challenges to the complainant’s evidence

c. The Defence Evidence

d. The Crown’s challenges to Mr. Ulusow’s evidence

Applicable Legal Principles

a) The actus reus of sexual assault

b) The mens rea of sexual assault

c) Assessing credibility

Analysis

Credibility of Mr. Ulusow

Ms. N.S.’s credibility

W(D) Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 1

Legislation 3