R. v Gonzalez-Ramirez, 2023 ONSC 404

COURT FILE NO.: CR-19-5648 DATE: 20230116

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – EMILIO GONZALEZ-RAMIREZ Defendant

Counsel: Sean Doyle, for the Crown David Zbarsky, for the Defendant

HEARD: October 18, 19, 20, 21, 24, 28, 31, November 1, 4, 2022

RESTRICTION ON PUBLICATION Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner.

REASONS FOR DECISION

DE SA J.:

Overview

1The accused is charged with 3 counts on the Indictment: aggravated sexual assault contrary to s. 273 of the Criminal Code, R.S.C. 1985, c C-46 sexual interference contrary to 151 of the Criminal Code, and use of an imitation firearm in the commission of an indictable offence contrary to s. 85(3) of the Criminal Code.

2All three offences relate to an incident alleged to have occurred in a park in Aurora on June 24, 2019 involving the complainant Y.L. The complainant was 14 years old at the time.

3The trial proceeded before me in October and early November, 2022, and after submissions I reserved my decision.

4These are the reasons for my decision.

Summary of Evidence

Evidence of Y.L. (S.L.)

5Y.L. (“Ms. L.” or “S.”) is 17 years old and has finished high school.

6At the time of the alleged incident, S. was 14 years old and in grade 9. She was attending [name of school redacted] Secondary School.

7On June 24, 2019, her mother drove her to [school] for an English exam at around 8:30 a.m. She finished at around 11:00 a.m. S. was supposed to meet some friends after the exam but she realized that they did not wait for her. She had been having problems with her friends. They had been ignoring her. She was upset about it.

8She was heading home and decided to go to the park to get some fresh air. She knew it was a little dangerous to go to the park alone. She thought about going into the forest area but did not. She stayed on the paved area. She believes she was in the park between 11:45 a.m. and 12:00 p.m.

9As she was walking along the path, a male approached her from behind, and asked her if she smoked weed. She said no and pretended she did not speak English and kept walking. She was not accustomed to social interaction and did not want to talk to him.

10Her hands were in her pockets as she walked through the park. She kept her keys in her hand to protect herself should any situation arise.

11The male looked middle eastern and in his early 20s or maybe in late high school. He had a black hoodie and a hat. She does not remember any brand names on his clothing. He had no facial hair, and brown eyes with thick eyebrows. He did not smell of anything as far as she recalled. When he spoke, he sounded high or maybe a little crazy. The male was the accused, Mr. Gonzalez-Ramirez.

12A short time later as she was crossing a bridge in the park, the accused approached her again and now asked her if she wanted to see something amazing. She stopped momentarily. Again, she acted as though she did not speak English and kept walking.

13As she kept walking along the pathway, the accused tackled her down from behind near a tree. She was surprised by the force of the tackle. When he pushed her down, he was trying to cover her mouth and she bit his hand. She believed she was about 20 meters from the bridge.

14After tackling her to the ground, he told her she had to stay down for 30 minutes and not move. He asked where her phone was. She said “I don’t have it”. She then responded that she stole her phone. She thought the response may intimidate him.

15He kept pushing her down when she would try and get up. He pushed her down multiple times. As they struggled, she kept moving, punching him, kicking in the groin area, and using her keys in her hand. She was trying to key him in any skin area to hurt him and possibly collect DNA. She was worried he would steal her wallet or phone. She was trying to injure him so she could escape.

16As he was holding her down during the struggle, and when she would stop moving from the fatigue, he was touching her buttocks and her vaginal area on top of her clothes. She thinks he was trying to calm her down by touching her. She was on her period at the time, and she had a pad on so she thinks he may have felt it and decided not to do anything.

17At some point, it looked like he was trying to take his pants down. She does not remember if he had a draw string or zipper on his pants. However, she thinks he changed his mind as he never took them down.

18During the struggle, he retrieved a gun. She does not specifically recall where he retrieved the gun from. He said if you move, I’ll do something with this gun. It was a small silver pistol with a black handle. He had the gun wrapped in a sandwich bag.

19During the exchanges, his voice was a little high, a little cowardly, like he was not sure if he wanted to be doing this. She thought he seemed a bit hesitant.

20She tried to grab the gun from him by the barrel. As she was struggling to get the gun from him, he said “you know your fingerprints will be on it.”

21According to Ms. L., the gun felt real. It was heavy like metal. He had the gun in his right hand and touching her crotch area with the left hand. She believes he touched her crotch area for about 10-15 seconds. As she was struggling to grab the gun in the sandwich bag, she ripped a portion of the bag off during the struggle.

22As she continued to struggle for the gun, he knocked her on the head with it. After being struck by the gun, she could tell that blood was now dripping from her head. Her hair was in front of her face. At that time, she thought she may look intimidating to him. She was trying to act creepy or make herself look like a ghost from the movie “The Grudge”. She was trying to use his own tactics on him and intimidate him back.

23She went towards him telling him to shoot her. She said to him: “Shoot me”, “Do something”, “I dare you to”. She was glaring at him. She acted like she wanted to die. In cross-examination, she testified that she may have acted like that because she was in a panic state.

24He looked surprised that she was fighting back after the hit. He said sorry, that this was never meant to happen. He told her not to tell anyone and to stay down for 10 minutes. He made a gesture like he wanted to kiss her but did not. His face was red and blushing. She thinks he changed his mind because of all the blood. He ran off. When he ran, she ran in the opposite direction.

25She ran towards the town hall and saw an elderly man, and then a couple. She had seen the elderly man before in the park. The elderly man said “no, no” when she asked for help, and he looked like he did not want to get involved. She asked the couple for help and the female called 911. She does not remember specifically what she told them.

26She believes that the interactions with the accused lasted between 10-15 minutes in total, from the time he pushed her to the time she got away.

27In cross-examination, it was put to her that her mother told her not to go to the park. She disagreed. She testified that she had been to the park on a number of occasions with her mother. She does not remember her mother forbidding her to go to the park.

28In cross-examination, she disagreed that she tried to steal the accused’s battery charger. She does not recall ever seeing it. She also denied intentionally leaving her property (wallet, ear buds, phone) at the scene. She also disagrees that she was trying to stage a scene to set up Mr. Gonzalez-Ramirez.

Evidence of Abhinaya Vignaraajenran

29Abhinaya is in her 4th year of medical sciences. She was in grade 12 at the time of the incident. She was with her friend Riley Yonda on June 24, 2019. They had been walking around the park for around 20 minutes. She went to the town hall area and on her way back, a girl approached them asking for help. The girl had not crossed the bridge yet when they first saw her. She was hunched over and stumbling towards the bridge.

30She had blood on her face. The girl said that someone tried to rape her and had a gun. She was panicking. Abhinaya called 911. The girl (Ms. L.) was obviously very nervous and scared.

31There were not many people in the park at that time of the day. It was a larger park. It was a school day and in the middle of the day. She did not hear the struggle and the first time she saw the girl was when she was on the bridge.

Evidence of Riley Yonda

32Riley is 21 years old. He was in the park with Abhinaya. They were hanging out. They heard a faint cry and saw a little girl. She had blood on her face. They were near the town hall. She was asking for help. As she got closer, they could hear it. She was saying “Help”.

33She said she was hit by a gun in a zip lock bag. She said he was trying to rape her. She was struck over the head with it. She said that he asked if she had weed. There was a buildup, and then he hit her on the head. She was frozen and in shock. She could not say much. She seemed out of it.

34He had seen the girl not too long before in the park prior to her sustaining her injuries. While they were walking towards the Aurora town hall complex, she was walking in the other direction. When he saw her injured, it was about 10-15 minutes after he saw her the first time.

35He heard her the first time when she was at the bridge. He did not hear her any screaming or a struggle before that.

Items located at the Scene

36Officer Artsoim Sirotkin has been a police officer since 2007. He has been working in identification since April 2015. He arrived at the scene on Monday, June 24, 2019.

37He searched the area at 1:22 p.m. Together with Detective Thompson, they located the complainant’s phone, ear buds, and wallet as well as the accused’s battery charger. Photos of the items and their locations were tendered as Exhibits 5A-5D.

38Detective Thompson retrieved a piece of plastic which was located in the long grass about 10 feet from the asphalt. It was in the general vicinity of the other items.

39It has been agreed that the distance from where the items were located to the western edge of the bridge is approximately 166.2 metres.

DNA Evidence

Evidence of Alison Morris

40Ms. Morris is a forensic biologist at the centre of forensic sciences. She has worked there since May 2001. She obtained samples in this case, including a swab from Ms. L.’s keys and from Ms. L.’s pants. DNA for both Ms. L. and Mr. Gonzalez-Ramirez was found on the keys.

41While no DNA was located from the swab of Ms. L.’s pants (crotch area), in the absence of fluid, Ms. Morris testified that it is unlikely that there would be a transfer of DNA even if the accused’s touched Ms. L. on her clothes.

Evidence of Injuries

Evidence of Nurse Karaley Ovchinikov

42Ms. Ovchinikov is a DASA nurse (Domestic Abuse/Sexual Assault Nurse). She took photos of Ms. L. on the day of the incident. Her role was to do a head-to-toe examination. She was also required to document the injuries in photographs.

43She did not do a vaginal swab as the assault was said to have occurred over clothing. She would have received a verbal report by EMS regarding what occurred.

44The photos of her examination have been tendered in evidence as Exhibits 21A-21F, and her sketches are marked as Exhibits 25A and 25B.

Notes from Medical Professionals regarding Sexual Assault

Evidence of Ariza Esguerra

45Nurse Esguerra reviewed her Triage notes from June 24, 2019. With respect to Ms. L., her notes indicate that there were no sexual encounters. She would have received this information from the EMS personnel. She may have discussed it with the complainant, but normally she would document these conversations with the complainant in her notes. She has no such note of a discussion with the patient. She referred the patient to the DASA nurse.

Evidence of Doctor Arash Gharajeh

46Dr. Gharajeh’s Emergency Department notes indicate that the patient, a 14-year-old female, was struck in the head and sustained a right skull laceration. She had no neck pain, no focal deficit, no loss of consciousness, and no rib or abdominal pain. There was no life-threatening injury or respiratory distress. There was no immediate risk. Two staples were used for her scalp injury.

47In Dr. Gharajeh’s notes, he indicates that the patient denies any sexual assault occurred. He believes the information was from the complainant because if it was from someone else, he would have made a note it.

Evidence of Harjinder Singh Mindi

48Mr. Mindi was a medical technician working that day and dealt with Ms. L. Mr. Mindi’s notes indicate that no sexual trauma was endured as the patient fought off a male. He is not sure if the note was made after speaking to the complainant or from speaking to other staff.

Evidence of Mr. Emilio Gonzalez-Ramirez

49Mr. Gonzalez-Ramirez is 25 years old. On June 24, 2019, he was going to meet Ashley at the Dollarama. He saw a blonde girl on the way and tried to ask her out. She said no, so he kept walking.

50Mr. Gonzalez-Ramirez testified that he used to hit on girls more often then, but not anymore. He would meet people like that. He used to go to the Newmarket terminal a lot to meet them.

51On June 24, 2019, Mr. Gonzalez-Ramirez was holding his phone and battery charger as he got off the bus. He decided to take a detour through the park. He met Ms. L. in the park. She asked him if she could take a look at his battery charger. He let her see it, and then she took off with it.

52He stumbled for a moment and then he ran after her. She ran along the path and into the grass area off the path. He assumes she fell down as he observed her only after she was starting to get up.

53She had blood on her face. He asked for his battery charger back and she started hitting him. He did not hit her back because she was a young girl. She was bleeding a lot and he did not think it was worth it, so he just left. He left her with the battery charger. He did not sustain any significant injuries that he recalls, maybe just a scratch under his eye.

54After the altercation with Ms. L., he went to the Dollarama to meet Ashley.

55He disagrees that he was trying to ask Ms. L. out or that he touched her or tried to kiss her. He was respectful towards her despite what she did. He knows he is not to touch little girls.

56Mr. Gonzalez-Ramirez denies having a gun.

57When asked why he did not call the police about the stolen battery charger, Mr. Gonzalez-Ramirez testified that he does not trust the police.

58He testified that he did not realize she had a key. He wasn’t paying attention to her hands.

59He has been diagnosed with a form of schizophrenia but he does not acknowledge that diagnosis. He does take medication which includes 75 mg of clozapine. It makes him a bit drowsy.

Analysis

60The accused is charged with aggravated sexual assault, sexual interference, and use of an imitation firearm in the commission of offences. The formal charges are as follows:

1. THAT on or about the 24th day of June in the year 2019 at the Town of Aurora in the Regional Municipality of York did, in committing a sexual assault on Y.L., wound, maim, disfigure or endanger the life of the said Y.L., and thereby commit an aggravated sexual assault, contrary to Section 273, subsection (2) of the Criminal Code of Canada.

2. AND FURTHER THAT on or about the 24th day of June in the year 2019 at the Town of Aurora in the Regional Municipality of York did, with part of his body, for a sexual purpose, directly or indirectly touch the body of a person under the age of sixteen years, namely Y.L., contrary to Section 151 of the Criminal Code of Canada.

3. AND FURTHER THAT on or about the 24th day of June in the year 2019 at the Town of Aurora in the Regional Municipality of York did use an imitation firearm in the commission of an indictable offence, contrary to Section 85, subsection (3) of the Criminal Code of Canada.

61There are various admissions in relation to the charges. Identity has been conceded. There is no issue that the accused interacted with the complainant on June 24, 2019 in the park in Aurora.

62It is also admitted that during the physical interaction with the accused, Ms. L. scratched Mr. Gonzalez-Ramirez with her key and drew blood.

The Offences

63With respect to count 1, for the offence of aggravated sexual assault, the Crown is required to prove (1) that there has been a sexual assault; and (2) that in the course of the sexual assault, the accused wounded, maimed, disfigured, or endangered the life of the victim.

64The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two elements are objective. The third element of the actus reus is subjective and determined by reference to the complainant’s state of mind towards the touch at the time it occurred: see R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-438, aff’d R. v. Jensen, [1997] 1 S.C.R. 304; R. v. Park, [1995] 2 S.C.R. 836, at p. 850, per L’Heureux-Dubé J.; Don Stuart, Canadian Criminal Law, 3rd ed. (Scarborough: Carswell, 1995), at p. 513; and R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 25-26.

65The mental element of the offence is an intention to touch and knowledge, recklessness, or wilful blindness as to the absence of consent: see Ewanchuk. It is not necessary to prove that the accused’s intent was sexual in nature or in purpose: see R v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60, aff’d 2010 ONCA 207, 326 D.L.R. (4th) 637; R. v. Litchfield, [1993] 4 S.C.R. 333; and R. v. Ricciardi, 2017 ONSC 5562.

66To ‘wound’ means to injure someone in a way that breaks or cuts or pierces or tears the skin or some part of the person’s body. It must be more than something trifling, fleeting or minor, such as a scratch. R. v. Brown, 2021 ONCA 678, 158 O.R. (3d) 275, at para. 23, leave to appeal to S.C.C. refused, 40015 (May 12, 2022) quoting Watt’s Manual of Criminal Jury Instructions, 2nd ed.

67The mens rea required, is objective foresight of bodily harm, not the precise kind of harm that was suffered. It is not necessary that there be an intent to wound or maim or disfigure: R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Godin, [1994] 2 S.C.R. 484.

68With respect to count 2, to make out the offence of sexual interference, the Crown must establish beyond a reasonable doubt that the accused touched the complainant who was under the age of sixteen, and the touching was for a sexual purpose.

69Where an accused is charged with sexual interference, and sexual assault of a complainant under the age of sixteen, s. 150.1 of the Code eliminates the need for the Crown to prove lack of consent.

70Finally, with respect to count 3, the offence of using an imitation firearm during the commission of an indictable offence requires a distinct conviction for the specified indictable offence: R. v. Pringle, [1989] 1 S.C.R. 1645, at p. 1654. Mere possession of a firearm or carrying a concealed weapon while committing an offence does not constitute “use” and is not sufficient to support a conviction under s. 85(2): R. v. Steele, 2007 SCC 36, [2007] 3 S.C.R. 3, at paras. 25-28. The use of the firearm must be connected to the commission of an indictable offence for which a conviction has been entered: R. v. Andrade, 2015 ONCA 499, 326 C.C.C. (3d) 507.

Application to the Facts of the Case

71The Crown argues that the offence of aggravated sexual assault has clearly been made out. The Crown submits that the complainant’s evidence should be adopted in its entirety. The complainant testified that the accused stated he wanted to touch her. He was touching the complainant around her butt area and her vaginal area as she was fighting him off.

72The Crown argues that it was not incidental touching, but clearly intentional and sexual in nature. When considered in the context of his alleged statements, the Crown argues that it is clear that the touching was for a sexual purpose. The assault with the firearm occurred in the context of the sexual assault, and clearly caused wounding.

73The defence submits that the accused’s account should be believed. The accused denied ever touching the complainant. According to the accused, the complainant must have sustained the injuries to her head when she fell down. She had the cut on her head after getting up. The accused denies ever touching her. The defence submits that the accused’s evidence was straightforward and accords with the other surrounding circumstances.

74Even if I do not accept the accused’s evidence, the defence maintains that the complainant’s account was not credible or reliable. Her claim that the accused said “I want to touch you” and was trying to touch her while struggling with a gun in his hand was not credible. Her description of the touching was hardly clear. The assault is alleged to occur in a public park in broad daylight. No one heard the screaming or heard the attack despite the fact that other pedestrians were around.

75The defence argues that the suggestion that the accused would commit a sexual assault in such circumstances is ludicrous. There was never a gun recovered. The claim that he kept it in a plastic bag also makes no sense. There is no soiling on the complainant’s backpack and no damage to her clothes despite the claim of an intense struggle. She testified that the altercation happened 20 metres from the bridge which is no where near where her property was found.

76The complainant continuously referred to him as a coward. According to the defence, Ms. L. was clearly the dominant one in the interaction. This accords with the accused’s description of events.

77The defence argues that the complainant was simply trying to cover up for the fact that she went into the park when she was not supposed to and did something she was not supposed to do, namely steal the battery charger. She acknowledged she had a wild imagination. According to the defence, she made up the entire story to cover her own wrongdoing.

78I disagree with the defence’s characterization of the complainant’s evidence. I found the evidence of the complainant credible. In her original statement (admitted under s. 715.1 of the Criminal Code), which she adopted at trial, Ms. L. provided a detailed description of her struggle with Mr. Gonzalez-Ramirez. In my view, her account clearly reflected her recollection of the events as she experienced them. She also described the gun, and described it as being located in a sandwich bag.

79In her testimony in court, Ms. L. was candid about her inability to remember/recall certain things. She acknowledged that her memory of various aspects of the encounter had faded. While having a specific recollection of certain events, including the tackle, the touching, and the firearm, her memory about other events had passed.

80With respect to her injuries, she acknowledged that the injury to her head was the only injury she remembered incurring. This was even after being shown pictures of the numerous minor injuries to her hands. It was evident that she was not making up facts to enhance her account but being straightforward with what she remembered and what she did not.

81Her account was corroborated by the civilian witnesses (Abhinaya and Riley) who encountered her at the bridge. When they observed her, she was bleeding and clearly in a state of shock. The injuries to her head and her hands evidenced in the photographs are also consistent with the encounter and struggle she described.

82The fact that her wallet, ear buds, and cellphone were found in the marsh proximate to the accused’s battery charger is also consistent with the complainant’s explanation of events. They clearly were dropped in the struggle.

83While her backpack and clothing were not damaged, this is not surprising given that the altercation occurred in grass. In my view, the fact that there is no damage or major soiling to her clothes does not undermine the credibility of the complainant’s account.

84I recognize that certain details of the complainant’s account were clearly mistaken. For example, given the location where her items (ear buds, phone, wallet) were found, she would have been tackled well over 160 metres from the bridge, as opposed to 20 metres as she suggested. However, in my view, mistakes with such details are hardly surprising given the circumstances. Again, these inaccuracies do not give me concerns regarding her credibility. She was focused on escaping, not on her proximate location to the bridge.

85I do not accept the accused’s evidence that the complainant stole his battery charger and ran into the park. I find the accused’s explanation of events to be a convenient way to try and explain Ms. L.’s injuries. I find it extremely unlikely on the facts before me that the complainant would steal the accused’s battery charger, and then turn around and make up a story about being sexually assaulted by the accused.

86If her intent was to steal the charger, I also find it hard to accept that she would have simply left the battery charger in the park together with her wallet, ear buds, and phone. The fact that these items were located in the marsh also suggests that there was a more significant physical altercation with the accused than he describes.

87The defence suggests she left her wallet, phone and earbuds on the ground in an elaborate attempt to frame Mr. Gonzalez-Ramirez. I do not accept this suggestion.

88The accused acknowledged that he would approach girls in similar situations to speak with them. This is consistent with the complainant’s description of what occurred in the original encounter. I find that the accused approached the complainant looking to speak with her. When she refused to speak with him on the second occasion, he tackled her. When she fought back, he struck her with the imitation firearm.

89Where there is defence evidence, including testimony from the accused as in this case, the court must not assume that its verdict can be based on a choice between the Crown’s evidence and the accused’s evidence. I must apply the rules set out in R. v. W.D., [1991] 1 S.C.R. 742, as follows:

1. If I believe the evidence of the accused, I must acquit.
2. If I do not believe the evidence of the accused, but I am left with a reasonable doubt by it, I must acquit.
3. Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence I accept, I am convinced beyond a reasonable doubt by the evidence of the accused’s guilt.

90Having considered all the evidence, I have no doubt that the accused tackled the complainant. I also have no doubt that given the complainant’s reaction and the struggle, the accused assaulted the complainant in the course of the interaction, including using an imitation firearm to strike her on the head.

91I am also satisfied beyond a reasonable doubt that the gash on her head was left by the imitation firearm he used to hit her. The injury here was a deep gash to the forehead requiring staples and is clearly more than something trifling, fleeting or minor, such as a scratch.

92With regards to the sexual nature of the assault, however, I have some reservations as to whether the assault was sexual in nature.

93The test to be applied in determining whether an assault is of a sexual character is objective. The trier of fact must ask itself, “[v]iewed in the light of all of the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer”: R. v. Chase, [1987] 2 S.C.R. 293, at p. 302; R. v. Larue, 2003 SCC 22, [2003] 1 S.C.R. 277.

94The circumstances to be considered include the part of the body touched, the nature of the contact, the situation in which the contact occurred, and any words or gestures accompanying the act, among other things. The intent or purpose of the person committing the act may also be a factor in considering whether the conduct was sexual, but it is only one factor to be considered in the analysis: Chase, at p. 302; R. v. Marshall, 2017 ONCA 801, at paras. 51-53; R. v. Farouk, 2019 ONCA 662; R. v. Higginbottom, 156 C.C.C. (3d) 178 (Ont. C.A.).

95In this case, in describing the touching, the complainant explained:

Ms. L.: Then probably when I’m, like, lying down, maybe not really fighting that much, but like staying calm, and its just because I think the one thing is always to stay calm and not think of anything bad, so I was just down a little, like maybe get a rest a little. Of course, then he starts touching me down there. Probably like – I don’t know how to describe, like – like butt area, but then like probably – how – should I say vagina? Vagina area. Ms. L.: He did not touch me anywhere, just… above the clothes. Ms. L.: I think he’s – he’s trying to, like you know, like, calm, like I think he was trying to calm me down, like, just, like, he – so then he could have his way.

96When asked if he said anything, she stated:

Ms. L.: Of course, like “Stay down”, and it was like – I think I remember slightly of him saying, like, “I want to have sex with you.” Probably, like, in that category. Like, “I want to do this.” Like… Det. Crook: Do you remember the exact words? Exact words are very important to know. Ms. L.: “I wanna touch you.” Ms. L.: Basically, like, he tried to kiss me, but I think he coward a little bit, still because he was, like, not sure, because I think he might have been embarrassed because he does not know to, but, because he had, like the face was just, like flush everywhere.

97In this case, Ms. L. was uncertain with the particular words Mr. Gonzalez-Ramirez used during the encounter. She testified that he looked like he was taking down his pants or zipper but did not. She testified that he looked like he was making a kissing gesture but looked to change his mind. The complainant was obviously trying to interpret the accused’s actions and figure out the reason behind the attack.

98She testified that he asked her for her phone and she believed at some point he was trying to rob her. Given the intense nature of the struggle, and the possibility that the accused was checking her pockets and looking for her phone/wallet or other valuables, the nature of the touching could have easily been incidental to searching for her wallet/phone.

99The touching clearly could have been sexual in nature as the complainant described it. However, given the intense nature of the struggle, I am not satisfied beyond a reasonable doubt that it was.

100Accordingly, I find the accused not guilty of aggravated sexual assault, but guilty of the lesser included offence of aggravated assault.

101Having regard to my findings above, I also find the accused guilty on count 3 (Use of Imitation Firearm in the Commission of Offence), and not guilty on count 2 (Sexual interference).