Court File and Parties

COURT FILE NO.: CR-17-6059 DATE: 20230117 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – ANOOOP KUMAR UBBU Defendant

Counsel: Ivana Denisov, for the Crown Mukesh Bhardwaj, for Defendant

HEARD: November 28-December 2, 2022

reasons for decision

M.L. EDWARDS, RSJ.

Overview

[1] Mr. Ubbu is charged with one count of sexual assault. The indictment alleges that he sexually assaulted JY on March 14, 2010. The evidence in this trial consisted of the evidence of JY, an Agreed Statement of Fact; three DNA biology reports and the evidence of Mr. Ubbu.

Chronology of these Proceedings and the First Day of Trial

[2] While the alleged sexual assault took place on March 14, 2010, it is agreed from the agreed statement of fact filed as Exhibit 1 that it was not until July 26, 2017 that a DNA warrant was served on Mr. Ubbu, resulting in his subsequent arrest.

[3] The endorsements on the indictment reflect this matter first came before the Superior Court on May 19, 2021. On that date Fuerst J conducted a judicial pre-trial. On July 2, 2021, this matter was back before Fuerst J. at which time she ordered that stage 1 of a s. 276 application would proceed on November 17, 2021, with the stage 2 portion to take place on November 19, 2021. Subsequently, those dates were vacated and replaced with November 2 and 3, 2021.

[4] Mr. Ubbu clearly considered the need for a s. 276 application. However, on November 2, 2021, when the matter came before Sutherland, J., counsel for Mr. Ubbu withdrew the s. 276 application. The trial was supposed to take place in April 2022 but, due to the illness of Mr. Ubbu’s counsel, the matter was then adjourned to November 28, 2022 for a 7-day judge alone trial.

[5] In her opening to the court on November 28, 2022, Crown counsel informed the court that JY had been victimized twice during the early morning hours of March 14, 2010 by 2 different groups of men. It was the Crown’s position that Mr. Ubbu was part of the second group of men and that defence counsel was barred from eliciting any evidence in relation to the first group of men as no s. 276 application had been brought by the defence to litigate this issue.

[6] JY was then called as the Crown’s only witness. She testified about pre drinking and attending a nightclub. She testified she had been driven to an area distant from the night club when she heard some loud noises coming from an SUV. She was not dressed for the cold and got into the vehicle. She testified there were 2 male individuals in the SUV. After driving to 2 different locations, JY then gave evidence about being sexually assaulted by these 2 men. She did not consent and made it clear to them she did not want to have sex. She testified that her clothes were removed and both men penetrated her.

[7] JY gave evidence about how she ended back at the address of one of her friends and how the assaults were eventually reported to the police and how her underwear was handled by her and then turned over to the police. It is conceded by Mr. Ubbu in the Agreed Statement of Fact that JY’s underwear was in the same condition as the evening of March 14 as they were when turned into the police and that the underwear was not tampered with.

[8] Part of the Crown’s case which was well known to Mr. Ubbu and his counsel was the DNA analysis that was done of JY’s underwear. It was well known that one of the profiles on the underwear revealed that Mr. Ubbu could not be excluded and that the probability of a random match to Mr. Ubbu was 1 in 2.2 trillion.

[9] After JY testified in chief to being sexually assaulted in the SUV she was cross examined. Remarkably, she was not cross examined in a manner that would be consistent with the Rule in Browne v. Dunn. The reasons for this became clear when counsel for Mr. Ubbu disclosed to the Crown that Mr. Ubbu would testify that he was part of the first group of men who had a sexual interaction with JY. JY had been asked no questions about the first incident as there has been no s. 276 application by either the defence or the Crown.

[10] It became clear from discussions between the Crown and defence counsel (discussions not involving the court) that a request was being made to cross examine JY with respect to the first incident on the basis it was consensual. This would then offer an explanation as to why Mr. Ubbu’s DNA was found on DY’s underwear.

[11] It was agreed between counsel that Mr. Ubbu would file with the court a proper s. 276 application. The application was filed on the second day of the trial, November 29, 2022. Crown counsel took the position having reviewed the written s. 276 application that Mr. Ubbu’s articulated request would fall outside the scope of s. 276 as the defence was arguing that the whole evening of March 13/14 was one continuous transaction, despite the fact JY was involved in 2 different incidents with 2 different sets of men.

[12] The Crown took the position that had a proper s. 276 application been filed by Mr. Ubbu, the Crown would have proceeded differently with the evidence of JY in chief and that more importantly the Crown would have proceeded on the basis that both incidents were non-consensual.

[13] Ultimately, it was agreed between counsel that JY would be recalled by the Crown and Mr. Ubbu would be allowed to cross examine her in relation to the first incident solely for purpose of establishing the incident was consensual and thus consistent with the DNA found on JY’s underwear. It was also agreed between counsel that the Crown would be free to argue that both sexual incidents were non consensual and that the Court could convict Mr. Ubbu, if satisfied that he belonged to either group of men. In regard to this agreement, it was accepted that the indictment charged Mr. Ubbu with one count of sexual assault said to have occurred on March 14, 2010.

The Evidence of JY

[14] On March 13, 2010, JY decided to go to a local night club (I will interchangeably refer to the night club as a bar, club or nightclub) JY was under the legal age to consume alcoholic beverages. At the time she was 17. By her own admission, she “stole” or borrowed her sister’s ID. Prior to going to the Bar, she consumed alcohol or to use her words she and her friend Wendy “were pre drinking”. It would appear they drank a half bottle (750 ml) of tequila between them. They then went to the Bar arriving at between 9:30 to 10:00 pm.

[15] When she arrived at the Bar JY needed to use the washroom. She was confronted by a “bouncer” who told her that if there was any more drinking she could be “kicked out”. JY was feeling “woozy”. She then went to the bar in the nightclub where she ordered a drink called “sex on the beach” which is a drink mixed with various juices and vodka.

[16] While at the Bar JY began dancing. Her friend Wendy was on the other side of the dance floor. JY recalled dancing with one particular individual. At one point, because she was unsteady on her 5 to 6 inch high heels, she landed into this person who kissed her putting his tongue in her mouth. She reciprocated.

[17] During the course of the evening JY was texting Wendy. The texts no longer exist either because they were overwritten and or because JY may have deleted them. On all of the evidence, it is clear the club was full of people as the evening progressed and it was very loud.

[18] JY testified that eventually the male person she was dancing with suggested that they go “hang out”. JY wasn’t sure what he meant but thought they might go “for a smoke” or to a coffee shop for a coffee. She thought that it would be just her and this male person who for ease of identification in these reasons I will refer to as Male Person A or A for short.

[19] JY and A left the club at around midnight. As it turned out they were not alone. Three other male persons joined JY and A in a car. JY had no idea where they were going and estimated she was in the car for 20-30 minutes until they arrived at a house. She described the house as being a town house with 3 floors.

[20] JY testified that she felt uncomfortable with what was happening. She was asked to come into the house and initially thought they were just going to “hang out and chill”. She was however, using her own words, not in a “right state of mind” and was having trouble walking.

[21] A directed JY into a bedroom. Initially all 4 males were in the room which JY felt was strange as it was such a small room. At some point the 3 other males left the room leaving JY and A alone. JY testified that she was then told to remove her clothes. She did not want to take off her clothes but did as she was told because she felt intimidated. She did not understand what she was doing.

[22] After she had removed her clothes JY testified that A removed his clothes and proceeded to have sexual intercourse with her. She was asked in chief if she told A that she wanted to have sex with him to which replied “No-I could barely comprehend the words coming out of my mouth.” She did not recall any conversation with A. She believed that the sexual encounter with A lasted between 15-20 minutes.

[23] After the sexual encounter with A he left the room. Another male person who I will describe as Male person B (B) came into the room. JY described this person as smaller than A but it was dark in the room. She had no conversation with B She wanted to push B away but had no strength to do so. B then proceeded to have sexual intercourse with her which lasted about 10 minutes. After he had ejaculated, JY felt something wet on her thigh. She used her underwear to clean herself.

[24] After B left the room, another male person who I will describe as Male person C (C) entered the room. At this point JY wanted to fall asleep. C however forced her legs apart and proceeded to have sexual intercourse which lasted about 10-15 minutes. C also ordered her to give him felatio. C was wearing a condom.

[25] The last person to enter the room was a male person who she described as wearing a polka dot tie and wearing a vest. This person who I will describe as Male person D (D) then removed his pants and penetrated JY. She testified he was wearing a condom. She had no conversation with D. After he had finished, she tried to find a blanket and her clothes. She was then told to get dressed and she was led down the stairs. She then remembers being in the same car she had been in when she arrived at the house.

[26] JY testified that all four of the males were in the car. She recalled B “sounding weird” and that he tried to touch her. She didn’t know where they were going. Initially, she believes they went to a Tim Hortons only to find it was closed. They then arrived at another location with a coffee shop. She got out of the vehicle with A who was walking beside her. When they got to the coffee shop the car pulled up beside them. A jumped into the vehicle and they drove off leaving JY alone.

[27] At this point, JY was unsure where she was but recalled seeing a street sign suggesting she was in the area of Finch and Albion. She was not wearing a coat and she was cold. She then heard some shouting and observed a SUV vehicle approach.

The Evidence of Mr. Ubbu

[28] Mr. Ubbu was 31 years old in March 2010. He is employed as a truck driver. He recalled that on March 13, 2010 he went to a night club in the Highway 7 and Highway 400 area. He went alone by taxi. He was wearing a dress shirt, green vest, and black pants. When he arrived at the club he ordered a corona beer. He discovered that a friend was at the club. His name was “Vicky”. He was introduced to 2 friends of Vicky, all of whom were male individuals, who all spoke Punjabi. Mr. Ubbu is Punjabi and testified with the assistance of a Punjabi interpreter.

[29] While at the club, the group of four consumed some corona beer and also did some vodka shots. They danced on the dance floor. Eventually, one of Vicky’s friends suggested they leave the club. They left the club in Vicky’s car as Vicky knew Mr. Ubbu didn’t come to the club in his own vehicle.

[30] When Mr. Ubbu was in the vehicle, he noticed that there was a girl with them. He was not introduced to the girl. He described all of the other male individuals as of a taller build than him. They went to a townhouse where Vicky was renting a room.

[31] After arriving at Vicky’s residence, everyone was told to be quiet as there were other people asleep in the home. They removed their shoes. Mr. Ubbu testified that he and 2 of the other males remained in the living room while Vicky went upstairs with the girl. He testified that the girl was laughing out loud and she was reminded to be quiet

[32] After Vicky came back downstairs, Mr. Ubbu testified that Vicky told him that the girl was upstairs and “you can go there”. He testified that Vicky gave him a condom. When he arrived at the room, the girl was naked on the bed. Mr. Ubbu testified that “as soon as I went there, I undid my pants”. He stated that “her hands were on it”. He testified that the condom was in his pocket. He was confused and “embarrassed at how quickly it happened”.

[33] Mr. Ubbu was asked in chief “Did you communicate with the girl when you went into the room and did she communicate with you?”. In response to this question, he testified that the “girl started doing it with her hand”. Mr. Ubbu was also asked in chief “Did you do anything against her wishes?” to which he replied “No-she did not say yes and she did not say no”.

[34] After Mr. Ubbu ejaculated, he testified he observed the girl cleaning herself and then he got dressed and went downstairs. He testified that the other males who were downstairs began to make fun of him because of how short a period of time he had been upstairs. Mr. Ubbu stated he then left the residence and went home after he was able to find a taxi.

[35] In cross examination, Mr. Ubbu confirmed, on more than one occasion, that he had never met the girl that was in the room where he ultimately ejaculated. He could not describe this girl in terms of her racial colour. His only description of her was she had hair to her shoulder and she was taller than him. He further confirmed he had no discussion with her either at the club; in the car ride to Vicky’s home; nor did he have any conversation in the bedroom.

[36] Mr. Ubbu was cross examined about his relationship with Vicky and the other two male individuals. While in chief, he testified he would get together with Vicky every two weeks at the local mall his evidence in cross examination differed. He stated he might have met Vicky 4-5 times but he didn’t know his last name. He didn’t know the names of the other 2 males. He testified he has not seen Vicky since March 2010.

[37] Mr. Ubbu confirmed that it was Vicky’s idea to leave the club and that they would hang out at his place. He confirmed that he, together with Vicky and the other 2 males, drove in Vicky’s car with the girl. He confirmed there was no conversation with the girl in the car.

[38] When they all arrived at Vicky’s residence, Mr. Ubbu confirmed that Vicky went upstairs with the girl and one of Vicky’s male friends. Vicky came back down and joined Mr. Ubbu and the other male friend in the living room. He stated he could hear what he described as “fun noises” coming from upstairs and that it was “obvious” they were having sex. He stated that most of the noise was coming from the girl and she was laughing and it sounded like she was having fun.

[39] The friend of Vicky who had gone upstairs first came back downstairs and joined Mr. Ubbu and the others in the living room. Vicky went upstairs and the others, including Mr. Ubbu, remained in the living room. Mr. Ubbu testified that while Vicky was upstairs they had no conversation about what had just happened. Vicky then came downstairs and he told the other male who had not been upstairs that he could go upstairs. While this other male was upstairs Mr. Ubbu stated that he had no conversation with Vicky or the other male person about what had transpired upstairs.

[40] When the other male came downstairs, Mr. Ubbu stated that Vicky told him he could go upstairs.

[41] Mr. Ubbu was cross examined about his understanding of what was happening as each male person went upstairs and then came back downstairs. He confirmed that he believed everyone went upstairs to have sex with the girl. He further confirmed that “she was having a great time”

[42] As for what happened when he got to the room, Mr. Ubbu stated in cross examination that she was naked on the bed. He entered the room and unbuckled his belt; unzipped his pants and removed his underwear. He stood beside the bed at which point his evidence is that the girl then took his penis in her hand and moved her hand. He denied penetrating the girl. He stated he ejaculated on her stomach and that immediately after ejaculating, he got down off the bed; dressed himself and went downstairs.

[43] Mr. Ubbu completed his cross examination by confirming that the girl did not say yes and she did not say no. He stated that “the way she touched me it appeared she didn’t say no”. He was then asked by the Crown in cross examination “You assumed she wanted to have sex” to which he answered “Yes”.

Position of the Crown

[44] The Crown argues that this case is all about consent and credibility. As it relates to the suggestion that JY consented to having sex with Mr. Ubbu and the other 3 individuals when she said “I don’t do all 4” the Crown acknowledges that when JY was interviewed by Detective Fowler she may have said that. However, and most significantly, the Crown points to that part of the evidence of JY when she then clarified what she said immediately after making this comment about “not doing all 4”. Specifically, JY when her memory was refreshed by reviewing her police statement said “all of them were in the bedroom and I was like “what the hell is going on?” And they are like do you want to still leave. And I think I said “I didn’t agree to this. I didn’t agree to this”

[45] Jy adopted that portion of her statement when her memory was refreshed. The Crown argues her statement confirms her evidence to the court that she did not agree to having sex with Mr. Ubbu or any of the other male persons that night.

[46] The Crown argues that JY never consented to any kind of sexual contact with Mr. Ubbu and that she didn’t have the capacity to consent given her state of mind and the effects of the alcohol she had consumed that night.

[47] The Crown acknowledges that there may be issues with the reliability of some of the evidence given by JY but counters this concern by reference to Mr. Ubbu’s own evidence and the DNA evidence. The combination of Mr. Ubbu’s evidence and the DNA evidence leaves no doubt that Mr. Ubbu did have sex with JY thus leaving the only issues for the court being whether JY consented and whether Mr. Ubbu had an honest but mistaken belief that JY was consenting to having sex.

[48] Put into its simplest form the Crown argues that on his own evidence Mr. Ubbu is guilty of sexual assault. Applying WD the Crown argues that if I believe Mr. Ubbu when he testified that JY didn’t say yes and she didn’t say no-coupled with his evidence that he assumed JY was consenting, that this evidence establishes beyond any reasonable doubt the guilt of Mr. Ubbu.

Position of the Defence

[49] It is argued on behalf of Mr. Ubbu that JY consented to having sex with not just Mr. Ubbu but all 4 individuals who I have referred to as A, B, C, and D. Counsel refers to the evidence of JY when she testified about the 4 individuals all being in the room at the same time. Specifically, counsel refers to that part of her evidence when she testified “I don’t do them all at the same time” and thus consented to having sex with them one at a time. It is argued that JY further testified that the aforesaid statement “could have been misinterpreted as consent”.

[50] Defence counsel argues that having told the 4 individuals that she didn’t do sex with all four at the same time that JY never revoked her consent. In the alternative, counsel argues that Mr. Ubbu may have made a mistake in his belief that JY was consenting and that this mistake in belief provides him with a defence as it has an air of reality to it. Specifically, defence counsel points to Mr. Ubbu’s evidence that when he entered the room JY began to fondle his penis thus demonstrating that she wanted to have sex with Mr. Ubbu.

[51] As it relates to the evidence of JY, defence counsel argues that much of her evidence is either lacking in credibility or is unreliable. In that regard, he points to differences in her evidence and what she told the police in her statement, given within a week of the assault. He also suggests that the police investigation was wanting given the lack of evidence from JY as it relates to her text messages, phone records, and video from the club.

Legal Principles and Analysis

[52] To establish the guilt of Mr. Ubbu the Crown must prove each of the following essential elements of the offence of sexual assault beyond a reasonable doubt:

1. That Mr. Ubbu touched JY directly or indirectly
2. That the touching by Mr. Ubbu was intentional
3. That the touching by Mr. Ubbu took place in circumstances of a sexual nature
4. That JY did not consent to the sexual activity in question and
5. That Mr. Ubbu knew that JY did not consent to the sexual activity in question

[53] There are only three real issues in this case as there is no doubt, based on his own evidence, that Mr. Ubbu intentionally touched JY in a sexual manner. The first issue is whether JY consented to the sexual touching and as part of that issue the question is raised as to whether JY was in a state of mind or sobriety to have consented. The second is whether Mr. Ubbu knew that JY did not consent. The third issue triggers a consideration of s.273.2 and the defence of honest but mistaken belief in communicated consent.

[54] This is a somewhat unique case. When an accused testifies the WD analysis is triggered. If the trier of fact believes the accused then it follows the accused must be acquitted. But in this case as the Crown argues, Mr. Ubbu by his own admission, never tried to determine if JY was consenting to having sex. In fact, Mr. Ubbu testified in chief that JY “never said yes and never said No”. Moreover, in cross examination Mr. Ubbu admitted that he simply “assumed” that JY wanted to have sex with him.

[55] As it relates to the issue of consent, the Supreme Court has made it crystal clear that consent is a subjective state of mind which is entirely personal to the complainant and that there is no room for the concept of implied consent in Canada - see R. v. G.F., 2021 SCC 20 at para 2.

[56] Consent is defined in s. 273.1 of the Criminal Code as the voluntary agreement of the complainant to engage in the sexual activity in question. In G.F. the Supreme Court makes clear that the complainant must subjectively agree to the act, its sexual nature, and the specific identity of their partner or partners.

[57] As it relates to the evidence of JY, I accept without reservation her evidence that she never agreed to having sex with Mr. Ubbu. JY testified she never consented to any sexual activity with Mr. Ubbu or for that matter with any of the other unidentified male individuals. I found JY to be a credible witness who presented her evidence in a forthright manner. She was straightforward and direct in her evidence. She was not combative and was very much in control of what she said and how she said it.

[58] JY is not the person that Mr. Ubbu would have her made out to be (i.e., someone who was enjoying having sex with multiple men whom she had never met before). Rather, in my view, JY seen through the lens of a 17 year old, was a teenager who made some bad decisions the evening of March 13/14, 2010. She made a bad decision stealing her sister’s identification. She made a bad decision using that ID to get into the Bar. She made a bad decision drinking too much alcohol. She made a bad decision getting into a car with 4 strangers. All of these bad decisions are decisions that countless teenagers (male and female) have made over the years. But those bad decisions did not mean that JY was available for non consensual sexual intercourse. When JY testified that “I didn’t agree to this” it was clear, and I accept her evidence, that she was not consenting to having any kind of sexual contact with Mr. Ubbu or any of the other male individuals.

[59] It is argued that Mr. Ubbu interpreted the actions of JY as consenting to have sex with him. Specifically, it is suggested that when he arrived in the bedroom and approached JY that she took his penis in his hand and began to fondle him. It is argued these actions could be honestly interpreted as JY wanting to have sex with Mr. Ubbu.

[60] I do not accept Mr. Ubbu’s evidence that JY fondled his penis. As a matter of fairness to JY, this version of what happened should have been put to JY. While the rule in Browne and Dunn is not an absolute rule it is a rule of fairness. The failure to confront JY with Mr. Ubbu’s version of what happened fundamentally undermines the suggestion that JY wanted to have sex with him. Throughout her evidence, JY was clear that she never consented to having sex with any of the 4 individuals.

[61] Mr. Ubbu argues that JY consented to having sex with him and the other three male persons. He argues that consent was specifically given when all 4 males were in the bedroom and JY said words to the effect that she wouldn’t have sex with all 4 at the same time but she would do them one at a time. I do not accept this argument. JY was clear in her evidence when her memory was refreshed from her police statement that she never agreed to having sex with any of the men. What also makes this argument impossible to accept, apart from the denial of JY, is the fact that accepting the evidence of Mr. Ubbu he never spoke to JY at all during the evening and she never spoke to him. His own evidence is he remained in the living room until it was “his turn” to go upstairs. His evidence never had him in the bedroom with JY until he arrived to have sex with her. If his evidence is to be believed he would never have been in the bedroom with the other 3 males and therefore he could not have heard JY consent in the manner now suggested by his counsel in argument.

[62] Counsel for Mr. Ubbu attacks both the credibility and reliability of the evidence of JY. In that regard emphasis is placed on discrepancies in JY’s evidence describing the various individuals involved and the timing of which individual had sex with her first through fourth. While there may have been discrepancies in JY’s identification evidence, it is fundamental to the outcome in this case that Mr. Ubbu’s own evidence involves him in a sexual encounter with JY. The only real issue is not whether Mr. Ubbu had sex with JY - his DNA confirms that he did, rather the issue is did JY consent.

[63] Mr. Ubbu painted a picture in his evidence that the person he described as “the girl” was laughing and having fun based on what he could hear from the living room. He also left the court with the impression that while waiting in the living room there was no discussion going on amongst the men gathered in the living room; this despite the fact that as one male person was replaced with another, each had just had sex upstairs. The suggestion that these males simply sat down in the living room without conversation leaves one with the impression that what had just happened was a routine event. Each of the male individuals in that living room, including Mr. Ubbu, were waiting “their turn” to have sex with “the girl”. I also do not accept that “the girl was having fun”. JY was never cross examined as to whether “she was having fun” and “laughing”. The failure to cross examine JY in this regard was not only unfair but undermines Mr. Ubbu’s evidence of what he says he heard going on upstairs which he says informed his impression that the girl wanted to have sex with him and had enjoyed having sex with the other 3 male individuals.

[64] The Crown has proven beyond a reasonable doubt that JY did not consent to having sex with Mr. Ubbu. The actus reus of the offence is established. The Crown also has to prove beyond a reasonable doubt the mens rea of the offence. The mens rea consists of the intention to touch and knowing of, or being reckless of or willfully blind to, a lack of consent on the part of the person touched-see R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para 23, and 42. In this case, Mr. Ubbu argues that JY consented to having sex with him or in the alternative he relies on the defence of honest but mistaken belief in consent. In essence, the alternative defence of mistake is a denial of mens rea – see Ewanchuk at para 44.

[65] The defence of honest but mistaken belief in consent is reviewed in detail by the Supreme Court in R. v. Barton, 2019 SCC 33 at para 86-113. It is clear that in order to make out this defence Mr. Ubbu must have an honest but mistaken belief that JY actually communicated consent whether by words or by conduct. The defence of honest but mistaken belief in consent is not an unlimited defence as it is constrained by the application of s. 273.2 of the Code. As it relates specifically to Mr. Ubbu, the defence will not apply if he was reckless or willfully blind in his belief that JY was consenting to having sex with him The defence will also fail if it is established that Mr. Ubbu did not take reasonable steps to ascertain that JY was consenting. As Moldaver, J. so succinctly summarized this defence in Barton at para 104 “Section 273.2 (b) imposes a pre-condition to the defence of honest but mistaken belief in communicated consent-no reasonable steps, no defence”.

[66] As Moldaver, J. also notes in Barton at para 106 “the reasonable steps inquiry is highly fact specific”. While not circumscribing what facts may give rise to this defence, at para 108 of Barton, it is noteworthy as it relates to Mr. Ubbu’s defence that there are certain circumstances where the reasonable steps inquiry will be elevated. Specifically, where neither Mr. Ubbu nor JY knew each other “common sense suggests a reasonable person would take greater care in ascertaining consent”.

[67] Mr. Ubbu argues that he believed JY had consented to having sex based on what JY told the police that when she was in the room with all 4 male individuals, she said words to the effect that she wouldn’t have sex with all four men at the same time but she would individually. I have already commented on the credibility of JY’s evidence as it relates to her police statement. That said, however, the major problem with Mr. Ubbu’s reliance on this evidence is that it conflicts with his own evidence.

[68] Mr. Ubbu gave evidence that makes clear he was never in the room with JY and all 4 of the male individuals. He also stated that he had no communication with JY and she made no communication with him. If Mr. Ubbu’s evidence is accepted then he was never in the room when it is alleged JY consented to having sex with each individual as long as she didn’t have sex with all four at the same time.

[69] Mr. Ubbu argues that the conduct of JY provided him with a reasonable basis upon which to believe JY was consenting to have sex with him. He points to the fact that when he went into the room with JY and undressed she reached for his penis and moved her hand up and down. This conduct it is suggested would lead a reasonable person to believe that JY was consenting to having sex with Mr. Ubbu.

[70] There are, in my view, a number of reasons why this conclusion is unsound. First, it is crystal clear from Mr. Ubbu’s own evidence that when he went upstairs to the room with JY he had one thing in mind and that was to have sex with JY. There was no other reason for him to be going upstairs. Prior to going upstairs, he had no conversation with JY that could lead anyone to believe that she was consenting to have sex. Immediately upon entering the room, Mr. Ubbu’s own actions demonstrate his sole intention. He unzipped his pants and got naked. Why? To have sex with JY. In short, Mr. Ubbu in the words of Moldaver, J. fits the definition of “no reasonable steps, no defence”. Mr. Ubbu was a stranger to JY and at the very least common sense suggests Mr. Ubbu needed to do more before engaging in any sexual activity with JY to determine that she was consenting. He had absolutely no conversation with her to ascertain that she was consenting.

[71] As for the alleged conduct of JY (reaching for and fondling his penis), I have already noted that this version of the facts was never put to JY in cross examination. She was never given the opportunity to respond to this version of the facts. While the rule in Browne v Dunn is not an absolute rule, when it goes directly to the defence of honest but mistaken belief in consent there was an obligation to give JY the opportunity to respond. For whatever reason this was not done in cross examination. I reject the evidence of Mr. Ubbu as it relates to this version of the events.

[72] If however I am wrong in the application of the rule in Browne v Dunn, I do not accept that even if JY did what Mr. Ubbu suggests she did to his penis would amount to a basis upon which Mr. Ubbu could reasonably have believed she was consenting to having sex with him. Her alleged conduct would equate to non verbal behavior. Where an accused asserts a defence of honest but mistaken belief in consent based on non verbal behavior such non verbal behavior must be unequivocal especially where the complainant and the accused are strangers. As referenced in R. v. Shrivastava, 2018 ABQB 998 at para 72 and 73 where there is a sexual encounter between strangers’ common sense dictates that there must be “clear and unambiguous communication of consent, not self serving interpretations of equivocal or contradictory behavior”.

[73] Counsel for Mr. Ubbu argues that Mr. Ubbu had an honest but mistaken belief that JY was consenting to having sex with him. What undermines this argument is the complete absence of any attempt on the part of Mr. Ubbu to determine let alone understand JY’s state of mind. By his own evidence, he never had any conversation with JY and as such there can be no evidence that JY verbally communicated her consent.

[74] If JY did not consent in her own words then Mr. Ubbu by inference argues that her conduct mistakenly caused him to believe JY was consenting. As previously noted, he points to the fact that JY took his penis in her hand causing him to ejaculate. Undermining this evidence was the complete absence of any cross examination of JY as it relates to this evidence. While JY may have confused the order in which she had sex with the 4 males she was never confused in her evidence that all 4 penetrated her vaginally. There was nothing in JY’s evidence to suggest she was a willing participant as testified to by Mr. Ubbu. There was nothing in the evidence of JY to suggest one of the individuals ejaculated when she fondled his penis.

[75] What also undermines any defence premised on an honest and mistaken belief in consent is the complete absence of any appreciation about the sobriety of JY. Counsel for Mr. Ubbu would have the court conclude that JY was in complete control of her faculties and points to the fact she left the club voluntarily; entered the vehicle without difficulty; exited the vehicle without difficulty; walked up the stairs of the townhouse without difficulty; was laughing and having fun; and had sex with 3 of the males before she had sex with him.

[76] The difficulty with this theory is it fails to consider the evidence of JY as it relates to her state of mind and how she was presenting. I accept the evidence of JY that when she was in the room with the male individuals she was “slurring her words”. I accept her evidence that as she walked up the stairs towards the room where she was ultimately raped that she could “barely walk”. Having picked up JY at a Bar it would have been evident to Mr. Ubbu and the other male individuals from how she was presenting that she was not subjectively in a state of mind to consent to having sex with anyone-let alone a group of strange men in a strange house.

[77] Mr. Ubbu, having entered the room with JY, took no steps whatsoever to determine the state of mind of JY. He went to the room like all four men for one purpose and one purpose only-to have sexual intercourse. Mr. Ubbu and JY were total strangers who had never met before the evening of March 13/14. They had no communication between them. Adopting the words of Mr. Ubbu - words that I accept as reflecting his state of mind “she did not say yes, but she didn’t say no”. As Mr. Ubbu acknowledged in cross examination “I assumed she wanted to have sex”. This state of mind does not reflect the state of mind of someone with any concern for whether JY was consenting. It reflects the state of mind of someone who was completely reckless as to whether JY was consenting by words or conduct.

[78] The evidence establishes that Mr. Ubbu had a state of mind that reflected one intention and that was to have sex with JY for his own self gratification without a care in the world for whether JY was consenting or not. The defence of honest but mistaken belief in consent is rejected. The mens rea for the offence of sexual assault has been established by the Crown beyond a reasonable doubt. A conviction shall be entered, Mr. Ubbu is guilty of sexual assault.

M.L EDWARDS, RSJ. Released: January 17, 2023 – Orally in Court