COURT FILE NO.: CR-21-280 DATE: 2023/11/15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – M.D. Defendant

Counsel: Artem Orlov, for the Crown Katie Heathcote, for the Defendant

HEARD: May 23-24, 2022

REMINDER: S.486.4 PUBLICATION BAN

JUSTICE I.F. LEACH (ORALLY)

Introduction

[1] The accused in this matter, Mr M.D., is charged with one count of sexual assault, contrary to section 271 of the Criminal Code, (“the Code”).

[2] The charge centres on events alleged to have taken place on Monday, May 17, 2021, during an acknowledged afternoon visit by the complainant I.F. to Mr D.’s apartment residence, here in the city of London.

Trial Duration and Sources of Evidence

[3] The trial of Mr D. in relation to that charge was relatively brief. In particular, it commenced before me on May 23, 2023, and concluded the following day with the completion of evidence and the closing submissions of counsel.

[4] In the course of that relatively brief trial, I was presented with the following evidence:

a. the trial testimony of I.F., the complainant and only witness called by the Crown; b. a series of three text messages sent by the accused to Ms F. in the early morning hours of Tuesday, May 18, 2021, marked as trial Exhibit 1 during the course of Ms F.’s testimony; c. a recording of a voicemail message left by the accused on Ms F.’s phone, on Wednesday, May 19, 2021, a flashdrive copy of which was marked as trial Exhibit 2 during the course of Ms F.’s testimony; d. a transcript of the aforesaid voicemail message, (which was agreed between the parties, and formally admitted by the accused pursuant to section 655 of the Code, to be an accurate transcription of what was said by Mr D. during that voicemail message), a flashdrive copy of which was marked as trial Exhibit 3 during the course of Ms F.’s testimony; and e. the trial testimony of M.D., the accused and only witness called by the defence.

[5] During the course of the trial, there also were further party agreements, and corresponding formal admissions by the accused pursuant to section 655 of the Code, in relation to the following matters:

a. date; b. time; c. jurisdiction; d. identity, in terms of the accused before the court being the same person referred to as M.D. by the complainant; and e. the fact that, when the complainant attended at St Joseph’s Hospital for an examination on May 19, 2021, and was seen by Nurse Examiner Lindsay Stewart, the latter noted, “during neck swabs”, a “light, pink/reddened area … on [the] left side of [the complainant’s] neck, under [her] jawline”.

Charge and Essential Elements

[6] The sole charge against Mr D., set forth in Count 1 of the indictment, reads as follows:

COUNT 1 M.D. STANDS CHARGED THAT he, on or about the 17th day of May in the year 2021 at the City of London in the said region, [i.e., the Southwest Region, in the Province of Ontario], did commit a sexual assault on I.F., contrary to Section 271 of the Criminal Code of Canada.

[7] Before proceeding further, I think it helpful to note and review the essential elements of the sexual assault offence with which Mr D. is charged; i.e., the necessary components of the offence which must be proven by Crown counsel beyond a reasonable doubt in order to warrant a conviction of Mr D. in relation to that offence.

[8] In particular, for me to find Mr D. guilty of sexual assault, Crown counsel must prove each of the following essential elements beyond a reasonable doubt:

i. that Mr D. intentionally applied force to Ms F.; ii. that Ms F. did not consent to the force that Mr D. intentionally applied; iii. that Mr D. knew that Ms F. did not consent to the force that Mr D. intentionally applied; and iv. that the force that Mr D. intentionally applied took place in circumstances of a sexual nature.

[9] In relation to the first essential element, (i.e., focused on whether Mr D. intentionally applied force to Ms F.):

a. The application of force may be direct, (by the accused using part of his body to apply the force), or indirect, (by the accused using an object to apply the force). b. The force applied may be violent, or even gentle, with “force” including any physical contact with another person, even a gentle touch. c. To be an assault, however, the accused must have applied the force intentionally, meaning “on purpose”, and not by accident. An accidental touching is not an intentional application of force.

[10] In relation to the second essential element, (focused on whether Ms F. did not consent to the force that Mr D. may have intentionally applied):

a. Consent focuses on a complainant’s state of mind at the relevant time. In particular, consent requires the voluntary agreement of a complainant to the accused doing what he did, in the way in which he did it, and when he did it. In other words, consent requires that a complainant wanted the accused to do what he did. b. A voluntary agreement is one made by a person who is free to agree or disagree, of his or her own free will. It involves knowledge of what is going to happen, and voluntary agreement to do it or let it be done. c. Just because a complainant does not resist or put up a fight does not mean that the complainant consented to what an accused may have done. Consent requires knowledge on the complainant’s part of what is going to happen and a decision by the complainant, without the influence of force, threats, fear, fraud, or abuse of authority, to let it occur.

[11] In relation to the third essential element, (focused on whether Mr D. knew that Ms F. did not consent to the force that Mr D. intentionally applied):

a. This essential element requires Crown counsel to prove the accused’s knowledge, or state of mind, at the relevant time. In particular, Crown counsel must prove beyond a reasonable doubt that the accused knew that the complainant did not consent to the force that the accused intentionally applied. b. To “know” something is to be aware of it, at the time one does it. c. There is more than one way for Crown counsel to prove that an accused knew that a complainant did not consent to the force that the accused intentionally applied. In particular: i. Such knowledge, (i.e., that the complainant did not consent to the accused’s intentional application of force), is proven if I am satisfied beyond a reasonable doubt that the accused was actually aware that the complainant did not consent to the force that the accused intentionally applied. ii. An accused’s knowledge that the complainant did not consent is also proven if I am satisfied beyond a reasonable doubt that the accused was aware that there was a risk that the complainant was not consenting to the force that the accused intentionally applied, but the accused went ahead anyway, not caring whether the complainant consented or not. In other words, an accused’s knowledge that the complainant did not consent may be established if the accused was aware of the risk that the complainant did not consent, but went ahead anyway and intentionally applied force, despite the risk. In that regard, the law is clear that silence, passivity, or ambiguous conduct does not amount to consent, and offers no defence. An accused is not entitled to engage in sexual touching to “test the waters”. The law requires evidence of positive consent by the complainant, communicated by words or conduct, to ground any honest belief that the complainant effectively said “yes” through his or her words and/or actions. See R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paragraphs 19, 47, 49 and 52. iii. Finally, an accused’s knowledge that a complainant did not consent to the accused’s intentional application of force also is proven if I am satisfied beyond a reasonable doubt that the accused knew he should inquire whether the complainant consented to the force that the accused intentionally applied but did not make the inquiry because he did not want to know the truth about the complainant’s consent. In other words, the requisite knowledge of the accused will be established if he deliberately failed to inquire about the complainant’s consent even though he knew that there was reason to do so. d. To prove that an accused knew that a complainant did not consent to the accused’s intentional application of force, Crown counsel does not have to prove each basis of knowledge that I have described; i.e., actual knowledge, recklessness, and willful blindness. One such basis of establishing the requisite knowledge on the part of the accused, any one, is enough. It is sufficient if I am sure, on one basis or another, that Crown counsel has proven beyond a reasonable doubt that the accused knew that the complainant did not consent to the force that the accused intentionally applied.

[12] In relation to the fourth and final essential element of the sexual assault offence, (focused on whether Mr D. intentionally applied force to Ms F. in circumstances of a sexual nature):

a. A sexual assault is any intentional application of force, (e.g., any intentional physical contact with another person, even an intentional but gentle touching), which occurs in circumstances of a sexual nature so that the sexual integrity of the complainant is violated. b. It includes any act that is meant to degrade or demean the complainant for an accused’s sexual pleasure. c. An intentional touching takes place in circumstances of a sexual nature if I am satisfied beyond a reasonable doubt that the sexual context of the touching would be apparent to any reasonable person who saw it happen; e.g., having regard to such matters as the part or parts of the body the accused touched, the nature of the contact, any words accompanying such actions, the situation in which the assault occurred, and all other circumstances surrounding the conduct.

[13] Throughout my assessment of whether all essential elements of the sexual assault charge against Mr D. have been established beyond a reasonable doubt, I have regard to all of the principles and comments I have just outlined.

General Principles

[14] Before turning in more detail to the specifics of this case, I also think it helpful to outline a number of additional general principles I bear in mind throughout my approach to this matter.

[15] Many of them are similarly outlined or reflected in comments routinely provided through judicial instructions to jurors, and include the following:

a. I have in mind, throughout my entire reasons and analysis, the presumption of innocence and the burden of proof upon the Crown. In particular, according to the constitutional guarantee in s.11(d) of the Charter, M.D. is presumed to be innocent, in relation to the charge in respect of which he has entered a plea of “not guilty”, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to an alleged offence beyond a reasonable doubt. That is a heavy burden and, in relation to the essential elements of the sexual offence charge against Mr D. that are not admitted, never shifts. In particular, Mr D. has no obligation whatsoever to establish his innocence. b. In relation to the “reasonable doubt” standard, and as per the guidance offered by the Supreme Court of Canada in authorities such as R. v. Lifchus, [1997] 3 S.C.R. 320: i. I am ever mindful that a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, nor a doubt based on sympathy for, or prejudice against, any person involved in this trial. A “reasonable doubt” is, instead, a doubt that arises logically from the evidence, or the absence of evidence. ii. Moreover, it is not enough for me to believe that Mr D. is “probably” guilty or “likely” guilty of an offence. Proof of “probable” guilt or “likely” guilt falls short of proving guilt “beyond a reasonable doubt” and is not proof of guilt beyond a reasonable doubt. iii. On the other hand, I also bear in mind that it is nearly impossible to prove anything to an absolute certainty, that “absolute certainty” accordingly is a standard of proof that is impossibly high, and that Crown counsel is not required to meet that standard of proof. iv. In essence, in order for me to find that Crown counsel has proven beyond a reasonable doubt that Mr D. is guilty of the charged offence of sexual assault, I must be sure that Mr D. committed the offence. If, following careful consideration of all the evidence, (including witness testimony, exhibits and any agreed facts or admissions), there remains in my mind a reasonable doubt as to whether Mr D. committed that charged offence, I must find him not guilty of that offence. c. As this is a case where the accused chose to testify, such that his exculpatory testimony is pitted against the contradictory and incriminating testimony of the complainant, I am mindful of the considerations emphasized by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. In particular: i. As emphasized in that decision, a trier presented with such conflicting testimony must not approach the matter as a simple credibility contest; e.g., as if a finding of “guilty” or “not guilty” turns a decision as to whether the complainant or the accused is more believable. Doing so would be quite wrong. ii. At all times, the proper focus must instead remain firmly fixed on whether the Crown has proven the guilt of the accused beyond a reasonable doubt, being ever mindful of the reality that reasonable doubt is something that may arise in various different ways. For example: 1. After careful consideration, if I find myself unable to decide whom to believe, in relation to whether or not the charged offence of sexual assault was committed, Crown counsel will have failed to prove the guilt of the accused beyond a reasonable doubt in relation to that offence, and the accused must be found not guilty of that offence. 2. After careful consideration, if I believe the exculpatory testimony of the accused in relation to the charged offence, Crown counsel similarly will have failed to prove the guilt of the accused in relation to the offence beyond a reasonable doubt, and the accused must be acquitted of the offence. 3. Even if I fall short of believing the accused’s exculpatory testimony in relation to the charged offence, after giving the matter careful consideration, if that testimony leaves me with a reasonable doubt as to whether the charged sexual assault offence was committed, the accused also must be found not guilty of that offence. In other words, exculpatory testimony may give rise to a reasonable doubt even if it is not positively accepted. 4. Even if I do not believe the accused’s exculpatory testimony in relation to the charged offence, and that testimony alone does not leave me with a reasonable doubt about the accused’s guilt, I may still find the accused guilty of that offence only if the rest of the evidence I do accept satisfies me that guilt in relation to that offence has been proven beyond a reasonable doubt. d. How much or little I rely on the evidence of witnesses does not necessarily depend on the number of witnesses who testify, one way or the other. My duty is to consider all the evidence. As the trier, I may decide that the testimony of fewer witnesses – or perhaps just one witness – is more reliable than the evidence of a larger number of witnesses. In other words, my task is to consider carefully the testimony of each witness, and to decide how much or little I believe and accept of what each witness has said. I am not to decide the case simply by counting witnesses. It is the quality of evidence, rather than the quantity of evidence, that determines persuasive force and/or whether or not proof has been established beyond a reasonable doubt. e. On a related note, and as emphasized in decisions such as R. v. Khela, [2009] 1 S.C.R. 104, and R. v. Neff, [2012] O.J. No. 5618 (S.C.J.), our law generally does not require corroboration of a complainant’s evidence in order to found a conviction. Moreover, that general principle is reinforced in relation to sexual assault by section 274 of the Code, which specifically indicates that, if an accused is charged with sexual assault, no corroboration is required for a conviction. The sworn testimony of a sexual assault complainant, standing alone, may be sufficient to establish a charge beyond a reasonable doubt, provided that testimony is found to be credible and reliable. Because the standard of proof beyond a reasonable doubt is a high one, triers of fact frequently may look for corroboration where guilt or innocence hinges on the testimony of a single witness. However, while such evidence is often helpful, it is not a requirement. f. While there is no prescribed formula or method for assessing the testimony of witnesses, I am mindful of various considerations frequently employed by triers of fact to help decide how much or how little I will believe and rely upon the testimony of any witness - bearing in mind that I am free to accept some, none, or all of the testimony of any witness. In particular such triers routinely consider matters such as the following: i. whether a witness seemed honest; ii. whether a witness had any reason to not tell the truth, or give evidence more favourable to one side or the other, such as an interest in the outcome of the case; iii. whether a witness had the opportunity and ability to make accurate and complete observations about an event or occurrence addressed in his or her testimony; iv. whether the witness seemed to have a good memory, or any reason to remember or forget certain events or details, (which in turn might depend on such things as whether the event or occurrence addressed by testimony was something unusual or routine, or not of any obvious importance at the time); v. whether any memory difficulties seemed genuine or made up as an excuse to avoid answering questions; vi. whether the testimony given by the witness was really what he or she personally saw or heard, or an account possibly based on information or statements provided by others; vii. whether the testimony of a witness seemed reasonable and consistent as he or she gave it, and whether it was similar to or different from what other witnesses may have said about the same events; viii. whether there were any inconsistencies within the testimony of a witness, or with earlier statements or actions by the witness, and if there were, whether they related to things that were important or minor details, reflected honest mistakes or deliberate lies, had any sensible explanation, or really made the main points of his or her testimony more or less believable and reliable; and ix. the manner or demeanor of a witness while he or she was testifying – while nevertheless also bearing in mind that the existence of many variables, (such as the inherently uncommon experience of testifying, and the different and varied abilities, values and life experiences of individual witnesses), prevents demeanor from ever being the only or most important factor in deciding what testimony to accept. g. In relation to witness testimony, a number of further propositions, grounded in common experience, also have been acknowledged and recognized by our Court of Appeal in authorities such as R. v. Pindus, 2018 ONCA 55, at paragraph 37, and R. v. G.M.C., 2022 ONCA 2, at paragraph 38. In particular: i. Observations made by witnesses in the course of traumatic events can be difficult to recall and describe accurately at a later date. ii. Moreover, while minor discrepancies and inconsistencies in relation to more peripheral matters are frequently encountered and are often due to passage of time rather than dishonesty, a witness to a traumatic event in particular cannot be expected to have a faithful memory of minor incidents that occurred during such an event, and inability to recall a minor or insignificant detail in that regard generally will not detract from the overall credibility or reliability of such a witness. iii. More generally, it is also human nature to try to make sense out of “bits and pieces” of memories about an event, and that too may impact the accuracy of a witness’s testimony concerning events. h. I am also mindful of general principles regarding evidence of a complainant’s motive to fabricate allegations and evidence, or the lack thereof, emphasized repeatedly by our Court of Appeal in decisions such as R. v. L.L., 2009 ONCA 413, supra, at paragraphs 44 and 53, and R. v. Bartholomew, 2019 ONCA 377, [2019] O.J. No. 2371 (C.A.), at paragraphs 20-23. Without limiting the generality of the foregoing: i. From a prosecutor’s point of view, a proved absence of motive to fabricate provides a powerful platform to assert that the complainant must be telling the truth. ii. Conversely, from the defence perspective, proof that the complainant has an ulterior motive, or a motive to fabricate his or her allegations and evidence, may provide a compelling alternative to truth of the complainant’s allegations. iii. However, an accused is not required to prove anything, and accordingly has no obligation to prove that the complainant has an ulterior motive or a motive to fabricate his or her allegations and evidence. At all times, the onus remains on the Crown to prove guilt beyond a reasonable doubt. iv. Moreover, while evidence of a complainant having a motive to fabricate allegations and evidence may be lacking, it is important to recognize and remember that the absence of evidence of motive to fabricate is not the same thing as absence of motive to fabricate. In other words, there is a significant difference between absence of proved motive and proved absence of motive. In particular: 1. Simply because there is no apparent reason for a witness to lie, it does not logically follow that the witness must be telling the truth. Put another way, the fact that a complainant has no apparent motive to fabricate does not necessarily mean that the complainant has no motive to fabricate. 2. The reality is that a person’s motives can sometimes be hidden. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all. It accordingly is dangerous and impermissible to move from a complainant’s apparent lack of motive to fabricate to a conclusion that the complainant must be telling the truth. 3. Although absence of an apparent motive to fabricate is a proper factor to consider in assessing the credibility of a complainant, it is but one of many factors to be considered.

[16] The general principles and considerations I have mentioned so far are applicable to all criminal cases, regardless of the nature of the particular offence or offences charged against an accused.

[17] However, our courts also have emphasized certain additional principles and considerations applicable to cases involving allegations of traumatizing offences such as sexual assault. In that regard, and as emphasized, in authorities such as R. v. Seaboyer, [1991] 2 S.C.R. 577, R. v. W.(R.), [1992] 2 S.C.R. 122, R. v. D.D., [2000] 2 S.C.R. 275, R. v. A.R.J.D., 2017 ABCA 237, [2017] A.J. No. 746 (C.A.), affirmed R. v. A.R.J.D., [2018] 1 S.C.R. 218, and R. v. A.B.A., 2019 ONCA 124, [2019] O.J. No. 833 (C.A.):

a. Our courts now reject dated stereotypical assumptions and myths of how persons react to such trauma, and instead recognize that there actually is no inviolable rule on how people who are the victims of sexual assault will behave. b. In many cases, the reality of such variable responses has shaped how our courts now address the possibility of delayed reporting of offences such as sexual abuse and sexual assault. In particular, our courts now recognize that some victims will report such an offence immediately, while other victims may delay disclosure for a substantial period of time for a variety of legitimate reasons, such as embarrassment, humiliation, lack of understanding or knowledge, a desire to avoid the destruction of domestic or personal relationships, and/or fear of reprisals from the accused. Indeed, some victims may choose to never disclose such abuse voluntarily, although it occasionally comes to light in other ways. For such reasons, a delay in disclosure of sexual misconduct, standing alone, will never give rise to an adverse interference against the credibility of a complainant. c. For similar reasons, it is an error of law to draw adverse interferences against the credibility of a sexual assault complainant by purporting to measure his or her reactions to such an alleged offence by reference to some misguided notional concept of how the victim of such an offence normally would be expected to react and behave in such circumstances. There simply are no such “norms” of reaction or behaviour that one should expect of such victims and making express or implicit use of such supposed but non-existence benchmarks of ordinary behaviour, (e.g., by shrouding them in mistaken notions of supposed “common sense”), therefore involves fallacious reasoning. To cite but a few examples in that regard: i. Suggestions that sexual assault complainants who do not raise an alarm, resist with forceful struggle, or fight back are in fact consenting to sexual touching rely on archaic, outmoded, and unreliable stereotypes. See R. v. Seaboyer, supra; and R. v. Dadson, 2018 ONSC 4823, at paragraph 11. The issue in such cases is the existence of consent, and not why the complainant did not fight back. ii. Suggestions that a victim of sexual assault should be expected to flee before, during or immediately after a sexual assault perpetuate myths and stereotypes about the nature of sexual assaults, and also ignore the law. See R. v. Ewanchuk, supra, at paragraph 95, and R. v. Dadson, supra, at paragraphs 27-29. The law of sexual assault does not impose a requirement to flee; it imposes a requirement of consent. iii. More generally, it is wrong to suppose that the thoughts and responses of sexual assault victims at or around the time of the offence will conform consistently with detailed rational analysis, carefully weighing all relevant factors that might militate in favour of one course of action or another. It is far more likely that a person in that position might have fleeting thoughts of different sorts that were not the subject of such detailed rational analysis. Exposure of rational inconsistencies through cross-examination of a complainant accordingly should not be given undue weight, although it remains a piece of the overall mosaic of the case to be considered. See R. v. Dadson, supra, at paragraph 12. d. On another note, relating to improper reliance on myths and stereotypes, our appellate courts have emphasized that there is absolutely no evidence to suggest that false allegations are more common in sexual assaults than in other offences. Indeed, given the data indicating the strong disincentives to reporting, it seems much more likely that the opposite is true. See R. v. Osolin, [1993] 4 S.C.R. 135, at paragraph 50.

[18] With the above principles in mind, I turn next to a consideration of the specific evidence tendered in this case.

Review of Evidence

[19] As noted above, the trial of this matter involved presentation of evidence that extended over the course of two days.

[20] While I have considered and have regard to all of that evidence, (as well as the exhibits that were tendered), I will not purport to reiterate or describe all of it in complete detail here. I will instead mention only those aspects of the evidence which I consider more relevant to the issues I have to decide.

[21] For organizational purposes, I will begin with an outline or summary of certain testimony provided by the witnesses, followed by further comments about some of the considerations that went into my assessment of witness credibility and reliability, before finally turning to more specific consideration of the particular evidence relating to the essential elements of the charged offence, in order to determine an appropriate verdict.

Outline of Witness Testimony

[22] As noted above, I received testimony at trial from the complainant, I.F., whose examination-in-chief, cross-examination and re-examination occupied most of the first day of trial. The evidence she provided under solemn affirmation included the following:

a. She was 26 at the time of the alleged events giving rise to the charge of sexual assault herein, and 28 at the time of trial. b. In or around March of 2021, (i.e., approximately six or seven weeks prior to the alleged sexual assault), Ms F. was admitted to Parkwood Hospital here in London, for treatment related to mental health issues. Shortly if not immediately thereafter, she met the accused, M.D., another patient in the “intake unit” who was 36 at the time, and who also had been admitted to Parkwood Hospital for similar reasons. She described Mr D. as being “pretty thin”, but approximately 4-5 inches taller than she was. c. Ms F. says that she and Mr D. thereafter developed a friendship as they “hung out” or socialized together, in person and with another female patient, “pretty frequently” or “quite frequently”, although perhaps not every day. In particular, Ms F. said she and Mr D. would see each other in person for “hours” a day, (albeit not at set times), usually while sitting with the other female patient near a windowed area while chatting, making conversation, and playing cards. She says she “learned a lot” about Mr D. and his background during such conversations. d. According to Ms F., such socializing and conversations continued until Ms F. was transferred to another unit at Parkwood, approximately “four to five weeks” into her stay there, while Mr D. and the other female patient remained behind in their original common unit at Parkwood. For the remaining three weeks before she was discharged from Parkwood, she and Mr D. nevertheless continued to maintain contact with each other by text messaging, (as they had exchanged telephone numbers), and by exchanging messages via the Facebook app or platform, despite being in different units or wards of the hospital. e. Ms F. says she was discharged from Parkwood approximately 1½ weeks before the alleged sexual assault, (i.e., sometime in or around the second week of May, 2021), at which time she took up residence in supportive housing that had certain rules; e.g., about the need for her to be home between 7:30pm and 8:30pm to receive her prescription medication. It was her understanding that Mr D. had been discharged sometime earlier. Despite both having been discharged from Parkwood, they nevertheless did not see each other in person again before May 17, 2023. Prior to meeting again, they nevertheless continued to communicate via messages sent via text and Facebook and may also have spoken by telephone. During the course of their communications while in hospital, Ms F. learned things about Mr D.’s background, including indications that he had spent some time in jail, and that he had been employed as a sex worker at some point. f. At some point, Ms F. says, communications with Mr D. following her discharge from Parkwood turned to a discussion of their meeting to spend some time together, and arrangements in that regard. In that regard, she testified: i. that Mr D. was “going through a hard time”, the nature of which she could not recall exactly, but which apparently had something to do with “a girl” whose mother did not want her to be Mr D.’s girlfriend; ii. that it was Mr D. who extended the invitation to have her visit with him at his apartment, so that they could have “a meeting between two friends”, “watch a movie”, and “just, like, catch up” on things; iii. that she agreed to the visit so she could “support” Mr D.; iv. that the visit originally was scheduled for May 16, 2021, and included discussion of travel arrangements, (e.g., with Mr D. texting his address to Ms F., and Ms F. agreeing to travel by bus to meet him there), but then had to be postponed to the following day because she had other commitments; and v. that she was “looking forward” to the meeting, without any concerns about safety. g. As for what happened on May 17, 2021: i. Ms F. says she travelled by bus to a stop near Mr D.’s apartment complex on […], and then made her way to his apartment as they had agreed, (i.e., without his meeting her at the relevant bus stop), arriving there, and being “buzzed in” by Mr D., at a time that was probably between 3:30 and 4:30pm. “at the latest”. ii. Upon being invited into the apartment, she observed that it was a two bedroom “open concept” arrangement”, (i.e., such that all but its bathroom and two bedrooms were visible from the central living and kitchen areas), with Mr D. nevertheless keeping his principal double or queen-size bed in the living room area along with two couches and a table and using at least one of the bedrooms as an office. She could not remember with certainty whether the television or screen on which she contemplated their watching a movie was on or off, but it probably was on as she recalled that it was not a conventional television, but an image projected onto a large wall screen. iii. Ms F. testified that no one other than she and Mr D. were in the apartment, and that she initially sat on one of the couches in the living room while Mr D. sat on the bed, approximately six feet away, as the two of them had “a chat”; engaging in what she described as “basic” and “friendly” conversation, “catching up” on what they had been “up to”. She could not remember exactly what Mr D. was wearing, but thought his clothing included pants and a “basic t-shirt”. She recalled that she was dressed in a brassiere and a “kind of T-shirt” on top, and underwear and “something along the lines” of purple or pink leggings below. iv. According to Ms F., the tenor of the conversation nevertheless then turned more “flirtatious”, when Mr D. indicated that he was lonely, wanted a girlfriend and “just kind of things like that”. She recalled there being a point where she said: “I just want to be friends, and I’m not interested in us”, in response to which Mr D. seemed “sad”, without becoming hostile. v. She recalled a discussion about ordering a delivery of alcohol, (e.g., some coolers, a bottle of wine and possibly some other items), her agreement in that regard, her agreeing to lend Mr D. the purchase money in that regard, (approximately $50.00), as he had no money at the time, and Mr D. then somehow making the arrangements through use of his phone. vi. According to Ms F., “basic” conversation between her and Mr D. then continued, until it turned to a discussion of her cutting or trimming Mr D.’s hair; i.e., with him making that request, her expressing initial hesitation as she would have “no idea” what she was doing in that regard, him saying it was “easy” and that “anyone could do it”, and both of them enjoying joking about it further before she eventually agreed to give it a try. The two of them then proceeded into the apartment’s bathroom, where she used an electric razor or trimmer to cut Mr D.’s hair while both of them remained fully clothed. She said the process took about 10-15 minutes, after which Mr D. indicated he would stay in the bathroom to “clean up” while she returned to the living room to sit back down on the couch, where she was expecting Mr D. to return and simply continue their conversation. vii. According to Ms F., Mr D. nevertheless then came back into the living room a few minutes later completely naked but “not really” aroused, (i.e., without an erection), without her having seen him undress at all before then and without her having received any other prior alert to that happening or reason to believe that was going to happen. She said her first reaction or “instinct” was “fear”, as she “didn’t know, like, what was going to happen”, such that she “kinda froze”, without saying anything to Mr D., and “kind of, like, yeah, eventually started to cry”. viii. Ms F. says that Mr D. came over and “kind of” sat on the couch close beside her, (with her near the middle and him closer to the edge), such that they were “pretty much touching”, and that he then started kissing her on the lips without saying anything to her, or asking her permission, which made her feel “very scared” and “just, like, like, uncomfortable”. She could not recall where his hands were at that time but recalled hers being by her side. ix. She recalled that, “like, a little bit into” that kissing, she “kind of said” words “like”, or “something along” the lines of, “I don’t want to do this”, “I’m not comfortable, kind of”, and expressing her desire to be “just friends”. However, she says Mr D. did “not really” respond, and “just kept kissing” her, while she did not want that to happen. She said she “kind of moved her head away”, in an effort to avoid being kissed, but that Mr D. kept kissing her, and that she was fearful, so at that point “just froze”. x. According to Ms F., that unwanted kissing continued for approximately 5-10 minutes, before Mr D. “kind of, like, told [her] to move to the bed”. She could not remember the exact words he used in that regard, apart from remembering “it wasn’t like a question”, but “very, like, direct”; “like [a] ‘Go the bed’ kind of thing”. xi. Ms F. says she said nothing in response to Mr D.’s direction in that regard but did go to the bed “because of [Mr D.’s] past” and because she was “fearful”; i.e., with Ms F. explaining that was based in part on her knowledge, (via information Mr D. had shared with her while they were in Parkwood), that his background including time in jail. She had no “real” recollection of how she then came to be on the bed but recalled being on her back. xii. Ms F. testified that Mr D. then lay on top of her and began kissing her again, starting on her lips and then moving down to her neck, all without asking her permission and without her wanting him to do any of that. She believed that was when she started crying, and saying words she could not remember, but which were “like” [an] ‘I don’t want this’ kind of thing”. However, she says Mr D. “just kind of kept doing it”, “like he didn’t really listen”. xiii. According to Ms F., Mr D. then directed her, in a “very direct” manner, to take off her clothes, and that he then proceeded to do that without her permission, before putting his hands on her and “shoving” her from a standing position beside the bed down onto her back again. She had considerable initial difficulty describing or at least articulating what had happened in that regard and what happened next, initially saying: “Um, well, like, after he was kissing, um, he, um, directed me to take my clothes off, and I kind of, like, tried to get off, to stand up to take off – or to, like, try to get away, kind of thing. I was scared and I just didn’t, like – I just wanted to try to get away, um, and then – so, when I was getting up – so I had managed to get up, but then, um, he kind of, like, grabbed me like, not hard or anything – but grabbed, grabbed my shirt and kind of, like, took it off, um, and then, at that point, I just kind of froze somewhat, and he took my bra off, um, and my pants and underwear, um, and then, um – then he kind of, like, more like, pushed me back onto the bed, but kind of, just, like, like, like that, like, half-shoved. Uh, yeah, and then, um, so, I kinda, like, laid back down, like on the bed, and he used his hands to kind of shove me back.” xiv. Ms F. said that, during the process of her becoming undressed: 1. Mr D. “struggled a bit” with the clips at the back of her bra, and that “took a bit of time”. 2. She, meanwhile, was “kind of, like, still crying”, and “kind of just, like, saying, like, ‘I’m not’, like, same thing, like, ‘I just don’t wanna do this’ kind of thing”, and then, she thought, she specifically said “No”. 3. In response, she says, Mr D. did not say anything, or “get more aggressive”, but “just seemed a little kinda mad”, as his “facial expressions kind of changed”, and he “just, like, … kept doing it”. xv. According to Ms F., after Mr D. had pushed her back down onto the bed, on her back, he then started kissing her neck again before he “just started kissing down” her body, “like each body part, kind of”, including her “boobs”, before working his way down further to eventually insert his tongue into her vagina to perform oral sex, all without her consent, for approximately five or six minutes. xvi. Ms F. says that Mr D., without using a condom, and without her wanting him to do so, then inserted his penis into her vagina and proceeded to engage in vaginal intercourse for “maybe, like, 20 minutes”, using “different positions”, (such as lying on top of her or putting his legs over his shoulders, all while she continued to lay on her back), and using “different speeds”, different degrees of force and different depths. Ms F. says that, throughout that vaginal intercourse: 1. She felt a “lot of fear” and “some pain”, especially with the different positions, as some of them caused some pain – although she confirmed in her later testimony that she never told Mr D. she was in pain. 2. She was still crying and being “vocal” about her wanting Mr D. to stop what he was doing, acknowledging that she did not remember “exactly what she was saying” in that regard, but that it was “like”, or “something along the lines” of “No”, “I’m not interested”, “please stop”, “I have to go”, “I have to go home and get my pills”, “they’re gonna wonder where I am if I don’t come home for my pills” and “I just wanna be friends”. 3. Mr D. nevertheless not only did not stop engaging in vaginal intercourse without her consent, but: a. said words that were “something along the lines” of “Please stay” or “like, ‘You have to do this’ kind of thing”; and b. held her wrists for approximately one minute, (although not hard), to stop her from getting up. xvii. Again, Ms F. thought the vaginal intercourse probably lasted 20 minutes. She thought it ended without Mr D. ejaculating, at which point Mr D. got up and walked over to the air conditioner in the apartment’s kitchen area, by the balcony door while still naked, and told her to join him for some “fresh air”. She says that, when she did so, (as she was still scared and “didn’t know what else to do”), Mr D. then inserted his fingers into her vagina and put her hand on his penis, all without her consent and without asking permission. xviii. According to Ms F., the sexual activity ended when the alcohol delivery arrived, (accompanied by a buzzer or other signal on Mr D.’s phone followed by a knock on the apartment door), while she and Mr D. were still undressed, at which point she and Mr D. quickly put their clothes back on, and Ms F. attended at the apartment door to pay for the alcohol using her bank card. xix. She says that, after some modest consumption of alcohol, and some “pretty quick” conversation, she then left the apartment, saying that she was leaving as she had to get home for her pills. Mr D. accompanied her to the bus stop, (which was different from the one used on her arrival, and in respect of which she therefore needed some guidance), stopping briefly at a convenience store en route, at her request, because she was thirsty. According to Ms F., there was “not really” any conversation between her and Mr D. as they made their way to the bus stop and waited there for a period of time she said she could not remember, before the bus arrived. She could not remember the time at which she arrived home, but thought it was around 7:00pm, in time to receive her medication. h. At some point after she got home on May 17, 2021, (although it was not made clear whether it was that evening, the following day or at some later time), Ms F. emailed Eden Rashique, a support worker in her supportive housing complex, to indicate that she had been sexually assaulted, without providing any details, but including an indication saying, “It is my fault”. When asked to explain what she had meant by that, Ms F. indicated that she was not sure, but that based on her “past experience and stuff”, she felt “guilty” because she maybe “gave the wrong message across” to Mr D. about her willingness to engage in sexual activity, as she did “moan and stuff”, and believed it was possible Mr D. accordingly may have thought she was enjoying herself, (i.e., that he “possibly got that signal”), although she felt her moaning had been “more of a pain response than a, um, an actual, like, pleasure”. i. In the early morning hours of Tuesday, May 18, 2021, (i.e., between 2:24am and 2:25am on the day following the alleged sexual assault), Ms F. then received a series of three successive text messages from Mr D., (collectively marked as Exhibit 1 in the trial), and which together read, with their original grammatical and spelling errors, as follows: “I just woke up thinking about you. Thank you your very special and beautiful woman and I be lucky to have you. And what I wanna try Who is try to do that I find you so tractive I find your mind so much more attractive which I love so much I don’t want to ruin our friendship but if you were down I’d to see the things would go.” In that regard: i. Ms F. testified that she did not respond to those messages; and ii. in her initial testimony characterizing those messages, indicated her view that Mr D. was apologizing for committing an assault upon her, which had ruined their friendship. j. At 10:45am on Wednesday, May 18, 2021, (i.e., on the second day following the alleged sexual assault), Ms F. then received a voicemail message from Mr D., (a recording of which was marked as Exhibit 2 in the trial), the agreed and transcribed content of which, (marked as Exhibit 3 in the trial), was as follows: “Hi I. It’s M. I’m just really concerned about you and, um, I tried to get hold of you last night but that didn’t work out. Um, I hope I – what happened didn’t ruin our friendship because I really appreciate your friendship. Um, but, yeah, so if you can, give me a call back sometime today. But if not, I’ll just, uh, kinda let you be, you know? And I don’t wanna trigger any – anything in you, you know, so I’ll just, um, you know, wait for you to contact me if you want to do that again. And, if not, you know, it’s just – that really sucks and I just really regret, um, messed up our friendship. But, uh, for the money, as well, too, though, like I’ll for sure give you back that money, but you’ll have to contact me so I can be able to transfer you the money. Um, have a good day. Love you. Bye.” Prior to cross-examination, Ms F. initially indicated her view that Mr D. was not only wanting to repay the money she had spent on the alcohol delivery, but also expressing regret that his sexual assault had ruined their friendship. k. Ms F. also contacted St Joseph’s Hospital here in London, leading to her attendance there on May 19, 2021, where she was examined by Nurse Examiner Lindsay Stewart, who administered a sexual assault examination kit, and noticed the light pink/reddened area on Ms F.’s neck, noted above. During cross-examination, Ms F. indicated that she attended at the hospital because she was in pain and was also concerned about pregnancy, in respect of which she was given a “Plan B” pill. l. Ms F. also reported the matter to the police, by calling their non-emergency number, which led to a video-recorded police interview on May 21, 2021.

[23] I should also add that, in cross-examination, Ms F. firmly disagreed with aspects of Mr D.’s anticipated contrary account, put to her by defence counsel, about what had happened during her attendance at Mr D.’s apartment. In particular, in addition to disagreeing with general suggestions that she had consented to all of the sexual activity that occurred during her meeting with Mr D., Ms F. also expressly disagreed with specific suggestions:

a. that the acknowledged friendly conversation between her and Mr D. preceding the sexual activity on May 17, 2021, had included discussion of the possibility of their attending church together, or Mr D. assisting Ms F. with the writing of a victim-impact statement for an unrelated matter. b. that Mr D. actually was not nude but clothed when he returned to the living room following the haircut, following which there was more flirtatious conversation between the two of them, as there had been before and during the haircut; c. that Mr D. had said, after more flirtatious conversation, “I’m really good at what I do, if you wanna have sex”, to which she responded in the affirmative -- although Ms F. did acknowledge such a comment would make sense in light of her knowledge of Mr D. having been employed as a sex worker; d. that she and Mr D. had engaged in mutual kissing, and had independently undressed themselves, apart from Mr D. assisting Ms F. in the removal of her bra; e. that she also was agreeable to Mr D.’s kissing of her neck, and providing moaning and other verbal cues to indicate that she was; f. that Mr D. had never directed her to remove her clothing, which instead had happened organically during a consensual sexual encounter; g. that there had been a verbal agreement between her and Mr D. to engage in intercourse before they made their way onto the bed; h. that Mr D. had never push her onto his bed or directed her to get onto his bed, but that too had happened organically during the course of a consensual sexual encounter; i. that she had then revoked her consent to continuation of that intercourse by announcing that she had developed a cramp in her leg, at which point she had indicated needing a break, causing the two of them to lay naked and side by side on the bed before the alcohol delivery arrived; j. that Mr D. had never held her down by her wrists; k. that there had never been any oral sex performed by Mr D., or digital penetration of her vagina by Mr D.; l. that she had been moaning throughout the entirety of her sexual interaction with Mr D., and giving clear indications to him that she was enjoying herself; m. that there had been “friendly conversation” between her and Mr D. after the sexual activity, including any discussion about her needing to go home to care for her cat; and n. that she had gone to the hospital because she had a concern about having had unprotected sex with Mr D., knowing his history as a sex worker.

[24] As noted above, I also received extended testimony from the accused, Mr D. The sworn evidence he provided included the following:

a. He confirmed that he and Ms F. met and developed a solid friendship while they were both patients at Parkwood Hospital, specifying that the two of them actually had been in or on the same ward for approximately one month, before she was transferred to a different ward approximately four to five days before he was discharged, in advance of Ms F. being discharged “a week or two” later. He says that, while on the same ward, they and another female friend would meet and chat near a particular window alcove, (seeing each other every day for approximately 1½ hours), and that he hoped to continue that friendship after they had both been discharged from hospital. Once they had been separated, and after he had been discharged, he says that he and Ms F. would communicate by text, on average every one to three days, continuing to provide each other with support in relation to their respective mental health diagnoses, and sharing information about what each was doing. b. Mr D. also confirmed that he invited Ms F. to visit with him at his apartment, (located at a specified address on […] here in London), in May of 2021, following her discharge from Parkwood Hospital. In cross-examination, he confirmed that, at the time it was being arranged, the “idea behind it” was a “meeting between two friends”; i.e., rather than an invitation for Ms F. to come over to his place to see what might happen between them “as a man and woman”. He confirmed that he had never suggested the latter, and that he and Ms F. had not discussed, during their time in hospital, the possibility of their having a sexual relationship at some point in the future. c. As for the events of May 17, 2021: i. Mr D. said that Ms F. actually arrived at his apartment around noon that day. He had only been given a general time of her expected arrival and had supplied her with the “master code” to enter his apartment complex. She therefore was able to enter his building, locate his apartment and simply knock on his door. ii. He says that, after her arrival, the two of them went into his living room where they just “started chatting” about various topics, (e.g., catching up, discussing the possibility of attending church together, and his helping Ms F. write a victim-impact statement on an unrelated matter), and generally having what he described as a “nice” and “really good” conversation. As their “general plan” had been to basically “have some drinks and watch a movie”, he also ordered a delivery of drinks, with such deliveries generally taking around 30 minutes or less to arrive. iii. Mr D. says that, at some point during that general initial conversation with Ms F., he brought up the fact that his hair had become “really bushy”, that he had started cutting his own hair a bit during the COVID pandemic, and that it would get “really bushy” in the back. He therefore asked Ms F. if she “could just buzz it off” for him. When she initially responded by saying she had never done that before, they began joking about it, (e.g., with him emphasizing that he would hold the hair that needed to be cut off, that she couldn’t “mess this up”, and that all she had to do was trim it up and square it off), with the resulting conversation becoming a “little flirtatious” between them. iv. He says Ms F. then agreed to do it, after which they went into his bathroom and she proceeded to cut or “buzz” his hair, with the entire process taking no longer than 15-20 minutes. When Ms F. then left the bathroom to return to the living room, he stayed behind to bundle up the cut hair, put in the toilet and hold the plunger down while it flushed – but said that entire process was completed “really quickly” before he then also left the bathroom to proceed back into the living room “fully clothed”, emphasizing that he was “100 percent fully clothed”; i.e., despite what Ms F. had said in her testimony. v. He says that, when he returned to the living room, Ms F. was sitting on the couch and they “basically started chatting again”, (e.g., with more talk about the church he attended, the victim-impact statement she needed to write and the possibility of watching a movie on the large “100 inch, framed in 1080i” projector movie screen in his living room), with the conversation once again being “flirtatious”. When asked to clarify what he meant by that, he said that he and Ms F. were “joking and giggling back and forth” and doing so “in more than a regular friendship kinda way”, although he admittedly was “not really a flirt” and did not regularly do that with people. vi. According to Mr D., that flirtatious conversation was “definitely getting sexually charged”, and “got to a certain point” where, standing across from Ms F., he said “I’m really good at what I do – do you want to have sex?”, and she responded in the affirmative by saying “Yes”. In cross-examination: 1. Mr D. confirmed that, at the time of that particular exchange, Ms F. was aware of the fact that he had been employed for a time as a sex worker, as he had shared that with her during their discussions at Parkwood Hospital. 2. He denied that his raising the possibility of sexual activity and asking Ms F. if she wanted to engage in such activity, was in any way motivated by a desire or intention on his part to exploit her possible vulnerability. In that regard, Mr D. strongly disagreed with suggestions that Ms F. was vulnerable at the time; i.e., emphasizing that, at the time of their meeting, Ms F. was stable, “100 percent solid”, adhering to her prescription medication regime, showing absolutely no signs of psychiatric issues, expressing no concerns about her mental health, and with everything going well for her. Based on their discussions and interactions, he regarded Ms F. as a “very strong” and “powerfully minded” woman. vii. He says they thereafter both sat down on the couch and started kissing each other. In that regard, he said he found it really mean and hurtful when Ms F. had testified that she was just there “doing nothing” during that kissing, as she “was actively kissing [him] back”, and they also had started “French kissing” at that point; i.e., with open mouths and tongues touching. Moreover, while he says they “weren’t sexually touching each other’s private parts at that point”, they were touching each other while kissing, with Ms F. definitely having her hands on him and with his hands on her. viii. Mr D. says that kissing and touching went on for approximately four to five minutes before they “basically naturally stood up”, in the area of his apartment near the living room window, and its two couches and table, and then “both independently started undressing”. In particular, he says he removed his clothing on his own, and that Ms F. removed all of her own clothing “until she got to her bra”, saying that she would “have to whip it around to take it off”, (i.e., take the straps off each arm before rotating the bra around her body so that the clasps at the back would be moved around to the front of her body), asking for his help as that would be hard or difficult for her to do, at which point he offered to undo it for her instead or simply did so. He denied having ever directed Ms F. to remove her clothing. ix. According to Mr D., after they had undressed, he and Ms F. then “kissed a little bit” more, before they both independently proceeded to his bed, with her walking along its south side and him walking along its north side before they “met on the bed” and “laid down together”. He denied having ever directed Ms F. to go onto his bed, and similarly denied having pushed her onto the bed as she had described; e.g., emphasizing that he “never once, at any point, pushed I. at all”. In cross-examination, he emphasized that he had never done anything like that, and that Ms F.’s suggestions to the contrary were “a complete work of fiction”. x. Once he and Ms F. were both on the bed, he said they moved into “the missionary position”, where “the woman’s on the bottom and the man’s on the top”, at which point they “were starting to make out more”; i.e., kissing and touching each other. He believed that was when he gave Ms F. a “hickey”; i.e., which he described as “sucking on the skin and bringing the blood vessels to the top, thereby making a red discolouration”. In that regard, he emphasized that he knew he had not meant to give Ms F. such a “hickey” and did not think he intentionally had given anyone a “hickey” his entire life. He recalled “just kissing her” but thought he must have sucked a little “too hard”, resulting in the mark. While he did not think Ms F. had kissed his neck, he says she was “actively engaging in the situation”. When asked to explain what he meant by that, he said “Like, everything I’m doing, she’s reciprocating. … So, like, if I’m kissing her, she’s kissing me back. If I’m touching, gently and nicely, she’s doin’ the same to me.” xi. According to Mr D., it was during that process of kissing and “making out”, with him on top of her, that Ms F. then moved into a position whereby she put her left leg up onto his right shoulder and directed his penis into her vagina, at which point they engaged in intercourse for “no more than 2½ minutes” before Ms F. indicated that her “hip was cramping” and asked if they could “take a break”, at which point he immediately stopped and the two of them “laid in bed for a little bit”. xii. When asked if Ms F. had done said or done anything verbal during the sexual activity he had described, Mr D. said the only statement made by Ms F. had been the one indicating that her hip was cramping and asking to take a break. He confirmed that she had been moaning but was “100 percent” sure that her moaning was pleasurable moaning, indicating that Ms F. was enjoying herself, rather than moaning indicative of pain. In that regard, he emphasized, during examination in chief and cross-examination, that he has had sex “with a lot of people”, “can definitely tell if somebody’s in pain”, and is “very sensitive” to people in that regard, with a “very good intuition” about “stuff like that”. Moreover, he previously had heard Ms F. moaning in pain while on a hunger strike during their time together at Parkwood Hospital, and that had sounded quite different from the pleasurable moaning he heard from her during their sexual activity in his apartment. Apart from Ms F. saying that her hip was cramping, he was quite sure that she had not vocalized any discomfort. Without limiting the generality of the foregoing: 1. Mr D. emphatically denied that Ms F. had ever said “No”, let alone saying it on a few occasions, during their sexual encounter, after having initially expressed her willingness to engage in sex. In his words: “There was not one time that I. ever said ‘No’, or ever indicated to stop until the end. It was literally no more than maximum 2½ minutes we were having sex, and then she indicated that her hip was cramping and asked if we could take a break, and I immediately stopped.” When pressed about that again in cross-examination, he emphasized again that, once the agreed sexual activity had started, if Ms F. had told him before she mentioned the cramping of her hip that she had wanted to stop, or given any indication whatsoever in that regard through her gestures or actions, he would have stopped immediately – as he did when she mentioned the cramping of her hip and asked for a break. However, she had been “fully complicit” in what was happening and “very active in the situation”; e.g., kissing him back and fondling his body. To him, everything therefore had “sounded and seemed completely normal”. 2. Mr D. similarly denied that Ms F. had ever indicated words to the effect of “I’m not interested in this” or “I want to go home”. Again, in his words: “She never brought up any indication that she didn’t wanna be there until after we had finished having sex – after that 2½ minutes – and we had sat down and then talked”. 3. When pressed in cross-examination, Mr D. was adamant that everything sexual that had happened between him and Ms F. had been “100 percent consensual”. He acknowledged that their meeting that day had been their first time together outside of the hospital, and that a meeting between two friends had transitioned into a sexual encounter approximately 45 minutes to an hour on the day in question, but that was simply what had happened. They had a “budding friendship”, “got into flirting” and “into it”, and then “crossed that line” into a romantic relationship, after which they apparently were unable to go back into a simple friendship. xiii. According to Mr D., after the vaginal intercourse had stopped, and he and Ms F. had lain on the bed for a little bit, they knew the alcohol would be arriving pretty soon, so they “just got up and got dressed, basically”. They then answered the door when the alcohol came, with Ms F. paying for it. xiv. Mr D. firmly denied that he had ever, at any time during his sexual activity with Ms F., digitally penetrated her vagina, placed her hands on his penis, or performed oral sex. xv. Mr D. testified that, after the alcohol had arrived, he and Ms F. returned to the living room, where she sat on the couch to the south, while he sat on the couch to the north. They then resumed chatting for approximately 45 minutes, while drinking some of the alcohol. In that regard, Mr D. specifically remembered that both drank “Mike’s Hard Lemonade”, with him consuming one bottle in total, and Ms F. drinking only half a bottle; something he noted when cleaning up after the visit and pouring out the remainder Ms F. had not consumed. xvi. According to Mr D., that further conversation came to an end when Ms F. mentioned the kitten she recently had acquired, (at Mr D.’s suggestion), her worry in that regard, and her desire to get home to look after her pet; something that made “perfect sense” to Mr D., who had a cat of his own. He says they left his apartment together at approximately 3:00pm, after which he proceeded to walk with Ms F. back to the bus stop she needed, where he waited with her for approximately 20 minutes before seeing her off on the bus after its arrival. He said that, during that walk and wait, they engaged in more “friendly conversation”, without Ms F. indicating any concerns whatsoever, either verbally or by way of facial expressions, about what had happened in his apartment. xvii. When asked if he recalled Ms F. bringing up having to leave because of her medication, at any point that day, Mr D.’s response was: “Not one time did she ever mention anything about medication whatsoever”. d. Mr D. readily acknowledged authoring the series of text messages that were sent from his phone to Ms F. in the early morning hours of May 18, 2021, and which had been marked as Exhibit 1 in the trial. In that regard: i. Mr D. explained that the text messages contained grammatical and other errors because he had “just woken up” and was “very groggy” when writing them. ii. When asked to explain why he had written them, and what he had intended to convey, Mr D. testified that, at the time of his meeting with Ms F. and his sending of those text messages early the next morning, he recently had ended a 13-year-relationship, was “looking for someone else”, and thought that he and Ms F. had just enjoyed a “beautiful” and “really good romantic situation”. In his text messages, he therefore had “kind of put it out there” that he would be lucky to have or be with Ms F., and that therefore would be “down to have a relationship” that was “romantic” and more than friends with her, (i.e., willing to enter into such a relationship with her), if Ms F. also was “down to have a relationship” like that; i.e., if she felt the same way. However, he also was concerned that, in his experience, “if you’re friends with somebody and you step over that line and you have a romantic relationship with them, it’s very hard” – indeed, “99 percent impossible” – “to go back to a friendship”. When texting Ms F. to say that he didn’t want to ruin their friendship, he felt he was “kinda saying, like, you know, like, if we had this romantic relationship, and you didn’t want to proceed with it, then hopefully we could still be friends”. iii. When asked if his text messages to Ms F. were meant to be an apology for an assault on Ms F., Mr D.’s response was “Absolutely not”. e. Mr D. also readily acknowledged that he had left Ms F. a voicemail message on May 19, 2021, the content of which was accurately reflected in the transcript marked as Exhibit 3 in the trial. In that regard: i. When asked to explain his “I’m just really concerned about you” comment, Mr D. said he “just didn’t know what was going on”, as he and Ms F. had just “shared a very intimate, romantic instance”, but since then he had not been able to reach her and had not heard anything back from her in response to his text messages. ii. When asked to explain his comments expressing his hope that “what happened didn’t ruin [their] friendship”, Mr D. said that he and Ms F. had developed a “very strong friendship”, and he thought the incident of sexual activity may have “crossed the line from friend to romantic” in circumstances where Ms F. had decided she “didn’t want” such a relationship. Mr D. said he also found Ms F.’s failure to respond in any way to his text messages “really confusing”, as he usually heard back from her whenever he sent her such messages. (In cross-examination, he denied being “shocked to his core” by Ms F.’s failure to respond to his text messages, and once again emphasized that he instead was in a state of confusion; e.g., as he thought “something good” had happened, and could not understand why Ms F. unusually had not responded to his text messages despite having had “plenty of time” to do so. He nevertheless acknowledged his shock and resulting panic attacks – accentuated by his own past life trauma that “sticks to him like glue” -- when he learned that he was being charged with sexual assault, and during the subsequent preliminary hearing for this matter, which had necessitated the attendance of an ambulance.) iii. When asked to explain his comments including indications that he did not want to “trigger” anything in Ms F. and expressing regret that he had “messed up” their friendship if she did want to contact him again, Mr D. said he was thinking that the situation “sucked” if Ms F. did not want to have any further relationship with him, as she had become “a very big support in [his] life”. iv. When asked if he agreed or disagreed that the voicemail message was him apologizing for having assaulted Ms F., Mr D.’s response was “I 100 percent disagree”. He had left the voicemail message because he was “just really confused about why she hadn’t gotten back to [him]”.

[25] With all of that trial evidence in mind, I turn next to comments about witness credibility and reliability.

Assessment of Witness Credibility and Reliability

[26] The Crown’s case obviously depended in very large measure on the testimony of the complainant, I.F., (as she was the only person present with the accused at the time of the events central to the allegation of sexual assault), and I accordingly have spent considerable time carefully reviewing and considering, in detail, possible concerns relating to her credibility, reliability and accuracy.

a. As for Ms F.’s general manner or demeanour while testifying: i. From time to time, Ms F. would interrupt questions being posed to her, (i.e., anticipating the remainder of questions that sometimes made it difficult to appreciate the full import of her answers), and had to be reminded not to do so. ii. However, such tendencies did not seem indicative of testimony that seemed either eager or emotional. To the contrary, I agree with defence counsel’s characterization of Ms F. demonstrating an unusual “flat effect” during the entirety of her testimony; i.e., providing her evidence in a relatively consistent and measured monotone voice, generally without indicating any noticeable emotion one way or the other about the events she was describing, or the questions she was asked to answer. At times, this created a noticeable “disconnect” between the events she was describing, (e.g., purported fear sufficient to cause her to freeze completely as certain events unfolded), and a casual and very matter-of-fact speaking style. iii. In saying that, I am very mindful that demeanour certainly must not be the only or most important factor used to assess credibility, (as looks can be deceiving, and witnesses often react very differently when called upon to provide testimony in the highly unusual setting of a criminal trial, owing to their different backgrounds and abilities), and that victims of trauma like sexual assault in particular can have very different reactions to such an experience. Certainly, courtroom histrionics are not required to reinforce an impression of credibility. However, having seen a great many witnesses testify, Ms F.’s demeanor struck me as being particularly noteworthy and unusual in terms of a marked “detachment” of sorts from everything she was describing. b. While she admittedly was still taking prescribed medication for her mental health issues at the time of trial, she testified that there was nothing in such medication that affected her memory. c. While she acknowledged consuming some of the alcohol ordered and delivered on the day in question, she made it clear that she did not drink a lot, (i.e., only half of whatever cooler beverage she started), as she could not do so at the time because of “some things [that were] going on”, which appeared to a veiled reference to her condition, prescription medication or other related restrictions. d. Ms F.’s memory of the underlying events nevertheless admittedly was not perfect, as she repeatedly struggled to recall various matters, and repeatedly indicated or acknowledged her inability to do so. In that regard: i. Ms F.’s willingness to acknowledge things she couldn’t remember reinforced an impression that she was more certain about the things she said she could remember. ii. I also generally was not troubled by Ms F.’s frequently acknowledged inability to recall specific details concerning matters which in my view seemed more peripheral to the matters I needed to address and decide in relation to this proceeding; i.e., a proceeding focused on whether the Crown has proved the essential elements of the alleged sexual assault offence beyond a reasonable doubt. To cite but a few examples of Ms F.’s inability to recall information or details I viewed as somewhat peripheral: 1. She was unable to recall exactly how soon it was, after her admission to Parkwood, that she met the accused, Mr D. 2. She was unable to recall with certainty whether she and Mr D. had “friended” each other on Facebook before she was moved to a different ward, or whether contact with Mr D. while they were on different wards was limited to text messaging or may have extended to occasional telephone conversation. 3. She was unable to recall the precise date she was discharged from Parkwood Hospital. 4. She was unable to recall Mr D.’s exact address, or the floor on which his apartment was located, and was unsure of the precise time she may have arrived at Mr D.’s apartment on May 17, 2021, or the precise time she got home that day. 5. She was unable to recall the precise method in which alcohol was ordered, or the precise type or brand of alcohol she drank – although she thought it was a cooler of some kind, “like, blue raspberry”. 6. She was unable to recall with certainty if the alcohol delivery person was male or female – although she thought the person was male. iii. It nevertheless did trouble me that Ms F. had a demonstrable tendency to struggle for words, details and accurate memories when asked to describe more significant matters, (e.g., discussions, arrangements and understandings concerning the in person meeting with Mr D. during which the sexual assault was said to have occurred, and what was said to have happened during that meeting), and what I regarded as more significant inconsistencies in that regard. Without limiting the generality of the foregoing: 1. Throughout her testimony, Ms F. struggled from time to time to find the right words to express herself. In that regard: a. Such struggles were not always consequential; for example, her difficulty recalling the word “patient” to describe Mr D.’s status at Parkwood Hospital. b. However, Ms F. had an increasingly noticeable tendency to pause in her answers, and increasingly and repetitively use verbal “placeholders” and qualifiers such as “uh”, “um”, “kind of” and “like”, when asked to describe matters concerning her meeting with Mr D. on May 17, 2021, that was simply not as pronounced when asked to describe other matters. While I normally would have been inclined to attribute such matters largely to increased nervousness, distress and/or unease when discussing more sensitive or traumatic matters, Ms F. otherwise gave no indications whatsoever of any such reasons for hesitation and seemed to be struggling to remember and describe those particular events accurately. Her repeated use of the word “like” in that regard, (which became extraordinarily frequent at such times and in relation to such matters), also made it more difficult to discern whether she was simply pausing before expressing a precise remembered detail or using the word “like” to describe a more vague and/or general memory of what had happened. c. There were many such examples during the course of Ms F.’s testimony, but to cite but a few, in my view it became more relevant when Ms F. demonstrated increased marked hesitation, difficulty and/or complete inability, even during examination in chief, to remember such matters as: i. whether she and Mr D. had any discussions at the hospital about their meeting in person after their discharge; ii. whether she and Mr D. spoke directly by telephone about the reasons and arrangements for the May 17 meeting; iii. any clearly remembered details, (i.e., without constant qualifications such as “like”, “kind of” or “something along the lines of”), of the words that were exchanged between her and Mr D. during the physical activity she described; iv. any “real” recollection of how she initially came to be lying down on the bed on her back; and v. whether or not the vaginal intercourse stopped because she told Mr D. that she had a cramp in her leg – which seems to me like something she would have remembered one way or the other, had she been desperately focused on the intercourse coming to an end. 2. As for what seemed in my view to be notable and troubling inconsistencies about significant matters: a. Although Ms F. claimed in her initial trial testimony that Mr D. had walked out of the bathroom naked directly after the haircut, and thereafter immediately engaged in sexual activity without further conversation, (which continued uninterrupted until the alcohol delivery), she later indicated that the alcohol delivery actually had been ordered after the haircut – which suggests there actually had been further conversation following the haircut, which in turn suggests that Mr D. did not simply and unexpectedly walk out of the bathroom naked directly after the haircut. Moreover, in her statement to the police, she similarly had indicated that she and Mr D. had been “just sitting”, and “still chatting”, with the conversation changing back to topics “like the hospital”, their “experiences and things like that”, when Mr D. had “all of a sudden” got up to say he was “going to the bathroom”, before he then “came out naked”. The version of events Ms F. offered at trial, about the circumstances in which Mr D. became naked, therefore had inconsistencies suggesting not only that Ms F.’s account in that regard was incredible and/or unreliable, but also was inclined towards minimizing the friendly and enjoyable interaction between them before the commencement of sexual activity. b. As noted above, during her initial testimony about how she came to be undressed, Ms F. claimed that Mr D. had grabbed at her shirt and removed that, and then also took off her bra, pants and underwear. However: i. During cross-examination, she then indicated that Mr D. had only “helped” her to remove “everything”; a statement more consistent with a similar indication, provided during her police interview, that Mr D. “did not take my clothes off, but, like, helped me to take my clothes off, I guess”. ii. During further cross-examination, she then acknowledged that she alone had removed her pants and underwear, although she then claimed that she had done so at Mr D.’s direction. iii. Once again, Ms F.’s initial testimony at trial seem inclined to attribute more culpable conduct to Mr D. than her prior statements had suggested, and her later testimony confirmed or otherwise indicated. c. During her testimony at trial, Ms F. repeatedly denied that there had been any mutual kissing between her and Mr D. on the day in question; e.g., indicating during cross-examination that, while Mr D. was kissing her, she was “just sitting there” stoically, not moving her mouth, not kissing him back, and indeed not doing anything back. However, that was not what she indicated to the police, during her police interview. In that regard: i. When Ms F.’s attention was drawn to the fact that she had expressly agreed with the interviewing officer’s statement that she and Mr D. had started kissing and “making out” as they were sitting beside each other on the couch, and had then expressly indicated to the officer that Mr D. accordingly may have thought there was consent to what was happening, Ms F. continued to insist the kissing was not mutual, and deny that she had been “making out” with Mr D., attempting to explain her police interview statements to the contrary by indicating that she “must not have understood the question”; an explanation I did not find convincing. ii. Moreover, Ms F.’s attention then was drawn to the fact that she had expressly agreed with the interviewing officer’s statement “You were kissing each other”, after which she then independently said “We were kissing each other and that was when he’s like, ‘Go to the bed’”. When confronted with those earlier statements, Ms F. initially attempted to draw distinctions between the kissing possibly being non-consensual “at first” or “at the beginning”, before there came a point where she “maybe started kissing him back”. However, she then reluctantly acknowledged that she and Mr D. had indeed been “making out” and kissing each other. iii. In the result, Ms F.’s testimony about such matters suggested that she had not only neglected to mention important aspects of her interaction with Mr D. on the day in question suggesting her consent to sexual activity, but that she was actively resistant to acknowledging or admitting such matters; i.e., that she was not being a candid and truthful witness. d. In her initial trial testimony, Ms F. indicated that Mr D. had “half-shoved” and then “shoved” her down onto his bed. During cross-examination, however, she admitted “he didn’t, like, shove me back”, and instead had simply put his hands on her shoulder area, as she herself then laid back on the bed. This provided another indication of her initial testimony at trial being inclined to portray Mr D.’s conduct in a more culpable light, prior to further questioning. e. Her initial trial testimony seemed to indicate that she had made many more verbal protests than the number she eventually was willing to confirm during cross-examination; i.e., at which point she indicated there were a “couple” or “at least three or four” times at which she said “no”, and then “a few times” when she said things like “I’m not interested” or “I have to go”. Of course, one “no” is more than sufficient in law to indicate non-consent to sexual activity or revoke any such consent that previously may have been given. For present purposes, I simply note that the numerical quantity of Ms F.’s indicated verbal protests seemed to decrease significantly during the course of cross-examination. f. In her testimony at trial, Ms F. initially recalled that the unwanted oral sex had occurred before vaginal penetration and intercourse, but later in her examination-in-chief, said she was “not sure” about such matters and that it was “all kind of blurring together”. g. As noted above, in her initial testimony regarding the text messages Mr D. sent to her in the early morning hours on the day after their meeting, and the voicemail message Mr D. sent to her on May 19, 2021, Ms F. characterized those messages as Mr D. apologizing for committing an assault upon her, which had ruined their friendship. However, during the course of further cross-examination, Ms F. conceded that another plain meaning of the messages was that Mr D. was expressing interest in seeing “where things could go romantically” between them, if Ms F. was agreeable to that, and otherwise hoping that the fact of their having sex didn’t ruin their friendship, as crossing that “line” often made it hard to go back to being just friends; in other words, that the message could just as easily be read as saying “Because we had sex, I’m sorry if that ruined our friendship and we can’t go back”. She also conceded that the text messages expressed affection for her and agreed that, in the context of what had happened, Mr D. was meaning to thank her for her company and the night they had together. h. I also was troubled by Ms F.’s repeated indications that Mr D. may very well have perceived that she had consented to the sexual activity she described. In that regard: i. I would not have been concerned by Ms F.’s indication that she somehow felt “guilty” about what had happened. Many survivors of sexual assault wrongly blame themselves for allowing themselves to be placed in situations where the sexual assault occurs, when they actually are completely faultless for the horrible conduct perpetrated by their assailants. However, I found it very difficult to reconcile Ms F.’s statements that her moaning because of pain may have caused Mr D. to believe that she was consenting to all the sexual activity she described, when she simultaneously was claiming that she repeatedly had verbalized her unwillingness to engage in sexual activity and requests for Mr D. to stop what he was doing; e.g., by her alleged express repetition of words along the lines of “No”, “please stop”, “I’m not interested”, “I don’t want to do this”, and “I just want to be friends”. It seems hard to imagine how or why Ms F. would or could have thought Mr D. would have perceived her painful moaning as an indication of her willingness to engage in the sexual activity she described if she also was saying all the things she claimed to have said. Bearing in mind that people’s reaction to pain is usually spontaneous and often uncontrolled in whatever painful situations they find themselves, it also seems unlikely to me that Ms F., had she been experiencing the sort of pain she was describing during intercourse, would not have voiced some kind of wording to indicate that expressly, among the many other things she claims to have been saying to Mr D. during that prolonged intercourse about the various reasons why she wanted and needed it to stop. ii. As already noted, Ms F. also was reluctant to acknowledge that she had engaged in mutual kissing and “making out” with Mr D.; activity which, she acknowledged to the police, may have led Mr D. to believe that she was consenting to sexual activity. iii. More generally, although Ms F. in her initial trial testimony generally denied that her sexual activity with Mr D. had been consensual, and continued to insist that there “was a point” where she “became very clear” about the sexual encounter being non-consensual, (e.g., by saying “no”, “I’m not interested” or “I have to go”), she acknowledged in cross-examination: 1. having indicated during the course of her police interview that the encounter was “maybe” consensual “at first”, and that she thereafter “didn’t feel it was consensual”, but “maybe … was giving signals that it was”; and 2. then admitted that she was giving Mr D. such signals “at certain points” during their sexual activity. e. While much of Ms F.’s account seemed plausible to me, there nevertheless were aspects of her testimony that I found to be implausible and/or unreasonable. For example: i. Although Ms F. suggested that her acknowledged moaning during Mr D.’s kissing of her neck was an indication of pain, rather than pleasure, it seemed unlikely to me that the kissing of her neck would have been sufficiently painful to cause sustained moaning, (even if it had resulted in the “hickey” observed two days later during Ms F.’s examination at St Joseph’s hospital), and that her explanation in that regard seemed more attributable to a strong desire on her part to deny that she had given any verbal indications of consent to what Mr D. was doing. ii. Ms F.’s refusal during cross-examination to acknowledge that there was any possible difference between moans of pain and moans of pleasure also seemed unreasonable to me, and similarly consistent with a desire on her part to avoid any suggestion of having provided any verbal indications of consent to what Mr D. was doing. f. In my view, there was no evidence of any discernible motive for Ms F. to fabricate her allegation of sexual assault, or the testimony she offered in support of that allegation. Indeed, Mr D. emphasized repeatedly during examination in chief and cross-examination that he was shocked by Ms F.’s allegation and had no idea why Ms F. was saying things he knew to be categorically false, and which had caused him so much anxiety. He said he knew of no animus whatsoever between them, that he had never said or done anything to offend or insult Ms F., and that, consistent with his Quaker upbringing, he was “a very nice person” who had been “very kind and cordial” towards her. However, as noted above, I am mindful that absence of evidence indicating a motive to fabricate does not mean that Ms F. does not have one or serve as any guarantee that she must be telling the truth.

[27] Having regard to all such matters:

a. I think Ms F. generally seemed to be an honest witness, who: i. generally presented what I considered to be an entirely plausible account; ii. suffered from no obvious limitations that would have denied her ample opportunity and ability to make and recall accurate observations of what happened during her visit to Mr D.’s apartment on May 17, 2021; iii. presented with a general demeanor that was unusual but nevertheless not something that caused me any significant concerns about her credibility and/or reliability; and iv. struggled to articulate with clarity the more sensitive aspects of an inherently traumatic experience, in circumstances which likely made such struggles more understandable. b. In my view there nevertheless were reasons for concern about her credibility and/or reliability, particularly insofar as: i. there not only were notable and significant inconsistencies in what she had described at trial and what she had said on previous occasions; but ii. those inconsistencies generally seemed to trend in favour of minimizing indications that she may have consented to sexual activity on the occasion in question, while also portraying Mr D. in a more culpable light.

[28] I also obviously have spent considerable time and care considering the testimony which the accused, Mr D., chose to give at trial.

[29] In relation to my assessment of the credibility and reliability of Mr D.:

a. In making such assessments, I think it worth emphasizing again my mindfulness of the presumption of innocence, and the fundamental reality that Mr D. has no obligation to prove anything whatsoever in this proceeding. b. To the extent Mr D. chose to testify and present evidence, in support of his denials that certain misconduct attributed to him ever happened, I also bear in mind the inherent difficulties of trying to establish a negative. For example, to the extent Ms F. gave a lengthier and more detailed account of how Mr D. is alleged to have misbehaved, the testimony of Mr D. was bound to be shorter and to the point; i.e., in asserting that certain events described by Ms F. never happened, or that he never did certain things or acted in a certain way. c. In contrast to Ms F., Mr D. was an actively engaged but unusually agitated and nervous witness. In particular: i. Despite being relatively youthful, he entered the witness box in a visibly hesitant and somewhat awkward manner and continued to exhibit signs of apparent unease or discomfort, as well as fatigue, throughout much of his testimony. ii. While some might be inclined to attribute such a demeanor to fear of being exposed in cross-examination, that was not my impression. Mr D. generally seemed stressed and somewhat unsettled by the entire experience of being in court, regardless of whether he was being addressed by his own counsel, Crown counsel or myself. For example: 1. Although clearly intelligent, he often responded to questions, (whether posed by his own lawyer or Crown counsel), and to my own comments, in a somewhat awkward and sometimes convoluted way, and seemed easily distracted or unfocused at times; e.g., sometimes forgetting the original question that had been asked, (and asking to have it repeated or restated), or occasionally seeming to lose the thread of what he had intended or started out to say. 2. He nevertheless also seemed very anxious to convey “his side of the story”, as it were; e.g., frequently interrupting, in a somewhat uncontrollable way, to begin answering questions and/or addressing comments before they were finished, despite a number of requests or reminders not to do so. 3. He was also frequently very apologetic, (to his own lawyer, Crown counsel and to me), whenever it seemed to him that he had acted improperly; e.g., by interrupting counsel or by interrupting me, despite being asked repeatedly not to do so, or by giving a more expansive answer than that needed to address a particular question. 4. At other times, he became very agitated and spoke rapidly when he seemed worried that he possibly was being misunderstood, even when that sometimes related only to relatively minor points. For example: a. After using gestures at one point during examination in chief to help indicate what was meant by Ms F. saying she would “have to whip her bra around” her body to remove it herself, (before he instead helped to undo the clasps), he became noticeably unsettled when he seemed to think others had understood him to say that Ms F. had rotated her bra in that fashion. b. After I had asked him a number of times to confirm his understanding and intended meaning of certain slang terminology he occasionally employed during the course of his testimony, (e.g., by referring to “French kissing”, “hickey” and “ghosting”), and counsel asked for more detail about what he intended by using certain words in his text and voicemail message or answers, he appeared to become increasingly self-conscious and unsettled regarding his use of particular words, metaphors and medical terms and the possible need to explain them more fully; e.g., to clarify what he meant by saying that he was “not great with times”, and frequently “over estimated” and “under estimated” in that regard, (to make allowances for the fact that his estimates might be inexact one way or the other by some degree), by suggesting that he had a “beautiful brain”, (an intended reference to the film “A Beautiful Mind” and its principal character’s ability to “think really well”), by saying that he had “gone down a rabbit hole”, (a literary reference to Lewis Caroll’s “Alice in Wonderland” but a figurative reference to his obsessing over the details of his meeting with Ms F.), and his experience with suffering from occasional “disassociation” during the course of his life, (which in his case was described as now being limited to the occasional experience of his thoughts and focus drifting off to other matters during the course of sitting to watching television or movies, such that time passes without his being aware of it). 5. Mr D. also seemed to struggle for words when asked to describe his feelings for Ms F. and emotions, (e.g., his desire to enter a new romantic relationship, and his concern for her welfare and confusion when she was not communicating or responding), at the time of his text and voicemail messages. iii. Although Crown counsel suggested the tendencies I have described were indicative of someone being deliberately unresponsive or intent on obfuscation, (especially during cross-examination), it seemed to me that Mr D. generally exhibited the same nervous, stressed and apologetic traits throughout much of his time in the witness box, whether he was being addressed by defence counsel, Crown counsel or the court. He appeared to find the entire process painful, and expressly said as much; e.g., indicating during examination in chief that the “whole situation” was “really hurting” him. When asked later if he wished to take a break between his examination in chief and cross-examination, he said he thought it would be “better just to push through” and complete his testimony. In the course of cross-examination, he apologized for occasionally giving answers extending beyond more simple answers to simple questions, explaining that he just found it “really hard” to be “charged with something like this”. d. More importantly, however, it seemed to me that, despite such tendencies, Mr D.’s answers nevertheless generally remained remarkably direct, focused, and consistent when responding to questions about what had and had not happened during the course of his sexual activity with Ms F. on the day in question; i.e., the matters at the heart of this criminal trial. While he struggled to put his emotions into words, (e.g., when describing what he felt for Ms F. and was trying to convey at the time of his text and voicemail messages), he had no such difficulties when providing his account of what did and did not take place on May 17, 2021. Crown counsel did not identify or suggest that Mr D.’s testimony about those events contained any notable inconsistencies or ambiguities in that regard, and I independently was unable to observe or locate any such inconsistencies or ambiguities. e. In cross-examination and closing submissions, it was instead essentially suggested that Mr D.’s memories of those events were perhaps too perfect and therefore inherently implausible for that reason; i.e., that the testimony of a credible and reliable witness should be expected to contain at least some acknowledged lapses of memory or demonstrable inaccuracies and/or inconsistencies, but that Mr D. professed to have a vivid and accurate recollection of what had happened on the day in question, despite testifying to those events completely “from [his] own memory”, and in the absence of any contemporaneous notes or prior recorded police statement summarizing those events to refresh his memory. In that regard: i. Considerable focus was placed on Mr D.’s statements, made during cross-examination, that he thought he had “a pretty solid mind”, (according to his psychiatrist), or a “very beautiful brain”; i.e., with Crown counsel suggesting that Mr D.’s pretentions to having a complete and accurate memory of what happened on the day in question, (e.g., down to remembering the particular type of alcohol consumed that day), were simply unrealistic. In that regard, Crown counsel noted in particular that Mr D. himself had indicated that he had a tendency to overstate and understate time estimates and had gone on to say that he admittedly had experienced episodes of “disassociation” associated with his mental health condition. In relation to the latter, it was expressly suggested by Crown counsel that Mr D. had indeed sexually assaulted Ms F., but simply could not recall that because his thoughts may have been elsewhere. ii. In my view, Crown counsel quite accurately noted, in his closing submissions, that Mr D. became noticeably upset, combative and defensive in that regard, when Crown counsel addressed and explored such matters in cross-examination; i.e., when Mr D.’s mental health and abilities were being challenged and/or questioned. Indeed, Mr D. went so far as to accuse Crown counsel of unprofessional conduct by taking Mr D.’s words out of context, wrongly suggesting that he lacked the ability to remember things correctly or tell time accurately, and/or “inflating” his mental health issues inappropriately. iii. However, notwithstanding such emotions and reactions, Mr D. did manage to explain, in the course of further questioning, how and why he felt Crown counsel had misinterpreted his earlier comments. In particular: 1. He disclaimed any pretention to believing that he was “anything special” in terms of his ability to think, (e.g., saying that there was certainly nothing special about his ability to attend university), and regretted his intended reference to the film “A Beautiful Mind” to the extent that had suggested anything to the contrary. He emphasized that he simply liked his mind because he felt it was “very sound”, and “works well” in terms of his ability to remember things. In particular, he felt he “knew what [he] had” in that regard, which included an ability, (which he says he has had since he was a child), to recall events accurately in a very visual and vivid way; e.g., being able to recite complete dialogue from television programs verbatim, a half hour after watching them. He said that his memories of sexual experiences in particular were very clear; i.e., that when he has a sexual experience with somebody, he remembers everything about it. In that regard, he said his interactions with Ms F. on the day in question were especially clear in his mind for two reasons: a. First, because it was a “very, very, intimate” and “very intense” experience “with a very good friend”, he says he can remember visually and verbatim everything that was done and said in that regard; e.g., visualizing or “seeing”, in his mind, himself and Ms F. independently undressing in front of his apartment window, walking to the bed, and laying down together. b. Second, Mr D. says he had reasons shortly after the day in question to go over the events of that particular day “a million times” in his head. In particular: i. Mr D. says that, when Ms F. did not reply to his messages sent soon after that day, which was highly unusual for her, he immediately started asking himself “What the heck happened?”, which in turn caused him to “go down a rabbit hole” and “actively review” the events of that day repeatedly, in detail, in his mind. ii. Mr D. says that his focus on replaying the events of that day in his mind intensified even more after he received a call from the police indicating that he was going to be charged, and when he then was charged with sexual assault one week after the events in question. iii. In the result, Mr D. says, he “imprinted everything that had happened” that day “into his brain … like … a filing cabinet” he could access later and was quite certain that he therefore had a “good” and “solid” memory of those events. iv. Mr D. firmly denied that the only reason he would have had for doing such a thing was a concern that he had done something wrong and illegal in relation to Ms F.; i.e., saying that Crown counsel was “100,000 percent wrong” about that. 2. As for his earlier references to overstating and understating time estimates, Mr D. explained that was a product of his post traumatic stress disorder. In particular, it was not that he was unable to tell time accurately, but that he felt compelled to incorporate flexibility into his time estimates instead of making them exact; e.g., indicating that, if he was going to explain a situation and thought an event lasted 15 minutes, he nevertheless also would think to himself that he should acknowledge and allow for the possibility the precise duration might have been within a five minute range of that time estimate. By way of analogy, he compared his practice or compulsion in that regard to that of taxpayers overestimating their income, so they “don’t get into trouble”. 3. In relation to his acknowledged prior experience with episodes of “disassociation”, he said that “flashbacks” and “disassociation” were other symptoms associated with his diagnosed post traumatic stress disorder and “bi-polar type 2 diagnosis”, but had no bearing on his ability to remember what had happened during his interactions with Ms F. In that regard: a. He explained his understanding that “disassociation” was a condition whereby time occasionally can go by with a person being present during a situation, but without the person realizing that time is passing until the time has passed because his or her mind has wandered. b. He said that, while he used to experience such episodes “a lot more” when he was younger and had a “very serious issue with that” when he was 13, years of therapy and psychiatric help had brought a lot of control over that; i.e., such that he now experiences disassociation only when watching television or movies. In particular, he occasionally will sit down, start watching something, start thinking about something else, and look up later to suddenly realize that the movie is ending, with time having passed and the entire film having gone by, while he was engaged in “deep thought” about something else in his life. c. He emphatically denied experiencing any such disassociation, “time loops” or “timeline mishaps” during his interactions with Ms F., emphasizing that he “remembered everything” about those interactions. d. Mr D. also emphatically denied Crown counsel’s suggestions that Mr D. was raising and relying upon his mental health conditions to “deflect responsibility” or provide an explanation for any suggested flaws and deficiencies in his evidence. 4. Despite Mr D.’s sometimes drawn-out explanations for such earlier comments in his testimony, his occasional resort to somewhat hyperbolic “percentage” denials for the purposes of emphasis, and the relatively unusual attributes and conditions he described, it was my impression that his beliefs and understandings in that regard were sincerely held, were not inherently implausible, and in some respects had only marginal relevance. In that regard, and without limiting the generality of the foregoing: a. Mr D. seemed keenly aware of his mental health diagnoses, (which he obviously has been living and dealing with in an inherently personal way), seemed obviously and genuinely upset by the possibility of their nature and effects being misunderstood, and legitimately focused on the importance of having others understand what he had and had not intended to convey in that regard. b. In my view, the precise timing or duration of particular events was largely peripheral to the central focus of this proceeding; i.e., the essential elements of the charged sexual assault offence. In that regard, nothing of great significance turned on the precision of Mr D.’s particular time estimates, one way or the other. Nor did his explanation of what he intended to convey in that regard, by his reference to overestimating and underestimating time, seem inherently implausible or unreasonable to me. c. Neither the accused nor the complainant in this case indicated or even suggested, in the course of either of their accounts, that Mr D. was not engaged and actively focused on what was happening during the course of whatever took place in Mr D.’s apartment while Ms F. was there. Nor did Mr D.’s explanation of his experience with disassociation, or the limited and confined effect it currently has in his life, seem inherently implausible or unreasonable to me. d. Assertions of something akin to perfect or essentially photographic memory nevertheless did give me pause. In that regard: i. Everyday experience, reinforced by experience of the wide variety of witnesses who appear before our courts, obviously suggests that few people actually are capable of remembering all aspects of an event with perfect accuracy. Moreover, as reflected in our law relating to eyewitness identification, a witness might sincerely believe that he or she recalls something with perfect accuracy, despite being quite mistaken. In other words, credibility and reliability do not necessarily move hand in hand. ii. However, I also think it inappropriate to infer, (as Crown counsel effectively suggested), that reliability and credibility necessarily should be regarded as moving inversely in relation to one another, in situations where a particular witness essentially professes to have enhanced reliability because of an exceptionally good memory, because such assertions are inherently implausible. The simple reality is that some people do have better memories than others for a variety of reasons; e.g., because they are gifted with superior recall in relation to most matters, because they have a special interest in relation to certain matters, and/or because the particular nature of an event caused details in that regard to stand out in the memory of someone who normally may experience difficulty remembering other matters. A witness who speaks truthfully in relation to such matters should not necessarily be disbelieved without some other basis for doing so. A witness can be, and ideally will be, both reliable and credible. iii. Moreover, I think it inappropriate to find a witness less credible simply because he or she, in contrast to another witness in the trial, has failed to document his or her professed memories prior to giving testimony. Indirectly, I think, this suggests that greater weight should be given to a witness who has made a prior consistent statement – which obviously runs counter to the laws of evidence in that regard. iv. In this particular case, Mr D. professed to have a particularly good memory, and special reasons to recall, with accuracy, what happened on the day in question. His account obviously is quite at odds with the account provided by Ms F. in her testimony, who arguably has quite different but equally good reasons for remembering what happened that day. However, as already noted, there were no inherent or demonstrated inconsistencies in Mr D.’s account. Nor was that account contradicted by any objective evidence to suggest that his professed memories of that day were mistaken or otherwise inaccurate. 5. Although Crown counsel suggested there was something inherently implausible about two admittedly good friends, both young and unattached, willingly embarking on sexual activity within an hour of meeting for the first time outside the confines of the hospital setting in which they grew to know and like each other on a daily basis over the course of a month, I am reluctant to accept or agree with that view. In particular, it seems to me that such an approach implicitly carries with it notions that these two individuals should have been expected to act in accordance with some particular notion of social mores, standards, or other codes of conduct in relation to such matters that they simply may not have shared with others having different ages, backgrounds and/or views in that regard. 6. Finally, I note and am mindful of Crown counsel’s observation that Mr D. failed to mention, until cross-examination, at least two significant factual allegations; i.e., that he had heard Ms F. moan in pain on an earlier occasion while they were in hospital together, (thereby lending support to his professed ability to distinguish such moaning from the pleasurable moaning she was said to have expressed during their sexual activity), and that Ms F. was the one who directed his penis into her vagina, (thereby lending support to his assertion that she had wanted to engage in vaginal intercourse). In that regard: a. There is truth in those observations, and I do find it troubling that Mr D. failed to mention such significant and obviously important details during his examination in chief, particularly when: i. he was present for the cross-examination of Ms F. when she was questioned about her moaning, and suggested distinctions between painful and pleasurable moaning; ii. he was questioned during examination in chief about Ms F.’s moaning, and had already spoken about his professed ability to distinguish between painful and pleasurable moans, at which time some mention of his having a prior experience with hearing Ms F. moaning in pain would seem to have had obvious relevance; and iii. he effectively was asked during examination in chief to describe, in sequence, the various acts of sexual touching in which he and Ms F. had engaged, and her manual direction of his penis into her vagina would seem like an obviously important detail in a trial focused in large measure on whether Ms F. had or had not consented to such sexual activity with Mr D. b. In short, the failure to mention such obviously important details, until he was being pressed during cross-examination about Ms F.’s moaning and consent to vaginal intercourse, gives rise to an obvious potential inference that Mr D. may have fabricated and asserted such additional facts as a convenient means of diffusing the inculpatory suggestions being put to him during cross-examination. c. Moreover, I note that such factual assertions were not put to Ms F. during the course of her cross-examination, giving rise to Brown v. Dunn concerns and possible adverse inferences in that regard. d. Having said all that, I also am mindful of the corresponding explanations put forward and emphasized by Mr D. and defence counsel in that regard, namely: i. that Mr D. had been instructed not to speak about certain matters relating to Ms F., even though he knew of them because of their time together in hospital – a restriction to which he made reference a number of times during the course of his testimony; ii. that Mr D.’s memory and corresponding indication of having previously heard Ms F. moan in pain were triggered and followed in very short order from Crown counsel’s specific assertion that Mr D. had no basis for distinguishing between painful and pleasurable moans from Ms F. because he had never heard her moan in pain before – which Mr D. knew to be inaccurate; and iii. that Mr D. had responded to specific questions during examination in chief about the sequence of sexual activity, without ever having been asked about the precise manner in which his penis entered Ms F.’s vagina, until Crown counsel specifically suggested that Mr D. had never asked if it was okay for him to insert his penis into her vagina”, prompting Mr D. to respond immediately with an indication that she – Ms F. – had done that, after which the manner in which that had happened was addressed in more detail during the course of further questioning.

[30] Having regard to all such matters:

a. Mr D. frankly also generally presented, without any notable or significant inconsistencies, what I considered to be a plausible account of events, despite Crown counsel suggestions to the contrary; and suffered from no obvious limitations that would have denied him ample opportunity and ability to make and recall accurate observations of what happened during Ms F.’s visit to his apartment. b. Moreover, while he too presented with an unusual demeanour, in my view that was not indicative, (for the reasons I have described in detail), of any desire to obfuscate or avoid telling the truth. In particular, where he exhibited difficulties articulating certain matters and/or grew defensive and combative, it seemed to me that was more indicative of intense emotions and personal sensitivities, (particularly insofar as his mental health diagnoses were concerned), than an effort to avoid telling the truth. His explanations for using certain phrases and making reference to certain matters was at times meandering or drawn out but, on the whole, I did not find them incredible or unreasonable. c. While I certainly approach Mr D.’s assertions of complete and detailed memories of the underlying events with what I regard as healthy skepticism, and found some of his significant additional factual assertions during cross-examination to border on the “all too convenient”, in my view, close analysis and consideration of the evidence frankly presented little, (with the obvious and important exception of Ms F.’s testimony), to indicate that he was not presenting a credible and reliable account of what happened on the day in question.

[31] With all of the above matters in mind, I turn, finally, to a consideration of the sexual assault charge against Mr D.

Consideration of Sexual Assault Charge Against the Accused

[32] The specifics of that charge, as set forth in the indictment, have already been noted earlier, along with the essential elements of the offence Crown Counsel must prove beyond a reasonable doubt to secure a conviction.

[33] In relation to the first essential element of the offence, which requires the Crown to prove beyond a reasonable doubt that Mr D. intentionally applied force to Ms F.:

a. Certain intentional applications of force, including Mr D. kissing Ms F. on the lips and neck, (including his infliction of the described “hickey”), fondling of her body, and engaging in vaginal intercourse for at least 2½ minutes, without use of a condom, were not disputed and accordingly were established beyond a reasonable doubt. b. In relation to the additional intentional applications of force alleged by Ms F., (including Mr D.’s alleged removal of items of Ms F.’s clothing, his pushing or shoving her down onto his bed, his performance of oral sex, his engaging in significantly longer vaginal intercourse with Ms F. lasting approximately 20 minutes, and his alleged subsequent acts of digital penetration and placing Ms F.’s hands on his penis), I am not persuaded beyond a reasonable doubt that such actions occurred. In that regard, Ms F.’s account makes me stop short of believing and accepting Mr D.’s firm denials that such things never happened. However, Mr D.’s account, and the concerning aspects of Ms F.’s testimony which I have identified, together were sufficient to raise what I regard as a reasonable doubt in that respect.

[34] In relation to the second essential element of the offence, which requires the Crown to prove beyond a reasonable doubt that Ms F. did not consent to the force that Mr D. intentionally applied:

a. In the course of counsel submissions, there was a general consensus that this was the essential focus of the case and the primary defence, (i.e., consent of Ms F. to the sexual activity admitted and therefore proven beyond a reasonable doubt), relied upon by the accused. b. Consistent with my findings in relation to the first essential element of the charged offence, I am not persuaded beyond a reasonable doubt that Ms F. did not consent to Mr D.’s acknowledged applications of force that have been proved beyond a reasonable doubt. Once again, Ms F.’s account makes me stop short of believing and accepting Mr D.’s testimony that Ms F. in fact did consent to such applications of force; i.e., the sexual activity that was admitted to have occurred in Mr D.’s apartment on the day in question. However, Mr D.’s account, and the concerning aspects of Ms F.’s testimony which I have identified, together were sufficient to raise what I regard as a reasonable doubt as to whether Ms F.’s lack of consent had been proven by the Crown.

[35] While that finding is sufficient to find that the charged offence of sexual assault has not been proved beyond a reasonable doubt, I will simply note for the record that:

a. In relation to the third essential element of the charged offence, which required the Crown to prove beyond a reasonable doubt that Mr D. knew that Ms F. did not consent to the force that Mr D. intentionally applied, in my view reasonable doubt existed in relation to that essential element as well, having particular regard not only to Mr D.’s testimony, but the concerns I have identified regarding Ms F. herself acknowledging that Mr D. had reason to believe that she was consenting to the sexual activity that took place. b. In relation to the fourth essential element of the charged offence, which required the Crown to prove beyond a reasonable doubt that the force Mr D. intentionally applied took place in circumstances of a sexual nature, I would have found that essential element proved beyond a reasonable doubt. In my view, the sexual nature of Mr D. kissing and fondling Ms F., and engaging in vaginal intercourse, would have been self-evident to any reasonable observer of such activity.

[36] However, as all four essential elements of the charged sexual assault offence have not been proved beyond a reasonable doubt, there will be a finding of “not guilty” in relation to Count 1, the sole count of the indictment.

Conclusion – Formal Delivery of Verdict

[37] At this point, I will ask the accused, M.D., to please stand.

[38] Mr D., for the reasons I have outlined, I find you not guilty as charged in relation to the single count of the indictment, (i.e., Count #1), accusing you of sexual assault, contrary to s.271 of the Code.

[39] The electronic e-indictment will be endorsed accordingly.

Justice I.F. Leach Released: November 15, 2023

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – M.D. REASONS FOR JUDGMENT Justice I.F. Leach Released: November 15, 2023