Court File and Parties

COURT FILE NO.: CR-21-1460-00 DATE: 2023 01 26

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

- and -

ALPHA McLEOD

Before: André J.

Counsel: C. VandenBroek, for the Crown J. McCulligh, for the Defence

Heard: December 6, 7, 8, 9, 12, 2022

Judgment

[1] On July 30, 2020, the Peel Regional Police charged Mr. McLeod with committing a sexual assault while using or threatening to use a weapon or imitation firearm, using an imitation firearm while committing an indictable offence, uttering death threats and forcible confinement, following a complaint from Zoe Pessoa, the eighteen-year-old female complainant. During the trial Ms. Pessoa described the circumstances in which Mr. McLeod allegedly forced her into his vehicle at gunpoint, drove to an area behind a value store and forced her to perform fellatio on him. In contrast, Mr. McLeod testified that the impugned sexual activity was consensual. He said that he had arranged a rendezvous with a sex trade worker via a website called either “Leolist” or “Leocrawler.”

Summary of the Trial Evidence

Zoe Pessoa’s Evidence

[2] Ms. Pessoa testified that on July 29, 2020 she was walking behind a plaza in Mississauga on her way to a friend’s home when she saw Mr. McLeod who was coming out of his car near a Toronto-Dominion (TD) bank. He called out to her but she ignored him and kept walking. He pulled up beside her and, while holding a gun, told her to get into the “fucking car”. She got into the car. He told her she was very beautiful. He said that he worked for a trucking company and had had a long day of work. He asked for her number. He handed her his phone and she placed her number into it and gave it back to him. He drove north and then parked behind a value store in Mississauga. He kissed her cheek. He slapped her after she pulled away. He told her to suck his penis before pulling his pants down. She did what he asked her to do. He ejaculated in her mouth. She spat it out on him and on her hand. He then went to the back of the car for some tissue. She remained in the car while he did so because she was scared. She tried to lock Mr. McLeod outside but accidentally locked herself in. Mr. McLeod ordered her to unlock the car when he returned.

[3] Mr. McLeod asked her to have sex. She told him no, that she was having her menstrual period. He pulled down her dress, exposing her breasts. He again asked her to suck his penis. She did as she was told. Once finished, he ordered her to get out of the car and to shut the door. He drove off and Ms. Pessoa then called her friend who told her to call the police which she did.

[4] Ms. Pessoa testified that the gun pointed at her was black and that it looked like a handgun. She thought at the time that it was real but doesn’t think so now.

[5] Mr. McLeod had also told her during the incident that if she wanted to make it to her home, she would better do what he said. Ms. Pessoa denied that she had an advertisement on Leolist or any similar site. She denied having made an arrangement to provide sexual services to Mr. McLeod for consideration.

Mr. McLeod’s Evidence

[6] Mr. McLeod denied that he had forced Ms. Pessoa at gunpoint to get into his car and to perform oral sex on him. He testified that he had called a number listed on Leolist between 1:00 and 5:30 p.m. after seeing a photograph on Leolist or Leocrawler that caught his attention. He used a payphone because he did not want his girlfriend to see that he had arranged to have sex for consideration. He told the female who answered his call that he was looking for a “car call” service. She agreed to his request. She gave him a location and told him that she would be wearing a purple dress. He drove to her location and withdrew sixty dollars from his TD account to pay for the service. He saw her walking away while looking back at him. He approached her and told him she was “sugar candy.” She got into the car voluntarily. He had no gun. She directed him to drive and park behind a discount store called Value Village. She grabbed his phone and inputted her number. She asked if he had the money. He said yes. He reclined his chair. She unzipped his trousers and started to stroke him. She then gave him a blow job. She ejaculated onto him. He went to the trunk of his car and got some towels. She asked him to drop her off at another location. He refused. She demanded more money from him. He called her a “bitch” and ordered her to get out of his car. She got out but left the door open. He then said to her “bitch, close my door.” She complied. After Ms. Pessoa left, he drove to a marijuana dispensary in Mississauga, bought some marijuana and drove home. He testified that he paid Ms. Pessoa for fifteen minutes of service and that he had never owned a gun.

Analysis

[7] This case turns on an assessment of credibility of the witnesses called during the course of the trial. In conducting the analysis, I am guided by the Supreme Court of Canada’s decision in R. v. W.(D)., [1991] 1 S.C.R. 742, which states that:

i) If I accept Mr. McLeod’s evidence, I must acquit him;

ii) If I disbelieve Mr. McLeod’s evidence, but I am nevertheless left in a state of reasonable doubt by it, I must acquit him; and,

iii) Even if I disbelieve Mr. McLeod’s evidence, and am not left in a state of reasonable doubt by it, I can only convict him if I am satisfied, based on the totality of the evidence I do accept, of his guilt on some or all the charges beyond a reasonable doubt.

[8] These principles establish that the assessment witnesses is not a credibility contest. I also note that if the Crown’s evidence raises a reasonable doubt about Mr. McLeod’s guilt, I must acquit.

[9] While I am not required to commence my analysis with Mr. McLeod’s evidence, I find it appropriate to do so.

[10] I am deeply troubled by many aspects of Mr. McLeod’s testimony. First, his evidence contradicted what he told the police on July 30, 2020 following his arrest. He repeatedly told the police that on the day of the alleged incident, he had gone home after work and denied that he was at Hurontario Street and Eglinton Avenue in Mississauga at approximately 7:00 p.m. Denying any involvement in the incident, Mr. McLeod told the police that the last thing he would do was anything that would embarrass his girlfriend and her family.

[11] The interviewing officer even suggested to Mr. McLeod that he may have contracted the service of an escort rather than having forced Ms. Pessoa at gunpoint to get into his car for sexual purposes. Mr. McLeod denied having any encounter with Ms. Pessoa. Mr. McLeod’s later testimony at trial clearly contradicts what he said to the police.

[12] Second, there are internal inconsistencies in Mr. McLeod’s testimony about what transpired between himself and Ms. Pessoa on July 29, 2020. He testified that he called a number on Leolist between 12:00 and 5:00 p.m. to arrange a meeting with a sex trade worker for a “car call” and that he made the call either at a hospital or from a payphone. However, in a sworn affidavit dated September 20, 2022, which was part of an agreed statement of facts, he deposed that: “At the end of my deliveries that day I decided to look for an escort service.”

[13] Furthermore, Mr. McLeod’s reason for having called from a hospital or payphone makes little sense. He testified that he did not use his phone for fear of his girlfriend finding out that he had been in contact with an escort service. However, he could easily have erased the call from his phone just as he did with Ms. Pessoa’s number after she had placed it on his phone. Additionally, no data was recovered from Ms. Pessoa’s phone indicating that she received a call from Mr. McLeod’s phone on July 29, 2020. Further, according to the agreed statement of facts, there was no reference to either Leolist or Leocrawler found on Ms. Pessoa’s phone.

[14] Mr. McLeod’s counsel submits that an explanation for this is that Ms. Pessoa could very well have been using a different phone to solicit clients. Absent any evidence to that effect, it would be speculation at best to find that Ms. Pessoa used another phone to provide sexual services to clients.

[15] Another material inconsistency raises serious questions concerning the credibility and reliability of Mr. McLeod’s testimony. He testified in chief that after Ms. Pessoa entered his vehicle, she offered to give him her number, grabbed his phone and entered her number into his phone. Under cross-examination, however, he conceded that his cellphone was password protected and therefore Ms. Pessoa could not have entered her number into his phone without unlocking it. He then testified that he had unlocked his phone prior to giving it to Ms. Pessoa. When questioned about the advertisement he had seen on Leocrawler, Mr. McLeod testified that after being charged, he had tried to retrieve the advertisement but had not seen anyone with a similar shape to Ms. Pessoa. I find that this evidence to be incredulous and further proof that Mr. McLeod is not a truthful witness.

[16] The reasons Mr. McLeod provided to explain why Ms. Pessoa fabricated her evidence concerning the incident makes no sense. He testified that she got upset at him because he refused to drop her off. The area where he stopped his vehicle is relatively close to the intersection of Burnhamthorpe Road and Hurontario Street, the heart of the City of Mississauga. Ms. Pessoa could have easily accessed public transportation to go to her friend’s house. There would have been no pressing need to ask Mr. McLeod for a ride. I therefore reject his explanation regarding why Ms. Pessoa contacted the police regarding her contact with Mr. McLeod on July 29, 2020.

[17] The testimony of Neesha Kumari Talway does not assist Mr. McLeod. She testified that she was “100% sure” that Mr. McLeod was home in Oakville at 7:00 p.m. on July 29, 2020, because she called her father at home at that time while Mr. McLeod was in the house. The agreed statement of facts indicates that Mr. McLeod’s phone was near Sandalwood Square Shopping Centre at Bristol Road and Hurontario Street in Mississauga, as well as at the rear of Value Village from 7:09 p.m. to 7:19 p.m. and that it was in Oakville between 7:43 p.0.m. and 7:48 p.m. This evidence clearly establishes that Ms. Talway was simply wrong about the time Mr. McLeod arrived home on July 29, 2020.

[18] For these reasons, I do not believe Mr. McLeod’s evidence neither do I find that it is capable of raising a reasonable doubt in the Crown’s case.

[19] Ms. Pessoa, in my view, is a credible and reliable witness. She testified in a straightforward manner. Her evidence was internally consistent. Other than her description of the pants worn by Mr. McLeod during the alleged incident, her credibility was not impugned by Mr. McLeod’s counsel. She denied all suggestions that her phone number or photos had been on Leolist or Leocrawler. It was confirmed by the agreed statement of facts that evidence of these sites was not on her phone and neither was Mr. McLeod’s phone number. The agreed statement of facts also confirmed that following the alleged incident, Ms. Pessoa called her friend Reggie at 7:19 p.m. and then called the police minutes after. The DNA evidence referred to in the agreed statement of facts confirms that Ms. Pessoa performed oral sex on Mr. McLeod.

[20] Defence counsel submits that Mr. McLeod’s withdrawal of sixty dollars from the TD bank before he met with Ms. Pessoa raises a reasonable doubt in the Crown’s case. I disagree. Other than his testimony, there is no evidence that he paid Ms. Pessoa any money. The money he withdrew could have been used to purchase marijuana which he testified he had done. Defence counsel also submits that Ms. Pessoa’s manner of dressing confirms Mr. McLeod’s testimony that he had made an arrangement with her for a “car call”. The submission, in my view, is based on impermissible stereotypes about women. It is simply wrong to conclude that because Ms. Pessoa was wearing a strapless purple jumpsuit and no bra, she was involved in the sex trade.

[21] Defence counsel also submits that Ms. Pessoa is not a credible witness because she had ample opportunity to flee the scene of the alleged incident. She could have fled when Mr. McLeod leaned forward to put his boots down or when he went to the back of his car to get tissues. I do not accept this submission. Ms. Pessoa testified that she remained in the car because she feared being shot by Mr. McLeod. Her failure to flee at the first opportunity does not undermine her credibility given that there is no single rational response to traumatic situations.

[22] Defence counsel further submits that there is no apparent reason why Mr. McLeod, who has no criminal record and who has been involved in a stable five-and-a-half-year relationship, would jeopardize his future by engaging in the conduct described by Ms. Pessoa.

[23] Ascertaining Mr. McLeod’s motive for seeking to have Ms. Pessoa perform sexual acts on him is not an essential element of the offences with which he is charged. However, he provided a motivation for seeking to have a woman perform fellatio on him, being that his girlfriend did not engage in oral sex. Based on Ms. Pessoa’s evidence, I find that Mr. McLeod was seeking sexual gratification to such an extent that he forced Ms. Pessoa to perform oral sex on him.

[24] I find that Mr. McLeod ordered Ms. Pessoa to get into his car and later forced her to perform oral sex on him. He allowed her to leave the car after she had done his bidding.

[25] I therefore find Mr. McLeod guilty on counts 1, 3, and 4 of the indictment, despite the professional and skilled manner in which his counsel defended him. Count number 2 is stayed by the Court. The matter is adjourned to April 18, 2023, at 10:00 a.m. for sentencing. A PSR is ordered.

[26] Mr. McLeod is remanded out of custody accordingly.

Released: January 26, 2023 André J.