COURT FILE NO.: CR-21-50000681-0000 DATE: 20240321

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - LIBSOM HIBAB

Counsel: Ken Lockhart, for the Crown Michael Fairney, for the accused

HEARD: January 29 to February 5, 2024

WARNING Subject to any further order of a court of competent jurisdiction, an order has been made in this proceeding, pursuant to s. 486.4(2) of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

J.M. Barrett J. :

Reasons for Judgment

OVERVIEW

[1] Mr. Libsom Hibab is charged that on February 23, 2020, he was a party to a sexual assault on YT with another unknown person, contrary to s. 272(1)(d) of the Criminal Code, R.S.C., 1985, c. C-46.

[2] The alleged sexual assault occurred in the backseat of Mr. Hibab’s car. There is no dispute that the complainant was in the backseat of Mr. Hibab’s car on February 23, 2020. She was there because Mr. Hibab was asked by his girlfriend to drive the complainant home at the end of a Saturday evening. Mr. Hibab agreed. He had driven the complainant home in the past. He knew she lived only five minutes from his home.

[3] The key issue in this case is what happened during the two hours between the time that the complainant got into Mr. Hibab’s car, at about 2:50 a.m., and when the complainant called 911, shortly before 4:53 a.m. The complainant and Mr. Hibab provided starkly different accounts as to what occurred.

[4] The complainant testified that Mr. Hibab drove to the parking lot of his apartment building. While there, she was sexually assaulted by Mr. Hibab and a man named Tinsay acting together. Tinsay restrained her arms and covered her mouth as Mr. Hibab lowered her undergarments and digitally penetrated her vagina.

[5] Mr. Hibab testified that while parked in the parking lot of his apartment building, he sexually touched the complainant over her clothing. However, as soon as she told him to stop, he did, and left the car. Mr. Hibab testified that his front seat passenger – someone he only knew as “Tinsay” – then got into the car and sexually touched the complainant. He was aware that this occurred because the complainant asked Mr. Hibab to speak to Tinsay. He did. Tinsay told Mr. Hibab that when he touched the complainant, she hit him. Mr. Hibab said that these acts were entirely distinct events. He was not present when Tinsay touched the complainant, nor was he aware Tinsay would do this. He denied that the complainant was digitally penetrated or ever physically restrained. This did not occur. The complainant’s injuries – as documented during the investigation that followed her call to 911 – were pre-existing from an altercation earlier that evening.

[6] For the reasons that follow, I am satisfied beyond a reasonable doubt that Mr. Hibab is guilty as charged. I reject Mr. Hibab’s evidence. Nor does the defence evidence leave me in a state of reasonable doubt. I believe the complainant’s evidence. Her account is significantly confirmed by other evidence that leaves me without any doubt as to Mr. Hibab’s guilt.

LEGAL PRINCIPLES

[7] Mr. Hibab is presumed innocent. That presumption remains with him unless and until the Crown establishes his guilt beyond a reasonable doubt. That heavy burden of proof never shifts. Mr. Hibab did not have to testify, or call evidence. There is no onus on Mr. Hibab to prove anything.

[8] The standard of proof beyond a reasonable doubt is an exacting one. While the Crown is not obliged to establish guilt to an absolute certainty, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable or likely guilt: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242; R. v. Lifchus, [1997] 3 S.C.R. 320, at paras. 13-14. Mr. Hibab can only be found guilty if I am sure that he committed the offence as alleged.

[9] As Mr. Hibab testified, in assessing whether the Crown has proven his guilt beyond a reasonable doubt, I must apply the principles set out by the Supreme Court in R. v. W.(D.), [1991] 1 S.C.R. 742, at p. 758. An application of W.D. ensures that my analysis of the evidence does not devolve into a credibility contest between the two main witnesses – the complainant and the accused – and ensures that the presumption of innocence and the Crown’s burden of establishing guilt beyond a reasonable doubt operate properly. In other words, I am not simply to choose the version of events I prefer. To do so, would reverse the burden of proof: R. v. Kruk, 2024 SCC 7, at paras. 61-62.

[10] Ultimately, I may find Mr. Hibab guilty only if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt.

[11] According to W.(D.), I must determine the following:

a. If I believe the evidence of the accused, I must acquit.

b. If I do not believe the evidence of the accused but I am left in reasonable doubt by it, I must acquit.

c. Even if I am not left in reasonable doubt by the evidence of the accused, I must ask myself whether on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[12] To prove that Mr. Hibab was a party to a sexual assault, the Crown must prove beyond a reasonable doubt that Mr. Hibab: (i) had the actus reus of sexual assault; (ii) had the mens rea of sexual assault; and (iii) was a party to the offence with another person.

[13] Element (iii) is an aggravated form of sexual assault set out in s. 272(1)(d) of the Criminal Code. Colloquially known as "gang sexual assault", it applies when more than one accused engages in the sexual activity as part of the assault. It carries a higher maximum term of imprisonment (14 years) than sexual assault under s. 271: R. v. F.I., 2020 ONSC 6356, at para. 50. Proof that Mr. Hibab was a “party to the offence with any other person” relies on the party liability provisions found in ss. 21 and 22 of the Criminal Code. It includes liability as a principal, aider, abettor, a party carrying out a common intention, or a counsellor.

[14] In this case, the Crown’s theory rests on s. 21(1)(a) of the Criminal Code which provides that “[e]very one is a party to an offence who actually commits it.” The Crown argues that Mr. Hibab sexually assaulted the complainant by digitally penetrating her vagina and in doing so was aided and abetted by Tinsay who physically restrained the complainant. Physical restraint is more than mere presence at the scene – it is an act of aiding and abetting Mr. Hibab within the meaning of s. 21(b) or (c) of the Criminal Code and therefore, if established, will satisfy the requirement for party liability: R. v. Marquaye, 2013 ONSC 1753, at paras. 382-390, aff’d 2015 ONCA 525; R. v. Edmonson, 2005 SKCA 51, 196 C.C.C. (3d) 164, at para. 70, leave to appeal refused, [2005] S.C.C.A. No. 273.

THE EVIDENCE

The Complainant’s Allegations of Sexual Assault

[15] The complainant testified that on Saturday, February 22, 2020, she went out with five of her girlfriends; one of whom was Mr. Hibab’s girlfriend, Miriam. She was nineteen years old at the time. Her group of friends met at Goodlife Fitness where one member of the group worked. There, the complainant changed into a dress. Once in her dress, a group photograph was taken. The photograph shows the complainant with her five friends posing for the camera.

[16] The group went directly from Goodlife Fitness to Asmera Bar on Danforth Avenue, near Greenwood station. They arrived at Asmera Bar at around 11:15 p.m. Prior to arriving, the complainant had not consumed any alcohol, or other intoxicants. The complainant testified she had two shots of vodka while at Asmera Bar. During cross-examination, she admitted that in her police statement she said she had two or three shots.

[17] At around 2:30 a.m., the complainant and her friends left Asmera Bar. She was not intoxicated. She and her friends lingered outside of Asmera Bar while discussing travel plans for how to get home. During cross-examination, the complainant denied that she or her then boyfriend, YK, were involved in a fight while standing outside of Asmera Bar. She did not recall any fighting that night.

[18] Although the complainant had originally planned to take an Uber home, her friend Miriam suggested that the complainant get a drive home with Miriam’s boyfriend – Mr. Hibab. The complainant agreed. Mr. Hibab had driven her home before. She knew that he too lived in the west end, very close to her home.

[19] As Mr. Hibab had already left, Miriam called him. Miriam asked that he return for the complainant. He agreed. The complainant saw Mr. Hibab’s car make a U-turn and return for her. At about 2:50 a.m., she got into the backseat of Mr. Hibab’s car on the passenger side.

[20] Aside from Mr. Hibab, there were three other males in the car. In the front passenger seat was a male the complainant knew by the name of “Tinsay”. She had seen him once before. Two males were in the backseat. The complainant had seen both before, but did not know their names. She knew them to be friends of Mr. Hibab and had seen them earlier in the evening at Asmera Bar drinking vodka.

[21] Upon getting into the car, Mr. Hibab told her he would drop her off first. Because of this, the complainant assumed he would take Lakeshore Road. She was surprised when Mr. Hibab got on Highway 401. About thirty minutes later, Mr. Hibab stopped in the parking lot of his apartment building located at 1755 Jane Street.

[22] During cross-examination, the complainant agreed that in her police statement she said that Mr. Hibab drove past her home, prompting her to ask him where he was going. She agreed that this was incorrect. Her home is further south of Highway 401, making it impossible for Mr. Hibab to have driven past her home. She denied that she told the police this to suggest she was kidnapped.

[23] Once parked, all of the males got out of the car. The complainant remained in the backseat. She spoke with Miriam while waiting. She saw the males standing outside at the back of the car smoking. She recalled seeing an incoming call from her boyfriend. She put Miriam on hold to take her boyfriend’s call.

[24] While on the phone with her boyfriend, Tinsay got into the backseat. He started to touch her leg. When asked to “stop”, Tinsay replied “what are you going to do”. Tinsay stopped for a moment. Tinsay then touched her a second time on her leg. Again, she told him to stop. He did. The third time, Tinsay tried to touch her vagina. She slapped him hard on his face. The complainant told Mr. Hibab that his friend was acting weird. She asked Mr. Hibab to tell Tinsay to behave. Tinsay got out of the car.

[25] Tinsay returned to the backseat within seconds. Mr. Hibab also got into the backseat. The complainant was now seated between them. As Tinsay covered the complainant’s mouth with his hand, the complainant told her boyfriend to call 911. Their call was then disconnected.

[26] Tinsay held the complainant’s hands as Mr. Hibab went to the front passenger seat, lowered it, and pulled the complainant’s legs towards him. Tinsay touched her breasts over her clothing. Mr. Hibab pulled the complainant’s shorts and underwear down to her feet and touched inside her vagina. She kicked and screamed throughout. At one point, she bit Tinsay’s hand. He released his hold over her mouth allowing her to plead “please let me go”. The complainant saw Mr. Hibab start to remove his belt. She went “crazy” kicking with her legs. Tinsay then said “let’s leave her alone”. The attack ended.

[27] The complainant thought the assault lasted about 10 to 15 minutes. Once it ended, the complainant pulled up her underwear and shorts. She went to leave, but Mr. Hibab said he would drive her home. During the five-minute drive to her home, she was told not to say anything by both Mr. Hibab and Tinsay. Tinsay sat in the backseat with the complainant for the drive. Tinsay told her that they only left her alone because she was Eritrean, not Somalian. The complainant said she would not say anything because their punishment would be from God. Before getting out of Mr. Hibab’s car, the two men said they were sorry.

[28] Once out of Mr. Hibab’s car, the complainant headed inside. She fell on the walkway. She took the elevator up, but never entered her dwelling unit. Instead she went to the stairwell. The complainant spoke on the phone with her boyfriend, and her friend Dalina. At Dalina’s suggestion, the complainant called 911. The complainant testified that she called 911 about two or three minutes after getting out of Mr. Hibab’s car.

The 911 Calls and Subsequent Police Investigation

[29] An agreed statement of facts was filed concerning the calls to 911. The parties agreed that the complainant’s boyfriend called 911 on February 23, 2020, at 4:46 a.m. The complainant’s call to 911 was shortly before 4:53 a.m. The precise time of the complainant’s call is unknown because a separate event report was not generated as the 911 operator realized that the two calls were related.

[30] The Crown relied on the complainant’s 911 call for the fact, timing, and circumstances of the complainant’s initial disclosure of the allegations, and her demeanour during that disclosure. The Crown did not rely on the call for the truth of its contents.

[31] In her 911 call, the complainant sobbed while taking deep breaths as she reported being sexually assaulted. While on the 911 call, the complainant was told that the police arrived at her location and were looking for her.

[32] Constable Shane Beaudoin responded to the 911 call. He was dispatched at 4:48 a.m. He arrived on scene at 5:02 a.m. He found the complainant in the lobby of the building. He observed that the complainant had a scratch on her face and knuckles. Paramedics also attended but the complainant refused a transport to the hospital. Instead, she went with Cst. Beaudoin to 12 Division. They arrived at 5:24 a.m. In cross-examination, Cst. Beaudoin testified that he did not recall whether the complainant had any cuts or injuries to her knees, nor did he make a note of this.

[33] At 6:53 a.m., Cst. Fenach went with the complainant to St. Joseph’s Hospital for purposes of a Sexual Assault Examination Kit (“SAEK”). [^1] Pursuant to an agreed statement of facts, the parties agreed that the examination was conducted from approximately 9:20 a.m. to 11:15 a.m. by registered nurse Michelle Bobala.

[34] Observations recorded by Ms. Bobala during her examination of the complainant were admitted for the truth of their contents. The physical examination form shows that several bruises were observed from the complainant’s knees down to her ankles – some of which were pre-existing. Minor injuries were noted on both hands. A red and pink abrasion was noted to the right side of the complainant’s collarbone. Three red abrasions were noted to the lower part of her face. Abrasions were noted in the vaginal area. The complainant had “pain on swabbing” the left and right vaginal walls. Redness and two abrasions were observed on the posterior fourchette. At the time of the examination, the complainant was menstruating.

[35] Following the examination by nurse Bobala, the complainant returned to 12 Division. At around noon, Cst. Jaanpal Kingra photographed the injuries to the complainant’s hands, legs, face and neckline.

[36] During cross-examination, the complainant denied the suggestion that the injuries to her knees were from falling while intervening in a fight involving her then boyfriend, YK. The complainant agreed that her boyfriend was at a nearby venue that night with his friends and that she saw him briefly after she left Asmera Bar. She denied the suggestion that her boyfriend was possessive. Their relationship ended in July 2022.

Evidence of the Complainant’s Former Boyfriend (YK)

[37] YK testified that in February 2020, he and the complainant had been dating for about one month. Their relationship ended around July 2022. He testified that on Saturday, February 22, 2020, he was with friends at Awash Café – a venue just two doors away from Asmera Bar. He drank a few beers over the course of the evening but was not intoxicated.

[38] YK knew the complainant was nearby at Asmera Bar with her friends as they had texted each other throughout the evening. At around 2:30 a.m., he saw the complainant outside Asmera Bar. They discussed the complainant’s plan to get home which she said was to travel home with one of her friends. They spoke for about ten minutes before he kissed her goodbye and returned inside to Awash Café. Although he had met Mr. Hibab two or three times, he did not see Mr. Hibab that night.

[39] Upon returning inside, YK saw his friend Henok arguing with another male. YK intervened by taking Henok to a corner and telling him to cool down. In cross-examination, YK testified that the argument was brief (about two minutes), never physical, and never spilled outside of Awash Café. Nor did YK see any other fights that evening.

[40] YK and his friends left Awash Café at closing time – 3:00 a.m. He took an Uber home. While in the Uber, he called the complainant. She told him that she was getting a drive from Miriam’s boyfriend. He told her that he would call again once he got home. When he next spoke with the complainant, she said she was in the accused’s car. They were on the phone for about three or four minutes when suddenly she told him “something is weird”. He heard her arguing in Tigrinya – a language he does not speak. He heard her shout “stop, stop” and “stop touching me”. He heard her say, “I’m going to call police”. The phone was moving, so he could not hear everything. Their call ended and he called 911. After calling 911, he tried calling the complainant back. He did not get through. He next spoke with the complainant about 30 or 45 minutes later, when she was at the police station. From other evidence, it is known that the complainant arrived at 12 Division at 5:24 a.m.

[41] In cross-examination, YK denied being upset when he learned that the complainant was going home with the accused. Nor was he angry with the complainant over what happened. He liked to know where the complainant was going but was not jealous or possessive.

The Defence Evidence

[42] Mr. Hibab testified that on February 23, 2020, he went to Asmera Bar with three of his friends. He drove. They arrived at around 10:00 p.m. His three friends were Amin, Abdul Aziz, and Tinsay. Amin was Mr. Hibab’s roommate at the time. Mr. Hibab had known Abdul Aziz for about three years. Prior to that night, Mr. Hibab had met Tinsay once before. Tinsay was friends with Amin.

[43] When Mr. Hibab arrived at Asmera Bar, his girlfriend Miriam and her friends had not yet arrived. Mr. Hibab only had one beer because he knew he would be driving. His friends shared a bottle of vodka. At about 2:30 a.m., he and his friends left.

[44] After leaving Asmera Bar, Mr. Hibab was standing outside with the others having a cigarette and talking. While there, he saw about eight males spill out of a nearby café fighting. He recognized two of the males fighting: one was the complainant’s boyfriend (YK), the other was a male he knew to be YK’s friend – Henok.

[45] Mr. Hibab testified that he saw the complainant try to hold her boyfriend back. She fell to the ground along with one of the complainant’s friends – Bana. His girlfriend, Miriam, helped the complainant and Bana to their feet.

[46] Mr. Hibab tried to stop the fight but was hit in the eye by an unknown male. The blow left a small mark. He did not recall which eye was hit. He did not hit back. Nor were any of his friends involved in the fight. Mr. Hibab backed away. The fight ended when the males separated on their own. About five minutes later, Mr. Hibab went to his car and started to drive home with his three friends. It was about 2:50 a.m. Tinsay was in the front seat. Amin and Abdul Aziz were in the backseat.

[47] Almost immediately after driving away, Miriam called asking that he return for the complainant. He agreed. The complainant got into the back seat by the passenger side door. There was no discussion about what route he would take home. His plan was to drop the complainant off first so he entered her address into his GPS. He got onto Highway 401. About 30 minutes later, he arrived in the parking lot of his apartment building at 1755 Jane Street. He drove directly there.

[48] Mr. Hibab changed his plan to drop the complainant off first and instead stopped at his apartment building to drop off Amin, his roommate. Once he arrived at his apartment building, Abdul Aziz said that he wanted to grab his shoes from inside.

[49] As they waited for Abdul Aziz to return, Mr. Hibab and Tinsay stood outside near the trunk of the car, smoking. The complainant never left the car. Tinsay got into the backseat of the car on the driver’s side. The complainant lowered her window and asked Mr. Hibab for a cigarette. When he gave her one, she invited him to join her in the backseat. Mr. Hibab also got into the back seat on the passenger side. The complainant was now seated between them. As it was cold, Mr. Hibab said he offered to turn the heater on. The complainant said she was okay. Mr. Hibab put his arm around her shoulder. He then touched her thigh, moving his hand up and onto her vagina over top of her dress. The complainant told him to “stop”. He stopped. He said “sorry”. He then left the car and went back to standing near the trunk.

[50] Mr. Hibab testified that within minutes of exiting the car, the complainant lowered the back passenger window and complained that Tinsay was bothering her because he was “touching” her. She asked Mr. Hibab to speak to Tinsay. Mr. Hibab did as she asked. Mr. Hibab told Tinsay he was not to touch the complainant. Tinsay admitted to Mr. Hibab that he had touched the complainant, and that she responded by hitting him.

[51] In cross-examination, Mr. Hibab agreed that when he touched the complainant, he did so because he hoped to engage in sexual activity. He agreed that he considered the complainant a close friend and someone he cared about. He agreed that sexual activity is normally something done in private. He agreed Tinsay was sitting on the other side of the complainant when Mr. Hibab touched the complainant. He testified that Tinsay said and did nothing as this occurred. He knew Tinsay was a stranger to the complainant. He explained that if the complainant agreed to continue, he would have asked Tinsay to leave.

[52] After speaking to Tinsay, Mr. Hibab drove the complainant home. For the five-minute drive, Tinsay sat in the backseat with the complainant. Upon arriving at the complainant’s building, she got out. Mr. Hibab waited as she left his car and got safely into the lobby of her apartment building without falling.

[53] Mr. Hibab testified that once he dropped the complainant off at her building, he returned to his apartment building to pick up Abdul Aziz. He then drove Abdul Aziz and Tinsay home. During the drive, there was no discussion about what happened. Mr. Hibab explained that both Abdul Aziz and Tinsay were drunk. In cross-examination, Mr. Hibab was asked about Tinsay’s address. He explained that he did not know Tinsay’s address because he dropped Tinsay off at the intersection of Keele and Sheppard.

[54] The next day, Monday, February 24, 2020, Mr. Hibab was arrested by Cst. Alexandre Poltavets while driving his black Chrysler four-door sedan. There is no dispute that this was the car Mr. Hibab used to drive the complainant home during the early morning hours of February 23, 2020. The Chrysler was seized by the police and photographed.

[55] In cross-examination, Mr. Hibab agreed that in February 2020, he was in an exclusive relationship with the complainant’s close friend Miriam. He and Miriam broke up sometime around January or February of 2023. He could not say when they reunited. He testified that he spoke with Miriam many times about the events of that night and told her everything, including that he tried to cheat on her that night with the complainant. Miriam sent him the group photo of the complainant with her friends at Goodlife Fitness at the start of the evening. Miriam also sent him a video recording he understood to be Bana showing her badly scraped knees. The video has a date and timestamp of February 23, 2020, 13:29.

[56] Mr. Hibab’s girlfriend, Miriam Eyob testified. She said she did not have much recollection of the night in question. She consumed alcohol that night. She described her intoxication level as “tipsy” but not “drunk, drunk”. She said that after the group left Asmera Bar, they were all waiting outside. While outside, she saw a “little bit of a fight” involving guys, none of whom she knew. She was not sure where the males came from. The fight lasted a “good second”. She did not see the complainant involved in the fight. She remembered seeing Bana fall after the fight moved to where Bana was standing. Miriam and the complainant helped Bana to her feet. She could not recall if she saw any injury to Bana’s knees that night. Miriam met Bana the next day at Goodlife. She downloaded a video of Bana’s legs that was posted to Snapchat in which Bana’s knees are badly scraped.

[57] In cross-examination, Miriam testified that after she learned of the allegations, she asked Mr. Hibab what happened. She did not recall what he told her. She explained that this was a memory she decided not to remember. She decided instead to leave the matter to the courts. She added that only three people know what happened that night: the complainant, the accused and the “other guy”. She knew of three people being involved from talking to the complainant. As for anything that Mr. Hibab told her, she did not remember.

POSITIONS OF THE PARTIES

[58] The Crown’s position is that the complainant is a credible and reliable witness. While there are some inconsistencies in her evidence, there is significant confirmatory evidence. The Crown argues that the confirmatory evidence is consistent with the complainant’s allegations that she was violently digitally penetrated by Mr. Hibab while a second male – known only as Tinsay – assisted in the attack by restraining her arms and covering her mouth.

[59] The defence theory is that the complainant fabricated the allegation of a gang-type sexual assault to avoid any negative judgment for having placed herself in a vulnerable position. It is admitted that Mr. Hibab sexually touched the complainant. But, in doing so, he acted alone and honestly but mistakenly believed that the complainant consented to his touching which stopped immediately once the complainant voiced her objection. Mr. Hibab learned that Tinsay also sexually touched the complainant that night, but was not present when this occurred, nor did he have any knowledge of it before or at the time of the actual touching. Rather, once the complainant told Mr. Hibab that Tinsay was bothering her, Mr. Hibab helped by speaking with Tinsay.

FINDINGS OF FACT AND CREDIBILITY

[60] The critical issue in this case is what happened in the backseat of Mr. Hibab’s car. It is on this issue that the accounts given by the two key witnesses – the complainant and Mr. Hibab – diverge.

[61] There is no issue that the complainant got into the backseat of Mr. Hibab’s car at around 2:50 a.m. for a thirty-minute drive home. At that time, Mr. Hibab had three other passengers in his car, all of whom were male and relatively unknown to the complainant. Rather than dropping the complainant off first, Mr. Hibab drove to the parking lot of his apartment building. All of the males got out of the car. At one point, both Mr. Hibab and Tinsay were in the backseat with the complainant. Only Mr. Hibab and Tinsay were in the car for the drive from Mr. Hibab’s apartment building to the complainant’s building. The complainant called 911 sometime after she was dropped off. The police arrived while the complainant was speaking with the 911 operator. A few hours after calling 911, the complainant underwent a sexual assault examination at St. Joseph’s Hospital, where several injuries were noted. Also disputed is how the injuries were incurred.

[62] In applying the principles in W.(D.), I will begin with the defence evidence. If I believe Mr. Hibab’s evidence, I must acquit. Even if I do not believe it but I am left in reasonable doubt by it, I must acquit.

[63] For the reasons that follow, I reject the accused’s evidence as it relates to what occurred in his car and how the complainant sustained her injuries. I did not find Mr. Hibab to be a credible witness.

[64] Nor does the defence evidence raise a reasonable doubt. For reasons I will explain, I reject Mr. Hibab’s testimony that the complainant invited him to sit with her in the backseat. I also reject his evidence that what occurred in the backseat was limited to him touching her leg and vagina over her clothes.

[65] Defence counsel argued that I ought to have a reasonable doubt given the absence of any identifiable material flaws in Mr. Hibab’s evidence: R. v. C.L., 2020 ONCA 258, 387 C.C.C. (3d) 39, at para. 38. I disagree. In my view, there were numerous concerns with Mr. Hibab’s testimony as it relates to events before, during, and after the incident in the backseat of the car. I will not recount all of them. The most troubling aspects of Mr. Hibab’s testimony are the following:

• The fight: Mr. Hibab said that the complainant injured her knees when she fell to the pavement while intervening in a fight involving her boyfriend YK outside of Asmera Bar. I find that this evidence was contrived. It is wholly unbelievable. It does not accord with the totality of the evidence. YK testified that he intervened in a verbal dispute involving his friend Henok, but was clear that the dispute was never physical, nor did it go outside of Awash Café. The complainant did not recall any fight. Further, while Mr. Hibab’s girlfriend Miriam testified that there was some commotion on the street, she did not recognize any of the males involved. I have no doubt that if the complainant intervened to stop her boyfriend from fighting and fell while doing so, this is something that she would recall. Finally, while Mr. Hibab described a scene of violent mayhem on the Danforth with eight men fighting and two women falling to the ground, he claimed it ended by the men simply separating on their own. This does not accord with common sense and human experience. I find that there was no fight. Rather, Mr. Hibab fabricated this account in an effort to explain the complainant’s injuries.

• The admitted sexual activity: There is no dispute that while parked, the complainant stayed seated in the backseat and was joined by Mr. Hibab and Tinsay at some point. I have no doubt that Mr. Hibab’s description of what occurred was a contrived attempt to minimize his conduct. Mr. Hibab agreed that sexual activity is normally done in private. He described the complainant as a close friend and someone he cared for. On his account, he witnessed her falling while attempting to intervene in a fight involving her boyfriend. The complainant was in his car because he was asked by Miriam to drive the complainant home. He also testified that Tinsay was drunk and a virtual stranger. Yet, in these circumstances, he claims that Tinsay was sitting with the complainant in the backseat when she invited Mr. Hibab to join her in the backseat for a cigarette. He said he only put his arm around her after she complained of the cold. He then touched her thigh, moving his hand up and onto her vagina over top of her dress. As soon as she voiced objection, he stopped and left the car. Throughout, Tinsay sat on the other side of the complainant saying and doing nothing. Mr. Hibab also claimed that when he got out of the car, Tinsay was still in the backseat. It was at this point that Tinsay touched the complainant. I reject this account entirely. It does not accord with common sense and human experience: Kruk, at paras. 63, 68, 72-75. It is also at odds with his testimony that he cared for the complainant and believed that sexual activity is normally done in private.

• The events after the admitted sexual activity: Mr. Hibab’s account about what happened after the complainant asked him to stop is also unbelievable. Mr. Hibab testified that he immediately stopped touching the complainant when she told him to stop. He then left the car. However, on Mr. Hibab’s account, shortly thereafter the complainant asked him to speak to Tinsay because Tinsay was bothering her. He did as she had asked. Tinsay admitted to Mr. Hibab that the complainant hit him because he touched her. Mr. Hibab claimed that he told Tinsay not to touch her. Yet, minutes later, there is no dispute that Tinsay was in the backseat with the complainant as Mr. Hibab drove her home. On Mr. Hibab’s own evidence Tinsay is drunk and had just sexually assaulted the complainant in circumstances where Mr. Hibab was entrusted by his girlfriend Miriam to drive the complainant home safely. Also, Mr. Hibab claimed that after he dropped the complainant off, he returned to his apartment building to pick up Abdul Aziz. He then drove both Abdul Aziz and Tinsay home. Yet, there was never any discussion about what Tinsay did. What is also incredible is Mr. Hibab’s evidence that he dropped Tinsay off at the intersection of Keele and Sheppard despite the fact that it was the early morning hours in the middle of winter and Tinsay was drunk. I find that this too was a contrived account to avoid revealing any identifying features of the male known only as “Tinsay”.

[66] I also reject the testimony of Mr. Hibab’s girlfriend, Miriam. Defence counsel agreed in submissions that at best, her testimony was “problematic”. He attributed her obvious lack of credibility to her divided loyalties. That characterization is polite. It minimizes what was an obvious effort by her not to be candid and truthful with the court about what she witnessed outside of Asmera Bar on the night of February 23, 2020, and what she was told by Mr. Hibab. That said, I regard her testimony as neutral. I have simply ignored her evidence as it does not assist me in determining any of the issues in this case.

[67] In short, I find that much of Mr. Hibab’s account was contrived. I reject his account as to the nature of the sexual activity in his car and how the complainant sustained her injuries. Nor does his evidence raise a reasonable doubt.

[68] The third step in W.D. requires that I can only convict if the evidence that I do accept satisfies me that the Crown has proven the offence beyond a reasonable doubt. I am so satisfied.

[69] In assessing the complainant’s credibility and reliability, I remind myself that I must carefully scrutinize her evidence. Assessing credibility is a case-specific, multi-faceted exercise.

[70] I find that the complainant was a credible witness. She testified in a manner that was clear, compelling, and persuasive. I found her to be forthright, candid, and fair in her testimony. She was not evasive in her answers. She showed no hostility towards the accused in her testimony. I accept the complainant’s evidence that she was physically restrained by Tinsay while Mr. Hibab digitally penetrated her vagina. I find that this establishes all elements of s. 272(1)(d) as alleged. Mr. Hibab and Tinsay acted together in sexually assaulting the complainant. While Mr. Hibab was digitally penetrating the complainant, Tinsay was touching her breasts and restraining her.

[71] There are some obvious concerns with the complainant’s evidence. These relate to understandable failings in her memory and the irreconcilable aspects of her account with the known times of the 911 calls. I have considered her evidence carefully, particularly in light of the concerns raised regarding the complainant’s credibility and reliability. Looking at the whole of the evidence, I accept the complainant’s testimony about the sexual assault. I am sure that it occurred in the manner she described in her testimony.

[72] First, while corroboration is not required, there is significant confirmatory evidence in this case: see Criminal Code, s. 274; Kruk, at para. 50; R. v. S.R., 2023 ONCA 671, at para. 8.

[73] Sexual violence does not always leave physical evidence, such as marks or DNA: Kruk, at para. 36; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 61. However, in this case, there are documented injuries. Cst. Beaudoin arrived at the complainant’s apartment building during the complainant’s 911 call. At that time, he noted injuries to the complainant’s face and hands. Later that morning, photographs of these injuries were taken by Cst. Kingra at 12 Division.

[74] The complainant’s injuries were also documented in the SAEK report prepared by registered nurse, Michelle Bobala. The defence theory is that the complainant fabricated her account of falling while walking into her building. He argued that there is no reason why she would fall since she was wearing running shoes and there was no snow or ice on the ground. However, the complainant testified that she fell because she was rushing to get inside. In my view, this is consistent with her having experienced a traumatic event. I find that the complainant’s injuries to her knees came from falling after she was dropped off.

[75] Aside from the scrapes to her knees, the complainant also had a number of red abrasions to her face, hands, collarbone, and vaginal area. I find that these injuries support the complainant’s testimony that she was actively kicking while Mr. Hibab digitally penetrated her vagina. Her injuries also accord with her account that Tinsay restrained her arms and hands and that he covered her mouth as she was screaming.

[76] I have also considered the demeanour evidence in this case. Post-event demeanour evidence, or the emotional state of a sexual assault complainant, may be used as circumstantial evidence to support an allegation of sexual assault: see R. v. Rose, 2021 ONCA 408, 73 C.R. (7th) 223, at paras. 21-33; R. v. J.A., 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 17-18, rev’d on other grounds 2011 SCC 17, [2011] 1 S.C.R. 628 (affirming this ground at paras. 40-41); R. v. Mugabo, 2017 ONCA 323, 348 C.C.C. (3d) 265, at para. 25.

[77] In this case, the complainant’s demeanour during the 911 call is one of severe emotional trauma. Although there is no video, in the audio recording the complainant is obviously in distress; an emotional state that stands in stark contrast to earlier in the evening. The complainant bore no signs of distress when she entered Mr. Hibab’s car only two hours earlier for the thirty-minute drive home after an evening spent with friends.

[78] The defence presented an alternative explanation for the complainant’s post-event demeanour. The defence theory is that it is faked and part of her overall fabricated account to avoid the negative judgment of others. During cross-examination, it was suggested to the complainant that she did not fall while entering her building. Rather, once dropped off, she waited about an hour before calling 911. During this hour, she concocted false allegations of sexual assault to avoid upsetting her boyfriend or others because she had gotten into a car with four men. The complainant rejected this suggestion and queried, “why would I do that” as it risked “ashaming myself”. Both the complainant and YK testified that their relationship was not one that involved jealousy, possessiveness, or controlling conduct.

[79] I am aware of the need for caution in relying on evidence of demeanour. It alone cannot result in a conviction. In this case however, there is much more than demeanour evidence that grounds my findings as to the facts I find were proven beyond a reasonable doubt by the Crown.

[80] I agree that the complainant’s testimony is not without problems. The complainant does not recall all details from that evening. For some details, her memory was refreshed with her police statement or preliminary inquiry testimony. I will not specifically address every point that was made by counsel in either his cross-examination of the complainant or in his closing submissions. The main inconsistencies identified in her account were the following:

• The complainant testified that the only intoxicant consumed by her that night were two shots of vodka. She agreed that in her police statement she said she had two or three shots.
• The complainant agreed that in her police statement she failed to mention that Mr. Hibab lowered the front passenger seat. She thought she had mentioned this. She testified at the preliminary hearing that Mr. Hibab lowered the passenger seat.
• The complainant agreed that in her police statement she said she saw Mr. Hibab driving past her home and she asked “where are you going”. She agreed that Mr. Hibab did not drive past her home. Her home is further south from Highway 401. She denied that this was fabricated to suggest she was being kidnapped. She explained that she meant to say that she asked Mr. Hibab where he was going once he exited the highway. She had previously assumed Mr. Hibab would take a different route home, namely Lakeshore Road and the Gardiner.
• In-chief, the complainant testified that she changed into a brown dress at Goodlife Fitness. During cross-examination, she was shown the photograph taken of the group before they departed Goodlife Fitness in which she is wearing a light grey dress. She testified that this was the first time she saw the group photograph. After the incident, she lost contact with her friends as she was just caring for herself.

[81] Despite these difficulties with the complainant’s evidence, I have no doubt as to the core aspects of her account that she was violently sexually assaulted by both Mr. Hibab and Tinsay while in the backseat of Mr. Hibab’s car. The inconsistencies in the complainant’s account do not cast doubt about the credibility or reliability of her evidence. Having experienced a traumatic event, it is understandable that the complainant did not recall all of the details or was mistaken in her recollection. I reject the defence suggestion that these inconsistencies are due to the complainant having fabricated the allegations.

[82] The most troubling aspect of the complainant’s evidence is that it is impossible to reconcile her timing of events with the testimony of YK and the known times of the 911 calls.

[83] The complainant testified that the sexual assault started while she was sitting in the backseat of Mr. Hibab’s car while talking on her cell phone to her boyfriend, YK. YK testified that he called 911 immediately after this call was disconnected. The Crown did not rely on this call for the truth of its contents, although it may have met the test for admission under the res gestae exception to the hearsay rule: R. v. Dakin (1995), 80 O.A.C. 253; R. v. Trumpa, 2017 ONSC 4122, at para. 38. Accordingly, I have not considered the contents of this call as evidence of what happened. Rather, I have considered YK’s testimony for the limited purpose of narrative as it shows the timing of events and the complainant’s perceived demeanour at the time of the call, which led to 911 being called.

[84] YK testified that while on the phone with the complainant, he knew her to be in Mr. Hibab’s car. He testified that she suddenly said “something is weird”, “stop, stop”, “stop touching me”, and “I’m going to call the police”. He then called 911. The timing of YK’s 911 call is not disputed: 4:46 a.m. There is also no dispute that the complainant called 911 after being dropped off. The time of that call was shortly before 4:53 a.m. The complainant testified that before calling 911, she spoke with YK and Dalina. However, YK testified that he only spoke with the complainant once before he called 911. The next time they spoke, the complainant was at 12 Division. The defence suggested that this timing supports the defence theory that the allegations are fabricated. YK’s testimony that he did not speak to the complainant again, combined with the timing of the 911 calls suggests, according to the defence, that the complainant waited about an hour after she was dropped off to call 911. I reject this suggestion.

[85] At the end of the day, however, I need not resolve these issues. Rather, I need only determine whether these problems in the evidence leave me in a state of reasonable doubt: R. v. Y (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6 and 8. They do not. These problems do not, as suggested by defence counsel, raise new concerns that the complainant and her boyfriend have engaged in collusion. This allegation was not put to either witness. I reject this assertion.

[86] Many aspects of the complainant’s narrative of that night were confirmed by Mr. Hibab. He agreed that the complainant was a passenger in his backseat along with two other males who were not present at the time of the sexual touching. Tinsay sat in the front passenger seat during the drive to Mr. Hibab’s apartment building. Tinsay sexually touched the complainant while they sat in the backseat. The complainant hit Tinsay. During the drive from Mr. Hibab’s apartment building to the complainant’s home, Tinsay sat in the backseat with the complainant.

[87] As to the issue of motive, there is no onus on an accused to prove that a complainant had a motive to fabricate sexual assault allegations. The complainant denied any concern of moral judgment from others. I reject the defence theory. That said, it would be dangerous and impermissible to rely on the apparent lack of motive as evidence that the complainant must be telling the truth: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 21-23. I regard this factor as neutral given that there is no proven absence of motive to lie: R. v. Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, at paras. 4-5.

[88] I make one final observation. While I have rejected Mr. Hibab’s testimony as to what occurred, even on his own testimony, he is guilty of sexual assault simpliciter. Mr. Hibab testified that he entered the backseat of his car at the complainant’s invitation. After she complained of being cold, he put his hand on her shoulder. Hearing no complaint, he proceeded to touch her thigh and moved his hand up her leg to her vagina but overtop of her clothing. When told to stop, he did. The complainant testified that she did not consent to any of this touching. Her evidence, which I accept, establishes the actus reus of the offence. As for the mens rea, a defence of honest but mistaken belief in communicated consent is only available if Mr. Hibab took “reasonable steps”, in the circumstances known to him at the time, “to ascertain that the complainant was consenting” to the sexual activity in question: Criminal Code, s. 273.2(b); R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 37; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 86-123.

[89] In the circumstances known to Mr. Hibab, he did not take reasonable steps to confirm that the complainant consented to his touching as required under s. 273.2 of the Criminal Code. On his own evidence, the complainant was in his car solely for purposes of being driven home safely in the early morning hours. Mr. Hibab was a trusted acquaintance. Mr. Hibab did not ask if he could touch the complainant. Nor did he testify to any conduct by the complainant that “actively expressed” her consent to his touching: Criminal Code, s. 273.2(c). Any belief in consent in such circumstances relies on recklessness and wilful blindness. It relies on the complainant’s failure to say “no” immediately. That is not consent: Kruk, at paras. 36, 41; Barton, at paras. 98, 105, 107, 109, 118.

CONCLUSION

[90] Ultimately, assessing the totality of the evidence, I am satisfied beyond a reasonable doubt that Mr. Hibab was a party to a sexual assault on the complainant as alleged. I find Mr. Hibab guilty as charged.

J.M. Barrett J. Released: March 21, 2024.

[^1]: This is also known as a Sexual Assault Evidence Kit. As the admission of this document was the subject of an Agreed Statement of Facts, I have adopted the language agreed to by the parties.