R. v. S.V., 2025 ONSC 2913

COURT FILE NO.: CR-23-40000620 DATE: 20250703 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: His Majesty the King – and – S.V. T. Curley , for the Crown J. Splane , for the Defendant HEARD: April 14, 15, 16, and 17, 2025 J.T. Akbarali J.: Introduction [ 1 ] The defendant, S.V. is charged with two counts of sexual assault contrary to s. 271 of the Criminal Code and one count of assault contrary to s. 266 of the Criminal Code . The first sexual assault is alleged to have occurred between March 1, 2022 and March 31, 2022 in Toronto. The second sexual assault and the assault are alleged to have occurred between April 1, 2022 and April 30, 2022 in Toronto. [ 2 ] The Crown alleges that, in March 2022, the defendant sexually assaulted the complainant by forcing her to touch his penis. The Crown further alleges that, in April 2022, the defendant sexually assaulted the complainant by failing to remove his penis from her vagina after she told him to, and ejaculating inside her vagina without her consent. The Crown alleges that, on the same date, the defendant assaulted the complainant while trying to make her take an emergency contraceptive pill, by grabbing her neck, and, after she took the pill, grabbing her cheeks to force her mouth open to confirm she had taken the pill. [ 3 ] The defence theory is that all the sexual activity between the defendant and the complainant was consensual, and that the defendant at no time grabbed the complainant’s neck or cheeks. [ 4 ] Two witnesses gave evidence at trial: the complainant and the defendant. [ 5 ] On several occasions, each witness strayed into evidence that is prohibited by s. 276 of the Criminal Code . I disregard all such evidence in my deliberations. [ 6 ] I turn to review the evidence, first of the complainant, then of the defendant. The Complainant’s Evidence [ 7 ] The complainant was 39 years old at the time of trial. [ 8 ] The complainant testified that she met the defendant in about February 2022 at the gym where she worked out. He approached her. They exchanged numbers, and shortly thereafter, they started dating. Their relationship lasted about two-and-a-half to three months. [ 9 ] On cross-examination, counsel referred the complainant to her police statement where she said that she and the defendant met in March. The complainant indicated that she had understood she was being asked about when they had their first date, not when they first met, which she confirmed occurred in February. The March Incident [ 10 ] The complainant testified that her first date with the defendant was in the first ten days of March 2022. They went to work out together, and then they went to a nearby bubble tea shop. Afterwards, the defendant drove her home. [ 11 ] At the time, the complainant lived in a rooming house with three other roommates. The roommates were not friends. They shared a common area, and each had their own bedroom. [ 12 ] While she was saying goodbye to the defendant in the car, and talking about what a good workout they had had, he asked if he could come in to have a drink or watch television, so they could talk further. She invited him in. [ 13 ] The complainant went to the kitchen to get some snacks. She and the defendant sat together on the sofa in the living room across from the television. They started watching a tv show. [ 14 ] The complainant indicated that the defendant was getting close to her. They were sharing one couch cushion. He put his arm around her. He started kissing her and touching her. She told him that she had roommates and was not comfortable because she was worried someone would walk in on them. He continued to kiss her, and she kissed him back. She said she was okay with kissing him “to a certain extent”. She was touching him on his arms and his chest. He was touching her everywhere, like her chest, her hips, her face, her body between her stomach and her vagina, her buttocks, and her whole body. She felt like things were going a bit too far. She said she started to say no, and explain that she was not comfortable, and was worried about her roommates walking in. [ 15 ] He told her it was okay, and continued kissing her. He was telling her that he was attracted to her, and that he had never felt so excited before. She was not saying anything to him. [ 16 ] The complainant testified that they stood up, and were standing in an empty space between the couch and the door. He turned her toward the wall and asked if she wanted him to “give it to [her] from the back.” She told him she was not ready, and they would not be having sex. He then asked if she would be okay with performing oral sex instead, and she said no. [ 17 ] The complainant took a break to go the bathroom, and when she came back, they continued kissing. She testified that a few moments later, he grabbed her hand and forced her to touch his penis on top of his pants, to understand that his penis was erect, and he was sexually excited. The complainant gave evidence that she moved her hand away from his penis. [ 18 ] Then the defendant took her hand and moved it towards his penis again. The complainant told him to stop, and said she did not want to do that. He placed her hand on his penis again, this time underneath the light grey track pants he was wearing. Her hand was touching his penis. She removed her hand again and told the defendant no, and said she would not do that. She testified that she was concerned about where things were going. She was worried about her roommates walking in. She was not comfortable. [ 19 ] The complainant said that after the defendant stopped trying to move her hand to touch his penis, she asked him to leave. She wanted the encounter to end. They agreed to see each other again or keep in touch. [ 20 ] She described her emotions as feeling uncomfortable because of the way he was handling the situation, and especially asking her to perform oral sex, and insisting and asking again. [ 21 ] The complainant testified that she blocked the defendant’s number after this occasion. However, he reached out to her using a different number. They continued to talk. They met up again around the end of March. [ 22 ] On cross-examination, the complainant testified that she and the defendant spoke after their first date, and she explained she was not comfortable with one-night stands. He said he would take thing step by step, so the complainant decided to give the relationship another chance. [ 23 ] The complainant was also cross-examined about part of her statement to police where she reported that the defendant tried to force her to give him oral sex. Defence counsel suggested that she told the police he had tried to force her to give him oral sex on their first date by holding her and trying to have her face in front of his penis, but at trial, she did not give that evidence. The complainant explained that on the first date, when they transitioned from sitting on the couch to standing, the defendant stood up first, and when he was standing, her face was facing his penis. At that point, he asked her for oral sex, and he asked her multiple times. She testified that she did not describe this aspect of the encounter in detail during examination in chief because she had not been asked to provide specifics. The April Incident [ 24 ] The complainant gave evidence about an incident that occurred around the second week of April. She was working from home. She and the defendant had a telephone conversation somewhere between 2 p.m. and 4 p.m. He said he was coming over to her house. She was expecting him after work, around 5 p.m. or 6 p.m. He drove to her house. [ 25 ] When he arrived, he parked the car, and she went outside. They went together to the store to get a drink, and then came back to her house and went inside. She had been fasting that day. She wanted to eat. She prepared a meal and invited him to share it with her. [ 26 ] They ate together in her bedroom. He was sitting on her desk chair. After they finished eating, they started talking. He moved to the bed, where she was sitting. They started kissing. He lay down, and they “got physical.” [ 27 ] The complainant testified that she was not on any form of birth control. Before they had intercourse, she asked the defendant if he had a condom, and he said he did not. He said she was the one who should be using pills. She told him she has an underlying health condition, and because of that was not on any kind of birth control pill. She testified that because neither of them had any protection, they agreed that he would not ejaculate inside of her vagina. [ 28 ] After having this conversation, the complainant indicated that they had sexual intercourse on her bed. During intercourse, the defendant asked her to go on top of him, and she did. They were kissing and touching each other. From the defendant’s body language and the sounds he was making, the complainant sensed that the defendant was about to ejaculate. She sensed that he was going to ejaculate inside of her and protested that it was not what they agreed. She told him to stop. She tried to remove herself from his body, but he grabbed the top of her shoulders with his hands and pulled her down so she could not. She testified that she fought against him, but he was stronger, and she was not able to move away. He ejaculated inside of her vagina. [ 29 ] The complainant testified that she was very upset, and felt helpless at the same time. She described herself as feeling betrayed because he broke their agreement and ejaculated inside of her. She was angry and disappointed, and feeling like he was selfish. [ 30 ] The complainant testified that, once he ejaculated, she was able to move away, and she quickly got off the bed. She asked how he could do that [ejaculating inside of her vagina], told him it was not what they agreed to, and said it was selfish. She went to the bathroom. When she returned, she asked what would happen if she were to get pregnant. She said she kept reiterating that what he had done was selfish and irresponsible. At first, he seemed unbothered, but about 15-20 minutes after they had finished having intercourse, and after thinking about the risk of pregnancy, he paused and said he had an idea. He did not share his idea, but said he was going to leave to go get “something” and come back. [ 31 ] The defendant left in his car. The complainant testified he did not tell her where he was going. He came back 20-30 minutes later, carrying something. They were in her bedroom. He told her that he purchased an emergency contraceptive pill and asked her to take it. [ 32 ] The complainant was surprised that he had purchased the pill and confidently asked her to take it. She said she would not take it, and asked why he didn’t ask her about it before buying it. The complainant testified that he was unhappy, and told her she should take the pill, because it was effective. She continued to refuse. The defendant then told her that either she would take the pill, or he “will do it.” She explained that she understood him to mean that he would force her to take the pill. [ 33 ] He refused to leave until she took the pill. His tone got intense, and he was “increasing” his voice, and ordering her to take the pill. She continued to refuse. At this time, she was sitting with crossed legs on the bed, and he was sitting on her chair. Their discussion was becoming heated. He stood up and approached her. He leaned towards her and put his whole hand around her neck, with his thumb on one side of her neck, and his fingers on the other. While he grabbed her neck in this way, he said she had to take the pill. [ 34 ] The complainant recalled that the defendant used one hand to grab her neck, but she did not recall which hand. She felt pressure on her neck which she described as medium to hard. She was able to breathe and able to talk. She leaned backwards to get away from him. She told him to move away from her. She said she would not take the pill. However, she had grown afraid and did not want to aggravate the situation. She said she did not want him to grab her by the neck. [ 35 ] When she leaned back, he let go of her neck. His hands were on her neck for a few seconds. [ 36 ] Once he let go of her neck, the complainant asked him what he was doing, and whether he had “lost [his] mind.” She told him she had reasons for not taking the pill, but he continued to insist. [ 37 ] The complainant was feeling afraid of what could happen if the situation escalated further, and she was worried about her roommates hearing their loud voices. She was still sitting on the bed, and he was still standing in front of her. She decided to try to de-escalate the situation. She told him he did not need to grab her or touch her; she would take the pill. She testified she said this so he would stop his behaviour. [ 38 ] He took a step back from the bed so she could stand up and get some water. She asked to look at the box so she could know what she was taking. She recalled seeing the colours on the box and that it said, “emergency contraceptive pill,” but she did not have a chance to read anything else. She described the box as medium sized, about 2.5-3 inches, with red and blue colours. She did not recall any logos or branding on the box. [ 39 ] While holding the box, the complainant told the defendant that she was not happy about the situation. She explained that she does not take contraceptive pills due to her medical condition, and she would generally not take any pill that had not been prescribed by her doctor. She complained that the defendant had not consulted her about buying the pill. But, as she explained at trial, in the heat of the moment, to avoid escalating the situation, she said she would take the pill. [ 40 ] The complainant took the pill. She told the defendant she had taken it, and asked the defendant if he was happy. She did not want to take the pill. She told him to leave her alone. She took it because she was forced, and to avoid escalating the situation. [ 41 ] A few seconds after the complainant took the pill, the defendant approached her and used one hand to press against her cheeks forcefully. He had his thumb on one of her cheeks and his fingers on the other. He squeezed her cheeks open. She felt a lot of pressure; it was painful. She told him to stop. [ 42 ] He did not stop. He was telling her to open her mouth. She asked what for, and he said he did not believe she had taken the pill, and wanted to check that she had not left the pill in her mouth. He wanted to be sure that she had swallowed the pill. The complainant testified that the defendant moved her face to the right and left, to look inside her mouth, and then told her to move her tongue so he could confirm she had not hidden the pill underneath her tongue. [ 43 ] While the defendant was grabbing her cheeks, the complainant said she was frightened and wondering what he was going to do next. She did not want him to grab her like he did. [ 44 ] The defendant held her cheeks for seconds, and then let go of her face. The complainant was upset, and asked him to leave multiple times. She testified that he did leave. [ 45 ] The complainant gave evidence that she had no visible injuries from the defendant grabbing her neck. She experienced pain on her cheeks that did not go away right away, but subsided overnight. She thought there must have been red marks on her face from him grabbing her cheeks, but they faded away afterwards. [ 46 ] The complainant also testified to experiencing pain in her ovaries for about a week after taking the emergency contraceptive pill. [ 47 ] On cross-examination, the complainant agreed that the defendant was gone to the pharmacy to purchase the emergency contraceptive for about 15-20 minutes. [ 48 ] She was also asked about when she explained to the defendant that she had a medical condition as a result of which she did not take birth control pills, or medication that was not prescribed by her doctor. On cross-examination, she indicated she first told him that she had cysts, and could not take medication without the doctor’s permission when he returned from the pharmacy. When shown her statement to police that indicated she told him about her cysts after he ejaculated inside of her but before he went to the pharmacy, she confirmed her statement to police was correct. She had told him about her cysts before he left for the pharmacy and reiterated it when he returned with the pill. She denied recalling that the defendant showed her any research about the emergency contraceptive pill on his telephone. [ 49 ] On cross-examination, the complainant agreed that after the defendant ejaculated inside of her, she wanted him to leave, but she did not tell him to get out of her house at that point. She explained that they were having a heated argument. Later, after she took the emergency contraceptive, and he checked her mouth to make sure she had swallowed it, she told him to get out. [ 50 ] She agreed that after he left to go to the pharmacy, she did not lock the front door to the house or the door to her bedroom, although she was worried about what would happen when he came back. [ 51 ] During her cross-examination, the complainant confirmed that she held the box with the emergency contraceptive in it twice. First, when the defendant arrived with the box he placed it on the table in her bedroom, and told her to use it, and that it was efficient. She took the box and looked at it, but was not convinced. She put it down and refused to take it. It was after that that the defendant grabbed her by the neck. After he released her neck, she asked to look at the box again, and it was at that time that she agreed to take it. [ 52 ] On cross-examination, the complainant agreed that after the defendant grabbed her by the neck, she looked at the box with the emergency contraceptive in it, and then got a glass of water and took the pill without further objection. When directed to her police statement that indicated that she continued to object to taking the pill after looking at the box, she indicated that she continued to tell the defendant that, although she was going to take the pill, she disagreed with the idea of taking it. Events Afterwards [ 53 ] The complainant spoke to the defendant after the April incident, but by the first week of May, she blocked him on her phone and decided not to speak to him again. On cross-examination, the complainant indicated that the defendant had sent her unacceptable text messages that were insulting and shaming her, and using misogynistic language. She did not have the messages any longer because she accidentally deleted them when she got a new phone. [ 54 ] The complainant gave evidence on cross-examination about an incident in late May 2022 where the defendant acted aggressively towards her in public and threatened to embarrass her in front of the “whole street.” He walked away from her, and she told him to calm down. [ 55 ] The complainant did not want to see the defendant again. He had left a food container at her house, and she left it on the porch for him to pick up. [ 56 ] In June, the complainant ran into the defendant at her house. He was there to see one of her roommates. She felt uncomfortable, and unsafe. She confronted the defendant and asked him to leave, but he was defiant. He walked past her, and acted as if she was not talking to him. He told her he was free to come to the house, and she could call the police, but they would not do anything. The complainant told her roommates that she was not comfortable having him at the house and asked that he leave. [ 57 ] The complainant called the police to ask them to remove him. The police attended, and spoke to her, and to the defendant. The complainant did not disclose what had transpired between her and the defendant previously. The police advised her that they had conveyed to the defendant that she did not want him in the house. However, they told her that there were no grounds to remove him from the house because he was there at the invitation of her roommate. [ 58 ] On cross-examination, the complainant said that she felt the defendant was trying to provoke her by coming to her house. She agreed that he was ignoring her while he was at her house, and he was clearly there to see someone else. She agreed that she did not want him at her house. [ 59 ] A few weeks later in July, the defendant again came to her house to see her roommate. Again, the complainant felt uncomfortable with his presence in her home. She called the police again. By the time they arrived, the defendant had left her house. The complainant told the officers that the defendant had already been made aware by officers in June that his presence in the house made her feel uncomfortable and unsafe, and he had been encouraged not to come into the house, but that he had done so anyway. The officers indicated they would call or email the defendant to remind him that his being at the complainant’s house made her feel unsafe and uncomfortable, but they reiterated that there was no way for them to enforce that. On that occasion, police asked her if the defendant had made any threats or been violent towards her that day, and she said no. However, she indicated that she had confronted him and told him not to come near her, and he ignored her, and told her to call whomever she wanted. [ 60 ] The complainant was asked on cross-examination about the police occurrence reports from the June and July incidents, and specifically, that the police had recorded that the complainant said that the defendant was dating her roommate. The complainant agreed she may have referred to the defendant and her roommate as a couple, but she said she had no proof that they were dating; she assumed that they were. She denied being bothered by the idea that the defendant might be dating her roommate. [ 61 ] The complainant testified that during a follow-up call from police after the call she placed in July, she asked how one would report an incident that had occurred in the past, and she was told she could call to report it and ask for an investigation. The complainant decided to take some time to think about what had happened between her and the defendant. She conducted some research, including about whether it was normal or acceptable for someone to repeatedly pressure another person to engage in a sexual act. She was considering whether it was worth it to ask the police to conduct an investigation. [ 62 ] The complainant testified that she again called the police in August. She told the police she had decided she wanted to ask for an investigation. She told them she wanted to report incidents that happened while she and the defendant had been seeing each other, and explained what had happened. They asked if she would provide an official statement, and set up an appointment a day or two later for her to meet a detective. [ 63 ] The complainant said she decided to report to the police at that time because she felt ready. She denied the suggestion from defence counsel that the reason she reported him is because she had been unsuccessful at getting the police to remove him from her house on the two occasions that she had seen him there in June and July. She agreed that she reported him to police after they were unable to remove him from her house, but she denied that she reported him because they were unable to remove him from her house. She testified that she waited weeks after she learned the police could not remove him from her house before calling to report him, because she needed to be ready. The Defendant’s Evidence [ 64 ] The defendant was 29 years old at the time of trial. [ 65 ] The defendant’s evidence about how he met the complainant was largely consistent with hers. He thought they met in February or early March at the gym. He approached her, and they exchanged numbers. There was some “weeks or days” in between their meeting at the gym and their first date. [ 66 ] He described their relationship as “consensual” and “casual.” They would see each other in the gym, meet at her place, or go out somewhere together. He denied ever attending her place uninvited while they were dating. He acknowledged going to her place after they broke up to see her roommate, who was a hairdresser. He explained he went there for her to do his hair. [ 67 ] The defendant denied that the complainant ever showed herself to be uncomfortable around him. The March Incident [ 68 ] The defendant testified that, on their first date, he and the complainant worked out together and then went to a restaurant for drinks. The defendant could not remember much about the restaurant, but agreed they could have had bubble tea. [ 69 ] He drove her home afterwards, and they “ended up inside” her place. He said it was both of their idea that they go inside. [ 70 ] The defendant testified that he and the complainant sat on the couch in the common area together. They were sitting side-by-side watching television. They began kissing and touching each other “naturally.” He could not recall who initiated the kissing and touching. [ 71 ] The defendant gave evidence that they were touching each other’s arms, chests, and “private parts.” The complainant expressed some concern that her roommates could come out into the common area. The defendant explained this is why their interaction was limited to kissing and touching, and nothing else. [ 72 ] The defendant testified that there came a point where they were beginning to touch each other more intimately, and he asked her if she wanted to take things further. She mentioned that it was not convenient because of her shared home, and her roommates. He denied having any reaction to her refusal, and said they continued kissing and touching each other. At all times they touched each other over their clothing. [ 73 ] The defendant denied asking the complainant to touch his penis. He denied physically moving the complainant’s hand to his penis. He said she was already touching his penis. [ 74 ] When asked if he proposed oral sex to the complainant, the defendant reiterated that he had asked her if they could take things further. [ 75 ] The defendant denied asking the complainant if she wanted to have intercourse from behind. He denied that he and the complainant were ever standing up together while engaging in sexual activity. He denied turning her around to face the wall. He said the complainant stood up to go to the bathroom or get water, but their sexual activity occurred on the couch while they were sitting. He denied lying down with her on the sofa. [ 76 ] The defendant denied moving the complainant’s body in any way to which she objected. He said their interaction was mutual. [ 77 ] The defendant said he was at the complainant’s home for about an hour. It was getting late, and they were both tired. The complainant suggested it would be a good time to leave. When he left, they made plans to see each other again. According to the defendant, his visit ended “fine,” they were both excited and had both had a good time. [ 78 ] Aftertheir first date, the defendant testified that he and the complainant continued to text message each other and phone each other. He described the communications as being frequent and having a good tone. He also said they saw each other frequently. [ 79 ] On cross-examination, the defendant confirmed that when he said the complainant was touching his “private parts” he meant his lower abdomen and penis. He wasn’t sure if she touched him with one or two hands. He agreed that while they were kissing on the counts, they could have leaned in together, or he could have leaned over her while she was reclining. [ 80 ] On cross-examination, the defendant denied telling the plaintiff that he was feeling excited. He denied moving the complainant’s hands, and disagreed that she moved her hands away from him. [ 81 ] The defendant said he was at the complainant’s house for one to two hours. He agreed he did stand up from the sofa at some point, and said it was possible the complainant was still sitting when he did so. He thought this might have happened while he was on the way out. He disagreed that he stood right in front of her while she was sitting. [ 82 ] The defendant indicated he had not heard or seen any of the complainant’s roommates during this visit to the complainant’s house. [ 83 ] The defendant disagreed that the complainant blocked his number after the March incident, or that he reached out to the complainant using a different number. However, he agreed that his WhatsApp was connected to a different number than his cell phone number. He denied having any other number besides his WhatsApp number and his regular number. The April Incident [ 84 ] The defendant testified about the April incident, which he thought occurred in early April. He indicated that he was spending time with the complainant in her room at her house. She asked him whether he had a condom, and he said he did not. She said that was okay, and they agreed to have sex. That was the extent of the discussion about contraception prior to having intercourse. He denied that they agreed that he would not ejaculate inside of her during intercourse. [ 85 ] The defendant said they had intercourse, possibly in different positions, but she was on top when he ejaculated. At the time he ejaculated, he was probably touching her with his hands, but he could not recall exactly. The defendant said that the complainant had freedom of movement, and denied restricting or restraining her in any way while he ejaculated. He could not recall where he ejaculated, but said “possibly” he ejaculated inside of her. He said that she had “no real reaction” when he ejaculated. [ 86 ] After intercourse, the defendant said he and the complainant were hanging out, and then, during the conversation, they talked about the possibility she could become pregnant. They were both concerned about the risk, but the defendant denied their discussions were tense. [ 87 ] The defendant said he thought of a solution to the problem, and said he was going to step out. The defendant went to the pharmacy and purchased an emergency contraceptive pill. He returned with it, and he and the complainant had a discussion about the pill. [ 88 ] The defendant testified that the complainant mentioned that the pill had not been prescribed to her, but he explained that it did not have to be prescribed. He pulled up a google search on his phone, and explained the underlying risks of the pill and its effectiveness. She was able to visually see his phone, and the box the pill was in. He said, “she also I’m sure had her phone doing her own research.” The defendant said she had as much time to look at the research and the box as she needed. The defendant said that he reassured her about the pill, and she took it upon herself to get a glass of water and take the pill. [ 89 ] The defendant denied that they had any discussion about the complainant having cysts. He said she expressed concerns because she had not taken the pill before, but after he explained and gave her reassurance, they came to the understanding that taking the pill would be the more responsible thing to do. The defendant denied that the discussions he had with the complainant about the pill were tense. [ 90 ] The defendant testified that while the complainant was taking the pill she was laughing, and he did not see why anything was funny. He asked her if she took the pill, and she said she had. He said nothing, but after she stopped laughing, she showed him that she had taken the pill. He denied having any need to make sure she had taken it. [ 91 ] After she took the pill, the defendant said they had general discussions. He could not remember about what. [ 92 ] After this incident, the defendant said they had no further discussions about the contraceptive. Their relationship was fine, and they continued to see each other, and communicate by text or over the telephone. [ 93 ] On cross-examination, the defendant could not recall if the complainant had made food for the two of them, but agreed it was possible. He agreed they had casual conversation prior to engaging in intercourse. [ 94 ] The defendant agreed that the complainant asked if he had a condom. He indicated he did not ask if she had a condom or make any enquiry into whether she was using other methods of contraception, because it didn’t seem necessary. He disagreed that he asked her if she was using birth control. He disagreed that they agreed to use withdrawal as a method of contraception. He said they had no conversation regarding when and how he would ejaculate if it came to that because it did not cross their minds. They were in the heat of the moment, having sex. He agreed their conversation about the condom preceded intercourse. [ 95 ] The defendant agreed it was “possible” that the complainant had been on top during intercourse. He agreed it was possible he touched her arms and shoulders during sex. He agreed it was possible he ejaculated in her vagina, but he was not sure. He then agreed that he ejaculated in her vagina. He then said it was possible he would know where he ejaculated. He then said it was possible he ejaculated inside the complainant’s vagina. He agreed it was possible she was on top of him when he ejaculated. [ 96 ] The defendant denied restraining the complainant, and denied she told him to stop during intercourse before he ejaculated. [ 97 ] The defendant did not recall the complainant being upset after intercourse. He agreed she was discussing the risks of him ejaculating in her vagina, but disagreed that they had an argument. Later in his evidence he described this conversation as “tense” because the risk of pregnancy created some tension. [ 98 ] The defendant agreed he was aware of the risks of unprotected sex before they had intercourse, but said he still engaged in unprotected intercourse and ejaculated in the complainant’s vagina. He said it was not planned; they both agreed to have unprotected sex, and that is what happened. He then again said it was possible he ejaculated in her vagina. [ 99 ] On cross-examination, the defendant said that he did not recall the complainant bringing up any medical issues she faced. He then said he recalled the complainant telling him that she had medical issues “for something with like a pill if she’s prescribed by a doctor or something like that, that was when I had brought up the contraceptive.” [ 100 ] The defendant could not recall if he spoke with the complainant about the emergency contraceptive pill before going to buy it. He agreed he was gone between 15-30 minutes from the complainant’s house while purchasing the pill. [ 101 ] The defendant testified that after they had intercourse, he and the complainant were concerned about the risks of unprotected sex. He said that the emergency contraception was “one of the solutions [they] had brought to attention.” The defendant agreed he was not concerned prior to having intercourse with her. [ 102 ] On cross-examination, the defendant testified that it was possible the complainant did not know he was going to buy the emergency contraceptive pill, but it was possible she did know. [ 103 ] He said that within five to ten minutes of his returning from the pharmacy, he showed her the pill. When Crown counsel proposed to him that the complainant was concerned, he agreed “there were some concerns” about it because she had not taken it before. She mentioned she wasn’t familiar with it, and brought up her medical issues at that moment in time. He reassured her, which he described as what he was “supposed to do as a man.” He gave her a better understanding of the pill. He indicated that he did not recall her bringing up her medical issues prior to this moment. [ 104 ] The defendant denied grabbing the complainant by the neck. He denied demanding she take the pill. [ 105 ] The defendant agreed he saw the complainant bring in a glass of water to her room, pick up the pill and take it. To the best of his recollection, he saw her put it into her mouth, but he indicated he may not have been that focused. He asked her if she had taken it, and she said yes. [ 106 ] The defendant disagreed that it was important to him that she take the pill, but he agreed he wanted her to take it. He thought taking the pill was the responsible solution. He agreed he asked her to show him that she had taken the pill. He explained that he was on the bed, probably on his phone, and not watching her “for the full interaction” which is why he asked if she had already taken the pill. He wanted to clarify if she took it. He explained it was “pretty weird” that she was laughing in a serious situation. “We purchased it, we talked about it, she was reassured on what it was, she grabbed the glass of water and she took the pill. And then I asked her did you take it, and she said yes I did. And then I said ok can you show me, and she said yes she took it.” [ 107 ] The defendant said he believed the complainant when she said she had taken the pill, but he asked to check because she was laughing, and “it felt like it was the right thing to do.” He denied grabbing her face when he checked to see if she had taken the pill. [ 108 ] The defendant did not recall how long after the complainant took the pill he left. He did not see or hear her roommates on this occasion. Events Afterwards [ 109 ] The defendant testified that he ended his relationship with the complainant in the summer months. They had gone for a walk, during which the complainant said something negative about him that he was not willing to accept. He walked away from her, and she demanded to know why he was walking away. He said he didn’t have an explanation, but made it clear that he wasn’t going to have any more communication with her after that. He recalled this incident happening in mid to end of June. [ 110 ] The defendant testified that after that incident, the complainant was very angry with him. They went back and forth on text messages. She wanted to try to make things work, but he did not. He had left a food container at her house that he wanted back, and she told him she would leave it on her porch for him. [ 111 ] The defendant testified that he met the complainant’s roommate when he came to their house to pick up the food container. The roommate told him that she did braids. When he went to the house afterwards, it was so that the roommate could do his hair. There was no romantic relationship between him and the roommate. He was not trying to provoke a reaction from the complainant by going to her house. [ 112 ] He ran into the complainant at her house when he was there to see her roommate. The complainant tried to confront him and “get in front of [his] face.” He told her he didn’t have to explain himself to her. He walked past her trying to avoid any confrontation, but it made her angrier because she thought he was ignoring her, and she didn’t like that. She called the police, who came and took statements from the complainant, the defendant, and the roommate. The police confirmed to him that he was allowed to be at the house, but suggested he try to avoid the complainant. This interaction with the police was the only time he was contacted by police before he learned of the charges that had been laid against him. [ 113 ] In the defendant’s view, the complainant was upset because he was moving on, and she did not want that. He said he knew she was upset about him moving on because on the night they went for the walk, she was upset because he left. He also said her calling the police to have him removed indicated that she was upset their relationship was over. The fact that police would not remove him made her even more upset. According to the defendant, it was because she was so upset that she made accusations of sexual assault and assault against him. [ 114 ] The defendant said he continued going to the house when he needed to see the roommate, but he denied running into the complainant at the house again. [ 115 ] The defendant then said he stopped going to her house because he didn’t want any type of confrontation. The roommate had suggested he should not bother coming because of the problematic environment with the complainant not liking him at all. After that, the roommate braided his hair at his residence. [ 116 ] The defendant indicated that he found the complainant to be possessive, and that she tried to control him. The example he gave of her controlling behaviour was during their walk when he walked away from her. He said she tried to grab onto him to prevent him from leaving. At first, he could not remember other examples of her possessive or controlling behaviour, but then recalled that she once told him she could get another one of him walking down the street any time. He thought that was a possessive thing to say. [ 117 ] On cross-examination, the defendant maintained that he broke up with the complainant after the walk they went on. In text messages after the walk, he said he made it clear that he no longer wanted to see her. He denied receiving a message from the complainant that she did not want to see him any longer. [ 118 ] The defendant agreed that when he ran into the complainant at her house in July, when he was visiting her roommate, it was possible he spoke words to her. He agreed it was possible that she noticed him, felt uncomfortable, and said she was going to call the police. He did not recall the police telling him that the complainant did not want him to be at her house. [ 119 ] The defendant denied having a subsequent interaction with the complainant in July, although he agreed it was possible he was at the house at that time. He denied receiving an email from the police reiterating the same things they had told him in June. Applicable Legal Principles The Presumption of Innocence and Standard of Proof [ 120 ] S.V. is presumed to be innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. The onus lies with the Crown throughout. [ 121 ] Proof beyond a reasonable doubt requires more than a conclusion that S.V. is likely guilty, or probably guilty, but it does not require proof beyond all doubt. However, proof beyond a reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. [ 122 ] A reasonable doubt is not a doubt based on sympathy or prejudice, nor is a frivolous doubt. A reasonable doubt is based on reason or common sense that is logically connected to the evidence or the absence of evidence. W.D. Analysis [ 123 ] In assessing whether the Crown has discharged its burden to prove S.V.’s guilt beyond a reasonable doubt, I must apply the analysis set out by the Supreme Court of Canada in R. v. W.(D.) , 1991 93 (SCC) , [1991] 1 S.C.R. 742, (“ W.D. ”) at p. 758: a. First, if I believe the defendant’s evidence, I must acquit him; b. Second, if I do not believe the defendant’s evidence, but I am left in reasonable doubt by it, I must acquit him. c. Third, even if I am not left in doubt by defendant’s evidence, 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 his guilt. [ 124 ] In deciding whether the defendant’s evidence leaves me with a reasonable doubt, I cannot consider his testimony in isolation from the rest of the case: W.D. , at p. 757. [ 125 ] The fundamental question remains whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the defendant’s guilt. A verdict of guilt should not be based on a choice between the defence evidence and the Crown’s evidence: R. v. C.L.Y. , 2008 SCC 2 , at paras. 6 , 8. Principles Relevant to Assessing Credibility [ 126 ] Given the divergent versions of events relayed by the witnesses, credibility and reliability are key issues in this case. Credibility has to do with a witness’s veracity, truthfulness, sincerity, and honesty. Reliability has to do with the accuracy of the witness’s evidence, including their ability to observe, recall, and recount events accurately. A witness who is not credible on an issue cannot give reliable evidence on the same point. A credible witness may, however, give unreliable evidence: R. v. G.F. , 2021 SCC 20 , at para. 82 ; R. v. H.C. , 2009 ONCA 56 , at para. 41 . [ 127 ] When considering the evidence of a witness, a judge can accept all, some, or none of the witness’s testimony. [ 128 ] The Supreme Court of Canada set out guidance with respect to assessing the testimonial credibility of witnesses in R. v. Kruk , 2024 SCC 7 , at paras. 72-73 : a. Triers of fact may rely on reason, common sense, life experience, and logic in assessing credibility. b. Life experience of trial judges, while not a substitute for evidence, and subject to appropriately circumscribed limits, is an important ingredient in the ability to understand human behaviour, weigh the evidence, and determine credibility. c. Common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of the way things can and do happen. d. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information. e. Witnesses who are inconsistent are less likely to be telling the truth. [ 129 ] In R. v. Filion , 2003 517 (ON SC) at para. 27 , the court set out factors that may assist in assessing the reliability and credibility of a witness’s testimony including: • Does the witness seem honest? Is there any particular reason why the witness should not be telling the truth or that his/her evidence would not be reliable? • Does the witness have an interest in the outcome of the case, or any reason to give evidence that is more favourable to one side than to the other? • Does the witness seem to have a good memory? Does any inability or difficulty that the witness has in remembering events seem genuine, or does it seem made up as an excuse to avoid answering questions? • Does the witness’s testimony seem reasonable and consistent as she/he gives it? Is it similar to or different from what other witnesses say about the same events? Did the witness say or do so something different on an earlier occasion? • Do any inconsistencies in the witness’s evidence make the main points of the testimony more or less believable and reliable? Is the inconsistency about something important, or a minor detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different, or because she/he failed to mention something? Is there any explanation for it? Does it make sense? • The manner in which a witness testifies may be a factor, and it may not, depending on other variables with respect to a particular witness. [ 130 ] When assessing credibility, I must examine both the internal consistency of a witness’s evidence, and its consistency with other evidence. [ 131 ] A trial judge is entitled to reject a defendant’s evidence, even if it does not raise any obvious problems, “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence”: R. v. J.J.R.D. , 2006 40088 (ON CA) , at para. 53 ; R. v. R.A. , 2017 ONCA 714 , at paras. 55-56 . Sexual Assault and Trauma [ 132 ] There is no hard and fast rule as to how people who are victims of trauma like sexual assault will behave: R. v. D.D. , 2000 SCC 43 , [2000] 2 S.C.R. 275, at para. 65 . It is an error of law to make assumptions about how a victim of sexual assault should or will react to the assault: R. v. A.R.D. , 2017 ABCA 237 , at para. 50 , R. v. A.B.A. , 2019 ONCA 124 , at para. 5 . I must also keep in mind factors such as power imbalance or fear, and if they exist, how they affect the behaviour of the parties. [ 133 ] It is a myth to conclude that genuine victims of sexual assault report the assaults at the earliest opportunity, or that they do not associate with the alleged perpetrator after the offense. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. The timing of the complaint is simply one circumstance to consider in the context of a particular case. Elements of the Offences [ 134 ] The defendant faces two charges of sexual assault contrary to s. 271 of the Criminal Code . To obtain a conviction on these counts, the Crown must prove beyond a reasonable doubt that the defendant intentionally touched the complainant in circumstances of a sexual nature, that the complainant did not consent to the sexual touching by the defendant, and that the defendant knew that the complainant did not consent to the sexual touching by the defendant. [ 135 ] Touching is any physical contact with another person. To have intentionally touched the complainant, the defendant must not have touched her by accident, but must have meant to touch her. [ 136 ] Touching in circumstances of a sexual nature requires that the complainant’s sexual integrity was violated. To find that touching was in circumstances of a sexual nature requires that I be satisfied beyond a reasonable doubt that the sexual nature of the intentional touching would be apparent to a reasonable observer. [ 137 ] Whether the complainant consented to the intentional touching is a question about the complainant’s state of mind. Consent refers to the voluntary agreement of the complainant to engage in the sexual activity in question: s. 273.1(1) of the Criminal Code . An agreement to one specific physical sexual act is not an agreement to any or all other specific physical sexual acts. Consent must be present at the time the sexual activity in question takes place: s. 273.1(1.1) of the Criminal Code . The absence of consent is reflected by whether the complainant, in her own mind, wanted the sexual activity in question to occur. [ 138 ] There must be evidence of consent through either clear words or conduct from the person being touched. Consent must be freely given. The state of mind of the person being touched may be reflected in their words or gestures and behaviour at the time. There is neither presumed nor implied consent. Consent may be revoked or withdrawn at any time: R. v. Ewanchuk , 1999 711 (SCC) , [1999] 1 S.C.R. 330; R. v. J.A. , 2011 SCC 28 ; R. v. Barton , 2019 SCC 33 . [ 139 ] To prove that the defendant knew that the complainant did not consent to the sexual touching by the defendant, the Crown must prove that the defendant was aware she did not consent at the time he touched her. The Crown must prove either that the defendant actually knew that she did not consent to the sexual touching, or that he knew there was a risk that she did not consent but went ahead anyway, or that he knew of indications that she did not consent but deliberately chose to ignore those indications because he did not want to know the truth. [ 140 ] To prove the charge of assault contrary to s. 266 of the Criminal Code , the Crown must prove beyond a reasonable doubt that the defendant intentionally applied force to the complainant, that the complainant did not consent to the force that the defendant applied, and that the defendant knew that the complainant did not consent to the force that he intentionally applied. [ 141 ] The intentional application of force requires that the force not be applied by accident. [ 142 ] Whether the complainant consented to the force applied involves her state of mind. To consent, she has to know what the defendant is going to do and voluntarily decide to let the defendant do it. [ 143 ] To prove that the defendant knew the complainant did not consent to the force that he intentionally applied, the Crown must prove beyond a reasonable doubt that the defendant was aware that the complainant did not consent at the time he intentionally applied the force. The Crown may do so by proving that the defendant was actually aware that the complainant did not consent to the force that he intentionally applied, or if he knew there was a risk that the complainant was not consenting but did it anyway, not caring whether she consented or not, or if he knew he should inquire whether the complainant consented to the force that he intentionally applied but did not make the inquiry because he did not want to know the truth about the complainant’s consent. Analysis Credibility Assessment - Complainant [ 144 ] The complainant gave specific and detailed recollections of the events that occurred between her and the defendant. She readily admitted consenting to certain sexual acts and was very clear about the acts to which she had not consented. She was careful not to speculate over matters which she did not specifically recall. [ 145 ] On cross-examination, the complainant was confronted with several “inconsistencies” between her evidence at trial, and her statement to police. I have considered all of the “inconsistencies” raised by the defence. In my view, these “inconsistencies” were, for the most part, not real inconsistencies. [ 146 ] For example, when counsel questioned the complainant about her police statement where she indicated that she and the defendant met in March, not February, the complainant indicated that she understood she was being asked about when they had their first date, not when they first met, which she confirmed occurred in February. In any event, when they met is not a matter in dispute; nor is there any disagreement between the defendant and the complainant about what they did on their first date. Moreover, the date they met and how long it was thereafter that they had their first date is a peripheral matter. [ 147 ] The complainant was also asked about her statement to police about the defendant trying to force her to give him oral sex. Defence counsel suggested that she told the police he had tried to force her to give him oral sex on their first date by guiding her head to his penis, but her evidence on examination in chief was inconsistent, because it did not include that evidence. The complainant explained that on their first date, when they transitioned from sitting on the couch to standing, the defendant stood up first, and when he was standing, her face was facing his penis. At that point, he asked her for oral sex, and he asked her multiple times. She testified that she did not describe this aspect of the encounter in detail during examination in chief because she had not been asked to provide specifics. In any event, her explanation was consistent with her evidence in chief (albeit more detailed) and consistent with her statement to police, where she indicated that he would physically hold her and try to get his penis in front of her face and try to make her give him oral sex. [ 148 ] The complainant was questioned about her evidence during in examination in chief that the defendant was gone to the pharmacy to buy the emergency contraceptive pill for 20-30 minutes when, during cross-examination, she agreed he was gone for 15-20 minutes. This is not a real inconsistency; either way, her evidence is that he was gone around twenty minutes. It is consistent with the defendant’s evidence that he was gone to the pharmacy for 15-30 minutes. It is also a peripheral matter. [ 149 ] The complainant was asked about her evidence during examination in chief that the defendant told her that either she would take the emergency contraceptive pill, or he would do it. Counsel pointed out that in her statement to police she said the defendant had said that either she would take the emergency contraceptive pill or he would make her do it. This is not an inconsistency. The complainant explained several times during her examination in chief, and on cross-examination, that “he would do it,” meant he would make her take the pill. Certainly, there is no plausible counter-scenario where the defendant meant that to prevent pregnancy, he would take the pill himself if she would not. Although no evidence was led on the point, I conclude it is safe to assume that the defendant would have known that were he to take an emergency contraceptive pill meant for women after having unprotected sex, he would be doing nothing to prevent the complainant from becoming pregnant. [ 150 ] The complainant was also asked about her evidence in chief that the defendant refused to leave her house until she took the emergency contraceptive. Defence counsel noted that that allegation was not in her statement to police. The complainant explained that it was in the statement she gave to the officers who spoke to her about her report before she gave her official statement. Counsel did not take her to the transcript of her discussion with those officers, so I conclude that there is no inconsistency in her account of this alleged statement, even though it does not appear in the transcript of her official statement to police. [ 151 ] Defence counsel suggested that the complainant’s evidence was inconsistent in that she said, on cross-examination, that once she had seen the box with the emergency contraceptive, she got a glass of water and took the pill without further objection, but in her statement to police she indicated she continued to object. The complainant explained, consistent with her examination in chief, that she was trying to make the defendant understand that while she was going to take the pill, she disagreed with taking it. This is not an inconsistency. Rather, it is a question about what “objection” means. The complainant’s evidence was consistent that even once she had decided to take the pill to de-escalate the situation, she was not happy about it and did not want to take it. [ 152 ] Defence counsel also suggested there was some inconsistency about how many times the complainant looked at the box. She explained that when the defendant returned from the pharmacy, he put the box with the emergency contraceptive on the table in her bedroom. She saw the words “emergency contraceptive pill” on the box and took the box to take a look. She indicated she was not convinced and said she would not take the pill. She put the box back on the table. She took the box to look at it a second time after the defendant grabbed her by the neck. The evidence she gave on cross-examination was consistent with her statement to police. It was more detailed than the evidence elicited on examination in chief, but not inconsistent with that evidence. [ 153 ] Defence counsel also focused on the complainant’s statement to police, where the detective asked her about the defendant holding her by the “face,” when she testified he grabbed her by the neck. The complainant explained that the detective misspoke, and while she did not correct him at that portion of her transcript, elsewhere in her transcript she describes the defendant grabbing her by the neck, not the face. In my view, this is not an inconsistency. [ 154 ] The complainant’s evidence was also internally consistent in most aspects, despite counsel for the defence suggesting to her that she had said things in examination in chief that she had not said. She maintained her evidence from examination in chief in these instances. [ 155 ] There were occasional matters in which the complainant’s evidence was inconsistent. For example, she testified in examination in chief that the defendant asked her if she wanted to have intercourse from behind before he forced her to touch his penis, and during cross-examination, she said his proposal to have intercourse from behind came after he forced her to touch her penis. [ 156 ] Confusing the order of sexual acts or proposals in a dynamic situation is, in my view, a minor inconsistency. The complainant’s description of the acts and proposals themselves remained constant throughout her examination in chief and cross-examination. [ 157 ] The complainant’s evidence about when, during the April incident, she disclosed her medical condition to the defendant was inconsistent. In examination in chief, she said she disclosed it when she told him she was not taking birth control pills before they had intercourse. During cross-examination, she initially said she told him after he returned from the pharmacy with the contraceptive pill, then, after reviewing her statement to police, agreed that she had told him about her cysts after he ejaculated inside her vagina and again once he returned from the pharmacy with the emergency contraceptive. [ 158 ] It is logical that the complainant may have raised her medical condition, and her cysts specifically, before she and the defendant had intercourse, after he ejaculated inside of her vagina, and after he returned from the pharmacy. Even if her recollection is hazy on this point, her recollection that she explained that she had a medical reason for not taking the emergency contraceptive pill before she took it is consistent. Exactly when she told him before taking the pill, and how many times, is, in my view, peripheral. [ 159 ] The defendant suggested in his evidence that the complainant was upset that he broke up with her and upset that the police would not remove him from her house, so she made the allegations of sexual assault and assault. The defence bears no onus to prove a motive to fabricate: R. v. Ignacio , 2021 ONCA 69 , at para. 40 . [ 160 ] I accept the complainant’s evidence that she wanted to break up with the defendant, did not want to see the defendant after they broke up, and did not regret the break-up. I also accept her evidence that she reported the allegations to police after they refused to remove the defendant from her home (twice), but not because they refused to remove him. There is no evidence of any motive to fabricate the allegations. [ 161 ] However, the absence of evidence of a motive to fabricate does not establish that there was no motive to fabricate, nor that a witness is necessarily telling the truth: Ignacio , at para. 40 . My finding that there is no evidence of any motive to fabricate is one factor among many that I may consider when assessing the complainant’s credibility, but I must not place improper emphasis on the absence of evidence of motive to fabricate when assessing the complainant’s credibility: Ignacio , at para. 47 . [ 162 ] I find the inconsistencies in the complainant’s evidence to be minor. The core of her allegations is unaffected by the inconsistencies. I was impressed with the clarity of her evidence, and the detail with which she was able to give it. [ 163 ] Overall, I found the complainant to be both credible, and reliable. Credibility Assessment - Defendant [ 164 ] The defendant’s evidence relating to the April incident was internally inconsistent. For example, the defendant first denied that the conversation he had with the complainant in April about the risks of unprotected sex were tense; he later indicated that they were tense. [ 165 ] His evidence about where he ejaculated changed repeatedly. Sometimes he said he ejaculated inside the complainant’s vagina, and other times he would only allow that it was “possible” he did so. [ 166 ] The defendant’s evidence about his ejaculation was also evasive, and illogical. For example, he refused to agree that he would know where he ejaculated; he only agreed that it was possible he would know. I note that at no time did he testify that he did not recall where he ejaculated. [ 167 ] The defendant’s evidence about where the complainant was when he ejaculated was inconsistent and evasive. He testified that the complainant was on top of him when he ejaculated during intercourse, and later said only that it was possible that she was on top of him. [ 168 ] The defendant’s evidence about the emergency contraceptive pill was also illogical. He first indicated that he saw the complainant take the emergency contraceptive pill, to the best of his recollection. He also said he asked her if she took it. If he saw her take it, there was no reason to ask her if she did. [ 169 ] Other aspects of his evidence about the emergency contraceptive pill were illogical and inconsistent. He first gave evidence that the complainant, of her own accord, showed him she had taken the pill; he had not asked her if he could check her mouth to confirm she had swallowed it. He later testified that he believed that she had taken the pill, but he asked her if he could check, because she was laughing, and checking was the “responsible thing to do.” If he believed that she took it, there was no need to check. [ 170 ] The defendant also used the word “we” to describe actions he took on his own. For example, he said “we purchased” the emergency contraceptive pill, when the complainant had no role in purchasing it. In doing so, he was attempting to minimize his role in the events and make it sound like they were acting jointly in obtaining the pill, when they were not. [ 171 ] He also used the passive voice to obscure who did what. For example, when he was asked on cross-examination if the complainant had concerns about taking the emergency contraceptive pill, he said, “there were some concerns.” In my view, by using the passive voice, the defendant was trying to suggest that both he and the complainant wanted to be sure that taking the pill was the right choice. He used this language to hide that it was the complainant who was expressing serious concerns about taking the pill, and it was him who was pushing her to take it. [ 172 ] Because I have concluded that the defendant is not a credible witness with respect to the April incident, I also conclude he is not a reliable witness. A witness who is not credible on an issue cannot give reliable evidence on that issue. [ 173 ] In contrast, the defendant’s evidence with respect to the March incident was internally consistent. Browne v. Dunn Issues [ 174 ] The Crown raised four potential violations of the rule in Browne v. Dunn : a. First, the Crown notes that defence counsel did not put to the complainant the possibility that the defendant did not move her hand to touch his penis during the March incident. b. Second, the complainant was not cross-examined on whether she and the defendant had agreed, prior to having sex during the April incident, that he would not ejaculate inside of her. c. Third, the complainant was not asked on cross-examination about whether the defendant grabbed her by the neck while telling her to take the contraceptive pill. d. Finally, the defence did not cross-examine the complainant about whether the defendant grabbed her by the face to check to see if she had swallowed the emergency contraceptive pill. [ 175 ] The defendant relies on R. v. Croft , 2018 ONSC 4942 , at para. 27 . He notes that a quick “litmus test” for a Browne v. Dunn violation requires two questions be asked: first, is it correct to characterize the net effect of the alleged violation as a true “ambush”, and second, if the questions at issue had been put to the witness, is there any real uncertainty what the answers would have been. [ 176 ] The four areas raised by Crown counsel were not cross-examined on, but were thoroughly canvased on examination in chief. Crown counsel agreed that there is no doubt what the complainant would have answered had these questions been put to her on cross-examination. [ 177 ] Moreover, the defendant’s evidence about these four areas amounted to a straight denial; there was no alternative version of facts about which the complainant may have had something else to say. Accordingly, I conclude there is no concern about an ambush in this case. [ 178 ] I adopt the approach suggested by the Crown in closing submissions: because I am satisfied that the complainant’s evidence would not have changed were she cross-examined on these issues, I weigh her evidence accordingly. Analysis of the Counts Charged [ 179 ] Having reviewed the evidence, and made assessments of the credibility of the witnesses, I turn to consider whether the Crown has proven the elements of the three charges laid beyond a reasonable doubt. [ 180 ] Before I turn to the counts themselves, I note two ways in which defence counsel invited me to err in my approach to the issues. [ 181 ] First, the defendant’s counsel, both in his cross-examination of the complainant and in submissions, developed defence themes that invited me to engage in stereotypical and myth-based reasoning. These include: a. The complainant continued to see the defendant after their first date, and again after the incident in April. A real victim of sexual assault would not have continued to see the person who assaulted her. b. The complainant was willing to continue kissing the defendant after he forced her to touch his penis. A real victim of sexual assault would have refused to continue kissing the person who assaulted her. c. The complainant did not call out to her roommates for help during the March or April incidents. A real victim of sexual assault would have sought help. d. The complainant did not tell the defendant to leave her house immediately after he ejaculated inside of her. A real victim of sexual assault would have demanded he go immediately. e. After the defendant left to go to the pharmacy, the complainant did not lock the front door to the house or the door to her bedroom, although she was worried about what would happen when he came back. A real victim would have locked the doors and not allowed the defendant back in the house. [ 182 ] I decline to engage in myth-based reasoning. [ 183 ] Second, defence counsel invited me to consider that both witnesses were largely firm in their testimony, including in cross-examination. He suggested there was reason to find both witnesses credible and reliable, and thus, not being able to disbelieve the evidence of the defendant, I must find the defendant not guilty. [ 184 ] I have already noted that it is incorrect to choose between varying accounts of witnesses. Preferring one witness’s evidence over another’s does not mean that an offense has been proven (or not proven) beyond a reasonable doubt. As I have noted, establishing guilt beyond a reasonable doubt is a very high standard, and in determining if it has been met, I must consider the entirety of the evidence. Count One – Sexual Assault – March Incident [ 185 ] Although I have found the complainant to be an overall credible and reliable witness, and I have found concerns about the defendant’s credibility, I have also noted that the defendant’s evidence about the March incident did not suffer from the inconsistencies, evasiveness and illogic that I found with respect to his evidence about the April incident. [ 186 ] The defendant has denied moving the complainant’s hand to touch his penis, and denied doing so a second time. His evidence is that the complainant touched his penis of her own accord. His relating of events is plausible, and without any inconsistency. [ 187 ] I am left in reasonable doubt by the defendant’s evidence on this issue. Specifically, I am not convinced beyond a reasonable doubt that the defendant intentionally touched the complainant by moving her hand to his penis. [ 188 ] I thus acquit the defendant of the first count of sexual assault. Count Two – Sexual Assault – April Incident [ 189 ] For the reasons I described above, I find the defendant’s evidence with respect to the April incident to be internally inconsistent, evasive, and illogical. I do not accept it, and it does not leave me with a reasonable doubt. [ 190 ] I accept the complainant’s evidence about the April incident. Specifically, I accept that she told the defendant to stop when it became clear to her that he intended to ejaculate inside of her despite their agreement that he would pull out before ejaculating. The defendant thus intentionally touched the complainant in circumstances of a sexual nature. [ 191 ] I accept the complainant’s evidence that she did not consent to the sexual touching. Her evidence was consistent that both before and during intercourse, she did not consent to the defendant ejaculating inside of her vagina. Moreover, the defendant knew that she did not consent to the sexual touching (that is, the intercourse during ejaculation) because they had specifically agreed that he would not ejaculate in her vagina before sex, and she told him to stop during sex when she realized he was about to ejaculate and was not planning on withdrawing his penis from her vagina before he did. [ 192 ] I thus find the defendant guilty of the second count of sexual assault. Count Three – Assault – April Incident [ 193 ] For the reasons I describe above, I find the defendant’s evidence with respect to the April incident to be internally inconsistent, and illogical. I do not accept it, and it does not leave me with a reasonable doubt. [ 194 ] I accept the complainant’s evidence about the April incident. Specifically, I accept that the defendant intentionally applied force to the complainant, first by grabbing her by the neck, and later by grabbing her by the face. [ 195 ] The complainant did not consent; she did not know what the defendant is going to do and could not have voluntarily decided to let the defendant do it. [ 196 ] Finally, the defendant knew she did not consent. They were having an argument. In these circumstances, the complainant would not have consented to having force applied against her by the defendant. The defendant was actually aware that she did not consent to him applying force against her; she could not have consented since she had no idea that he was going to apply force to her. [ 197 ] I thus find the defendant guilty of the count of assault. Disposition [ 198 ] For the reasons above, I make the following dispositions: a. I find S.V. not guilty of the charge that he on or between March 1, 2022 and March 31, 2022 at the City of Toronto did commit a sexual assault on the complainant, contrary to s. 271 of the Criminal Code . b. I find S.V. guilty of the charge that he on or between April 1, 2022 and April 30, 2022 at the City of Toronto did commit a sexual assault on the complainant, contrary to s. 271 of the Criminal Code . c. I find S.V. guilty of the charge that he on or between April 1, 2022 and April 30, 2022 at the City of Toronto did commit an assault on the complainant, contrary to s. 266 of the Criminal Code . J.T. Akbarali J. Released: July 3, 2025 COURT FILE NO.: CR-23-40000620 DATE: 20250703 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: His Majesty the King – and – S.V. REASONS FOR JUDGMENT J.T. Akbarali J. Released: July 3, 2025