Reasons for Judgment

Court File No.: CR-24-10000149
Date: 2025-07-04
Ontario Superior Court of Justice

Between:
His Majesty the King
– and –
A.C., Defendant

Appearances:
Jeewon Lee, for the Crown
Saad Amjad and Aravind Pillai, for the Defendant

Heard: April 28, 29, 30, May 15, 2025

Judge: J.T. Akbarali

Overview

[1] The defendant is charged with three counts of sexually assaulting the complainant contrary to s. 271 of the Criminal Code. He has pleaded not guilty to these charges.

[2] At the outset of trial, the defendant pleaded guilty to one count of mischief, arising out of his willfully damaging the property of the complainant, a cell phone. He also pleaded guilty to one count of failing to comply with a condition of an undertaking which required him not to communicate directly or indirectly with the complainant. Two other failure to comply charges were withdrawn.

Brief Background

[3] The defendant and the complainant met when they worked at the same restaurant. The defendant was later promoted and became the complainant’s supervisor. The two eventually became friends. They characterize their relationship thereafter differently.

[4] The complainant testified that by the spring of 2021, she and the defendant were in a “situationship,” as “friends with benefits.” She agreed that during this time, the defendant was paying some of her expenses. According to the complainant, she and the defendant moved in together as friends in August 2021, and only after that became a couple.

[5] The defendant testified that they were dating by Valentine’s Day 2021, and then moved in together as a couple.

[6] The complainant and defendant agree that when they started living together, the defendant paid a greater portion of their living expenses. They got a dog together. After a few months of living together, the complainant stopped working, and the defendant began paying all their joint expenses and some of the complainant’s personal expenses.

[7] According to the defendant, the financial commitment became too difficult for him to manage. They then each moved back in with their families, but continued to date and did not break up.

[8] The complainant testified that they moved back in with their families because they were unhappy with the rental apartment, and that they continued to date for a time, before breaking up and remaining friends.

[9] The defendant and complainant agree that once they moved back in with their families, the defendant continued to pay the expenses for their dog and for their joint storage unit. He also continued to pay for some of the complainant’s personal expenses.

[10] The first sexual assault charge relates to an incident in a minivan in the summer of 2021, a time when the complainant says she and the defendant were in a situationship, and the defendant says they were dating. The defendant and the complainant engaged in consensual sexual activity in the minivan. The Crown alleges that the complainant consented to the defendant digitally penetrating her vagina, but indicated she did not want to have vaginal intercourse. The Crown alleges that without the complainant’s consent, the defendant penetrated her vagina with his penis. I refer to this incident as the “minivan incident.”

[11] The second sexual assault charge relates to an incident in the complainant’s family home in December 2022, after she and the defendant were no longer living together. They were in a bedroom, and the defendant was giving the complainant a massage. The Crown alleges that the defendant began touching the complainant’s vagina and trying to digitally penetrate her. The complainant told him she did not want to be touched around her vagina, but the defendant persisted, and eventually the complainant acquiesced. I refer to this incident as the “bedroom incident.”

[12] The final sexual assault charge relates to events that took place on January 7 and 8, 2023. The defendant picked up the complainant and they went to the defendant’s family condominium. They planned for the complainant to stay at the condominium for two nights, so she could take the dog to the vet nearby the defendant’s condominium the morning after the second night. They planned to drink alcohol together.

[13] The Crown alleges that the complainant made clear to the defendant by text message before he picked her up that she was not interested in any sexual activity with him. The defendant learned on the drive to his condominium that the complainant was seeing someone else. Once back at the defendant’s condominium, the two began drinking and consumed a significant amount of alcohol. Each has gaps in their memory, but it is not disputed that they got into an argument during which the defendant threatened the complainant, who called 911. It is also not disputed that the defendant threw the complainant’s cell phone against a wall and damaged it.

[14] The Crown alleges that the defendant awoke the complainant the next morning because the police had arrived at the door. The Crown alleges that when she awoke, the complainant was on the floor in the defendant’s bedroom without any bottoms or underwear on, with bruised knees and a sore vagina. After discussions with police, during which the complainant made no allegations of sexual assault, the defendant was charged with uttering threats, and the complainant was escorted by police off the premises. However, she returned, and she and the defendant arranged for her to continue to stay in the condominium for the next day, and for the defendant to leave. The Crown alleges that as he left, the defendant suggested that the complainant get a pregnancy test. The Crown alleges that I should infer that the defendant had vaginal sex with the complainant during the night in question without the complainant’s consent. The complainant does not recall any sexual activity between her and the defendant that night. I refer to the events that led to the third sexual assault charge as the “condo incident”.

[15] For his part, the defendant alleges that the sexual activity during the car incident and the bedroom incident were consensual. He denies that any sexual activity took place between him and the complainant during the condo incident, and denies telling the complainant to get a pregnancy test. This case thus raises questions about whether the complainant consented to sexual activity during the car and bedroom incidents, and whether sexual activity occurred at all during the condo incident. Honest but mistaken belief in consent is not an issue in this trial.

[16] This case also requires me to consider the import of various electronic messages sent between the defendant and complainant over Instagram. The Crown alleges these messages amount to the defendant acknowledging having sexually assaulted the complainant during the minivan incident. The defendant testified that the messages in fact reflect him using conflict resolution training he received over a number of years as a child in Taiwan, after he was diagnosed with Asperger’s Syndrome. He denies that the messages reflect anything more than his attempt to de-escalate a situation of conflict between him and the complainant.

Legal Framework

[17] To establish that the defendant is guilty of sexual assault contrary to s. 271(a) of the Criminal Code, the Crown must prove the elements of the offence beyond a reasonable doubt. Those elements are described in R. v. Ewanchuk, at paras. 23-25 and R. v. H.W., 2022 ONCA 15, at paras. 70-71 as follows:

a. The defendant intentionally touched the complainant in circumstances of a sexual nature that compromised her sexual integrity;
b. The complainant did not consent to this touching; and
c. The defendant knew the complainant was not consenting to the sexual touching, or he was reckless or willfully blind as to whether the complainant was consenting.

[18] The actus reus of the offence of sexual assault involves a purely subjective view of consent; the complainant’s actual state of mind is determinative: Ewanchuk, at para. 27.

[19] 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 acts. Consent must be present at the time the sexual activity in question takes place: s. 273.1(1.1) of the Criminal Code.

[20] 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: Ewanchuk; R. v. J.A., 2011 SCC 28; R. v. Barton, 2019 SCC 33.

[21] The defendant is presumed innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. At all times, it is the Crown’s obligation to prove the defendant’s guilt beyond a reasonable doubt. Doing so requires more than a conclusion that the defendant is likely or probably guilty, but it does not require proof beyond all doubt. A reasonable doubt is not a doubt based on sympathy or prejudice, nor is it 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.

[22] The reliability and credibility of the witnesses’ evidence is central to the analysis in this case, but the ultimate question is whether the Crown has proven the charges against the defendant beyond a reasonable doubt. My task is not to choose between the competing versions of events: R. v. C.L.Y., 2008 SCC 2, at paras. 6, 8. Rather, if after careful consideration of the evidence I am unsure of whether the defendant committed the offences charged, I must find him not guilty.

[23] In assessing whether the Crown has discharged its burden to prove the defendant’s guilt beyond a reasonable doubt, I must apply the analysis set out by the Supreme Court of Canada in R. v. 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.

[24] 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.

[25] It is also important for me to remember that 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, 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.

[26] 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.

Analysis

[27] I begin with my analysis of the defendant’s evidence, in accordance with the principles set out in W.(D.). For the reasons I describe below, I accept the defendant’s evidence, and find that it was forthright, consistent, and credible. He admitted engaging in problematic conduct like breaking the complainant’s cell phone and threatening her. He made concessions on cross-examination when appropriate. The defendant provided reasonable explanations. I accept his denials that he ever sexually assaulted the complainant.

[28] I have not assessed the defendant’s evidence in isolation, but have considered it in the context of the whole of the evidence, including the evidence of the complainant.

[29] I have concerns about the credibility of the complainant’s evidence. In examination in chief, she was asked why she decided to report the defendant to the police in January 2023. The first reason she gave was that the defendant had advised her he would not honour an agreement they had where he would pay for her phone that he broke, and that he would no longer pay their joint expenses related to their dog and the storage facility in which they were storing some of their things. She then explained that she was in a slump because of everything that had happened, which led to a confrontation with her father, during which she disclosed the sexual assaults, and her father encouraged her to report the defendant to the police. Later, in cross-examination, she added that she was disinclined to report the defendant because she was emotionally attached to him. I am troubled by the fact that the complainant’s decision to report the defendant seems primarily driven by his failure to pay for her cell phone and to continue to pay for some of her expenses. I am concerned about the credibility of the complainant’s evidence as a result.

[30] The complainant’s evidence about her relationship with the defendant was also inconsistent. With respect to the same time period, she testified that:

a. she was emotionally attached to the defendant;
b. she had become emotionally checked-out of their relationship;
c. in her mind, she was building her future around the defendant;
d. she was in a relationship with someone else.

[31] She later revised her evidence to say she was talking to someone else in a flirtatious way. But while talking to someone else in a flirtatious way was enough for the complainant to characterize her interactions with this new person as a relationship, she also denied being in a relationship with the defendant when they were spending a lot of time together, engaging in at least some consensual sexual activity during the minivan incident, and the defendant had given her the details of his two credit cards for her to save on her phone and was allowing her to pay some of her expenses with his money. The complainant’s evidence about what being “in a relationship” meant to her shifted in a way that seemed designed to cast the defendant in as negative a light as possible.

[32] The complainant’s evidence about her relationship with the defendant was not consistent; it changed when she realized she had given evidence that did not make sense, and she offered rationalizations that were not rational. This causes me further concern about the credibility of the complainant’s evidence.

[33] There were other inconsistencies in the complainant’s evidence that I address in the context of the events that underlie the charged offences.

[34] Even if I did not accept the defendant’s evidence, I would be left with a reasonable doubt as to his guilt.

The Minivan Incident

[35] The defendant testified that he and the complainant had had their first date in December 2020, and he pursued her until Valentine’s Day 2021, when they officially started dating. At that time, the pandemic was ongoing, and their dates were mostly in the car, due to COVID-19 restrictions. They would go for drives and pick up food which they would eat in the minivan.

[36] The complainant testified that, in June 2021, she and the defendant were not dating, but they were very close friends. I have difficulty with her evidence on this point. By June 2021, the defendant had given the complainant the details of both of his credit cards to store on her phone and use to meet some of her expenses. It is not likely that the defendant would grant the complainant access to both of his credit cards and be prepared to pay at least some of her personal expenses if they were only friends.

[37] The defendant testified that in early June 2021, he and the complainant arranged for him to pick her up in the minivan. They drove around for a couple of hours, bought some food, had dinner in the car, and then continued driving around. They were talking and listening to music. They hung out together for five to six hours.

[38] The defendant testified that he eventually parked the car close to the Toronto waterfront. He asked the complainant if they could start making out. They leaned towards each other, she wrapped her hands behind his head, and they started kissing. He was in the driver’s seat, and the complainant was in the front passenger seat.

[39] After about five to ten minutes, the complainant reclined the seat and asked for a massage. The defendant agreed but suggested they go the middle row of the minivan where there was more space, and the complainant agreed. In the middle seat, the complainant lay face down with her head in the defendant’s lap, and he began to give her a shoulder and back massage. After about ten minutes, the defendant asked the complainant to sit up, turn around, and lay down face up with her head on the other side of the car, and asked if he could start massaging her vagina. She agreed. He began massaging her vaginal area over her clothes.

[40] The defendant testified that the complainant was moaning. He asked if he could put his fingers in. She agreed. She took off her pants and underwear, and he digitally penetrated her. As he digitally penetrated her, she was not speaking, but she was moaning and breathing heavier. He then asked if he could “put it in,” referring to his penis, and she said yes. The defendant testified that he penetrated her vagina with his penis. She did not speak while they were having intercourse, but he could hear her moaning and breathing heavier. After about ten minutes, he ejaculated on her stomach. They cleaned up with tissue and started getting ready to return to the front seat.

[41] The complainant testified that she did not really want the defendant to digitally penetrate her. Notwithstanding, she told him that digital penetration was fine, but she did not want him to put his penis inside of her. She said that after he penetrated her vagina with his penis, she told him to stop about four or five times. He pulled his penis out eventually. She agreed he did not ejaculate inside her vagina.

[42] Following the sexual contact in the minivan, the defendant testified that he made a terrible joke. He testified that he said to the complainant, “maybe next time I should rape you.” He indicated that he often made insensitive and provocative jokes. The complainant did not react well. She became very upset and yelled at him. She began to cry. The defendant testified that he apologized repeatedly. After about 20 or 30 minutes, she calmed down. They returned to the front seat. He bought her some dessert and drove her home.

[43] The complainant testified that she was in denial about the non-consensual sexual activity in the minivan “for a while.” She testified that later, on a different day, the defendant made a rape joke, where he said, “If I rape you again, I better make it good.” According to the complainant, she told him she did not appreciate the joke, especially after he “kind of almost raped her,” and he agreed, he “kind of did, or it kind of was [rape].”

[44] This evidence is in reference to a series of Instagram direct messages between the defendant and the complainant which are in evidence. In them, the complainant suggested that the defendant sexually assaulted her. For example, her messages include:

• “hey I said don’t put your dick in me” “it’s barely in”
• “And now it’s going to be another thing my brain forces out of my memories because it can’t stand having it in there”

[45] In the messages, the complainant indicated she wants to be the defendant’s friend, but doesn’t want anything more than that. She then said:

• “I can’t believe you said ‘I want to rape you’ to my face”
• “You kind of almost have”

[46] The defendant responded, “yes,” and “I’m fucked…”

[47] The defendant asked the complainant if she would give him a hug “tomorrow.” She responded that she did not want to feel obligated to give physical comfort to a person who assaulted her, and then said, “I will hug you if I feel like it.”

[48] The complainant then said she was trying to keep distance from anything that could feel similar to a date because “of the whole you doing something something that…uhh…could be considered almost rape?” The respondent answered “ok…it umm…kind of…was”

[49] When the respondent said he did not know how he could make up to her, the complainant said he could not: “like I’m sorry but you can’t make up for having sex with someone who said no.” The defendant apologized. The complainant answered, “pizza taste good yummy,” which she testified was designed to de-escalate the conversation.

[50] The defendant explained the Instagram messages with reference to his training in Taiwan. He explained that he had been diagnosed with Asperger’s Syndrome as a young child. While he was in elementary school in Taiwan, he attended special education classes where he participated in an ongoing emotional control program with a main focus on conflict de-escalation. He explained that over many years, he was taught to manage conflict by leaving the scene of the conflict, ignoring the other party, and reaffirming the other party’s feelings. He indicated he had been taught to always start with apologies and reaffirm the other party’s feelings to de-escalate the conflict.

[51] The complainant agreed that already when she and the defendant were only work colleagues, she knew he was autistic. She testified that he would say weird things in the break room at work and make bad and inappropriate jokes. He had difficulty reading social cues and at times would react in ways that were not respectful or polite.

[52] There is no medical evidence confirming that the defendant has Asperger’s Syndrome. The defendant testified that his parents chose not to have him assessed after he left Taiwan because they were worried about the potential that he would face stigma as a result. The Crown argues that expert evidence was required, but none offered, to allow me to understand the emotional control program that the defendant testified to.

[53] I disagree. The defendant gave fact evidence about what he had learned in this training program and how he applied it in the context of events relevant to the charged offences. I am not being asked to evaluate the efficacy of the emotional control program the defendant was enrolled in, or even to determine whether the defendant in fact has Asperger’s Syndrome. Rather, the defendant offered fact evidence about his training to explain his response to the complainant’s Instagram messages. I do not need expert evidence to evaluate whether the defendant’s behaviour reflects the training he testified that he received.

[54] I find that the defendant’s behaviour is explained by his training. He was attempting to de-escalate the conflict situation with the complainant by affirming her feelings and apologizing. In reaching this conclusion, I note that the evidence is replete with examples of him de-escalating conflict with the complainant in a manner that prioritized her interests over his own.

[55] For example, as I will discuss below in the context of the condo incident, when conflict arose over the complainant’s new relationship, the defendant tried to drive her home rather than bring her to his condo, to remove himself from the situation of conflict. The complainant insisted that she wanted to go home with him, and he eventually agreed. When the police officers told him he could not be in contact with the complainant anymore, the defendant allowed her to return to his condo when she called and asked to return, and then he eventually left her there and spent the night in his car, rather than insist she leave the condo. When there was conflict between them, the defendant repeatedly applied his training to apologize, validate the complainant’s feelings, try to absent himself from the situation, and eventually, give in to the complainant’s wishes.

[56] I accept the defendant’s evidence that the sexual activity in the minivan was consensual, and that the Instagram messages reflect his efforts to de-escalate conflict with the complainant by applying his training, rather than any true admission that he sexually assaulted her. Even if I did not accept his evidence, I would be left in reasonable doubt by it.

[57] I conclude that the Crown has not established beyond a reasonable doubt that the complainant did not consent to the sexual activity in the minivan. I thus acquit the defendant of the charge of sexual assault related to the minivan incident.

The Bedroom Incident

[58] By December 2022, the defendant and complainant were no longer living together. The defendant testified they were still dating and spending time together. The complainant would invite him over to her family’s house. When he visited the complainant at her family home, they would watch movies and play with their dog together. The complainant would ask him for massages. The complainant denied that she and the defendant were still a couple in December 2022, although she agreed they continued to spend time together.

[59] The defendant testified that, on the day in question, he was with the complainant in a bedroom at her family home. She asked him for a back massage. He massaged her back for about twenty minutes, and then she asked him to massage her lower body, thighs, and buttocks. He said he could feel her being more relaxed, and he heard her moan a little. He asked if he could massage her vagina, and she agreed. He massaged her vagina with an open palm over her clothes for about ten minutes. He testified that her breathing was getting heavier, and she was moaning and panting. He asked if he could finger her, and she agreed. He pushed her shorts and underwear to the side, and digitally penetrated her for about ten minutes. He became aroused and asked if they could have sex. The complainant said no. The defendant testified that he went to the washroom and washed his hands. When he came back, they finished the movie they had been watching, and then went out and got dinner together.

[60] In some ways, the complainant’s evidence about the bedroom incident agrees with the defendant’s recollection. She agreed that she had been lying on her stomach on the bed when the defendant began massaging her back. She agreed that when he penetrated her vagina digitally, he shifted her shorts and underwear to the side rather than removing her clothing. She agreed it was possible the defendant asked her for sex, and that it was possible she said no.

[61] There was at least one inconsistency in the complainant’s evidence related to this incident. During examination in chief, the complainant testified that the defendant had initiated the massage in the bedroom on the day in question. However, on cross-examination, she was confronted with her earlier statement to police in which she indicated she had been the one to ask for a massage. She then agreed she had been the one to ask him to massage her on that day.

[62] The complainant testified that the defendant did not seek her consent to massage her vagina, and that she told him to stop several times, and eventually she acquiesced because she felt defeated. The complainant did not remember if she was panting or moaning, or whether she climaxed. She testified that the digital penetration came to a “natural end,” but it is not clear what she meant by that.

[63] As I have indicated, I accept the defendant’s evidence that he sought and obtained the complainant’s consent for the sexual activity that occurred in the bedroom. Even if I did not accept his evidence, I would be left in a reasonable doubt by it.

[64] The Crown has not proven beyond a reasonable doubt that the complainant did not consent to the sexual activity in the bedroom. I find the defendant not guilty of the count of sexual assault relating to the bedroom incident.

The Condo Incident

[65] The complainant and defendant agree that they made plans for the complainant to come to the defendant’s condo on January 7, 2023 for two nights. Their dog was sick, and the plan was that the complainant would take the dog to the vet on January 9, 2023. The vet was close to the defendant’s condo so it would be convenient to go from there.

[66] The defendant picked up the complainant late on January 7, 2023. Before he picked her up, they exchanged messages about what alcohol he should buy, because they were planning on drinking. The complainant also messaged the defendant to tell him that they were “just friends” and there would be “no kissing.” She told him not to try anything while she was drunk.

[67] The defendant asked her why she said that they were just friends. In the messages, she did not answer the question. The defendant testified that this was his first indication that something was wrong in their romantic relationship. He was very confused.

[68] The complainant testified that when the defendant picked her up, he was insisting that something sexual occur between them. Eventually she told him that she had a boyfriend. She said he went silent, and any time she tried to say something, he would yell at her to shut up and call her names. The defendant agreed that the complainant told him she was dating someone new during the drive to his condo. He testified that his initial reaction was to ask why, and afterwards, he remained silent because he was trying to process the information.

[69] The complainant and defendant agree that, during the drive, the defendant suggested she should not come to his condo, but she insisted on going. She testified she insisted for the sake of the dog. The complainant testified that the defendant threatened to leave her at the side of the road, while the defendant testified that he told her he no longer wanted to spend time with her that evening, but he would drive her and the dog back to her home. Later in her evidence, the complainant agreed it was possible that the defendant offered to drive her back home.

[70] The complainant testified that when they reached the condo parking lot, they sat in the car for a while, because the defendant said he needed a minute. When she tried to speak, he would yell at her. Eventually they got their things and went to his apartment to watch a movie and drink alcohol, as they had planned.

[71] The defendant agreed they sat in the car for a while in the parking lot. He testified he was trying to process the information she had told him about her new boyfriend. He told her he did not want to see her, and asked again if he could drive her back home. However, the complainant insisted on staying.

[72] The defendant testified that he felt betrayed and distraught. He turned to his de-escalation training. He was unable to leave the scene of the conflict since they were in the car together, but to avoid having an argument, he reaffirmed her feelings by agreeing to let her stay at the condo.

[73] According to the complainant, while at the condo, she and the defendant watched a movie and began to drink alcohol. The defendant encouraged her to drink more, and to get drunk. He was emotional, having breakdowns on the couch, asking for physical affection, saying that he loved her, and asking “why” repeatedly.

[74] The defendant agreed that he and the complainant began to drink alcohol but denied encouraging the complainant to drink more. As it got late, the complainant said she was going to sleep in his bedroom. He remained in the living room on the sofa. He said he could tell she had not fallen asleep because he could see lights on, and he could hear her speaking to someone online. He went to his room to plead with her to stay with him, and to tell her he loved her. He said that led to another conflict, during which he admitted he threatened her [1]. He testified that he was drunk by that point in the night, and so his ability to fall back on his conflict de-escalation training was compromised. He recalled her making the call to 911 from the bathroom. He admitted throwing her phone against the wall. The defendant testified that he and the complainant went into his bedroom and had another argument. He then said he was done for the day and went back to the living room. He fell asleep on the couch where he remained until the police knocked at the door the next morning.

[75] The complainant agreed that she and the defendant both consumed a lot of alcohol. She blacked out. There are gaps in her memory. After her recollection about sitting together in the living room watching the movie, the next thing she recalls is running away from the defendant while he was threatening to kill her. She ran into the bathroom, into the shower, and dialed 911. Once she got on the phone with the police, the defendant grabbed her phone out of her hand and threw it at the wall in front of her. She testified that it was completely shattered, although she also testified that after she charged it the next day it was functional, though a little bit scuffed.

[76] After the defendant threw her phone, the complainant testified she has another gap in her memory. The next thing she recalls is waking up on the floor of the defendant’s bedroom to him telling her the police were at the door. She testified that sheawoke wearing only a sweater, without bottoms or underwear on. She had pain around her vagina, and bruises around her knees, neither of which were present the night before. She recalled getting up, putting on sweatpants, and opening the door for the police officers. She spoke to police and reported that the defendant had threatened her. She did not report any physical assault. She did not seek medical assistance.

[77] The defendant testified that when police knocked at the door, he went to wake up the complainant. She was wearing a sweater and shorts and was asleep on the floor. The defendant’s recollection of what the complainant was wearing is consistent with the body worn camera footage from the police officers that show her in shorts and a sweater while she spoke with them, not the track pants the complainant testified she put on.

[78] It is not disputed that the officers charged the defendant with uttering death threats, and he gave an undertaking to have no contact with the complainant.

[79] One of the officers escorted the complainant out of the condo. She went to a nearby juice bar and charged her phone. She messaged the defendant to ask if it was clear so she could return to the condo. The defendant told her not to contact him again. Notwithstanding, she continued to contact him, and said she needed to get her things from his condo. He allowed her to return.

[80] The complainant testified that she received a message from police indicating they were returning to the condo to provide the defendant with some paperwork and warning her she should not be there if she had returned. The complainant left the condo again and waited in the hallway on another floor of the building for the police to leave for the second time, and then she returned to the condo.

[81] The defendant testified that he had never been in trouble with the police before, and he was stressed out by the charge that had been laid. He did not want to breach the condition in his undertaking to have no contact with the complainant. However, in view of the complainant’s insistence that she return, he agreed with her to avoid the conflict.

[82] According to the complainant, she and the defendant agreed that she would stay in the condo while they waited for the vet appointment for the dog. She stayed for two days by herself in his condo. She testified that he went to stay with a friend. The complainant said that, as he was leaving the condo, he told her she might want to get a pregnancy test done. She understood from that comment that he had had vaginal intercourse with her while she was blacked out. She does not recall any sexual activity between them that night.

[83] The defendant testified that he did not want the complainant to stay. He offered to pay for an uber ride for her to take the dog to the vet on January 9, 2023, but she insisted it was more convenient for her to stay at the condo. He gave into her demands to stay to de-escalate the conflict. He decided to remove himself from the scene of the conflict, so he left his condo. He spent the night in his car at his workplace office’s parking lot.

[84] The defendant denied telling the complainant to get a pregnancy test as he left the condo. He denied having any sexual contact with the complainant on the night in question.

[85] On cross-examination, the complainant was asked whether the defendant ever said that he had had sex with her on the evening in question. For the first time, she indicated that she thought he might have said so. She testified that when she asked him what happened that night, he mentioned they engaged in sexual activity, though not necessarily vaginal intercourse. However, she no longer had the messages in which the alleged statement was made, because, according to the complainant, the defendant deleted all the messages on the social network they used to communicate about the condo incident. She indicated that after police had gotten involved, he started contacting her through a discord server, on which he made the statement about having sexual contact with her. When asked why she had not brought up these alleged messages before, she said it slipped her mind. She did not make any allegation in her initial statement to police that he had admitted having sexual contact with her. Later in her cross-examination, she revised her evidence to say that the conversation definitely occurred in which the defendant mentioned a sexual act that took place while she was unconscious.

[86] In my view, the complainant’s testimony on this point is inconsistent, and I do not accept it. If the defendant had admitted to engaging in a sexual act with her while she was unconscious, she would have disclosed that information to the police during her initial statement. That allegation would not have arisen for the first time on cross-examination. Moreover, it makes no sense that the defendant would have deleted the messages admitting to assaulting her in January 2023 while not deleting the messages discussing the minivan incident.

[87] I accept the defendant’s denial that any sexual contact occurred between him and the complainant during the condo incident. Even if I did not accept his evidence, I would have a reasonable doubt.

[88] The Crown has not proven beyond a reasonable doubt that the defendant intentionally touched the complainant in circumstances of a sexual nature that compromised her sexual integrity. I therefore acquit the defendant of the sexual assault charge related to the condo incident.

Summary of Conclusions

[89] I find the defendant not guilty of counts 1, 2 and 3, all of which allege that the defendant committed a sexual assault on the complainant contrary to s. 271 of the Criminal Code.

[90] In accordance with his plea, I find the defendant guilty of count 4 (mischief, contrary to s. 430(4) of the Criminal Code relating to the cell phone) and count 5 (fail to comply with an undertaking not to communicate directly or indirectly with the complainant contrary to s. 145(4)(a) of the Criminal Code).

Note

[1] The evidence about the defendant threatening the complainant is presumptively inadmissible testimony of the defendant’s disreputable conduct. No application was made to adduce it, and no objection was made to the evidence at trial. Notwithstanding, I have directed my mind to the admissibility of the evidence of extrinsic misconduct and conclude that it is admissible on this trial as part of the narrative to provide context for other events: R. v. J.A.T., 2012 ONCA 177, at para. 54. I may use this evidence for the limited purpose of understanding the history and context of the relationship between the complainant and the defendant. I am cognizant, however, that I cannot use evidence of extrinsic misconduct to conclude that the defendant is a person of bad character likely to have committed any of the offences charged: J.A.T., at para. 55.

Released: July 4, 2025