Publication Restriction Notice

By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.

Reasons for Decision at Trial

Overview

[1] A.M.T. is accused of sexually assaulting the complainant on December 21, 2014.

[2] Counsel for the Crown and the accused submit that the sole issue is identity, meaning whether the accused was the perpetrator of the offence. In my view, however, for reasons I will explain, the issues also include whether the assault happened in the way alleged by the complainant, or at all.

[3] I will begin by reviewing the evidence before turning to a brief discussion of the law.

The Evidence

Background

[4] At the time of the alleged offence, the complainant lived with a roommate in a house in North Bay. She was 19 years old. She and the accused had been involved in a romantic relationship for about six months.

[5] The complainant testified that, on the evening in question, she and her roommate, a male, had some friends over for Christmas. The group was a small one. In addition to the complainant, her roommate, and the accused, it included two other males that were known to the complainant, a female friend of the complainant, and one other male whom the complainant’s female friend had just met online. The complainant testified that they thought it would be “safer” for her female friend to meet the new male for the first time in the company of others.

[6] The guests arrived at between 5:30 and 6:30 p.m. There was music, dancing, and drinking. The group was divided between two locations in the house. One group was in the living room and the other was in the roommate’s bedroom.

[7] According to the complainant, after having less than a full beer, she found herself “feeling gross” and decided to go to bed. She said that she was not able to handle alcohol at that age and her stomach was upset. She said “goodnight” to her guests, got changed into a tank top and matching pyjama bottoms, and went to bed.

The Assault

[8] According to the complainant, after sleeping for a period of time, she woke up on her stomach to find a male she believes is the accused on top of her. She could still hear music and laughter from the next room. Her assailant had one arm against her shoulder blade and was using his other hand to pull down her pants. She asked her assailant what he was doing, and he told her to “Shut up”.

[9] The complainant testified that the perpetrator got her pants down to her thighs and then tried to have sex with her by putting his penis between her legs. She told him “No”. She said that she tried to push him off her with her arm, but he continued to try to penetrate her for what she estimated was three to five minutes. She said that, when the perpetrator did not “get to” her vagina, he proceeded to sodomize her. When she again said “No”, he told her to “Shut the fuck up”.

[10] According to the complainant, the forced anal intercourse lasted less than 10 minutes, although it felt like a lot longer. After he ejaculated, the perpetrator got off her, rolled over to face the wall, and fell asleep. The complainant laid there for a while, then went to the bathroom to clean herself up. She stayed in the bathroom, sitting on the floor, until her friends woke up in the living room hours later.

[11] The complainant testified that the accused was present with the other guests when she came out of the bathroom the next morning. According to her, he acted as though nothing had happened. They said goodbye to one another, and he left. The complainant testified that, after the accused left, she told two friends that she had been raped. They responded that those were “serious allegations”.

[12] A few days later, on December 25, 2014, the complainant took an entire bottle of anti-depressants. She was found by a friend and taken to the hospital. She remained there for several weeks, in what I assume was the psychiatric unit.

The Complainant

[13] The complainant did not go to the police about the assault until April 2021, more than six years later. According to the investigating officer, the complainant provided him with the names of five of the guests who were present that night but advised that she had no contact information for any of them. The officer testified that he used what is known as the “Records Management System” to try to find these individuals but was entirely unsuccessful. As a result, none of them were called as witnesses at trial.

[14] I turn now to a brief discussion about the law before I apply the law to the evidence.

Analysis

[15] It is a bedrock principle of our criminal law that accused individuals are presumed innocent and are not to be convicted unless the Crown has proven their guilt beyond a reasonable doubt: R. v. Morin, [1988] 2 S.C.R. 345, at page 354. In my view, the Crown has failed to do that in this case because there are problems with the credibility and reliability of the complainant’s evidence.

[16] When we refer to a witness’s credibility, we are referring to the witness’s willingness to tell the truth. When we refer to a witness’s reliability, we are referring to that witness’s ability to tell the truth, meaning the witness's ability to perceive, recall, and recount events: R. v. Morrissey, 22 O.R. (3d) 514 (Ont. C.A.), at p. 526.

[17] The complainant’s evidence suffered in both respects.

Conflicting Evidence About Why the Accused Would Commit the Offence

[18] I start with the observation that there is very little circumstantial evidence of events leading up to the alleged assault that would explain why the accused would commit it and, therefore, serve to identify him as the perpetrator.

[19] The complainant's father testified that she told him not long after the assault that she had gone out that night “all dressed up” and that the accused got jealous because he was unable to join her. The complainant told her father that this was the reason that the accused had raped her. If this was the evidence, that might be possible.

[20] However, that is not the evidence. Instead, the complainant says under oath that she and her roommate were at home that night, having a party. Of course, this is significantly inconsistent with her statement to her father. Moreover, if the complainant’s testimony is true, then there is no plausible explanation as to why the accused would commit such a violent assault on the complainant.

[21] During her evidence-in-chief, the complainant testified that she believed that the reason the accused anally raped her was because he failed to penetrate her vagina. That seems inconsistent with the evidence of events leading up to the alleged assault.

[22] There is no evidence of any difficulties in the relationship between the complainant and the accused prior to the occurrence of the alleged offence. In fact, the complainant testified that, until this happened, she thought that she and the accused cared for each other.

[23] Nor does it appear that anything happened during the party that might explain why the accused would assault the complainant. The complainant gave no evidence of any dispute with the accused that night. While the complainant testified that the accused brought a bottle of “hard liquor” to the party, she could not remember whether the bottle had even been opened before she went to bed and she did not say that the accused smelled of alcohol during the assault.

[24] There is no obligation on the Crown to prove motive, especially in a sexual assault case. However, evidence that would help to explain why the accused would commit such an act would support the complainant’s evidence of identity. There is no such evidence here. Indeed, the evidence that the accused and the complainant enjoyed a good relationship prior to the alleged assault is inconsistent with his alleged behaviour on the night in question.

No One Appears to Have Heard the Event

[25] There is other circumstantial evidence that causes me to doubt that the assault happened, at least in the way alleged by the complainant.

[26] The complainant’s bedroom was right next to that of her roommate. The doors to each room were separated by a small closet and were no more than five feet apart. The complainant testified that the doors to both rooms remained open after she went to bed and fell asleep. She also testified that there were people in the bedroom next door when she went to bed and that she could hear them in the bedroom during the alleged assault. From this evidence, I infer that there were people very nearby at the time of the offence.

[27] According to the complainant, her bedroom door was open during the assault. If so, this also makes the complainant's evidence about how the assault happened hard to accept. It makes no sense that the accused would knowingly force himself upon the complainant without taking the precaution of closing the door.

[28] Further, if the door was open, as the complainant says, then it is also hard to understand why no one would have intervened. Based on the complainant's evidence that the small group was split between the bedroom and the living room, I infer that the group in the bedroom next door was not so large as to make enough noise to drown out all noise from the complainant’s bedroom. The complainant told the police that she said “No” loud enough for people to hear her, but no one came. From this evidence, I infer that no one heard anything. This inference is supported by the complainant’s evidence that, when she told her friends the next morning that she had been raped, they treated her comment as a mere accusation.

[29] The evidence that no one heard what was happening a matter of feet away, makes it hard to accept that the assault could have happened in the way the complainant says it did.

Lack of Opportunity to Identify

[30] I turn now to the only direct evidence of identity, namely that of the complainant.

[31] The complainant never saw the face of her assailant. She testified that she knew it was the accused on top of her when she woke up because she knew how his body felt. She also said she could identify the accused by his breathing and by his voice when he told her to “Shut the fuck up.” She said she had heard the accused speak aggressively once before when he was “in a bad mental health place.”

[32] I accept that the complainant could possibly identify her assailant from these facts. However, the evidence as a whole lacked the kind of detail needed to make the complainant's evidence about identity persuasive. For example, I have no evidence about how intimate the complainant and the accused had been prior to the alleged assault to support her evidence that she knew how his body felt. The complainant said only that she had “been with” the accused previously. I was not told what she meant by that. I understand that s. 276 of the Criminal Code prohibits introducing evidence about other sexual activity without a ruling by the court as to the probative value of such evidence. However, no such ruling was ever asked for here.

[33] I also have no evidence about the accused's height or weight at the time that would support the complainant's evidence about how he held her down and managed to pull her pants down at the same time. Nor do I have any evidence about what it was about his breathing that identified him to the complainant.

[34] Without this kind of evidence, the complainant's evidence about what happened that night stands in isolation, with nothing to support it.

Possibility of Other Perpetrators

[35] The absence of supporting evidence might not matter as much if there was no evidence that anyone else could have committed the assault. However, that is not the case. There were other males present at the house that night. Some of them were known to the complainant, but at least one of them, the male that the complainant's female friend had met online, was not. Based on the evidence, every one of these males had the same opportunity and motive to sexually assault the complainant as did the accused.

[36] In fact, given the evidence of a previous, caring, consensual physical relationship between the accused and the complainant prior to the event in question, it could be said that the other males present had more of a motive to have sex with the complainant without her consent.

Inconsistent Post-offence Conduct

[37] All of these aspects of the evidence cause me concern. However, the evidence that causes me the greatest concern relates to what happened after the alleged assault.

[38] As I mentioned earlier, the complainant testified that the accused remained at her house all night and was there when she joined her friends in the morning. If this is true, the fact that the accused remained at the house is inconsistent with him having committed such a violent crime that night. There is no evidence to explain why he would remain at the scene of the crime.

[39] The fact that neither the accused nor the complainant acted any differently the next morning than they would otherwise is also inconsistent with the accused having violently anally raped the complaint just hours before. According to the complainant, they said goodbye to each other the same way they would have if no sexual assault whatsoever had occurred, let alone one in which the accused was the perpetrator.

[40] However, like the complainant's evidence about what happened before the alleged assault, her evidence about what happened afterwards was also contradicted by something she said to someone previously. Contrary to what she said during the trial, the complainant told the police that the accused was not present at her house the next morning.

[41] This is a material inconsistency that affects the reliability of the complainant's evidence.

Alleged Admissions by the Accused

[42] The Crown does not rely solely on the identification evidence of the complainant, however. It relies, as well, on what it submits were admissions made by the accused after the alleged assault. As I will explain, I am unable to characterize them that way.

Text Conversations Between the Accused and the Complainant

[43] The complainant testified that she communicated via text with the accused about a week after she was released from hospital and asked him “Why?” She said that he responded that he thought she had been cheating on him. The complainant also testified that she reached out again by text to the accused a couple of months later and again asked him, “Why did you do that?” She said that he responded, “You deserved it.”

[44] During the trial, both the Crown and the defence treated this evidence as evidence of an admission by the accused that he had assaulted the complainant. However, I do not interpret it that way.

[45] The evidence about the first text exchange was given by the complainant in response to a question by the Crown during her examination-in-chief about how her relationship with the accused ended. The evidence about the second exchange was given in response to a question about whether they had any further interaction. Both text exchanges occurred after the accused had broken up with the complainant and the breakup occurred after the complainant had tried to kill herself. In those circumstances, given the questions that elicited the complainant's evidence about the text messages, it seems to me just as plausible that the accused was referring in them to the breakup as it is that he was referring to the alleged assault.

[46] Indeed, if one accepts the complainant's evidence that, contrary to what she told her father, she did not go out that night “all dressed up”, there would be no basis for the accused to say that the complainant “deserved” to be raped.

[47] In any event, we have only the complainant's testimony about these conversations. Moreover, her evidence about them is new. She never mentioned them to the police. She said that she did not tell the police about them because she had taken “a break” from social media at some point and had not saved the texts. I find this evidence to be troubling. Taking a break from social media is one thing; deleting evidence about a serious crime is another. If the incident happened the way the complainant described it, if she was sure that the accused was the perpetrator, if the text conversations were really about the assault and not the breakup, and if the complainant called the police shortly afterwards to complain about it, it makes no sense that she would delete what she must have known was important evidence.

Statements to the Father

[48] The Crown also contends that the accused admitted the assault to the complainant's father. Again, I do not interpret the evidence this way.

[49] The complainant testified that, following the first text exchange, she put the accused’s scarf and hat outside on the deck and told her father that the accused was coming for them. According to the complainant’s father, however, he was surprised to see the accused when he showed up.

[50] According to the complainant's father, the accused had taken a cab to the complainant’s house and was trying to enter through the screen door when he was met by the father, who had learned of the complainant’s allegations by that time. A scuffle then ensued in which the father backed the accused down the driveway to the father’s truck. According to the father, he told the accused he had some nerve showing up there “after what he had done” and the accused kept saying he “knew”, and that he “was sorry”. The father let the accused go when he noticed that the cab driver had taken out his phone and appeared to be filming the altercation. The accused then left, presumably in the cab.

[51] While I accept the father's evidence about what was said by him and by the accused during the scuffle, like the alleged text messages, I do not interpret the accused's statements as an admission that he assaulted the complainant. The accused had broken up with the complainant within a week of her being released from the psychiatric section of the hospital after trying to take her own life. As with the texts, it is just as plausible that the accused was apologizing to the father for that behaviour as it is that he was apologizing for assaulting his daughter.

[52] Like the evidence of what happened the morning after the alleged assault, I also find the accused's behaviour in attending the complainant's house to be inconsistent with the allegations of the complainant. It is implausible that the accused would re-attend the scene of such a violent crime, especially if, as the Crown contends, he had already admitted assaulting the complainant, to retrieve a mere scarf and hat.

Inconsistent Statements by the Complainant

[53] I turn now to other inconsistent statements made by the complainant.

[54] In addition to giving the police an inconsistent statement about the presence of the accused in the home the morning after the alleged assault, the complainant also made an inconsistent statement to her father and to the court about what she told her father.

[55] According to the complainant, she called her parents the morning after the assault. The evidence was confusing as to exactly when she placed the call. Early in her evidence, the complainant seemed to say that she called them after she told her friends she had been raped. Later, she said she called them while she was in the bathroom. Later still, she said that she did not make any phone calls from the bathroom.

[56] Regardless of when she called, the complainant testified that she told her father during the call that she had been raped. She said that her father asked her if she was sure (which, by itself, raises certain questions that I will not address given my view of the rest of the evidence). According to the complainant, when the complainant responded that she was sure, her father asked her who it was and she responded that it was the accused.

[57] The father gave a different version of the phone conversation. He testified that his daughter gave him “hints” during the phone call that something had happened and that she was crying, but that she told him that she did not want him coming to see her. Later in his evidence, he said that it was possible that the complainant told him what had happened, but that he could not understand because she was crying. However, the father was clear in his evidence that he did not learn that the accused was the alleged perpetrator until after the complainant overdosed on pills.

[58] This inconsistency also reflects on the complainant’s reliability as a witness.

The First Call to the Police

[59] Finally, I turn to the evidence given by the complainant about her contact with the police.

[60] There is no duty on a complainant to make a timely complaint. However, where the complainant testifies about making one, her evidence is subject to the same scrutiny as is the rest of her evidence.

[61] The complainant in this case testified that she did not make a complaint before 2021 because, when she called the police in 2014, a “kind” police officer told her that she would get “ripped apart” and no one would believe her once they learned that she was in a relationship with the accused at the time of the alleged assault.

[62] It is unfortunate that the investigating officer in this case was not questioned about police practices, but I need no evidence to conclude that this cannot be true. I cannot accept that a police officer taking a call from a complainant who alleges she was anally raped by her boyfriend would tell the complainant that she would not be believed because she was in a relationship with the perpetrator. Such advice would not only be contrary to well-settled law, even in 2014, but it would also be contrary to the duty of the police to investigate crime.

[63] This cannot be something about which the complainant was mistaken. For that reason, I conclude that she was being untruthful about it. This reflects on the complainant's credibility as a witness.

Conclusion

[64] The evidence in this case suffered from a number of frailties. These included material inconsistencies between the complainant’s testimony and statements she made previously to her father and the police. They also included implausibilities, such as the evidence that no one in a room five feet away heard the assault when the doors to both rooms were open and the evidence that a police officer would tell the complainant not to make a complaint because she was involved in a relationship with the accused at the time of the assault.

[65] In addition, the evidence included evidence of post-offence conduct on the part of both the complainant and the accused that is inconsistent with the allegation that the accused brutally sexually assaulted the complainant.

[66] For these reasons, I am left with a reasonable doubt about the guilt of the accused. He must, therefore, be found not guilty of the offence charged.

M.G. Ellies

Released: January 24, 2025