Court File and Parties

Court File No.: CR-23-50000376-0000
Date: 2025-01-27
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Jason Albert Lowe

Appearances:
Laura Liscio, for the Crown
Niusha Zandsalimi, for the accused, Jason Albert Lowe

Heard: January 6-7, 2025

Reasons for Judgment
(Subject to a publication ban that applies to any information that could identify the complainant, pursuant to section 486.4 of the Criminal Code)

Vermette J.

Introduction

[1] The accused, Jason Albert Lowe, is charged that he, on or about March 9, 2022, at the City of Toronto, committed a sexual assault on M.D., contrary to section 271(a) of the Criminal Code.

[2] At the end of a short trial with only one witness, I found Mr. Lowe not guilty with reasons to follow. These are my reasons.

A. Evidence at Trial

[3] The Crown called one witness, M.D. The evidence also includes an Agreed Statement of Facts that deals with, among other things, a number of reports and photos that were marked as exhibits. The defence did not call any evidence.

1. Evidence of M.D.

[4] M.D. was 40 years old at the time of the trial. She has completed high school. While she was not working at the time of the trial, she had jobs in the past.

[5] M.D. lives in a group home where there is staff present at all times. M.D. reluctantly testified that she has intellectual disabilities and was born with non-cancerous tumors in her brain. There is no evidence before me regarding the extent of M.D.’s intellectual disabilities and their concrete impact on M.D. However, the manner in which M.D. testified in court supports the presence of an intellectual disability. I note, among other things, that M.D. kept repeating her answers once or twice in a softer voice, which was similar to an echo effect.

[6] M.D. testified that she takes a number of medications every day, including medications for seizure, depression and migraine.

[7] M.D. said that she was a heavy drinker at the time of the events in issue, but she drank only when she went out. She would have more than 6-7 glasses. M.D. has now stopped drinking for health reasons.

[8] During her examination-in-chief, M.D. stated that the events in issue happened on March 8, 2020. When she was asked whether she was sure about the year, she responded that she was. During her cross-examination, M.D. stated that she was still positive that the events happened on March 8, 2020. When it was suggested to her that she was incorrect and that the events happened in 2022, she said that she agreed with that and that she was wrong when she said that it was in March 2020. Given that the evidence is clear that the events in issue took place on March 8-9, 2022, I will refer to the year 2022 in these Reasons.

[9] M.D. said that she first met Mr. Lowe on the subway approximately one year before the events in issue in this case. They did not talk at first, but they did after they both got off at St. George station. M.D. gave her phone number to Mr. Lowe.

[10] Between their first meeting on the subway and March 8, 2022, M.D. and Mr. Lowe talked on the phone via audio calls. They did not use text messages to communicate, except on March 8, 2022. According to M.D., they talked on the phone almost every day, but they would sometimes miss a day. They did not see each other in person between their first meeting and March 8, 2022. The second time that they met in person was on March 8, 2022.

[11] On March 8, 2022, Mr. Lowe called M.D. and talked about meeting up. They originally planned to go to a bar to eat, but the plan subsequently changed. The plan became that they would pick up food and go to Mr. Lowe’s apartment to hang out. M.D. was agreeable to this.

[12] As had been discussed, Mr. Lowe came to pick up M.D. after his work at around 9 p.m. on March 8, 2022. They then went to a Church’s Texas Chicken near Mr. Lowe’s apartment to pick up chicken sandwiches. They subsequently went to a Mac’s convenience store where Mr. Lowe bought pop for himself and a cranberry juice for M.D. Afterwards, they went to Mr. Lowe’s apartment. M.D.’s evidence is that they probably arrived at his apartment between 9:30 and 10 p.m.

[13] Mr. Lowe lives by himself in a bachelor apartment. M.D. remembers that he had, among other things, a kitchen, a bed, a television and a computer chair, but he did not have a couch.

[14] After M.D. and Mr. Lowe arrived at Mr. Lowe’s apartment, they just hung out. They ate their sandwiches and watched television. While they were watching television, they were sitting on the bed because this was the only place where they could sit, except for the computer chair.

[15] M.D. and Mr. Lowe drank vodka that night. During the course of the night, M.D. had more than four drinks, and she may have had six or seven. M.D. had cranberry juice with her vodka, and Mr. Lowe had coke with his. They put ice in their drinks. M.D. does not know how many drinks Mr. Lowe had. She said that they were both wasted. She stated that she was so wasted that she could not even sit on the toilet seat.

[16] At some point, late in the night, Mr. Lowe started feeling M.D. up, touching her bra, touching her bum, kissing her bum and touching her legs. According to M.D., this was probably at around 11 p.m. M.D. did not say anything to Mr. Lowe, but she testified that she was uncomfortable inside. At one point, M.D. said to Mr. Lowe that she needed to lose weight. Mr. Lowe responded: “Why do you need to lose weight? You look good.” M.D. did not say anything in response. She stated that Mr. Lowe did not ask for permission to touch her.

[17] M.D. testified that when Mr. Lowe touched her bra, her top was on, but when Mr. Lowe touched her bum and legs, her bottom clothes were off. M.D. first said that Mr. Lowe took off her bottom clothes. However, she later said during her examination-in-chief that she did not remember how her bottoms were taken off. During her cross-examination, M.D. said again that Mr. Lowe took off her pants and underwear. She stated that he pulled them off while she was standing. Later, she said again that she did not remember how her clothes came off. There was more back and forth on this point at the end of her cross-examination, when M.D. said again that Mr. Lowe took off her pants, and said right after that she did not remember how her clothes came off.

[18] At trial, M.D. said that Mr. Lowe did not lift up her top to touch her bra and that he touched it from underneath her shirt. When M.D. was reminded that she told the police that Mr. Lowe had lifted her top and touched her bra, she said that she did not remember.

[19] After Mr. Lowe touched certain areas of M.D.’s body, M.D. put her clothes back on. They continued to hang out and watch television for a bit, and they drank some more. M.D. stated that after they watched a show, they started drinking and getting wasted. At some point, M.D. told Mr. Lowe that she wanted to leave, but he did not respond. They were both wasted. M.D. admitted that she could have left.

[20] Mr. Lowe then started to talk to M.D. about having sex. They were both sitting at the end of Mr. Lowe’s bed at the time. Mr. Lowe said that he wanted to have sex with M.D. and she said: “No, I don’t want to have sex with you.” She also told him that she had a boyfriend. Mr. Lowe told her: “Come on, babe, relax.” M.D. told him again that she did not want to have sex. This conversation lasted for five or ten minutes. A second conversation of the same nature took place approximately an hour after the first conversation during which Mr. Lowe said that he wanted to have sex with M.D. In re-examination, M.D stated that her estimate of one hour between the two conversations was a guess and that she did not remember how long apart the two conversations were.

[21] After the second conversation, Mr. Lowe proceeded right away to have sex with M.D. M.D.’s evidence is that she “let him do it”, even though she did not want it. She gave different time estimates during her testimony as to when this happened and said that this was probably around 11 p.m., midnight or 1 a.m.

[22] M.D. testified that Mr. Lowe had sex with her without her permission. Mr. Lowe put his penis in her vagina. M.D. said “no” more than once, but Mr. Lowe did not listen.

[23] M.D. said that part of her hesitancy about having sex with Mr. Lowe was that she had a boyfriend and she did not really know Mr. Lowe.

[24] When Mr. Lowe put his penis in M.D.’s vagina, he was fully naked. He took his clothes off himself. M.D.’s clothes were partially off. Her bottoms and underwear were off, but she was wearing a t-shirt. When M.D. was asked how her clothes came off for the sex, she said that she took them off. She then said that Mr. Lowe took off her pants and underwear and they had sex. She subsequently said that she did not remember how her clothes came off. Towards the end of her cross-examination, she said that she willingly took off her pants before they had sex. She was asked: “After that, you agreed to have sex by taking off your clothes?” M.D.’s answer was: “Yes, I did, pretty much.” Later, she confirmed twice that she agreed to have sex with Mr. Lowe. She agreed that she was initially hesitant, but he eventually convinced her. M.D. also said that she regretted doing it.

[25] When Mr. Lowe and M.D. had sex, M.D. was not lying down on the bed. She was still sitting on the edge of the bed and Mr. Lowe was on top of her. M.D. said that Mr. Lowe was holding both of her legs up in the air. She stated that she tried to leave at that time, but she could not move or get away because Mr. Lowe was holding her legs. According to M.D., the sex went on for more than 30 minutes but less than 45 minutes. She remained in the same position – sitting up with Mr. Lowe holding her legs in the air – for the entire period of time. She did not say anything during the sex.

[26] M.D. testified at trial that Mr. Lowe was not wearing a condom. She said that he was going to put a condom on and wanted to get one, but he did not have one. When asked specifically whether Mr. Lowe put a condom on before putting his penis in her vagina, M.D. answered “no”. When she was asked whether this was a “definite no”, she said that it was a definite no and that she remembered Mr. Lowe not ever wearing a condom. She was asked whether she was sure about this, and she said that she was. M.D. testified that Mr. Lowe ejaculated in her vagina, and that she felt it inside her. She said that she did not see any semen afterwards.

[27] When M.D. was asked during her cross-examination if there was something that was incorrect in the statements that she gave to the police, she stated that she told the police in both of her statements that Mr. Lowe was wearing a condom, but he was not. She testified that, at the time of her statements, she did not remember that he was not wearing a condom. M.D. said: “Sorry if I made it up.” When asked if this was what she did, she said: “I guess so. I did not mean to.” She later said that she lied about Mr. Lowe wearing a condom, but that she did not mean to lie. M.D. stated that as she remembers it now, Mr. Lowe did not have a condom on his penis and was fully naked. She said that this memory came back to her after listening to her statements to the police.

[28] M.D. stated that she did not enjoy the sex because she did not want it, but she let it happen. She felt that she had no choice. She said that she had no way to get home or to call anybody because her phone was in her purse. She felt like she was unable to go anywhere.

[29] After Mr. Lowe ejaculated, Mr. Lowe and M.D. did not say anything to each other. They continued to chit chat, watch television and drink until they got tired. They went to bed at around 2 a.m. They slept in the same bed. M.D. said that Mr. Lowe did not have an inflatable mattress to go on the floor.

[30] M.D. testified that she spent the night at Mr. Lowe’s apartment even though she did not want to because it was too late to go home. She said that she asked to go home, but it was too late to go home. She admitted that she was familiar with the subway and that the subway runs until 2 a.m. M.D. agreed that she had her phone and she knew how to call a taxi, but she did not have a taxi voucher and she was not sure whether she had any money on her. M.D. stated that she did not really turn her mind to leaving.

[31] M.D. woke up at around 7 a.m. in the morning of March 9, 2022. After she woke up, M.D. called a staff person at her group home while she was still at Mr. Lowe’s apartment. M.D. told her that she thought that she had been raped. The staff person told M.D. not to shower.

[32] M.D. also told Mr. Lowe that she thought that she had been raped. Mr. Lowe denied raping her. He said: “What do you mean you were raped? We were just drinking.” Mr. Lowe told M.D. to tell her people that he did not want to lose his job.

[33] M.D. and Mr. Lowe left Mr. Lowe’s place at around 7:30 or 8 a.m. Mr. Lowe wanted to drive M.D. home, but he was too drunk so he dropped her off at the parking lot across from Jane subway station, which was the nearest subway station. Mr. Lowe gave M.D. some change to go home and M.D. took the subway to go home.

[34] Once at home, M.D. repeated to a staff person that she thought that she had been raped. The staff person told her not to shower and not to change her clothes and to go to the hospital. M.D. did that.

[35] M.D. went to a hospital in Mississauga with another staff person to do a “rape kit”. M.D. called the police from the hospital and they came to the hospital. M.D.’s conversation with the police on March 9, 2022 was recorded on a body-worn camera. M.D. gave a video statement to the police on March 16, 2022.

[36] At trial, M.D. said that she had an injury to her vagina from the sex and that her vagina was hurting. M.D. testified that there was no bleeding and that she was positive about that. However, on March 9, 2022, she told the police that there was bleeding afterwards. When this was pointed out to her during her cross-examination, M.D. said that she made this up when she spoke to the police. She stated that she herself did not see any bleeding, and she does not know why she told the police that there was bleeding.

[37] When M.D. was shown pictures of herself and Mr. Lowe outside of Mr. Lowe’s apartment on March 8, 2022, M.D. asked why they were wearing masks on the photos and stated that they were not wearing masks at the time.

[38] As stated above, in March 2022, M.D. was taking a number of medications every day. She took medications day and night. She did not bring her medication with her when she went to Mr. Lowe’s place. M.D. said that she did not take medications that night, but she would have taken them in the morning.

[39] At trial, M.D. said that she had not spoken to Mr. Lowe since the time he dropped her off at the parking lot across from Jane subway station. She denied trying to call Mr. Lowe after the incident. However, in her statement to the police on March 16, 2022, M.D. said that she had tried to call Mr. Lowe a few days after the incident, but he did not take the call. After being shown her statement at trial, M.D. said that she did try to call Mr. Lowe a few days later just to talk, but he did not pick up. Shortly after, she denied again trying to call Mr. Lowe. She said that when she told the police that she had tried to call Mr. Lowe, she “fibbed, but did not mean to fib”. She also stated at trial that when she said a few minutes earlier that she had tried to call Mr. Lowe just to talk, she made it up but she did not mean to. M.D. said that her “final evidence” on this point was that she never called Mr. Lowe after the incident because the police told her that they were not allowed to keep in touch with each other.

[40] M.D. stated that she told her boyfriend about the incident with Mr. Lowe right away when she got home in the morning of March 9, 2022, before she went to the hospital and called the police. They texted each other. Her boyfriend was upset with her because he thought that she had cheated on him. M.D. testified that this did not affect her decision to call the police.

[41] In re-examination, M.D. said that at the time that she spoke to the police, she believed that she was being honest.

2. Agreed Statement of Facts and Other Exhibits

[42] As stated above, the evidence also includes an Agreed Statement of Facts that deals with, among other things, a number of reports and photos that were marked as exhibits.

[43] On March 9, 2022, M.D. attended Trillium Hospital in Mississauga for the purpose of having a Sexual Assault Evidence Kit (“SAEK”) examination performed. The SAEK Forensic Evidence Form was marked as an exhibit on consent, and its contents are admitted. Oral, vaginal and external genitalia swabs were collected, as well as blood and urine samples.

[44] The following information is reported in the SAEK Forensic Evidence Form:

• M.D. remembers the events, but “felt drunk”.
• The only physical contacts mentioned are between the mouth of M.D. and the mouth of the alleged assailant, and between the penis of the alleged assailant and M.D.’s vagina.
• A condom was used during the alleged assault, and ejaculation of semen by the alleged assailant occurred in M.D.’s vagina.
• M.D. used a number of prescription drugs within the 24 hours prior to the alleged assault, and used one prescription drug after the assault but prior to sample collection.
• M.D. used alcohol within the 24 hours prior to the alleged assault, more specifically three vodka/cranberry between 9 p.m. on March 8, 2022 until after midnight.
• In response to the question of whether M.D. had any bleeding injuries from the assault, the following statement was written: “‘light blood’ when voided first time”.
• No injuries were observed on M.D.’s body.
• M.D. complained of lower vaginal pain since the alleged assault. No injuries were seen, but pink coloured discharge was noted when swabs were done.

[45] A Biology Report dated August 3, 2022 was prepared by a Forensic Scientist, Biology at the Centre of Forensic Services. The Biology Report was marked as an exhibit on consent, and its contents are admitted.

[46] The Biology Report states that semen was not detected in M.D.’s underwear that was seized at the hospital. It also states that there was not enough male DNA on the oral, vaginal and external genitalia swabs to complete a test.

[47] A Toxicology Report dated July 22, 2022 was prepared by a Forensic Scientist, Toxicology at the Centre of Forensic Services. The Toxicology Report was marked as an exhibit on consent, and its contents are admitted.

[48] The Toxicology Report states that various prescription drugs were detected in M.D.’s urine. Ethanol was also found in M.D.’s blood (23 mg/100 mL) and urine (94 mg/100 mL).

[49] The parties agree that based on the evidence before the Court, an exact blood alcohol reading between the times of 11 p.m. on March 8, 2022 and 1 a.m. on March 9, 2022 – i.e., when the sexual conduct is alleged to have occurred – is not available.

[50] A number of photos were marked as exhibits. The photos were taken on March 10, 2022. They include:

• photos of the exterior of Mr. Lowe’s apartment building; and
• photos taken inside of Mr. Lowe’s apartment, including: photos showing a bed, a television and a black computer chair; a photo of an opened condom wrapper in the cabinet under the sink in the bathroom; and a photo of the inside of a drawer in the kitchen which contained, among other things, an unopened condom wrapper.

[51] Additional photo stills from the exterior of Mr. Lowe’s apartment building were marked as exhibits, including:

• photos depicting the arrival of Mr. Lowe and M.D. at Mr. Lowe’s apartment building in the parking area at approximately 10:50 p.m. on March 8, 2022; and
• photos depicting Mr. Lowe and M.D. exiting Mr. Lowe’s apartment building in the parking area at approximately 7:45 a.m. on March 9, 2022.

B. Positions of the Parties

1. Position of the Crown

[52] The Crown states that it is not unusual in sexual assault cases to have only two people present during the alleged assault. The Crown points out that M.D. testified, but Mr. Lowe did not. The Crown submits that M.D. was a credible witness and that the Court must examine all the evidence, not just her evidence.

[53] The Crown notes that there were inconsistencies between M.D.’s evidence at trial and the statements she gave to the police, notably with respect to whether Mr. Lowe wore a condom, whether there was vaginal bleeding after the alleged sexual assault, and whether M.D. called Mr. Lowe a few days after the alleged assault. The Crown points out that M.D. candidly acknowledged these inconsistencies, she apologized for them, and she stated that she believed that she was being honest with the police when she told them about these points. The Crown argues that M.D.’s admissions and candidness make her more sincere and credible. The Crown also argues that this should be considered in the context of M.D.’s personal circumstances, which include a plethora of underlying health issues, some cognitive delay, and the fact that she is not the most sophisticated witness.

[54] With respect to the condom issue, the Crown states that the photos that were marked as exhibits show that Mr. Lowe had access to condoms. The Crown also refers to the SAEK Forensic Evidence Form and the Biology Report and submits that perhaps M.D. was correct in her original memory that Mr. Lowe was wearing a condom.

[55] With respect to the bleeding issue, the Crown points out that the SAEK Forensic Evidence Form includes references to a pink discharge and “light blood”.

[56] With respect to the issue of whether M.D. called Mr. Lowe a few days after the incident, the Crown notes that there is no evidence before the Court as to whether M.D. contacted Mr. Lowe.

[57] The Crown argues that M.D. was very consistent on the salient points of her narrative. The Crown also argues that M.D.’s narrative and narrative timeline are supported by other evidence before the Court, including the photos that were marked as exhibits.

[58] The Crown states that the main issue in this case is consent. The Crown submits that M.D. was clear and unequivocal that: (a) she did not want to have sex with Mr. Lowe; (b) she articulated to Mr. Lowe more than once that she did not want to have sex; and (c) Mr. Lowe did not stop. Then, they ended up having sex. The Crown points out that we do not know Mr. Lowe’s version of events.

[59] The Crown argues that M.D. is a credible and reliable witness when one looks at some of the other evidence before the Court in combination with M.D.’s candidness. The Crown states that looking at all of the evidence in this case, there is nothing to detract from M.D.’s version of events.

2. Position of Mr. Lowe

[60] The defence states that the Crown relies almost exclusively on the evidence of M.D. The defence points out that there is no corroboration, except for the pictures that show M.D. being at Mr. Lowe’s apartment, and the picture of an opened condom wrapper in the cabinet under the sink in the bathroom.

[61] The defence’s position is that M.D. should not be believed because her statements are all different and inconsistent.

[62] With respect to the condom issue, the defence notes that M.D. told the police and the nurse at the hospital that Mr. Lowe was wearing a condom. The defence argues that M.D.’s new evidence at trial, two and a half years later, that Mr. Lowe was not wearing a condom makes no sense and no explanation was provided as to why she told the police that Mr. Lowe wore a condom.

[63] With respect to the bleeding issue and whether M.D. called Mr. Lowe a few days after the incident, the defence submits that no explanation was provided for these inconsistencies.

[64] The defence notes that the inconsistencies relate to information that M.D. voluntarily told the police. The defence points out that M.D.’s second statement to the police was a sworn statement and M.D. admitted lying to the police. The defence argues that the trial cannot possibly be different and it is not possible to know that M.D. was not lying at trial. The defence states that M.D. was given an opportunity at the beginning of her cross-examination at trial to correct any mistakes in her statements to the police, and she only raised the condom issue.

[65] The defence submits that if Mr. Lowe was not wearing a condom, as M.D. testified, the evidence does not support M.D.’s allegation that Mr. Lowe had sex with her as no semen or DNA was found.

[66] With respect to the condom wrapper, the defence submits that no negative inference can be drawn as the photos were taken two days after the events and no actual condom was found.

[67] The defence points out that M.D. said during her cross-examination that she agreed to have sex with Mr. Lowe when she took off her pants, despite the conversations that occurred before during which she said no multiple times. The defence’s position is that ultimately, by M.D.’s own evidence, she agreed to have sex with Mr. Lowe.

[68] The defence argues that M.D.’s evidence about the positioning of the sex, how long it went on for, and the way that she was allegedly incapable of escaping did not make sense.

[69] The defence points out that M.D. contradicted herself a number of times on the issue of how her clothes came off.

[70] The defence notes that while there was drinking involved, M.D. never said that she was so intoxicated that she passed out or anything like that.

[71] The defence submits that M.D. is not a credible or reliable witness. The defence states that the Crown does not have anything else in support of its case and there is not one piece of corroborative evidence. The defence’s position is that the Crown has not met its onus of proving the case against Mr. Lowe.

C. Discussion

[72] The actus reus of sexual assault requires the Crown to establish three things: (a) touching; (b) of an objectively sexual nature; (c) to which the complainant did not consent. The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant’s internal state of mind towards the touching. At the mens rea stage, the Crown must show that: (a) the accused intentionally touched the complainant; and (b) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent. See R. v. G.F., 2021 SCC 20, para 25.

[73] For consent to be valid, the complainant must be conscious and capable of consenting throughout the activity. In this case, while there is evidence that M.D. consumed alcohol and was “wasted”, there is no evidence before me suggesting that she was not conscious throughout the evening, or that she was incapable of consenting to sexual activity at any time. To the contrary, M.D.’s evidence is that she expressed her lack of consent.

[74] Mr. Lowe is presumed to be innocent, unless and until Crown counsel has proven his guilt beyond a reasonable doubt. To prove Mr. Lowe’s guilt of the offence of sexual assault, Crown counsel must prove each and every essential element of that offence beyond a reasonable doubt. A reasonable doubt is a doubt based on reason and common sense, a doubt that logically arises from the evidence or the absence of evidence. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. It would not be safe to convict a person of a criminal offence with only that degree of confidence. In order to find Mr. Lowe guilty, I have to be sure, based on all the evidence before the Court, that he committed the offence. See R. v. Nyznik, 2017 ONSC 4392, paras 6-7.

[75] In this case, there is no “credibility contest” because Mr. Lowe did not testify. Nevertheless, as is typical in many sexual assault cases, the credibility and reliability of M.D.’s evidence are central to this case. See Nyznik at para. 15.

[76] Credibility has to do with a witness’ veracity, truthfulness, sincerity and honesty. Reliability has to do with the accuracy of the witness’ testimony, i.e., the witness’ ability to observe, recall and recount events accurately. While a witness who is not credible on an issue cannot give reliable evidence on the same point, a credible witness may give unreliable evidence. See G.F. at para. 82 and R. v. H.C., 2009 ONCA 56, para 41.

[77] I agree with the Crown that there is evidence supporting the evidence of M.D. with respect to what happened before and after the alleged sexual assault, notably photos showing M.D. and Mr. Lowe arriving at Mr. Lowe’s apartment building in the evening of March 8, 2022, and photos showing M.D. and Mr. Lowe leaving the apartment building early in the morning of March 9, 2022. However, the only evidence before me regarding the interactions between M.D. and Mr. Lowe in Mr. Lowe’s apartment is M.D.’s evidence.

[78] Based on M.D.’s evidence, I cannot be sure about what happened in Mr. Lowe’s apartment. The credibility and reliability of M.D.’s evidence are problematic. The following are some of the problems with her evidence:

• a. Statements in cross-examination that she agreed to have sex with Mr. Lowe. During her cross-examination, M.D. stated that she agreed to have sex with Mr. Lowe, and that he convinced her to have sex even though she was initially hesitant. These statements are inconsistent with the evidence that she gave during her examination-in-chief on the issue of consent. At a minimum, these statements raise a reasonable doubt with respect to the issue of whether M.D. consented to the sexual touching.

• b. Condom issue. M.D. testified at trial that Mr. Lowe was not wearing a condom when he penetrated her vagina with his penis. She did not adopt her prior statements that Mr. Lowe was wearing a condom when they had sex. Therefore, I cannot use her prior statements as evidence of what may have happened.

  M.D.’s evidence that Mr. Lowe had sex with her for more than 30 minutes without a condom and that he ejaculated inside her is seriously undermined by the Biology Report which states that semen was not detected in M.D.’s underwear, and that there was not enough DNA on the vaginal and external genitalia swabs to complete a test. I note that M.D. confirmed that she did not shower and did not change her clothes between the alleged sexual assault and the time the SAEK examination was performed.

  It is also very troubling that M.D. gave a contradictory version of events on this point at trial, without providing any satisfactory or credible explanation for the change in her evidence after she spoke to the police. Her statements at trial that she lied to the police about Mr. Lowe wearing a condom and “made it up” are also very concerning, despite M.D.’s evidence in re-examination that she believed that she was being honest when she spoke to the police. M.D.’s prior inconsistent statements as to whether Mr. Lowe was wearing a condom put into question her ability to observe, recall and recount events accurately. In addition, M.D.’s reaction and response to her prior inconsistent statements show a lack of concern about veracity and accuracy.

• c. Description of how the sex occurred. I agree with the defence that M.D.’s evidence about the positioning of the sex and how long it went on for is implausible. This is particularly so in light of M.D.’s evidence that both she and Mr. Lowe were “wasted” – and notably her evidence that she was so wasted that she could not even sit on the toilet seat – which evidence raises more questions as to how the position that she described could be maintained for an extended period of time.

• d. Other prior inconsistent statements. M.D. testified that she did not see any bleeding after the alleged sexual assault. She did not adopt her prior statements that there was bleeding after the sexual assault, and she did not provide any satisfactory or credible explanation for the change in her evidence. Her statement that she made this up when she spoke to the police is also very concerning, despite M.D.’s evidence in re-examination that she believed that she was being honest when she spoke to the police.

  The same can be said about M.D.’s evidence at trial that she did not try to call Mr. Lowe a few days after the events, and that she “fibbed” when she said to the police that she did try to call him. Again, no satisfactory or credible explanation was provided for the change in her evidence.

  As stated above with respect to the condom issue, the inconsistencies between M.D.’s evidence at trial and her prior statements to the police put into question her ability to observe, recall and recount events accurately. In addition, M.D.’s reaction and response to her prior inconsistent statements show a lack of concern about veracity and accuracy.

• e. Contradictory statements at trial. The constant and numerous changes in M.D.’s evidence at trial as to how her clothes came off at different times during the night are extremely troubling. It showed a willingness on her part to “fill the gaps”, and a lack of concern about veracity and accuracy.

• f. Memory issues. In her examination-in-chief, M.D. said that she was sure and positive that the alleged sexual assault took place in March 2020. Further, when she saw a picture of herself and Mr. Lowe outside of Mr. Lowe’s apartment building on March 8, 2022, where both of them were wearing masks, she said that they were not wearing masks on the day in question. This evidence of M.D. is demonstrably wrong. In addition to put into question her ability to recall the events accurately, M.D.’s evidence on these points shows that she is prone to assert that she is sure about something where she should not be.

[79] In light of the foregoing, it would not be safe to convict Mr. Lowe based on the evidence before me. I am not satisfied beyond a reasonable doubt that: (a) Mr. Lowe touched M.D. in the manner that she described, and (b) M.D. did not consent to the sexual touching.

D. Conclusion

[80] I find Mr. Lowe not guilty.

Vermette J.
Released: January 27, 2025