Restriction on Publication

Pursuant to an order of this court, issued under s. 486.4(1) of the Criminal Code, no information that could serve to identify the complainant in this prosecution shall be published in any document or broadcast or transmitted in any way.

Reasons for Judgment

Shahram Mirza

Overview

[1] RC is charged with sexual assault on MP on or about June 3, 2022, at the city of Mississauga, contrary to section 271 of the Criminal Code of Canada.

[2] At this judge-alone trial, the complainant MP and accused RC testified. In addition, RC’s sister, Ronda, testified.

[3] As an overview, it is apparent that the Crown and Defence evidence agree that MP and RC were in an intimate partner relationship from October 2021 to February 2022. They broke up but continued to communicate and spend time together.

[4] The alleged incident occurred in the early morning of June 3, 2022, at the accused’s home, in Mississauga. It was after they spent time together in the evening of June 2, 2022.

[5] The following further circumstances are not disputed.

[6] MP became pregnant as a result of the sexual activity on June 3.

[7] Later in June, MP became aware she was pregnant and informed RC.

[8] On June 25, 2022, RC and MP attended a women’s clinic to facilitate an abortion. They had contact afterwards that resulted in an argument.

[9] On July 3, 2022, MP reported to police that she had been sexually assaulted by the accused on or about June 3, 2022.

[10] The central issue in dispute at this trial is whether the sexual activity was consensual. MP says it was not at all. RC says that it was entirely. Further, RC submits that MP had a motive to lie out of animus with the accused for perceived mistreatment in other aspects of their relationship before and after the incident.

[11] In reasons dated December 23, 2024, Justice Shaw ruled on the Applicant’s section 276 motion. Pursuant to that ruling, the accused was permitted to question MP and lead evidence about whether she engaged in sexual activities with the accused after the alleged sexual assault, but not any specifics of those activities. He could also question MP and lead evidence that they had an ongoing intimate relationship prior to June 3, 2022. Evidence of the specific nature of those activities is not permitted.

[12] Further, the pre-trial ruling permitted evidence that MP became pregnant as a result of the alleged sexual assault on June 3, 2022, and the termination of that pregnancy, subject to direction from the trial judge.

Summary of the Evidence

MP

[13] The complainant MP is 30 years old.

[14] Around September to October 2021, MP met the accused, RC, over a text messaging dating app.

[15] In October 2021, they went for their first date at an A&W restaurant near the airport.

[16] MP stated that they dated for a while and then in February 2022 they broke up because RC said that he had to travel to the US for work purposes and did not want a long-distance relationship.

[17] In cross-examination, she said that the break up was not over a big dispute. They still cared for each other and it was not acrimonious.

[18] MP said that they remained in contact regularly, a few times a week, over text messages after the break-up and met up occasionally.

[19] When they met it would be at his residence. RC lived in a basement apartment, in Mississauga. It had one bedroom, living area, dining table, kitchen, washroom. It was in his parents’ home.

[20] His parents and sister, Ronda, and her partner lived upstairs. MP said that they all knew her.

[21] On June 2, 2022, MP attended RC’s home to retrieve a bracelet in the afternoon or evening. MP didn’t recall if anyone was upstairs but said someone is usually home. By this point they were not together as a couple anymore. They had broken up around April 27, 2022.

[22] In cross-examination, MP said it was June 3 that she went over to his place, but then later accepted that she went over was the evening of Thursday, June 2 until Friday, June 3.

[23] MP described that RC’s apartment had a side entrance and then a door to the downstairs.

[24] On the evening of June 2, MP and RC looked for her bracelet inside his apartment for about twenty minutes. They moved some furniture around but were unable to find it.

[25] After the unsuccessful search for the bracelet, they decided to get some drinks and watch a basketball game at a local restaurant called Oasis, which is about five minutes away. They both drank. MP believed that RC drank a lot more than she did.

[26] She said that after leaving the restaurant, they returned to RC’s apartment with food.

[27] MP stated that RC fell asleep on the couch. Since they had both been drinking, she did not feel safe to drive home and she slept in RC’s room in the bed.

[28] She stated that she was awoken by RC being on top of her trying to have sex with her. She believes that it was between 1 a.m. to 2 a.m. and everyone was sleeping upstairs.

[29] She did not see him enter the room because she was sleeping.

[30] She tried pushing him away with both of her hands on his chest, but he was stronger. She said he was trying to penetrate her.

[31] She told him no, we are not together, and that she was not interested. She stated that she made it clear to him that she did not give him consent. She said this before he penetrated her. She also told him to stop after he penetrated her. She said that RC said it's ok as he continued to violate her sexually.

[32] She was wearing a dress that went past the knees, and panties and bra undergarments because she had come over from work.

[33] She said that she was on her back facing upwards. The bed covers had been removed and had been put to the side to the left.

[34] She stated that he was not wearing boxers and she did not think he was wearing a shirt either.

[35] She said that he pushed his penis into her vagina, and he penetrated her. He also held her arms down while he penetrated her. She said she felt helpless because she tried to stop him but could not.

[36] She said that after he was on top and penetrated her, he forced position change where he moved her onto her belly, and he continued to penetrate her.

[37] She testified that he did not use protection. However, in cross-examination, she agreed that she told the police in her statement of July 3, 2022, that he used a condom but it came off at some point.

[38] She said that once he was done forcing himself on her, they both fell asleep. She got up around 6 a.m. to leave his place as she had work. She went home to shower. She said she did not speak to him after it happened and before she left.

[39] In cross-examination she denied that any of the sexual activity was consensual at all.

[40] MP became pregnant as a result of the sex.

[41] She did not describe being physically injured. However, in summary, she described that it violated their trust, and it was disturbing for her.

[42] She stated that in the past if she refused to have sex he eventually left her alone, and did not take it this far. Even if he asked a few times and tried to persuade her, if she said no he would not persist further. In cross-examination, she said the forced sex was out of character for their relationship.

[43] After the incident she said that they had some limited communication when she texted him about the bracelet and then later in relation to the pregnancy. He didn’t respond so she went to see him at his apartment to discuss the pregnancy.

[44] In cross-examination, it was suggested to her that she went back to RC's house the next day for a birthday party on June 4, 2022.

[45] She agreed she went to the party but did not recall the date of the party or the birthday. She said he messaged her asking for help at the party. She could not recall if she also messaged him on his birthday of June 6.

[46] In cross-examination, she was challenged that her evidence in examination in chief was that she did not want to spend time with him after the alleged incident. She was shown her video-statement to the police where she said the same but added that “.. when someone forces it on you, I don’t think you want to be with that person again.” She explained that response was in relation to not wanting further sexual activity. However, again it was put to her that she did spend time with the accused on his birthday which post-dated the alleged incident. She maintained that she could not recall the date of his birthday.

[47] She agreed that she stayed over the night of the birthday to help clean up and other people did as well.

[48] She denied that she had physical or sexual activity with RC on June 4 into June 5. (This line of limited questioning was permitted pursuant to a pretrial ruling by Justice Shaw.)

[49] She testified that she could not recall the specific date but believed it was in June or July that she told him about the pregnancy.

[50] She denied the suggestion from the Defence that she was angry that he broke up with her. She was asked about her comment to officers captured on body cam that he gave her a “bullshit reason” for breaking up and for being mistreated during the pregnancy. She said breaking up was not the issue, it was the sexual assault that he committed. She denied she made up a story.

[51] A brief comment about MP’s testimony. As part of her testimony and response to questions in cross-examination, MP frequently stated that she would need to check her phone to identify dates or asked to read the transcript of the full police statement. Later in her testimony she stated that during a break she had checked her phone to look at texts and became more specific about some dates.

[52] Returning to the visit to RC’s home to discuss the pregnancy, she knocked on his door and he said he didn’t want to speak with her. She told him she was pregnant and then he opened the door but grabbed her wrist and dragged her to the driveway and said let’s go for a walk because he didn’t want to talk about his personal business where his parents were.

[53] They went for a walk. She told him she was pregnant. She said that he responded that he would cover the expenses to terminate the pregnancy. He tried to calm her down.

[54] She said that he did pay for the abortion. However, she said he was also supposed to take care of her because it was not going to be easy, but he didn’t follow through with that assurance.

[55] She denied the suggestion from the Defence that she was angry that he broke up with her. She was asked about her comment to officers captured on body cam that he gave her a “bullshit reason” for breaking up and for being mistreated during the pregnancy. She said breaking up or the other mistreatment was not the issue, it was the sexual assault that he committed. She denied she made up a story.

[56] She thought she spoke to the police after the first pill-based treatment for the abortion.

[57] MP could not recall if she spoke with RC’s sister Ronda but eventually acknowledged she would reach out to her when she could not reach RC.

[58] She said it was not uncommon for RC to be slow to respond to text messages. She agreed there were times when she would contact Ronda when this happened. She said sometimes the accused would take naps and not respond. She said that might have happened on the day of RC’s birthday, but she didn’t remember, she would have to check her phone.

[59] It was suggested to MP that on June 7, she and the accused had an argument about MP finding a blond hair in his bed.

[60] She acknowledged they had an argument but stated she thought it was earlier during their relationship. She said the family could hear them upstairs during that argument implying they were loud.

[61] It was suggested to MP that RC said to her at that point, that he was done with the relationship with MP and told her that they are friends but not in a committed relationship. She said she didn’t know in response.

[62] She did not recall the date she told him she was pregnant. She was taken to her video-statement transcript, and it was suggested it was June 22 that she found out she was pregnant.

[63] MP did not recall if she spoke with Ronda before she went to RC’s home. MP said she would have to check her phone.

[64] MP denied the suggestion that she asked Ronda if RC was home and said she needed to speak to him, and that Ronda said it was not a good time to visit as he was with a lady. MP denied that she told Ronda she was coming over to see if she could catch him with a woman.

[65] In cross-examination, MP admitted that on the same day she went over to tell about the pregnancy she got charged with stunt driving for driving excess speed. She said she was going 20 to 30 kms over the limit. She did not notice the changes in speed limits. She agreed that she asked the police drop her off at RC’s house.

[66] She said she was panicking because she was pregnant, and she wanted to speak to him urgently. MP denied it was also to catch him with another woman. She said that was not her concern as they were not in a relationship anymore.

[67] She got to his apartment and knocked on the door. She agreed with the suggestions by the Defence that he opened the door slightly like he was hiding something.

[68] She said that she told him she was pregnant and it was urgent. He physically took her by the wrist and shoulder to the driveway and then they discussed the pregnancy.

[69] She agreed with the suggestion by the Defence that she raised the possibility of two of them getting married if they had a kid together. However, in re-examination she said that she has a strong feeling that she did not ask him to get married because she didn’t want a long-term relationship with a person that would force sex on her.

[70] MP agreed she called Ronda later that same evening. However, she denied that she believed or said that the pregnancy was a sign that her and RC should be together. She denied that she wanted to be back in a relationship with him. She said she was done with the relationship as of February.

[71] In re-examination, she said she was scared about the pregnancy and wanted a solution. She believed both parents have a right to decide what they want to do with the child.

[72] MP denied the suggestions that she was ok with the accused not using protection as long as he pulled out during the alleged incident. She agreed that she told the police he forcefully got her pregnant.

[73] However, in cross-examination she accepted that she told the police that he initially wore a condom. She acknowledged use of a condom is consistent with a desire to prevent pregnancy. She responded that they used condoms before and it never broke, so she questioned why now.

[74] She agreed that on June 26, she came back to his apartment by Uber and she wanted to stay with him. She said she did not remember the date, but agreed she came to his home with a suitcase because he was supposed to take care of her due to her condition and serious symptoms from the abortion process but he refused to help her out. (During this part of her testimony MP became quite upset and said to counsel that she felt like she was being questioned the whole time and she’s not the accused.) She agreed that he suggested that she stay with her family and she refused to leave. She said she could not go to her family and say she got pregnant by some guy and got an abortion. She said he didn’t care and had no heart.

[75] When asked by the Defence, she stated that did not recall when it was suggested that it got to a point that he threatened to get a restraining order. She was taken to the transcript and agreed she may have said it to the police but she didn’t recall today.

[76] MP said that their relationship ended fully in April 2022. She denied they had a friends with benefits arrangement afterwards. They broke up in the past as well and this time it was more definitive because he was going to be working in the US.

[77] MP was asked again and did not recall the date of the argument about finding the blond hair. She said that if she questioned him about other women while they were together, it was because normally people do not have condoms on the floor or under their bed.

RC

[78] The accused RC is 37 years old. He lived in a basement apartment in his parents’ home in Mississauga.

[79] He confirmed that he met MP on a dating app in September 2021 and their first date was in October. They went to a fast-food restaurant and then to a sushi restaurant a few days later. He said that the relationship progressed rapidly. He said that their committed relationship ended in February 2022.

[80] In cross-examination, he agreed that his version and MP’s version agreed considerably up to the point of their return to his apartment on June 3. However, he denied that he had rehearsed a story. He said that he told the sequence from his recollection. He denied he committed his version on memory because it was rehearsed.

[81] RC stated that after the relationship ended, both he and MP still had feelings for each other. They decided to remain friends and periodically she came over and spent weekends with him intimately but they were not exclusive.

[82] From February 2022 to June 3, 2022, they saw each other once or twice a month. If there was a long weekend they spent more time together. RC said that the last time he saw her before June, was at the end of April or beginning of May.

[83] They got together in early June because his birthday was coming up and he had promised her that she could come to his BBQ. He said that she told him that she needed to find her bracelet as well, precipitating her visit on June 2.

[84] On June 2, MP came over after work around 6:30 to 7 p.m. They looked for MP’s bracelet. They moved the bed but not the dresser because it’s too heavy. They did not find the bracelet.

[85] They spoke to each other and agreed to start dating again. They went to Oasis and had several drinks. Near the end of their visit, he said that he decided to buy some food so she doesn’t drive home on an empty stomach. Then she said to get it to go because she wanted to spend the evening at his place. They went to his place, watched Netflix and they proceeded to his bed. He took his diabetes medication.

[86] He described the sexual encounter as follows:

[87] She was lying on the bed facing him. They kissed with light touching. She asked to keep the lights on. They helped each other remove their clothing. RC described in detail the articles of clothing that were removed from each other. He took off her sweater, she took off his t-shirt. Her bra was removed. He helped her take off her underwear and jeans and she moved to facilitate the removal. He placed the clothing to the left of the bed. He took off his pants and boxers.

[88] He said that they engaged in foreplay, touching, kissing, on the neck.

[89] He said that he reached over to his dresser and for a condom. He had one left, opened, and applied it. He described in detail the application of the condom from the tip to the base of his penis.

[90] He said that they proceeded to have consensual vaginal intercourse, as MP lay on her back with a pillow behind her neck. He said she used her hands to keep her feet in the air and he put his hands on her breasts. He said that during intercourse she achieved climax then he noticed something didn’t feel right. RC pulled his penis out and noticed that the condom had ripped from top right to bottom. They discussed this problem.

[91] RC said that MP asked if he had another condom. He said no it was the last one. He then asked her if she had any birth control patches and she said they were at home.

[92] He said at that point MP told him to penetrate her from behind and pull out when he was going to ejaculate. They agreed to continue sex.

[93] He said that while they had intercourse it became quite loud from the sound of the headboard hitting the wall. They paused to place a sweater in between the headboard and wall. She was unable to do it, so he assisted. Then they resumed sex again. He ejaculated on her back and on some of her hair. She obtained a towel and cleaned herself.

[94] He turned off the lights and then they spooned in bed.

[95] Then she messaged his brother to ask if she could leave her car in the driveway.

[96] In the morning, they woke up at around 6:30 to 7 a.m. He said to MP that last night was fun. However, he told her that he was seeing a few other people.

[97] He said she took a shower. RC said that she was supposed to come back to help prepare the BBQ food but she did not return that night because she was busy.

[98] Over a phone call she asked what he wanted for his birthday and he said his favourite rum. She said she would bring beer too.

[99] On June 4, she showed up at 7 p.m. RC greeted her and said to mingle with his visitors.

[100] RC said that after the party MP was upset with him because RC was not giving her enough attention. RC told her that he was busy entertaining the other guests. He estimated that there were 65 people there.

[101] They cleaned up the mess from the party together. Then they had an argument in the bedroom.

[102] He said that they got ready for bed. Then they proceeded to have intercourse. He said that they went to sleep and woke around noon. Then they watched Netflix for seven hours and MP went home at 7 p.m.

[103] They planned to see each other on June 6, but he cancelled their dinner plans because he intended to spend the time with family.

[104] He saw her again on June 7. He was tired and sore but she offered him a massage so he agreed and she came over at 9 p.m. She gave him a massage and then they removed their clothes to have sexual activity. However, this ended when MP found a blond hair, triggering a big argument.

[105] RC said that MP became loud and confrontational about the idea he was seeing another woman. He said he turned to the right to avoid answering her questions and she slapped him on the left side of his face. She hit his eye and it became swollen.

[106] He said he got upset and yelled that he was done with their relationship and proceeded to get her out of his apartment. RC says that MP said you can’t quit me.

[107] He said that after this argument, he no longer took any of her calls or messages.

[108] On June 22, RC was at home with a woman. He said that MP showed up unannounced and banged on his basement door. He answered the door and she asked him why are you not responding to my calls or messages, ignoring her. She said it was ridiculous. He stated that she said it with a specific tone, which implied it was aggressive without using that word.

[109] RC said that he closed the door and then told the woman he was with to lock herself in the bathroom. He changed from his boxers into joggers, shoes, and a shirt. He then came back to the door and told MP to step back as he perceived she wanted in. He guarded the door and told her that they had to talk upstairs.

[110] They went to the driveway. They discussed the pregnancy. He said that he told her whatever you want to do he will support her decision. He will pay his fair share, and figure things out.

[111] RC said that MP said the pregnancy is a clear sign for them to get back together. She said that if he married her it was the only way to accept the child. He said he told her he was not interested in getting married and the baby situation would not change his mind. But he told her he was ready to pay whatever is fair if she had the child and would support the child. He said that he told her to take a few days to think about it and did not tell her to terminate the pregnancy.

[112] RC said it got physical when he told her he wants the kid but did not want her. He said that it was a loud argument that attracted neighbours’ attention. She hyperventilated. He tried to calm her down. He took her by the hand and shoulder. They walked around the block and then back to his place. She eventually left.

[113] They messaged about options and alternatives.

[114] On June 25, he picked her up at 10 a.m. to go to the woman’s clinic in Mississauga to commence the process for an abortion. He gave her his banking information and she went inside for three hours. He tried to go inside with her but was stopped by security.

[115] After her appointment, he drove her home. She showed him a picture of the pregnancy. He dropped her off. They had an argument because she brought luggage and he told her that he was not taking her back to his home. He dropped her at 3:30 to 4 p.m.

[116] RC said that on June 26 she returned at 5 p.m. She banged on his door. RC said his father answered. Then she accused RC of ignoring her. He told her he was not feeling well. She told him that she was keeping the baby because he was ignoring her. He told her that is ok but that he would support the child and not her.

[117] RC said that he told MP multiple times to stop showing up at his home and he called the police. She had brought her luggage and said he should take care of her for two weeks.

[118] When he called the police, he said that MP threatened that if you don’t hang up the phone and stop seeking a restraining order, she will make it impossible to see their child. He hung up the phone and then asked her to leave. He told her that he wanted to be told the delivery date and date of a baby shower.

[119] She said she would leave if he bought her dinner. He drove her home. She asked to read letters in his glove box. He told her no.

[120] RC said that MP told him at that point that she had sped over to catch him with another woman. He eventually took her to her cousin’s home. She insisted that he pay the towing fees she incurred, blaming him for the speeding. She then took her luggage.

[121] In cross-examination, he agreed that he did not file a police report. He said that after the pregnancy ended, there was no need for them to see each other so he didn’t follow through with a police complaint. He denied he didn’t report it because it was false. He said there was no longer a need to do so and he has not seen her since June 26 until court.

Ronda C-A

[122] I will refer to the accused’s sister as Ronda to avoid confusion.

[123] Ronda was not cross-examined by the Crown.

[124] Back in June and July 2022, she lived in the same home as RC but in the upper level.

[125] Ronda described that on June 22, MP called her in the afternoon. She was trying to reach RC but could not reach him by text. She wanted to come over to discuss her pregnancy with him.

[126] Ronda spoke with MP while outside attending to her young son. She saw a different woman come by the house to visit RC. Ronda and the woman exchanged pleasantries.

[127] As a result, Ronda tried to delay MP coming over and told her it was not a good time. Eventually, she told MP that RC had a female friend over. Ronda said that MP could not understand why RC was not letting her come over to discuss the pregnancy. Then when MP found out he had a female friend over she wanted to come over more than before to confront him.

[128] Ronda told MP don’t come over and cause a scene, don’t do anything irrational and stay calm. She wanted peace at her parents' home.

[129] Then Ronda left the house with her son for an outing.

[130] Ronda said later that day around 8 p.m., MP contacted her and told her about getting a ticket for going 90km in a 50km zone while speeding to their house. She also told Ronda she felt hurt by RC’s response. Ronda interpreted that was likely because she could see that RC was with another woman. She said that MP did not discuss much about the pregnancy at that time.

[131] Ronda said that on June 25, MP told Ronda that she thought the pregnancy could be a second chance for them to be together as a couple to raise the child.

[132] She said that during their discussion, MP was weighing the pros and cons of maintaining versus ending the pregnancy.

Positions

[133] The Crown submits that they have proven the offence of sexual assault beyond a reasonable doubt. The complainant is credible and reliable. Inconsistencies in her evidence are minor or explained.

[134] The Defence submits that the complainant is not credible or reliable. Her evidence is inconsistent with prior statements in significant ways that support her version should be rejected.

[135] The Defence also submits that the complainant has a motive to lie.

[136] Both parties filed helpful written summaries of their positions. As a result, in the analysis I will only discuss the essential aspects for my ultimate findings.

The Law

Presumption of Innocence

[137] The accused is presumed innocent. The presumption of innocence is of fundamental importance in the criminal justice system as it places the burden of proof squarely on the Crown, and also serves to protect against wrongful conviction.

[138] The presumption of innocence stays with the accused throughout the trial and is only displaced if the court is satisfied that the Crown has proven the charges beyond a reasonable doubt. The Crown has the sole obligation or burden of proving each charge. The accused does not have an obligation to prove anything or to testify.

Proof Beyond a Reasonable Doubt

[139] The concept of proof beyond a reasonable doubt is also of fundamental importance in the criminal justice system. Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.

[140] While probable or likely guilt is not enough, proof to a level of absolute certainty is not required as that standard is impossibly high. That said, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

[141] If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond the reasonable doubt standard. A certain gap in the evidence or lack of evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[142] When assessing circumstantial evidence, I must consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown thus may need to negative these reasonable possibilities, but certainly does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, and not on speculation. R. v. Villaroman, 2016 SCC 33, paras. 36-37.

[143] Ultimately, in order to convict an accused person of an offence, I must be sure that the Defendant committed the offence. If I am not sure, I must acquit.

[144] The methodology for assessing the evidence in cases where credibility is a key issue was set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, as follows:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[145] The W.(D.) analysis is a useful framework that serves to emphasize the burden of proof and the presumption of innocence by ensuring that criminal cases are not reduced to credibility contests. R. v. J.H.S., 2008 SCC 30, and R. v. C.L.Y., 2008 SCC 2.

[146] In applying the W.(D.) methodology, I am mindful of the following additional guidance that has been provided by the caselaw.

[147] First, the W.(D.) methodology applies not only to instances where the Defence calls exculpatory evidence, but also to exculpatory evidence that is found within the Crown’s case, for example, where a Crown witness provides evidence in support of the Defence. R. v. B.D., 2011 ONCA 51, para. 105.

[148] Second, in considering the first two steps of the W.(D.) analysis, the evidence of the accused must be considered in the context of the evidence as a whole, including the complainant’s evidence. In other words, the assessment is not simply whether the accused’s evidence standing alone and without context is believed or leaves a reasonable doubt; see R. v. Carriere, para. 51, R. v. Hull, and R. v. J.J.R.D..

[149] Third, the second step of the W.(D.) analysis is important. It emphasizes the point that credibility assessments in a criminal case are not dichotomous.

[150] There is a third alternative between complete acceptance and complete rejection of the accused’s evidence that can ground a reasonable doubt. R. v. Edwards, 2012 ONSC 3373, para. 20, and R. v. J.M., 2018 ONSC 344, paras. 9-20.

[151] If the judge is unable or cannot decide whom to believe, the court must find the accused not guilty. Likewise, if the judge believes both versions of the events then the court must acquit.

[152] In addition, I recognize the following further principles apply to the assessment of the accused’s evidence and reasonable doubt.

[153] An accused’s evidence should only be rejected after a considered and reasoned assessment of their evidence, free from bias, partiality, or sympathy. It is not appropriate to just refuse to accept their evidence in a conclusory manner without proper justification.

[154] It is not necessary to believe the evidence that supports the Defence on a vital issue; rather, it is sufficient if, when viewed in the context of all of the evidence, the conflicting evidence leaves me in a state of reasonable doubt as to the accused’s guilt.

[155] The rejection of the evidence of the accused cannot, in itself, be taken as positive evidence of guilt.

[156] If I reject the accused’s version, I must take a step back and consider whether, on the whole of the remaining evidence that I do accept, whether I am left in a state of reasonable doubt on any of the charges.

[157] If I reject the accused’s evidence but can only find the allegations probably occurred then the prosecution has not met its burden of proof and the accused must be found not guilty.

[158] On the other hand, if the Crown has met their burden of proof beyond a reasonable doubt with respect to any charge, then the accused must be found guilty of that charge.

[159] When assessing credibility, there is no formula that applies in determining whether a witness is telling the truth. Instead, the witness’ evidence is considered using a common-sense approach that is not tainted by myth, stereotype, sympathy, or assumption.

[160] There are many factors that may be relevant in determining credibility. Some of the key factors include whether the witness’ evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits, whether the witness has a bias or motive to give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies.

[161] It is important that a judge consider whether the inconsistencies suggest that the witness is lying or not telling the whole truth or that their memory may be flawed or unreliable. R. v. J.E., 2024 ONCA 801, para. 25.

[162] As the Court of Appeal confirmed in R. v. Varghese, 2024 ONCA 555, para. 49, to be given confirmatory weight, evidence need only be more consistent with the witness’s version of events than with another version: R. v. T.W.S., 2018 BCCA 119, para. 40; R. v. Demedeiros, 2018 ABCA 241, para. 10, aff’d 2019 SCC 11.

[163] Deciding whether evidence confirms or corroborates a complainant’s allegations “is part of the broader assessment of the complainant’s credibility and reliability that trial judges must make based on the entirety of the evidence”: R. v. G.H., 2023 ONCA 89, para. 20, citing Primmer at paras. 31-33, 39; R. v. S.R., 2023 ONCA 671, para. 7.

[164] Arriving at a verdict in this case requires that I determine issues of credibility and reliability. In other words, I must decide whether the witnesses told the truth and if so, whether their evidence can be relied upon as accurate.

[165] However, and to be clear, this case is not a credibility contest.

[166] The issue is not whose evidence I prefer. Rather, the issue is whether the Crown has proven the case against the accused, on each charge, beyond a reasonable doubt. In making this determination I can accept some, none, or all of any witness’ evidence. I may find that even though I prefer the evidence of a Crown witness on some points over the evidence of or supporting the accused, I am left with a reasonable doubt about guilt.

[167] As well, after careful consideration of all the evidence, I may not know who to believe, in which case, I am also left with reasonable doubt.

Motive

[168] The accused has no obligation to establish that the complainant has a motive to fabricate or lie or that they were biased. A complainant may accuse a person of committing a crime for reasons that may never be known, or for no reason at all.

[169] Not only is there no burden on an accused to prove a motive to fabricate, but there is also no burden on an accused to disprove that the complainant had no motive to fabricate. It does not follow that because there is no apparent motive to lie, the witness must be telling the truth. It is dangerous and impermissible to move from an apparent lack of motive to the conclusion that the complainant must be telling the truth.

[170] In R. v. Gerrard, 2022 SCC 13, paras. 4-5, the Supreme Court noted that when the accused suggests that the complainant has a motive to lie, lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility. R. v. Stirling, 2008 SCC 10, para. 10; R. v. Ignacio, 2021 ONCA 69, paras. 38, 52.

[171] Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a factor that suggests a witness may be more truthful because they do not have a reason to lie when it is asserted that they do. That said, when considering this factor, trial judges must be alive to two risks. First, the absence of evidence that a complainant has a motive to lie (i.e., there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e., evidence establishing that the motive does not exist). The latter requires evidence and is therefore a stronger indication of credibility. Neither is conclusive in a credibility analysis. Second, the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations. R. v. Swain, 2021 BCCA 207, paras. 31, 33.

[172] Proper reasoning does not involve asking why the complainant would make the allegations because this reverses the onus of proof.

[173] Lack of embellishment may be considered in response to suggestions the complainant has a motive to lie. However, it is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. R. v. Alisaleh, 2020 ONCA 597, para. 16.

[174] It is wrong to reason that because an allegation was not exaggerated or could have been worse, it is more likely to be true. R. v. Kiss, 2018 ONCA 184, para. 52, citing R. v. G.(G.), R. v. L.L., 2014 ONCA 892, para. 2; R. v. G.(R.), 2008 ONCA 829, para. 20.

On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible. [Emphasis added.]

Prior Statements

[175] Prior statements cannot be relied upon to bolster credibility merely because they are consistent with the testimony. See R. v. C.(G.), paras. 20-22; R. v. Dinardo, 2008 SCC 24, paras. 39-40; R. v. J.A.T., 2012 ONCA 177, para. 98.

[176] Prior consistent statements are not admitted to prove the truth of their contents. They are also not admissible to bolster the notion that the witness is telling the truth in his or her testimony or prior statements because they may be consistent. It would be improper for the trier of fact to use the prior statements to conclude that because the witness has said the same in the past, it is more likely that the witness is telling the truth either then or now or is more believable. R. v. D.B., 2013 ONCA 578, paras. 38-40; Dinardo, at paras. 39-40.

[177] It is also incorrect to reason that because the complainant has made allegations, or disrupted their life by making a complaint, or pursued the complaint, or is emotional when testifying that the complaint is true. It is dangerous for a trial judge to find relevance in the fact that a complainant has exposed themself to the unpleasant rigors of a criminal trial. This can reverse the onus of proof. R. v. A.(G.R.), para. 3; R. v. J.C., 2021 ONCA 131, para. 88; R. v. S.(W.); R. v. K.(V.).

Contextual Analysis

[178] In sexual assault cases, depending on the complainant’s personal circumstances including age, maturity, recollection, passage of time, and impact of trauma, some aspects of the context and incident may be difficult to recall and to describe accurately at a later date. An inability to recall a minor or insignificant event does not necessarily detract from the witness’s overall reliability or credibility. R. v. G.M.C., 2022 ONCA 2, para. 38. This is why it is critically important to carefully consider the explanation for a failure to recall parts of the history or incident and determine whether they are minor or less important overall. It depends on the totality of the evidence and explanation provided. That said, the court must not fill in gaps based on speculation about the presence of inconsistencies or unilaterally explain away inconsistencies as the product of trauma as this could constitute improper reasoning and in some cases, could shift the burden to the accused. While capable of recognizing social and trauma context, a judge has a duty to consider significant, major, or more important inconsistencies or omissions, before relying on that witness’s evidence as credible or reliable.

[179] The court must continue to consider the totality of the evidence while remaining vigilant that the onus rests on the Crown to prove the elements of the offence beyond a reasonable doubt.

Prohibited Reasoning

[180] In assessing the complainant’s evidence, I have considered that the following (non-exhaustive) myths and stereotypes have no place in a criminal trial and are prohibited reasoning.

[181] That genuine or “real” victims would have reported the offence at the earliest opportunity or avoided the perpetrator after the offence.

[182] That the evidence of sexual violence complainants must be corroborated before it can be accepted or believed.

[183] That people that experience sexual trauma are less trustworthy or deserving of belief.

[184] There is no fixed rule on who will experience sexual violence or how they will react to it, including what they will do or say. There is no typical victim or typical assailant or typical situation or typical reaction. Sexual violence can take place in almost any circumstance. It can happen between all different kinds of people, and in different types of relationships. Victims will not all look or act the same way. Sexual violence is rarely witnessed first-hand by another person.

[185] Someone who was the victim of sexual assault may immediately stop having contact with their abuser, whereas others may continue having contact with the person abusing them. Some victims might immediately complain about the abuse, while some will delay disclosing it, and still others will never disclose it. The reality is that there is no fixed rule on how people who are the victims of sexual abuse will behave while subject to such abuse or in its aftermath.

[186] In assessing the credibility of a complainant, their continued contact with the accused or the timing of the complaint are simply factors to consider in all the circumstances of a particular case.

[187] A delay in disclosure, standing alone, will not give rise to an adverse inference against the credibility of the complainant.

[188] Additional myths and stereotypes were specifically recognized by the Supreme Court in R. v. Kruk, 2024 SCC 7, paras. 36-43, and include:

• Genuine sexual assaults are perpetrated by strangers to the victim (Seaboyer, at p. 659, per L’Heureux-Dubé J., dissenting in part; R. v. Friesen, 2020 SCC 9, para. 130, per Wagner C.J. and Rowe J.).
• False allegations of sexual assault based on ulterior motives are more common than false allegations of other offences (Seaboyer, at p. 669, per L’Heureux-Dubé J., dissenting in part; R. v. Osolin, at p. 625, per L’Heureux-Dubé J., dissenting; R. v. A.G., 2000 SCC 17, para. 3, per L’Heureux-Dubé J., concurring).
• Real victims of sexual assault should have visible physical injuries (Seaboyer, at pp. 650 and 660, per L’Heureux-Dubé J., dissenting in part; R. v. McCraw, at pp. 83-84, per Cory J. for the Court).
• A complainant who said “no” did not necessarily mean “no”, and may have meant “yes” (Seaboyer, at p. 659, per L’Heureux-Dubé J., dissenting in part; R. v. Esau, para. 82, per McLachlin J. (as she then was), dissenting; R. v. Ewanchuk, paras. 87, 89, 93, 97, 99, per L’Heureux-Dubé J., concurring; R. v. Cinous, 2002 SCC 29, para. 167, per Arbour J., dissenting; R. v. Kirkpatrick, 2022 SCC 33, para. 54, per Martin J. for the majority; R. v. Goldfinch, 2019 SCC 38, paras. 44, 74, per Karakatsanis J. for the majority).
• If a complainant remained passive or failed to resist the accused’s advances, either physically or verbally by saying “no”, she must have consented — a myth that has historically distorted the definition of consent and rendered rape “the only crime that has required the victim to resist physically in order to establish nonconsent” (R. v. Ewanchuk; see also R. v. M.(M.L.); R. v. Find, 2001 SCC 32, para. 101; R. v. Barton, 2019 SCC 33, paras. 98, 105, 107, 109, 118; R. v. Friesen, 2020 SCC 9, para. 151).
• A sexually active woman (1) is more likely to have consented to the sexual activity that formed the subject matter of the charge, and (2) is less worthy of belief — otherwise known as the “twin myths”, which allowed for regular canvassing of the complainant’s prior sexual history at trial, regardless of relevance, thereby shifting the inquiry away from the alleged conduct of the accused and towards the perceived moral worth of the complainant (Seaboyer; Ewanchuk).
• A complainant’s “failure” to resist or cry out is suggestive of consent; the mere fact of a complainant having psychiatric or therapeutic consultations is relevant to their credibility or reliability (s. 278.3(4) of the Code); or a complainant associating with or not avoiding the accused after the alleged sexual assault suggests that there was consent and that no assault occurred (A.(A.B.), at paras. 6-12).

See also R. v. Goldfinch, 2019 SCC 39, paras. 60, 65; R. v. Hoggard, 2024 ONCA 613, para. 32; R. v. A.R.D., 2017 ABCA 237, para. 39; R. v. D.D., 2000 SCC 43, para. 63.

Analysis

[189] After considering the total evidence, submissions, and law, I am not satisfied beyond a reasonable doubt that RC committed sexual assault on MP on or about June 3, 2022.

[190] The primary reason that I am left in a state of reasonable doubt is that after considering the accused’s evidence in the context of the total evidence, RC’s evidence leaves me in a state of reasonable doubt. In particular, when viewed in the context of all of the evidence, the conflicting evidence leaves me in a state of reasonable doubt as to the accused’s guilt.

[191] In the end, the accused’s explanation is plausible in light of the total admissible evidence that I accept. He described the alleged encounter as a consensual sexual encounter on June 3, 2022, at every stage. RC’s evidence was candid and reliable.

[192] Although the Crown takes issue with RC’s detailed recollection, the Crown’s cross-examination did not undermine the credibility and reliability of his memory of the incident as a consensual encounter. His version was challenged in a very limited sense by suggestions to him that it was contrived, which he denied. There was no follow-up to undermine his position.

[193] RC agreed that except for the circumstances of the sexual activity, they spent time together on June 2nd looking for the bracelet, going to the bar, and then returning to his apartment into the early morning of June 3rd. Those aspects are not in dispute and simply because they are in substantial agreement with the complainant do not support the position the accused is guilty given identity, date, location, and intentional sexual touching are not issue. The central issue is consent.

[194] I find that RC’s version was reasonably plausible that they had a consensual sexual encounter on June 3, 2022. I have considered his explanation with the total evidence. MP’s evidence conflicts with RC’s version directly with respect to the non-consensual nature of the deliberate sexual touching. I am not obligated to make a finding that I reject entirely MP’s evidence to be left in a state of reasonable doubt by the total evidence that I do accept.

[195] In their written submission, the Crown argued that for the Defendant to have near-perfect recall of every detail of that particular evening three years later strains credulity. In oral submissions the Crown submitted that it was unusual that RC would recall this incident to this extent, given at the time it was not an unusual event. In other words, he had no reason to recall with that degree of specificity what happened when accused a month later.

[196] With respect, I do not accept this argument.

[197] First, an accused charged with a serious offence like sexual assault of their partner will likely do their best to recall details and memorialize the night in question with relevant parts of the relationship. Their lawyer may even instruct them to do so to help with their Defence. It is important to keep in perspective that facing a criminal accusation, being charged, placed on restrictions, and dealing with the associated stigma is a life-altering experience. This is a significant reason for the accused to take steps to recount the details.

[198] In my view, the focus is not necessarily on why he remembers, since it is reasonable for him to do so, but whether his version is credible and his memory is reliable.

[199] Second, the Crown did not meaningfully challenge RC in cross-examination about how he recalled the particulars of what happened on June 2 and 3, beyond it being suggested to him that it was a rehearsed story. The cross-examination did not expose any aspects of his version that were not credible or reliable.

[200] A sufficient foundation grounded in the evidence is required to justify a disbelief or rejection of the accused’s testimony. It would be improper to disbelieve or reject the accused’s version because it “sounded rehearsed.” Testifying in court is a stressful and unnatural experience. Good counsel on both sides prepare their witnesses and have them review their prior statements, notes, or testimony before they testify. The accused is no different and is entitled to the same benefit that preparation is not used against them.

[201] Third, I note that in some other cases, simple denials are sometimes argued by the Crown and held by the court as insufficient and warranting disbelief or rejection of the accused’s evidence on the basis it is not credible. R. v. P.B., para. 45. As a result, it would be fundamentally unfair to reject an accused’s evidence as too detailed to be reasonably capable of raising a reasonable doubt, especially without a proper basis to find that it was not true or inaccurate, in part or whole.

[202] Making an adverse credibility finding against an accused merely because their version is too detailed is dangerous. Also, this would amount to a catch-22 where the court is invited to disbelieve the accused’s evidence if it is vague or missing sufficient description, and to reject it as well if it is too detailed.

[203] I find that there is no sound logical basis to reject RC’s version of the events to the extent that it is incapable of leaving me with a reasonable doubt.

[204] His evidence was straightforward that there was consensual sex during which the condom broke, and they mutually agreed to continue. In cross-examination, his evidence was not shown to be inconsistent, internally or externally. It was not logically inconsistent or implausible.

[205] Ronda corroborated RC’s evidence to some extent in relation to the relationship dynamics and animus. In particular, the manner in which MP acted aggressively the day she went over to RC’s apartment to discuss the pregnancy. Ronda confirmed that MP was upset and persistent when she found out that he was with another woman on the same day that she wanted to disclose to him that she was pregnant. Ronda confirmed that she had discussions with MP before the confrontation and after the incident where MP exhibited anger and hurt towards RC. Ronda’s evidence about this context supported RC’s evidence that MP was adamant they speak immediately and that she would not leave unless they spoke.

[206] Ronda’s evidence was not subject to cross-examination so it is uncontradicted. I found her evidence to be credible.

[207] My findings about the accused’s evidence are determinative.

[208] In addition to the accused’s evidence there is a secondary basis that I have a reasonable doubt. I have credibility concerns about some aspects of MP’s evidence due to inconsistencies and omissions. The cumulative effect is that I do not find that her evidence proves the charges.

[209] MP was inconsistent about RC using a condom during the incident. In her trial testimony she said that RC did not wear protection. She was asked by the Crown if there was any form of protection used and she clearly said no. Initially, when cross-examined about this subject, she said RC forced her to get pregnant. The import of her evidence was that he got her pregnant deliberately through the forced unprotected intercourse.

[210] However, as cross-examination progressed, her statement to the police revealed that she said that RC did wear a condom and then it came off, which she noticed when he ejaculated. In cross-examination, she agreed that a condom would be used as contraception. However, MP argued that the condoms never broke in the past so why now, implying that part was deliberate. This was demonstrative of deception in her earlier description of the events, while trying to portray the accused in the most negative light even when there was evidence from her police statement that was to the contrary.

[211] I find that MP did not adequately explain the reason for this inconsistency in relation to the condom. She also did not explain in her testimony how and when she noticed RC was wearing a condom during the interaction. She testified in examination in chief that she was asleep initially when he got on top of her and did not mention the condom at all.

[212] Overall, these are not minor differences.

[213] In contrast, the accused clearly explained what happened at each stage of their sexual interaction. I accept the accused’s version as accurate about the condom being put on as part of the consensual sex and that when it broke the sex paused to discuss if and how they would continue.

[214] In examination in chief, MP described the accused’s conduct as problematic when she wanted to come over to discuss the pregnancy in late June. She also stated that he aggressively took her to the driveway to talk. However, she did not mention that she spoke with Ronda earlier that day and that she went over to confront the accused even after she was discouraged by Ronda from attending his apartment because he was spending time with another woman. Further, she left out that she aggressively drove over despite the lack of urgency to go at that moment. She did not reasonably acknowledge that she was at least in part upset because of being told by Ronda that the accused was with another woman that day.

[215] Further, I am concerned about MP’s omissions in her testimony of material facts such as not explaining in examination in chief that she had attended RC’s birthday party a day after the alleged incident. This was not an insignificant event given its proximity to the alleged assault. In examination in chief, she said she did not go back to his house. However, in cross-examination, MP admitted she went to RC’s birthday party BBQ at his house on June 4 and stayed overnight.

[216] These internal and external inconsistencies demonstrate a selectiveness about the truth by MP about what was going on at the relevant time and raises concerns about her version’s total truthfulness and reliability.

[217] To be clear, I do not find that the fact she continued to have contact with the accused or the nature of that contact, warrants a negative credibility inference.

[218] The complainant’s decision whether to have further contact with the accused on other occasions is not the focus of the trial. I recognize that relationships are complex, and the pregnancy introduced an unexpected complication such that had there been sexual abuse, MP may have had mixed feelings. I understand that her animus or anger at RC for dating other people or not helping her more during the abortion process does not necessarily mean the allegations did not happen as people react differently to events in a relationship. It is possible she was upset about multiple related issues at the same time.

[219] I also do not rely on the post-incident contact evidence from MP or RC on its own to draw adverse credibility findings against MP. This includes the further contact with the accused; purported sexual activity which she denied (these are areas that were ruled admissible by another judge as part of pretrial motions); or the reporting of the incident later, on July 3, 2022.

[220] In a criminal trial I must remain focused on whether there is a reasonable doubt. The total evidence of their relationship continuance as normal and as it was before, such as MP returning the next day for the birthday party on June 4, reasonably supports the Defence position that the alleged incident on June 3 did not occur. In R. v. L.S., 2017 ONCA 685, the Court of Appeal held that evidence of a continuing relationship may support the Defence position that the alleged incident never happened, and the relationship continued as normal for these two people. Cited with approval in R. v. Goldfinch, 2019 SCC 38.

[221] I also acknowledge the Defence position that there is some evidence of animus or motive to fabricate by MP. While mindful that it could be that MP’s anger at the accused may be based in part on the allegations, it is more concerning that MP deliberately minimized being angry but then exhibited clear animus during the trial calling RC a liar repeatedly and getting angry with Defence counsel for going through her prior contradictory statements, requiring direction from the court to maintain decorum.

[222] I am satisfied that MP was very angry with the accused before making the criminal complaint based on his rejection of her and that this anger continued into the trial, likely contributing to some of the inconsistencies I noted above such as about the condom.

[223] This means that there is a nexus between the animus and lack of credibility. The scope of this animus against RC, which she minimized, does undermine her credibility to an extent. I accept Ronda’s evidence, which externally contradicts MP, that MP was upset that RC was seeing another woman on the day MP decided to tell him about the pregnancy. She was hurt that he did not want to have a relationship with her and rejected the possibility of them getting back together to raise the child as a family. It was only in cross-examination that MP agreed that she sped over to his home and was charged with speeding and that it was the police who dropped her at RC’s residence.

Conclusion

[224] Sexual assault criminal trials are challenging for the people involved. They involve serious sensitive allegations and are especially stressful for the accused and complainant.

[225] The court’s duty is to ensure the presumption of innocence is respected and the burden of proof does not shift while carefully evaluating whether the standard of proof beyond a reasonable doubt is met.

[226] In the end, where two conflicting versions are the core evidence and there is no basis to reject the accused’s detailed explanation, which is partly corroborated, the only just conclusion is a finding of reasonable doubt.

[227] In conclusion, I find RC not guilty.

Released: February 7, 2025

Shahram Mirza