Reasons for Judgment

Court File No.: CR-22-10000504-0000
Date: 2025-02-14
Ontario Superior Court of Justice
Between:
His Majesty the King
and
Nicol Oliver White

Appearances:
Pamela Santora and Heather Lamourie, for the Crown
Megan Savard and Shailaja Nadarajah, for Nicol White

Heard: February 3, 4, 5 and 10, 2025
Judge: Kelly

Introduction

[1] Mr. Nicol White is charged with one count of sexual assault involving the complainant, Z.E. The parties were introduced on the Tinder dating platform and then met in person twice. Once was a brief encounter on the evening of September 18, 2021. The second time was on Halloween weekend, October 30-31, 2021.

[2] When they met on Halloween weekend, Mr. White invited Z.E. back to his condominium. Z.E. accepted with a condition. She did not wish to have “sex” with Mr. White. Mr. White understood, suggesting they could do “other stuff”. They took a taxi to Mr. White's condominium with Mr. White’s friend, Mr. Ali Jawanshir. Shortly after arriving at the condominium, Mr. White and Z.E. engaged in various sexual acts in Mr. White’s bedroom.

[3] While the complainant testified that some of the acts were consensual, she says that others were not, giving rise to the charge before the court. Mr. White testified. He submits that all sexual acts were consensual. He denies that he sexually assaulted Z.E.

[4] I have concluded that Crown counsel has not proven beyond a reasonable doubt that Z.E. did not consent to the sexual activity in question. Mr. White is acquitted.

[5] What follows are my reasons.

The General Legal Framework

[6] It is agreed that the issue that requires resolution in this case is consent. The burden is on the Crown to prove beyond a reasonable doubt that the complainant did not consent to the sexual activity in question.

[7] Consent means the voluntary agreement of the complainant to engage in the sexual activity in question. The consent must be to each and every act that occurred. A complainant is not obliged to express a lack of consent either by words or conduct. There is no consent unless the complainant has agreed in his or her mind to the sexual activity at the time it was occurring. An agreement to one form of sexual activity is not agreement to any or all forms of sexual activity. For example, an agreement to touching one part of the body is not agreement to touching other parts of the body. In addition, a person may revoke consent or limit its scope at any time. Silence does not constitute consent. Nor does submission or lack of resistance. [1]

[8] As I have stated above, Mr. White testified, as did his friend, Mr. Jawanshir. When examining the evidence favouring Mr. White, including his own evidence, I am required to consider the principles set out in R. v. W.(D.). I remind myself of those principles, which are as follows:

i. If I believe the evidence of Mr. White, I must acquit.
ii. If I do not believe the evidence of Mr. White, but it raises a reasonable doubt as to his guilt, I must acquit.
iii. Even if I am not left in doubt by the evidence of Mr. White, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of Mr. White’s guilt.

[9] When considering Mr. White’s evidence and the evidence that favours him, I have done so in the context of the evidence as a whole. I have not isolated it in a vacuum.

Analysis and Decision

[10] I have considered all the evidence in this case. I am not satisfied beyond a reasonable doubt that Z.E. did not consent to the sexual activity in question. I believe the evidence of Mr. White. He is acquitted on that basis.

[11] To give context to my finding, I will address the uncontested facts and the evidence of Z.E. before turning my attention to the defence evidence.

The Uncontested Facts

[12] Both Z.E. and Mr. White agree on much of what occurred, but for certain of the sexual acts. For example, they agree on the following:

a. They met on the Tinder platform.
b. They had seen each other briefly on September 18, 2021, and they did not communicate with each other after that meeting.
c. They met on Halloween weekend, by coincidence, when they were both at a nightclub called Love Child. Mr. White’s friend, Mr. Jawanshir, was there as well. They met at approximately 1:30 a.m.
d. They had both consumed a couple of shots of alcohol before attending the club but they were both fairly sober when they met and thereafter.
e. They spoke to each other for a short period of time at the club.
f. Mr. White invited Z.E. back to his condominium on Richmond Street in Toronto.
g. After agreeing to go to Mr. White’s condominium, Z.E. told Mr. White that she did not want to have sex with him. Mr. White was fully aware of the boundary set by Z.E. (Mr. White agrees that he was told that once before leaving the club. Z.E. says that she told him three times.)
h. When Z.E. told Mr. White that she did not wish to have sex, Mr. White suggested that that was “fine” and that they could do “other stuff”.
i. They left the club with Mr. Jawanshir. They took a taxi to Mr. White’s condominium complex. They arrived at Mr. White’s condominium at approximately 2:00 a.m.
j. They interacted for a few minutes and had a shot of vodka before going into Mr. White’s bedroom, leaving Mr. Jawanshir in the living area.
k. Inside the bedroom, they had a brief conversation.
l. They started kissing, which Z.E. and Mr. White agree was consensual.
m. Mr. White began undressing Z.E., which was consensual. Mr. White’s clothes were eventually removed, and both were naked.
n. Mr. White touched and kissed Z.E.’s breasts. Z.E. and Mr. White agree that that was consensual.
o. Other sexual acts occurred (which Z.E. says was not consensual; and Mr. White disagrees).
p. At some point during the sexual interaction, Z.E. said “ouch, that hurts”.
q. When Mr. White’s penis was in her mouth, Z.E. turned her head to the side to remove his penis from it. Mr. White stopped. Mr. White got off Z.E. The sexual interaction stopped.
r. Z.E. got up off the bed. She got dressed. There was a brief conversation and then she left.
s. Z.E. left the condominium complex by 2:47 a.m., placing Z.E. inside the condominium for about 45 minutes.

The Evidence of Z.E.

[13] While Z.E. testified that kissing on the mouth and Mr. White kissing her breasts was consensual, she maintains that any other activity which occurred was not. Z.E. testified that the following acts occurred in the bedroom, and that these sexual acts were not consensual:

a. The first non-consensual act occurred when Mr. White tried to penetrate her vagina with his penis. Her legs were wide open, and he was on top of her. She closed her legs, pushed her hips away from him and said, “no”. She reminded Mr. White that she was not having “sex” with him. After that, Mr. White did not try to do that again “for a while”.

b. Z.E. testified that they continued kissing and then Mr. White inserted his fingers into her vagina, “fingering” her two or three times — the second non-consensual act. Z.E. testified that she did not want that to happen and that she was in shock. She felt pain. She said “ouch, that hurts”. Z.E. tried to close her legs but Mr. White had his hands on her inner thighs pushing them open. She was pushing Mr. White away with her shins.

c. Z.E. testified that she was not sexually aroused and was dry in her vaginal area. Mr. White commented on that and then spit on her vagina to lubricate her.

d. Thereafter, Z.E. testified that she felt “some sort of penetration”. She did not know whether Mr. White was penetrating her vagina with his fingers or his penis. She tried to push her legs closed and said, “Ouch, that hurts. I’m not having sex with you.” She testified that Mr. White said, “You’re so funny. What do you think we’ve been doing this whole time”. He appeared frustrated.

e. Z.E. testified that Mr. White then sat on her torso, which she described as her lower rib cage area, beneath her breasts. He put his penis in her mouth, placing her hands above her head and pushing them down so that she was completely submissive. He was thrusting his penis in and out of her mouth. Z.E. testified that she waited for Mr. White to pull his penis back far enough so that she was able to turn her head, and she tried to get up.

f. Z.E. told Mr. White that she needed to leave and return to her friends. Z.E. testified that Mr. White said, “This kind of feels unfair, I’m so close to finishing.” She replied, “You can go finish yourself off, it’s not personal. I need to go.” As she was getting dressed, Mr. White suggested that they could engage in other acts that might be more enjoyable for her. She testified that she did not wish to stay. She finished getting dressed and left the condominium.

[14] In cross-examination, Z.E. testified as follows:

a. That she was never on top of Mr. White during the “long encounter”. She was on her back the whole time. That is why she could not get up and leave. All that she could do was struggle underneath Mr. White as she resisted.

b. That she did not perform oral sex on Mr. White while he lay on the bed, and she was on top of him.

c. That Mr. White did not perform oral sex on her. He never licked her vagina with his tongue.

d. That she did not give Mr. White a “hand job”.

e. That they did not give each other “mutual oral sex” in the “69” position with her on top.

The Evidence of Mr. White

[15] Mr. White disagrees with Z.E.’s evidence about what occurred in the bedroom after the initial acts that she says were consensual. He testified that Z.E. was on top of him at certain points. She performed oral sex on him. He performed oral sex on her. Z.E. gave him a hand job and they engaged in mutual oral sex in the “69” position.

[16] Mr. White testified as follows about what occurred in the bedroom:

a. Before her panties were removed, Mr. White (who was clothed) was touching Z.E.’s vagina. He did not ask before he did that because their bodies were intertwined. She showed him that she was “into it”. She was grabbing and stroking his penis (over his pants) at the same time.

b. After Z.E.’s panties were removed, he started kissing her stomach, pelvis, thighs, and vagina. He began to lick her vagina and rub her clitoris. As he was performing oral sex, Z.E. started moaning and breathing heavily. Mr. White testified that he does not remember the exact timing of when he “checked in” with Z.E. but he did so to make sure that she was “into it”, “enjoying” it and “okay” with it. He testified that he might not have checked in before this sexual activity started. It might have been during.

c. Z.E. then took his hand from her clitoris and guided it towards her vagina. He began to insert his index finger into her vagina. Mr. White testified he checked in with her and wanted to see how she was feeling and if she liked it. Z.E. let him know that it was okay for him to penetrate her. She was moaning. She said it “felt good” like “I like this”. She was “really wet” in the vaginal area. He then got up and removed his own clothes.

d. After he had removed his clothes, Mr. White lay on his back. He had an erection. Z.E. got on top of him and they continued to make out. Z.E. was touching his chest and arms. Her breasts were in his face, and he was kissing them. Z.E.’s vagina “grazed” his penis when she was on top of him. Mr. White testified that; at no point did he attempt to have vaginal intercourse with Z.E.

e. Z.E. started kissing “down” Mr. White’s body and then started sucking his penis. She did so for “quite a while”. Mr. White testified that he was not wearing a condom because they were not planning to have “sex”.

f. Mr. White began losing his erection. He did not want Z.E. to see it, so they switched positions. He performed oral sex on Z.E. again. He agrees that he “spat” on Z.E.’s vagina “a little” when he was licking it. The purpose was to “get her more wet”.

g. To regain his erection, and as he was performing oral sex on Z.E., Mr. White began masturbating over top of Z.E. She assisted by masturbating him. She then moved his penis towards her clitoris, and they began moving together in a circular motion. He checked in with her and asked her how she was feeling. She let him know that she liked it and was moaning. She then started masturbating him again and asked if he was close to “coming”. He said “no”.

h. At one point, when Mr. White was performing oral sex on Z.E., he testified that he tried to finger her again and she said “ouch, that hurts”. He testified that he apologized and suggested that they call it a night. She said, “no like don’t worry” and suggested that they try a “69”. He agreed.

i. To engage in the “69” position, Z.E. got on top of Mr. White as he lay on his back. She performed oral sex on him while he did so on her. She was bobbing her head on his penis. They then switched positions. While he was straddling her, Mr. White asked if he was too heavy. Z.E. responded, “No you’re good”. He continued thrusting his penis into her mouth. Again, she was bobbing her head. Z.E. then stopped, turning her head to the right and shifted her body. Mr. White testified that he took that as a sign that she did not wish to continue. He got off her, putting an end to their sexual activity.

j. Mr. White testified that he was confused, shocked, surprised and a little dumbfounded when Z.E. stopped participating in the 69 position because they had been “hooking up” for 30 to 40 minutes at that point. He asked, “are you good?” and “why did you stop?”. She said, “I didn’t want to do all this. I didn’t want to do this tonight.” Mr. White described Z.E. as serious when she said this to him. They both started getting dressed. She walked out of the bedroom and eventually left the condominium.

[17] Mr. White testified that after Z.E. left the condominium, he and Mr. Jawanshir ate food from Wendy’s delivered by Uber Eats. Mr. White denies that he spoke to Mr. Jawanshir about what happened with Z.E. in the bedroom. Mr. Jawanshir confirmed both facts when he testified. However, he also testified about an observation that he made of Mr. White and Z.E. while they were in the bedroom.

The Evidence of Mr. Jawanshir

[18] Mr. Jawanshir was present in the condominium at the time that Z.E. and Mr. White were in the bedroom. His evidence may be summarized as follows:

a. He was planning to sleep on the couch in the living room of Mr. White’s condominium as he had done on many occasions. He testified that after socializing with Mr. White and Z.E. for a few minutes in the condominium, they went to the bedroom. He began watching the television.

b. After Mr. White and Z.E. had been in the bedroom for about 20 minutes, he thought that they might have fallen asleep. Because his pillow and comforter were in the bedroom, he wanted to check to see if they were asleep. He went on to the balcony to look through the floor to ceiling windows of the bedroom (the existence of floor to ceiling windows was corroborated by the photos filed as Exhibits in this proceeding). When he did, he saw that they were “hooking up”.

c. Specifically, Mr. Jawanshir saw Mr. White lying on his back. Z.E. was on top of him. Her legs were up at his head and her “face was on his crotch”, bobbing up and down. Mr. Jawanshir testified that he realized that they were engaged in a “69” position which he defined as “an oral sex position, when they’re both giving oral sex at the same time”. He immediately returned to the couch.

d. About 10 minutes later, Mr. Jawanshir testified that Mr. White and Z.E. emerged from the bedroom. Z.E. then left the condominium. He and Mr. White ate the food which they’d ordered from Wendy’s, delivered by Uber.

[19] Mr. Jawanshir testified that after Z.E. left the condominium, they did not discuss what happened inside the bedroom. Nor did he discuss the incident after Mr. White had been charged criminally.

Analysis

R. v. W.(D.)

[20] As I have stated above, I believe the evidence of Mr. White. As such, he is acquitted.

[21] Firstly, I find that Mr. White testified in a candid and straightforward manner. He was consistent in his evidence and was responsive to the questions asked both in direct and cross-examination.

[22] Mr. White’s evidence is also reliable. He consistently provided a detailed description of what occurred in the bedroom. Nothing in his description of the relevant events (nor anything else) was inherently incredible. [3] Mr. White was subject to a rigorous cross-examination by Crown counsel. Despite that, I do not find that Mr. White’s credibility was diminished. I accept his explanation of what occurred in the bedroom.

[23] Further, Mr. White’s description of what occurred in the bedroom conforms with the timeline of their presence in it. The timeline would suggest that Mr. White and Z.E. were in the bedroom for approximately 30 minutes. The conduct described by Mr. White conforms with that timeline as they engaged in various sex acts as described by him.

[24] The parties agree about how the acts started: consensual kissing on the mouth and on Z.E.’s breasts. They also agree on how it ended: when Mr. White’s penis was in Z.E.’s mouth, she turned her head and stopped sucking it. During the other sexual activities in between, Mr. White testified that he checked in with Z.E. to ensure that she was consenting to the sexual activities in which they were engaged. When Z.E. stopped performing fellatio on him by turning her head to the side, he, too, stopped and got off her, respecting her decision to discontinue the consensual activity. They had a short discussion, following which Z.E. left the condominium. I find that Mr. White stopped engaging with Z.E. in sexual acts when she withdrew her consent, which was entirely proper.

[25] Additionally, Mr. White’s evidence does not stand alone. Mr. Jawanshir provided relevant evidence in direct support of Mr. White’s position, that the sexual acts with Z.E. were consensual. I found his evidence to be reliable, despite Crown counsel’s submissions.

[26] Crown counsel submits that there are some inconsistencies between the evidence of Mr. Jawanshir and Mr. White that should concern the court about the reliability of their evidence. For example, Crown counsel submits that there are inconsistencies regarding the timing of when Mr. Jawanshir came to Mr. White’s condominium that weekend (Mr. White says Friday, Mr. Jawanshir said Saturday), the amount of time that Mr. White spent talking with Z.E. at the club (Mr. White says about 15 minutes, Mr. Jawanshir says at least an hour), and whether Mr. White danced with Z.E. before going in to the bedroom (Mr. White says that he did. Mr. Jawanshir did not recall). I do not agree.

[27] While there were inconsistencies, I find that they were insignificant given their content and the passage of time. I find that the inconsistencies in the evidence of Mr. White and Mr. Jawanshir were not about material things and are details that might not be remembered almost four years after the incident. I find that the inability of Mr. Jawanshir to recall peripheral details does not detract from his overall reliability or credibility. [4]

[28] Further, the inconsistencies in the evidence of Messrs. White and Jawanshir demonstrate to the court that they did not collude to provide consistent evidence about what happened in the condominium. I do not find that the inconsistencies identified by Crown counsel were material to the credibility of either Mr. White or Mr. Jawanshir.

[29] Crown counsel submits that it defies logic that Messrs. White and Jawanshir did not discuss the incident after Z.E. left or after Mr. White was charged. I disagree.

[30] Mr. Jawanshir explained why he did not discuss the incident with Mr. White. Firstly, he was embarrassed. He was not proud of himself for looking into the bedroom from the balcony while Mr. White and Z.E. were engaged sexually. Secondly, when Mr. White was charged criminally, he told Mr. Jawanshir that he was hiring a lawyer. Mr. White’s lawyer called him and told him not to discuss the details with anyone. Mr. Jawanshir testified that he followed the lawyer’s instructions. I find both explanations to be reasonable and plausible.

[31] In conclusion, I accept the evidence of Mr. White, that the sexual activity in the bedroom with Z.E. was consensual. I find that Mr. Jawanshir’s evidence supports his evidence regarding consent. As such, the defence evidence raises a reasonable doubt.

R. v. J.J.R.D.

[32] Crown counsel submits that even if the court finds (as I have) that Mr. White’s testimony was articulate, responsive to the questions and unshaken in cross examination, I may still disbelieve his version of events and find that it does not raise a reasonable doubt based on the reasoning of our Court of Appeal’s decision in R. v. J.J.R.D.. Crown counsel relies on para. 53 of that decision which provides as follows:

The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. [Emphasis added]

[33] I have considered the evidence of Z.E., and when it is “stacked” beside Mr. White’s, I am still left with reasonable doubt. I do not accept Z.E.’s evidence, that certain activity in the bedroom was not consensual beyond a reasonable doubt. I find that there were material inconsistencies in her evidence that affected its reliability.

[34] While I do not intend to give an exhaustive list of the inconsistencies in Z.E.’s evidence or other frailties in it, the following are two examples that raised serious concerns about its reliability. These were not minor or inconsistencies on peripheral matters. [6] There was nothing confusing about the questions asked, either when giving a statement to Det. Ward, or testifying before the court giving rise to the inconsistencies.

[35] The first material inconsistency that I provide by way of example deals with the first non-consensual act alleged by Z.E.:

At trial: Z.E. testified that the first act of non-consensual sex was when Mr. White tried to penetrate her vagina with his penis. Z.E. agreed that he was trying to have vaginal sex with her.

Statement to Det. Ward: Z.E. was asked the following questions and gave the following answers about the first non-consensual sexual act:

Det. Ward: So, what’s the first thing that happens that is not consensual?
Z.E.: Um, him penetrating me with his fingers.
Det. Ward: So, it’s, he puts a finger in your vagina?
Z.E.: Yes.

When confronted with this inconsistency, Z.E. agreed that she was asked those questions and gave those answers to Det. Ward. She understood that she was under an obligation to tell the truth to Det. Ward. She understood the importance of accuracy and completeness when providing her statement to Det. Ward. [7]

[36] The second material inconsistency that I provide by way of example of the unreliability of Z.E.’s evidence is about what Z.E. told her two friends (Mohamed and Salma) following the incident alleged:

At trial: Z.E. testified that she spoke with two people, by phone, within minutes of leaving Mr. White’s condominium after the alleged sexual assault: Mohamed and Salma. Z.E. testified that she repeatedly told them, “I didn’t want to do it”. She denied telling them, “I think I’ve been sexually assaulted”.

Statement to Det. Ward: When speaking to Mohamed on the phone immediately after she was alleged to have been sexually assaulted, she was crying. Mohamed asked what was wrong and she told him, “I think I just got sexually assaulted”. Z.E. told Det. Ward that she called Salma at 2:52 a.m. She said that she was crying when speaking to Salma and told her “I think I got sexually assaulted”.

When asked to explain this inconsistency, Z.E. initially testified, “I did not give that answer”. When asked if the transcript of her statement to Det. Ward was wrong, Z.E. testified, “No, this transcript is more accurate than my answer to your previous question. If in this transcript I told Mohamed and Salma that I was – I think I got sexually assaulted, then that’s what I said – if that’s, that’s my answer”.

[37] In coming to my conclusion regarding the reliability of Z.E.’s evidence, I have evaluated it in the context of all the evidence. While, at times, I found Z.E. to be combative and unresponsive to questions in cross-examination, [8] I have not placed any weight on Z.E.’s demeanour. I acknowledge, as set out by the Court of Appeal in R. v. Rhayel, at para. 85, “[i]t is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom.”

[38] In conclusion, this is not a case where there is a basis to reject Mr. White’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting evidence of Z.E. For the reasons I have just stated, I did not find Z.E.’s evidence reliable.

Conclusion

[39] After considering all the evidence, I find that Mr. White’s evidence, combined with the credibility enhancing effect of Mr. Jawanshir’s evidence, has raised a reasonable doubt. As such, I am not satisfied beyond a reasonable doubt that Z.E. did not consent to the sexual activity in question.

[40] For the abovementioned reasons, Mr. White is acquitted.

Footnotes

[1] Section 273.1 of the Criminal Code, RSC 1985, c C-46. See also R. v. Nyznik, 2017 ONSC 4391.

[3] R. v. D.P., 2017 ONCA 263.

[4] R. v. G.M.C., 2022 ONCA 2.

[6] R. v. G.M.C., 2022 ONCA 2.

[7] The statement was given to Det. Ward on November 1, 2021, at 10:26 a.m. Z.E. testified that she had an opportunity to review this statement prior to testifying and that she had done so more than once. She understood that the statement provided to Det. Ward was the equivalent of giving testimony and was made aware of the dangers of making a false statement. Det. Ward explained that she had to promise to tell the truth and that she do so to the best of her abilities. Det. Ward told Z.E. that if she did not tell him the truth in her statement, she might be committing a criminal offence. She understood that it was as powerful an obligation to tell the truth as testifying in court. She understood that it was important to be as accurate and complete as possible. She was aware that she could add to, or change her statement, if necessary. She did not do so.

[8] In her submissions, Crown counsel conceded that, at times, Z.E. appeared to be combative and defensive when being asked questions in cross-examination but that that should not have an impact on the court’s assessment of her credibility.

Additional Authorities

• R. v. J.J.R.D.
• R. v. J.A., 2010 ONCA 491, paras. 19-23
• R. v. Rhayel, 2015 ONCA 377
• R. v. Hemsworth, 2016 ONCA 85, paras. 44-45

Released: February 14, 2025