R. v. Malcolm, 2026 ONSC 2018

CITATION: R. v. Malcolm, 2026 ONSC 2018

COURT FILE NO.: CR-24-30000639

DATE: 20260409

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

LEAHAIN JOLANDA MALCOLM

Defendant

Andrea McPhedran, for the Crown

Alison Shields, for the Defendant

HEARD: March 30-31, 2026

REASONS FOR JUDGMENT

SPIES J.

Overview

1The defendant, Leahain Jolanda Malcolm (“Mr. Malcolm”), is charged with two counts of sexual assault on A. M. (the “complainant”) and one count of uttering a threat to cause death to Mr. M., alleged to have occurred on May 19, 2024, while they were both inmates sharing a cell (Cell 8¹) at the Toronto East Detention Centre (“TEDC”). Mr. Malcolm re-elected trial by judge alone before me and pleaded not guilty to all changes.

2The Crown called the complainant and Matthew Sirianni, a Correctional Officer (“CO”) who was on duty at the TEDC on the night in question. He wrote an occurrence report less than two hours after the incident which he was allowed to refer to, to refresh his memory. The Crown also relied on CCTV footage (the “Video”) from inside the TEDC showing the area outside Cell 8 during the relevant time, as well as an agreed statement of facts (“ASF”) and photographs taken of the complainant when he was taken to hospital after the incident. Mr. Malcolm elected not to call evidence.

The Evidence

The Evidence of the Complainant

3Both the complainant and Mr. Malcolm obviously have outstanding charges that resulted in their incarceration at the TEDC at the relevant time. I heard no evidence about what their outstanding charges are. They are both still inmates at the TEDC now, but no longer in the same cell. They shared Cell 8 for about five days without incident. Cell 8 is in the Protective Custody range. The complainant testified that he had asked for that range when he was at the Toronto South Detention Centre (“TSDC”), and he believes that he was simply given it when he was moved to the TEDC. He did not explain why he wanted to be in this type of range, and I did not hear any evidence about how this range is different from other ranges at the TEDC.

4Cell 8 had a metal bunkbed, a desk next to the bunkbed and a toilet. When the complainant was moved to Cell 8, Mr. Malcolm was already there and sleeping on the bottom bunk. I heard some evidence that initially the complainant slept on the floor because he has a seizure disorder and so he was not able to sleep on the top bunk and that Mr. Malcolm then gave him the bottom bunk. Why the complainant slept on the floor when he and the defendant were the only two men in the cell and for how long was not explored. I do not agree with Ms. Shields that the complainant testified or suggested that Mr. Malcolm forced him or as she put it “made him” sleep on the floor so I have concluded this evidence is not relevant. There is no dispute that at the time of the incident the complainant, was sleeping on the bottom bunk and Mr. Malcolm was sleeping on the top bunk. Fortunately, they were not triple bunked.

5The complainant testified that he did not know Mr. Malcolm before he was moved to his cell and while they were both in the same cell, he did not get to know him. They stayed out of each other’s way and kept to themselves. The complainant testified that prior to the incident they had no arguments and no prior physical altercations or any confrontations.

6Given the times on the CCTV video, the incident that the complainant complains of must have taken place shortly after 12:30 a.m. on the morning of May 19^th, 2024. The complainant had taken his heart medication and a pill to relax him for sleeping although it was not a sleeping pill. He testified that he was asleep, lying on his stomach, when he felt the pressure of someone on top of his back, pushing him down He realized it was Mr. Malcolm and that he was trying to “rape” him. His boxers, which he said were a regular size, were pulled down to expose his buttocks, and he felt Mr. Malcolm’s hand or forearm on his upper back or head and his knee between his legs to push them apart. The complainant testified he was feeling groggy because of the medication he had taken, but he knew he was being attacked. The complainant testified that he could not move because Mr. Malcolm is stronger than he is and because of the way he was holding him. He did not say anything to Mr. Malcolm during the incident.

7The complainant testified that Mr. Malcolm was rubbing his penis on his buttocks, and he felt his penis go inside his anus. He said it felt like an eternity but was not long. He could not say how long but estimated perhaps four to five minutes. The complainant testified he did not think Mr. Malcolm ejaculated because it happened “too fast”. He did not know if Mr. Malcolm was wearing a condom.

8The complainant testified that when he heard keys outside, he realized a CO was walking the floor, and he saw a flicker of a flashlight. He only saw a light, not the source of the light. He knew his only hope was to get the CO’s attention. The complainant testified that every half hour a CO would walk the halls, and this evidence was not challenged. The complainant testified that he yelled when he saw the flicker of a flashlight and Mr. Malcolm stopped but he was still holding him down and told him to shut up and that either he [Mr. Malcolm] was going to do it or someone else would rape him because he was a “bottom boy”; a reference to the fact he was sleeping on the bottom bunk. The complainant testified that he was able to push Mr. Malcolm off somewhat and get on to his side and he was struggling to get away. He was not able to get Mr. Malcolm off completely but he believes that the hold Mr. Malcolm had relaxed a bit perhaps because he also had heard a CO outside. The complainant alleges that at this point Mr. Malcolm grabbed his head and put his penis in his mouth by pushing his face down between his legs. The complainant testified that he bit Mr. Malcolm’s penis, and he got away from him and went to the door. The complainant estimated that this part of the assault lasted about one to two minutes. The complainant testified that he could still hear the keys, but he did not know where the CO was.

9The complainant testified that when Mr. Malcolm was holding him down, Mr. Malcolm also told him that killing him would be nothing as he had already killed someone. The complainant testified that he was “scared out of my mind” although he did not know if this was true or not. The complainant also testified that Mr. Malcolm told him that if he told anyone what happened he would tell people he was a rat and a fink and people on the range would beat him as a result. The complainant was not asked to clarify the exact sequence and timing of these alleged threats, but his evidence of what Mr. Malcolm said to him was not challenged.

10The complainant alleges that when he went to the door of the cell the CO was not close and so he yelled for help and started banging on the door a few times. He saw the light flash from a flashlight. The complainant testified that he was pushed up against the door a couple of times by Mr. Malcolm who was right behind him and trying to pull him back. It felt like Mr. Malcolm was trying to grab his t-shirt. The complainant testified that Mr. Malcolm pushed his head against the window repeatedly and that when Mr. Malcolm stopped pushing him, he continued to bang his head against the window. In cross-examination the complainant testified that it was the initial push by Mr. Malcolm that “threw him” into the door.

11When the CO appeared at the door the complainant told the CO that he was being attacked and needed help. The CO told them to “stop fighting” and he called for back-up. When the second office came, he had a flashlight. It took time for the other officers to arrive to get him out of his cell. When he was taken out, the complainant testified that he could not walk, and the officers had to assist him. He testified that he did not see his legs, but he felt scratches and there was bruising on the back of his legs because of where Mr. Malcolm’s knees were.

12The complainant was shown the Video and his evidence that he had never seen it before was not challenged. He saw himself on the video and the CO at the door. At 12:32:12 the complainant testified that he had his head against the window of the cell door and that Mr. Malcolm was behind him and pushing him against the door.

13In cross-examination the complainant testified that after this incident and he was moved to a medical unit which is not like a standard cell. It has three beds, a shower and a washroom.

Evidence of Officer Sirianni & the Video

14Officer Sirianni was the CO who first responded to the complainant banging on the door. He was working the midnight shift and is shown on the Video in the hall outside Cell 8 at the relevant time. He knew that the complainant and Mr. Malcolm were the only two sharing Cell 8.

15Officer Sirianni testified that it was usual for a CO to walk in the hall when the inmates were in their cells every 30 minutes to look into the window of each cell door to make observations of the inmates to ensure they were alive and not in a state of distress and whether there was any incident. On the night in question, he did not have a flashlight and so when he looked into a door window, he would put his hands up on either side of his face to blook the light. In cross-examination he testified that he needed to do this to get a closer look into the cell.

16In the evening the inmates get their medication around 7:00 pm and they go back into their cells at 8:30 pm.

17Officer Sirianni was asked to review the Video, and he can be seen looking into the door window of Cell 8 at 12:30:40. Officer Sirianni testified that he saw Mr. Malcolm sitting on the stool by the desk. He did not recall what he was doing or what he was wearing but he was not naked. Officer Sirianni testified that he also saw Mr. M. on his bed, and he appeared to be asleep. Officer Sirianni did not see anything of concern at this time.

18After Officer Sirianni checked Cell 8, he went on to check the next cell and then he moved on out of the view of this camera. When he heard banging on a cell door window that triggered him to turn around and walk back towards Cell 8. At 12:30:51 on the Video, the complainant can be seen at the cell door window, so this is when he started banging on the glass window on the door. It appears that the complainant then turned back somewhat as his left shoulder was then against the glass window.

19Based on the Video, Officer Sirianni was back at the door of Cell 8 at 12:31:08, a period of 28 seconds from when he first looked into the cell. When Officer Sirianni looked into the cell door window at the complainant, he did not recall where Mr. Malcolm was but he did not see him right at the window. He had no recollection of where Mr. Malcolm was while he was dealing with Mr. M., but he did not see Mr. Malcolm near him. At 12:31:10 you do not see the complainant right up against the window of the door and then a few seconds afterwards you see his hand and face at the window.

20Officer Sirianni testified that he walked away from Cell 8 to the other CO, to get back up and to get medical attending which is what the TEDC policy required him to do. At 12:31:14 the Video shows that Officer Sirianni had turned away and was not looking into the cell. While he was waiting for back up, the officer testified that he saw the complainant banging his head repeatedly on the window. At 12:32:12 on the Video you can see the complainant banging his head against the window. Once other officers arrive, one of them does have a flashlight which he shines into the cell at 12:32:36.

21Officer Sirianni testified that the complainant told him that he did not feel safe, that he had been assaulted while he was asleep and that he wanted to get out of his cell. These hearsay statements are just part of the narrative. Officer Sirianni testified that he did not understand what the complainant was saying. He was in a state of panic, and he was banging on the door. Officer Sirianni testified that he tried to calm the complainant down. From what can be observed from the Video, the complainant was obviously in a state of extreme agitation.

22At 12:35:07 the complainant was finally removed from Cell 8. Officer Sirianni testified that when they did so they instructed Mr. Malcolm to stay where he was, which was at the desk and he complied.

23Mr. Sirianni recalled that when the complainant exited the cell he fell to the floor. You can see on the Video that when the complainant fell to the floor when he exited the cell, he landed on this left knee and then fell back onto his buttocks. This is when he likely sustained the bruise to the front of his left knee, but he would not have injured the back of his legs then as they did not hit the floor.

24According to Officer Sirianni, when the complainant was removed from his cell, he was delirious. He was unable to understand what the complainant was saying. The officer believed the complainant was unable to speak because he was in a state of panic and banging on the door. This evidence was not challenged.

25The Video shows the complainant being helped by a couple of officers but notwithstanding that he collapsed another two times while the officers helped him to a nearby bench. The Video shows that the complainant’s boxers were down only at the back, below his buttocks, when he exited the cell door. As he was helped to the bench, one of the officers pulled them up (see Video at 12:37:70). The complainant sat on the bench where he was assessed by a nurse. He was then taken in a wheelchair to the medical unit.

26When the complainant walked into court to give evidence, he did so using a cane. When he was asked about this in cross-examination, he testified that in addition to arthritis in his knees he now has nerve damage in his leg due to the altercation and that he did not need a cane then, but he does now. This evidence was not challenged.

Photographs of the Complainant’s Injuries and the ASF

27The complainant was examined by a sexual assault nurse who also took some swabs for DNA analysis. The ASF sets out the results of the swabs. An oral sample from the complainant’s mouth was only tested for DNA, not bodily screening and only showed the complainant’s DNA. There is no evidence that any swabs of the complainant’s anus were taken. No evidence of any ejaculate was found on the complainant’s clothing.

28Photographs that were taken by the sexual assault nurse of the complainant’s legs soon after the incident were entered into evidence. The bruises in all the photographs look the same and appear to be fresh and there are scrapes of skin as well that look like scratches. Based on the photographs and the facts agreed to in response to a question I had about the photographs, I find that there was a bruise to the front of complainant’s left knee that I find happened when he fell on his left knee onto the floor when he was taken out of the cell. There is a bruise and a scrape that could be from a fingernail on the back of the complainant’s right knee and also a bruise on the back of his left thigh although that bruise appears to have started to discolour a bit and could be an older bruise.

Analysis

Credibility of the Complainant

29At the outset of her submissions, counsel for the Crown, Ms. McPhedran, fairly conceded that she could not prove that Mr. Malcolm had sexually assaulted the complainant in the way he described in the approximate 11 seconds from the time Officer Sirianni looked into Cell 8 at 12:30:40 until the complainant was banging on the door at 12:30:51. Although it is not unusual for a witness’ estimate of time to be off, in this case the problem is not only with the complainant’s own estimate of how long this assault lasted but also from the fact that it would not seem possible for everything the complainant alleges to have happened to take only 11 seconds.

30The Crown’s concession does mean that the issue now before me is whether the Crown has proven the offence of attempted sexual assault or the included offence of assault and the charge of uttering a threat to cause death beyond a reasonable doubt. The complainant’s credibility and reliability as a witness is of course important to those questions.

31In cross-examination the complainant was responsive to all the questions, and his demeanor did not change. No evidence relevant to the credibility of the complainant was introduced related to his outstanding charge(s) or whether he has a criminal record. The complainant did admit that he spent time in jail 10 years before, but I have no further evidence about that.

32In cross-examination, Ms. Shields, counsel for Mr. Malcolm, established a couple of inconsistencies and omissions between what the complainant told police shortly after the incident and his evidence at trial. The complainant was not shown his statement to police, and I did not see the statement, but he readily accepted that what Ms. Shields put to him in terms of questions and answers was accurate and Ms. McPhedran did not suggest otherwise.

33On that basis I conclude that shortly after the incident the complainant was asked by police if there had been any penetration and he answered that he did not know and he did not think there was. When asked about this inconsistency at trial, the complainant testified that he thought the police were asking if Mr. Malcolm “came” i.e. ejaculated. That is difficult to accept although the complainant was clearly in a very agitated state when he was taken out of his cell and I do not know what his state of mind was when he gave his statement to police.

34The complainant did testify at trial that at the hospital they knew he had been penetrated because there was some “oozing”. This evidence was not challenged. I do not have the SAEK records, but the complainant admitted that no swabs were taken from his rectum. When it was put to him that he did not tell the SAEK nurse he had been penetrated, the complainant responded that he was not asked. The complainant did testify however that as a result of the visit with the nurse, he was put on AIDS medication for one month. I do not know what the protocol is for prescribing that medication if the nurse understood there had been no penetration. Without more evidence I do not know that what the complainant did or did not say to SAEK nurse is helpful to my assessment of his credibility.

35Ms. Shields also put to the complainant that he did not tell police that he bit Mr. Macolm’s penis. There is no evidence that the complainant was asked if this happened, but it was put to him that he was asked if Mr. Malcolm bit him. The complainant admitted he did not tell the police or the SAEK nurse that he bit Mr. Malcolm’s penis, but he testified that she did not ask. On its own I do not find this omission significant, particularly as I do not know the context of how the question of whether Mr. Malcolm bit the complainant arose. Furthermore, it is not uncommon for someone who has suffered a traumatic event to not recount and accurately describe all the details later, see R. v. G.M.C., 2022 ONCA 2 at para. 38. The G.M.C. decision is also relevant to the following issues Ms. Shields submitted with respect to the evidence of the complainant

36Ms. Shields submitted that the complainant lied when he testified that Mr. Malcolm was right behind him when he was trying to get the attention of the CO. In support of this submission, she pointed out that his evidence changed from his evidence in chief when he said Mr. Malcolm caused his head to bang into the door a number of times and then in cross-examination when he said that only happened once and that he was the one who was then banging his head against the window. The complainant was not asked why he would bang his head against the door as opposed to just use his fists but in the circumstances that he described, for the reasons express in G.M.C., I would not expect the complainant to be able to give a blow by blow account of what Mr. Malcolm was doing when he was at the cell door in a panicked state trying to get the attention of the CO. As I will come to, I do not accept that the fact Officer Sirianni did not see Mr. Malcolm behind the complainant means that the complainant must have lied about this.

37It was also put to the complainant that he told police that Mr. Malcolm had pulled his pants and underwear down. The complainant testified he did not remember saying “pants”. He testified that he did not have pants on and that they wear a full bodysuit/jumper. I do not find this inconsistency to be significant. This would clearly have been a mistake, possibly even by whoever took the statement, as I do not know what form the statement is in. It is significant that the complainant testified that Mr. Malcolm pulled his boxers down below his buttocks before he saw the Video for the first time as the Video clearly shows his boxers pulled down below his buttocks just as he testified to in his evidence in chief. In other words, as Ms. McPhedran submitted, the complainant did not tailor his evidence at trial to match the Video.

38There were a couple of inconsistencies between the complainant’s evidence of what we can see on the Video and as compared to his evidence at trial with respect to what he saw in terms of a flashlight, again in my view a relatively minor issue. The complainant testified that he saw the light of a flashlight before the other officers arrived, but Officer Sirianni did not have a flashlight. I find that is just a mistake, not a deliberate lie and in the circumstances this error does not diminish the complainant’s reliability. The evidence from the complainant as corroborated by Officer Sirianni is that he was in a panicked state. The video does show that the area outside the cells is lit, and the complainant did say that one of the officers who attended after the first officer did have a flashlight which is correct.

39In cross-examination the complainant testified that because Mr. Malcolm was “inside him trying to have sex with him”, that as far as he knew Mr. Malcolm was naked, but he did not know what he was wearing. When he was asked again what Mr. Malcolm was wearing, the complainant testified that he did not know what Mr. Malcolm was wearing because he was behind him and that he could have been naked. I do not agree with Ms. Shield’s submission that the complainant testified that Mr. Malcolm was in fact naked at the time. Obviously on the complainant’s evidence, Mr. Malcolm’s penis would at least have been out of his boxers, but the complainant was consistent in his evidence he did not know what Mr. Malcolm was wearing or if he was naked. Given Mr. Malcolm was behind him that is a fair statement. He was not asked what he remembered once he was at the cell door.

40It was put to the complainant in cross-examination that he received a misconduct for making a gross insult with respect to this incident. He said he did not remember but he might have called Mr. Malcolm a “name”. It was then put to him that he used a racial slur; the “N-word”. The complainant testified that he had no recollection of calling Mr. Malcolm the N-word but anything is possible because he was “out of his mind” because Mr. Malcolm had raped him. He also testified that he did not believe that he said that because he had not used that kind of language with Mr. Malcolm before.

41Counsel agreed to provide me with the wording of the misconduct notice given to the complainant on May 19, 2024. The notice does refer to making “gross insults by gesture, or by means of abusive language or other act” and that this misconduct was done in Cell 8 so whatever the misconduct was it must have been directed at Mr. Malcolm. The notice does not specify the language used nor the specific time this is alleged to have occurred but given the altercation and the removal of the complainant from Cell 8 occurred shortly after midnight, the notice must relate to the time of the altercation. There is no admission of the outcome of the notice or what in fact occurred and so I do not find that it assists in assessing the credibility of the complainant. The complainant admitted that he might have called Mr. Malcolm a name and there is no evidence to contradict his evidence that he did not use the “n” word. It was not suggested to the complainant that before Mr. Malcolm assaulted him that he woke up and insulted Mr. Malcolm, nor would that have justified an assault.

42It was put to the complainant in cross-examination that he had had a motive to lie about this incident in order to get moved to the medical unit. The complainant responded that he has had no problem in this range and that it was a good range. He had never been in a medical unit before and so he did not know how it was set up. I accept that evidence. The complainant had asked for a protective custody range when he was at the TSDC and was in one at the TEDC. Furthermore, his evidence that there had been no incident between him and Mr. Malcolm before this incident was not challenged. I do not accept that this was a motive for the complainant to fabricate this allegation.

43In summary, the main issue with the complainant’s evidence is the fact that he testified for the first time at trial that Mr. Malcolm penetrated his anus, which is a significant aggravating piece of evidence, and there is the fact that considering all of what he alleges happened it seems that it could not have happened in 11 seconds.

Has the Crown Proven Counts #1 & #2 Beyond a Reasonable Doubt?

44Turning to whether the Crown has proven Counts #1 and #2 beyond a reasonable doubt, given the concession by the Crown, the issue to be determined is whether or not the Crown has proven beyond a reasonable doubt either that Mr. Malcolm attempted to sexually assault the complainant or that he is guilty of a simple assault contrary to s. 265(1)(a) of the Criminal Code. The Crown argues there were two separate assaults, one when Mr. Malcolm was on top of the complainant when he was lying on his stomach in his bed and the second when the complainant was at the cell door trying to get the attention of the CO.

45Based on the evidence of Officer Sirianni, who both counsel admitted was a credible and reliable witness, at 12:30:40 Officer Sirianni saw nothing of concern when he peered into Cell 8. Although it appeared the complainant was sleeping, it is significant that Mr. Macolm was not sleeping but rather sitting on the stool by the desk. Clearly nothing out of the ordinary had happened to this point and so in a matter of 11 seconds the complainant went from lying on his bed, to a state of extreme panic, banging his head on the cell door and frantically demanding to get out. The Crown’s case depends on what I find happened in those 11 seconds and the seconds after the complainant went to the cell door to get the attention of Officer Sirianni.

46In R. v. Kruk, 2024 SCC 7, the Supreme Court at paras. 71-73, recognized that to determine what happened in a case like this it is permissible and indeed necessary to assess the evidence by applying common sense. The law is also clear that I may accept all, some or none of a witness’s evidence.

47In considering all of the evidence, notwithstanding the serious concerns I have set out with the complainant’s evidence about penetration, I accept his evidence that he was sleeping on his stomach on the bottom bunk and suddenly awoke to the pressure of Mr. Malcolm on his back and that he noticed that his boxers were down at the back below his bum. I find that once he realized this, he quite understandably concluded that Mr. Malcolm was trying to, as he put it, rape him and that as a result he became very afraid and struggled to get away from Mr. Malcolm and to get some help from the COs outside. I find on this evidence and the other evidence I will come to, that the Crown has proven beyond a reasonable doubt that Mr. Malcolm assaulted the complainant when he intentionally applied force, with his body, to the back of the complainant’s legs and his back and that the complainant did not consent to this use of force.

48This finding is supported in part, by applying common sense in that there is no other explanation for why in a matter of seconds the complainant would wake from sleeping on his bed to becoming so panicked and fearful of Mr. Malcolm that he would bang his head repeatedly on the window of the cell door to get out. It was not suggested to the complainant in cross-examination that he had had a nightmare or that he was experiencing a seizure and there is no evidence that either of those things occurred. Furthermore, a seizure would not explain this type of behaviour and if it was a nightmare, it would not seem likely that the complainant would become so fearful of Mr. Malcolm once he was fully awake.

49The fear the complainant testified to is supported by what can be observed on the Video when the complainant was at the window of the cell door and the fact he appeared to Officer Sirianni in such a panicked state that he could barely speak. As the Court of Appeal said in R. v. Varcoe, 2007 ONCA 194, [2007] O.J. No. 1009 at para. 33, emotional upset manifested following an alleged assault is: “admissible and may be used to support a complainant's evidence of a sexual assault. See R. v. Boss (1988), 1988 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.)”. This principle was confirmed by the Ontario Court of Appeal in R. v. Marsh, 2023 ONCA 830, [2023] O.J. No. 5518 at para. 20.

50The fact Mr. Malcolm was awake is important because it is likely that he would have seen Officer Sirianni looking into the cell. Given the evidence of the officer and the complainant, it is reasonable to infer that Mr. Malcolm knew that the officers looked into each cell at night as part of their routine checks, which would mean that there would be some time until an officer would look into their cell again. Mr. Malcolm could also have reasonably expected the officer to still be in the area however, so if he did assault the complainant he would have to say or do something to try to keep him quiet. I will come back to this when I consider Count #3.

51Ms. Shields pointed out that the complainant heard the sound of keys but that there is no evidence as to whether Officer Sirianni had keys or not. In my view, it would make sense that he did and so it is conceivable that the complainant heard the sound of keys just before he managed to get away from Mr. Malcolm. He was not challenged on his evidence of what he heard. The complainant also testified that Mr. Malcolm eased his pressure on his back possibly because he also heard this. In any event the complainant would naturally struggle to get away and get to the cell door and bang on the glass to get attention, which is what he did.

52The injuries to the back of the complaint’s knees strongly corroborate his evidence that Mr. Malcolm was putting pressure on the back of his legs with his knees while he was lying down on his bed. The bruises look fresh and there are fresh scratches as well consistent with Mr. Malcolm scratching the complainant’s legs with his fingernails when the complainant struggled to get Mr. Malcolm off him.

53The fact that when the complainant exited the cell his boxers were down at the back below his buttocks also corroborates his evidence that Mr. Malcolm got on his back, pulled down his boxers and assaulted him. It also makes it probable that Mr. Malcolm did so for the purpose of sexually assaulting the complainant, particularly as they had never had any issues between them prior to this and it was in the middle of the night.

54For these reasons I am satisfied beyond a reasonable doubt that Mr. Malcolm assaulted the complainant. I find it probable considering all the evidence that Mr. Malcolm did so for the purpose of sexually assaulting him but given my concerns with the complainant’s evidence I am not satisfied of that beyond a reasonable doubt. Although unlikely in my view, it is possible that something provoked Mr. Malcolm to simply attack the complainant and in the struggle that followed the complainant’s boxers were pulled down.

55The next question is whether Mr. Malcolm assaulted the complainant a second time once he was standing at the cell door yelling and banging on the door trying to get the assistance of one of the COs. Ms. Shields relies on the fact that Officer Sirianni did not see Mr. Malcolm behind the complainant, when the complainant was banging on the cell door. However, based on the Video, after the complainant got the attention of Officer Sirianni by banging his hand on the glass, he moved away from the window somewhat and then he must have shifted his position and turned slightly because his left shoulder was now next to the window. These movements were all after the complainant caught the attention of Officer Sirianni but before the officer had returned to the cell door. Furthermore, this time when Officer Sirianni was at the cell door, looking in, he did not use his hands to look in and so I am not satisfied he would have seen Mr. Malcolm unless Mr. Malcolm had his face or body right up to or very close to the cell door window. Finally, when Officer Sirianni was waiting for back up there were many times when he had stepped away from the cell door and he was looking in another direction. I therefore cannot find, based on Officer Sirianni’s evidence, that Mr. Malcolm did not push the complainant right after he got to the door and was yelling for help. The complainant said it felt like Mr. Malcolm was trying to grab his T-shirt and pull him away from the door which is what one would expect given my finding that Mr. Malcolm has just assaulted the complainant. I find that at least until other officers arrived, Mr. Malcolm would have been trying to push or pull the complainant away from the door. For these reasons I find that the Crown has proven a second assault by Mr. Malcolm on the complainant beyond a reasonable doubt.

Has the Crown Prove Count #3 Beyond a Reasonable Doubt

56I turn then to Count #3. The specific allegation is that Mr. Malcolm uttered a threat to cause death to the complainant. The evidence of the complainant as to the specific threats made by Mr. Malcolm was not challenged in cross-examination. Those threats are consistent with the fact that I have found it probable that Mr. Malcolm was on top of the complainant because he intended to sexually assault him. The only specific threat to cause death was the complainant’s evidence that Mr. Malcolm told him that killing him would be nothing as he had already killed someone.

57I have no evidence to corroborate that particular threat and given the fact that I have found that the complainant has added a very aggravating allegation to his evidence about the sexual assault, I am not able to find beyond a reasonable doubt that Mr. Malcolm specifically threatened him with death. However, I am satisfied beyond a reasonable doubt that Mr. Malcolm told the complainant to shut up and that he threatened to harm him or that the others would harm him if he told anyone about the assault. That is consistent with my findings that Mr. Malcolm assaulted the complainant, that the complainant struggled and got away and then went to the cell door and tried to get help, and that Mr. Malcolm then physically tried to stop him.

58For these reasons I find that the Crown has proven beyond a reasonable doubt the included offence of uttering a threat to cause bodily harm to the complainant contrary to s. 264.1 (1)(a). I refer to this as an included offence even though the specific charge set out in the Indictment as defined in the Criminal Code refers to both threats to cause death and threats to cause bodily harm. In this case the Crown only specified a threat to cause death in Count #3.

Disposition

59Mr. Malcolm would you please stand.

60For the reasons I have given, I find you guilty as follows:

61With respect to Count #1, I find you guilty of the included offence of assault, contrary to s. 265(1)(a) of the Criminal Code.

62With respect to Count #2, I find you guilty of the included offence of assault, contrary to s. 265(1)(a) of the Criminal Code.

63Finally, with respect to Count #3, I find you guilty of uttering a threat to cause bodily harm to the complainant, contrary to s. 264.1 (1)(a) of the Criminal Code.

Spies J.

Footnotes

1. 1The official cell number is 5311 but it is referred to at the TEDC as Cell 8.