R v Ibrahim, 2021 ABQB 779

Court of Queen’s Bench of Alberta Citation: R v Ibrahim, 2021 ABQB 779 Date: 20211001 Docket: 160773891Q1 Registry: Calgary Between: Her Majesty The Queen Crown - and - Abdifatah Ahmed Ibrahim Defendant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify [The Victim or the Witness, Initials have been used] must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice A.D. Macleod _______________________________________________________ I.

Overview [ 1 ] Abdifatah Ahmed Ibrahim is charged under s.271 of the Criminal Code , RSC 1985, c C-46 , with sexually assaulting the complainant, SA, on or about the 9 th day of February, 2015. While the Indictment names two other persons, the trial before me during the week of May 17, 2021, concerned only Mr. Ibrahim. [ 2 ] The Crown alleges that in the early morning hours of February 9, 2015, Mr. Ibrahim, along with two friends, picked up SA and her friend, and committed sexual assault by engaging in vaginal and oral intercourse with SA in a car and at a house in the Whitehorn

area of Calgary. Mr. Ibrahim testified that the sexual activity between him and SA, consisting only of oral intercourse, was entirelyconsensual and there was no plan among the men to sexually assault SA. [3] At the time of the alleged sexual assault, SA was 16 years old and Mr. Ibrahim was 20 years old. I will refer to the men bytheir nicknames: “Diggy” is the accused, Mr. Ibrahim. The other two men went by the nicknames “Vamba” and “Moussa”. [4] The issues which I have to determine are: 1. What sexual activity occurred and whether SA consented to the sexual activity?; and 2.

Whether the accused is a party to the offence under s.21 of the Criminal Code? [5] Of course, in order to convict the accused I must be satisfied of his guilt beyond a reasonable doubt. The accused testifiedand accordingly I must apply the principles set out in the Supreme Court of Canada’s decision in R v W(D), (SCC),[1991] SCJ No 26, 63 CCC (3d) 397 and those appellate decisions which have subsequently elaborated upon it. II. The Evidence i.

The Complainant [6] On February 8, 2015, SA and her friend SN had spent the day together and at the end of the night needed to get back to SN’shouse in Country Hills. [7] SA had known SN for a little over five months and considered her to be one of her closest friends. SA was having problemswith her mother and was temporarily staying with SN’s family. [8] SA testified that their plan was to take transit to SN’s home, but the second bus they were supposed to take had shut downfor the evening. The girls were left stranded in Chinatown.

A friend of SN drove them part of the way home, leaving them at a gasstation just off Centre Street. [9] It was a cold February evening and SA was not dressed appropriately to walk the rest of the way to SN’s home. SA and SNwent into the gas station and used their cellphones to call friends to try an arrange a ride. [10] SN called her friend Vamba. SA testified that after speaking to Vamba, SN told her that he could drive them home, but therewould be conditions. Specifically, it was expected that the girls would engage in sexual activity with him.

SA told SN that she did notwant to do anything, but that she would have oral sex with Vamba. SA testified that she remembered SN saying to Vamba on the phonethat she (SN) was down for anything. [11] When asked at what point she began to be concerned about the ride arranged with Vamba, SA replied “I was concerned oftaking a ride with Vamba when [SN] called him and he said that there would have to be conditions”. [12] SA had texted an ex-boyfriend who agreed to pick the girls up from the gas station without any conditions, however, by thattime SN had already arranged a ride with Vamba and he was on his way.

SA testified that she cancelled the ride with her ex-boyfriendbecause “I was going to [SN’s] house, I feel I didn’t really have the choice to say, no, this is who we’re going with”. [13] SA testified that she was expecting only Vamba to pick them up. When Vamba arrived at the gas station in his DodgeCharger, however, two other men were with him. SA’s testimony was unclear about whether she had met Vamba before, but the othertwo men, who she later learned were Moussa and Diggy, were strangers to her. [14] Before SA and SN left the gas station, the gas station employee asked them if they were okay.

SA told him they were and thatthe men in the car were their friends. SA testified that she was crying at this point and continued to cry as she got into the car. SA and SNgot into the backseat of the car on either side of Diggy. [15] SA remembered driving straight to a school parking lot. The school was only a few blocks from the gas station where theyhad been picked up. SA testified that they were making small talk in the car on the way to the school. When asked how she was feelingat that point, SA responded “I was scared”.

When asked why, she said “I was with a bunch of people I didn’t know, and I felt that therewas no way out of that situation”. a. John Diefenbaker High School Parking Lot [16] After Vamba parked the car, everyone except SA got out. She remembered sitting in the car and crying. When asked why shewas crying, SA said “I was crying because I didn’t want to be there and I felt I – I couldn’t go anywhere”.

At some point, when SA wasin the car alone, she took off her boots. [17] Vamba got into the backseat of the car and SA told him that she did not want to be there and did not want to do anything.Vamba took off her leggings and underwear and had sex with her. He used a condom and told her that it would not take long. SA testifiedthat while they were having sex, she again told Vamba she did not want to have sex with him. Nevertheless, he persisted; after 10minutes Vamba got out of the car. SA stayed in the backseat. [18] Moussa then got into the backseat of the car and Vamba and Diggy got into the front seats.

SA told Moussa that she did notwant to have sex with him. Moussa put a condom on and had sex with her. At some point the condom broke. SA’s evidence was unclearabout whether Moussa ejaculated inside of her or whether he got another condom. SA’s testimony was clear, however, that after he

ejaculated all three men got out of the car. [ 19 ] SA testified that Diggy then got into the backseat with her. She told him that she did not want to do anything with him. SA could not recall whether he replied. Diggy then put a condom on and had sex with her. It did not last for too long because the police arrived. [ 20 ] The entire time they were parked at John Diefenbaker High School, the men were in control of the situation. SA testified that all three men got the condoms from the front of the car.

They told SA what to do and when to change positions during the intercourse she performed with each of the three men. This was despite her express wish to each of them that she did not want to have sex. [ 21 ] When the police arrived, she was in the backseat with Diggy. SA did not get out of the car, but managed to put her pants and underwear back on. [ 22 ] SA testified that a uniformed police officer knocked on the rear window of the car. The officer asked if everything was okay and she told him that she was fine.

When asked why she told the police officer she was fine, SA responded “Diggy told me if I was to say anything, I would be in trouble, and I was scared”. SA added that Diggy was sitting right next to her at the time. On cross- examination, SA confirmed that she was also concerned she would get into trouble for having sex in a public area. b. Car Ride from John Diefenbaker School to the Whitehorn House [ 23 ] After the police left, everyone got back into the car and Vamba drove to the lookout on Nose Hill. Diggy sat in the middle of the backseat with SA and SN on either side of him.

SA testified that when they got to the lookout around 1:00 or 1:30 a.m., “it was too busy there for what they wanted to do”. SA understood that the men wanted to have sex with the girls. Vamba then drove everyone to his house in Whitehorn. [ 24 ] During the 15 to 20 minute car ride from Nose Hill to Whitehorn, Diggy ordered SN to give him oral sex. She did. SN bit Diggy and he got angry. Diggy then ordered SA to give him oral sex. She did. SA testified that she and SN were crying during the car ride. c.

Whitehorn House [ 25 ] They got to Vamba’s house in Whitehorn around 2:00 a.m. and went inside through the back door, straight into a bedroom. SA described the bedroom as fairly small, with a box spring and mattress on the floor. [ 26 ] SA testified that when they got to the bedroom, Diggy told her to take off her clothes. She told him that she did not want to. Moussa then wrapped his arms around her and told her that if she did not undress, she would have to stay with him.

SA joined SN on the bed and took off her clothes. [ 27 ] On cross-examination, SA agreed that it was actually Vamba who told her to take off her clothes. She was previously mistaken on the evidence. [ 28 ] SA remembered sitting on the corner of the bed and Vamba pulling her feet down. She testified that she hit the back of her head on the wall. Vamba then had sex with her. At the same time, SN and Moussa were having sex. [ 29 ] Moussa then had sex with SA. She remembered Diggy saying it was his turn next. Diggy tried to get on top of her and SA said no numerous times. She testified that she was crying heavily.

Diggy got angry, but retreated to watching pornography on his cellphone. [ 30 ] SA testified that she and SN were quite upset at that point. The men then drove the girls to SN’s home. They got there around 3:00 or 3:30 a.m. Diggy took SA’s phone and put his number in it before the men drove away. d. End of the Night [ 31 ] When they got to SN’s house, SA remembered that SN’s mom was quite upset that they had been out so late. SA testified that her and her friend “just laid in bed and cried”. [ 32 ] Later in the day, on February 9 th , SA went to the Sheldon Chumir Centre and was examined by a Doctor.

SA gave a statement to the police on February 12, 2015. On March 24, 2015, SA was interviewed by Detective Neis. [ 33 ] SA was extensively cross-examined on statements she made during her interview with Detective Neis. Defence counsel pointed to some inconsistencies in SA’s evidence. For example, inconsistencies regarding the franchise of the gas station, whether she had met Vamba before, who directed her to take off her clothes at the Whitehorn house and how she knew that Moussa had ejaculated. On a few occasions, her memory was refreshed from the transcripts.

For the most part, however, she had an independent recollection of the events. SA was candid when she said “my apologies. It was six, seven years ago. My brain’s a little bit foggy”. ii. SN [ 34 ] In February of 2015, SN was 17 years old. She was living in Country Hills with her parents and SA was temporarily living with them. SA and SN are no longer friends. [ 35 ] At that time, SN had known Vamba for two years. She had known Diggy and Moussa for about a year. SN is no longer friends with any of the three men.

[ 36 ] In the late evening of February 8, 2015, she and SA were on their way home from a friend’s house in north east Calgary. They missed their last bus to get back to SN’s home. [ 37 ] Around 11:30 p.m. or midnight, SN called a man that she had met earlier that day to give them a ride. He picked the girls up from downtown Calgary and dropped them off at a gas station in Beddington. [ 38 ] SA then called her ex-boyfriend to try to arrange a ride from the gas station to SN’s house. SN testified that SA told her she had found someone who could give them a ride.

This ride had no conditions attached to it and no expectations for any sexual contact. [ 39 ] Meanwhile, SN used her cellphone to call Vamba. She spoke to Vamba and told him about the situation they were in. Vamba told her that he was not driving that night, but was with friends so it was up to them. SN testified that she could hear Vamba have a conversation in the background, though she could not hear what anyone was saying.

When he came back on the phone, he told SN that Moussa was driving and they would only pick the girls up if they provided sexual favours. [ 40 ] SN talked to SA and testified that “after some deliberation” SA said, “okay, I’m fine with it”. SN interpreted SA’s response to mean that “she knew that was either our only way home or we walk for three hours. So even though she didn’t want to, she agreed to it”. SN testified that SA seemed “a little nervous”. She herself remembered “being a little anxious and nervous for [SA], mostly”. When asked to clarify, SN stated “I knew she really didn’t want to.

I had no problem with it because I knew them, but I know for her that she wasn’t comfortable with the idea”. SN said that just by looking at SA she could tell she wasn’t happy about the situation. [ 41 ] Despite this, SN told Vamba that SA agreed to give oral sex. Vamba replied that SA would be expected to do more and SN testified that she had a second conversation with SA about “full sex”. SN told SA that other people were with Vamba who were also expecting to have sex with the girls.

SN testified that “it mostly had to be SA doing it because I already knew all of them and had been with them before”. [ 42 ] The girls had a discussion and SN testified that SA told her she was okay going with Vamba. She said this knowing the expectation was that she would have to have sex with the men. SN told Vamba that SA agreed to the conditions. They then called off the ride SA had arranged. [ 43 ] After approximately 30 minutes to one hour, Vamba, Moussa and Diggy arrived at the gas station. They were in a red four- door car. She and SA got into the backseat with Diggy.

Vamba drove them directly to John Diefenbaker High School and parked in the parking lot. It was very dark outside and only the light from McDonalds was shining into the car. a. John Diefenbaker High School Parking Lot [ 44 ] SN got out of the car. She did not remember who else was outside with her. SA, however, stayed in the backseat. Before she got out of the car, SN testified that all three men were discussing who was going to have sex first with SA. She specifically implicated all three men in that discussion, including Diggy, and I believe her.

SN’s recollection was that Vamba went first. [ 45 ] SN stood outside of the car while Vamba and SA had sex in the backseat. She was close enough to hear SA moan inside the car. When she briefly looked into the car, she saw them having sex. SN said that she was uncomfortable while SA was having intercourse with the men because she knew SA did not want to do it. [ 46 ] SN did not remember who had sex with SA second, but she recalled only two men, in total, going into the back of the car with SA.

There was no time for the third man to go into the car with SA because the police arrived. [ 47 ] The police got out of their vehicle and asked what was going on. SN was standing outside the car the entire time, but did not speak to them. SN agreed on cross-examination that nothing was stopping her from talking to the police, but she had nothing she needed to tell them. [ 48 ] SN testified that SA was in the back of the car with one of the men at this time. SN did not remember which man was with SA and could not hear whether any conversation happened in the car.

A police officer checked on SA to see if she was doing okay. SA said yes. The police then told them to leave the private property. [ 49 ] SN testified that she asked SA if she was okay and SA answered “kind of”. When asked why SN asked SA if she was okay, she answered “she just looked sad in the corner. She was very quiet”. [ 50 ] SN testified that she had no sexual contact with anyone in the parking lot. b. Car Ride from John Diefenbaker School to the Whitehorn House [ 51 ] SN remembered leaving the parking lot and going directly to a house in Whitehorn.

She thought the men would take them home, but noticed they were going in a different direction. SN testified that the men were talking to each other during the car ride, but she could not understand what they were saying because it was not in English. [ 52 ] SN was sitting in the backseat of the car with SA. Diggy was in the middle. [ 53 ] SN’s memory of the car ride is vague though she did recall giving oral sex to Diggy. She did not remember Diggy asking SA to give him oral sex. However, she did remember stopping the oral sex and SA taking over. c.

Whitehorn House [ 54 ] Once they got to the house in Whitehorn, Vamba unlocked the door and led them past the kitchen to a small room. Moussa

told her to lay down and she had sex with him. [ 55 ] SA then had sex with Vamba while SN sat on the edge of the bed. SN initially did not recall hearing any conversation between SA and Vamba. On cross-examination, however, she agreed that while she did not hear Vamba ask SA to have sex, she heard SA tell him to be gentle and Vamba agree. [ 56 ] On cross-examination, SN also agreed that she remembered SA and Moussa having sex and SA telling Moussa to be gentle. [ 57 ] SN then had consensual sex with Diggy.

She did not remember Diggy trying to have sex with SA. [ 58 ] After some time, the men got dressed and SN asked if they could go home. The men drove the girls to SN’s home. They got there around 4:00 a.m. iii. Constable Daniel Kennedy [ 59 ] Constable Kennedy has been a member of the Calgary Police Service for 16 years. On February 9, 2015, he was on patrol in District three, north west Calgary. His partner was Constable Neilson. Constable Neilson was driving. [ 60 ] In the early morning of February 9, 2015, Constable Kennedy and his partner were in the area of John Diefenbaker High School for an unrelated call.

Based on the circumstances of that call, they were patrolling the area when they saw a red dodge charger in the parking lot of the High School. [ 61 ] Constable Kennedy observed two people, one male and one female, standing outside the car. When they turned the police overhead lights on, another male got out of the front seat of the car. As he got out of the car, the Constable noticed that his fly was undone and his pants were loose around his waist. [ 62 ] Constable Kennedy spoke to this man and asked to see his license and registration.

The windows of the car were tinted and it was dark outside so he could not see into the car. However, when the man opened the door and the interior lights turned on, Constable Kennedy could see two people inside the car, one male and one female. Constable Kennedy saw the female pull up her pants. [ 63 ] Constable Kennedy then knocked on the rear passenger window. When the female opened the door, the lights inside the car turned on. The Constable bent over so he could see her “face to face”. Constable Kennedy testified that at some point the male got out of the car.

Constable Kennedy asked the female, the now sole occupant of the car, if everything was okay. She said yes. Constable Kennedy asked her again to confirm and she again said yes. [ 64 ] Constable Kennedy testified that he asked the female twice if she was okay because he had a gut feeling she was in a spot she did not want to be in. He was giving her a chance to get out of the situation if there was a problem. Her body language and her verbal affirmation that she was okay convinced him that she was. He did not do anything further.

He did not recall her appearing as though she had been crying or in distress. [ 65 ] Constable Kennedy told the group that they were on private property and asked them to leave. He and his partner then left the parking lot. iv. Constable Julie Helferty [ 66 ] Constable Helferty has been a member of the Calgary Police Service for 11 years. On February 12, 2015, she was working with District six and assigned to the Calgary Police Station outlet at Chinook Mall. [ 67 ] SA called the main police line wanting to report an incident. It is not clear what date this call was made.

Constable Helferty answered the call and told SA to meet her at the Mall Station. SN went with SA to the Mall Station on February 12, 2015. [ 68 ] SA spoke to Constable Helferty and made an allegation of a recent sexual assault. The Constable conducted a brief interview with SA.

Constable Helferty, using her notes to refresh her memory, testified that during the interview SA relayed the details about the early morning of February 9, 2015. [ 69 ] Constable Helferty agreed that she did not recall SA telling her that she had had sex with Diggy in the High School parking lot nor that Diggy had attempted to have sex with her at the Whitehorn house. Constable Helferty testified, however, that “she may have mistakenly left something out” as SA provided lots of detail during the interview. v. Dr. Rabiya Jalil [ 70 ] Dr.

Jalil is an examining physician with the Calgary Sexual Assault Response Team at the Sheldon Chumir Health Centre. She completed a sexual assault medical examination of SA on February 9, 2015. The completed sexual assault medical examination kit was provided to the Calgary Police Service. [ 71 ] SA presented to the Sheldon Chumir Health Centre on February 9, 2015, at approximately 3:00 p.m. She complained of pain in her pelvic vaginal area as well as on the back of her head. Dr. Jalil responded to these concerns by performing a vaginal cavity exam and a head exam.

She also performed an oral cavity exam and conducted a number of forensic tests, as is protocol with a potential sexual assault victim. [ 72 ] Dr. Jalil testified that she observed a number of breaks in the mucosa, a combined length of 1 cm. She observed a small area of red in SA’s inner cheek – consistent with oral sex, but also with coughing and sneezing. Dr. Jalil also observed an area on the back of

SA’s head that was swollen and tender. [ 73 ] Dr. Jalil testified that SA’s general health and state of her tissues were normal. The injuries observed were consistent with force having been applied to the injured areas. [ 74 ] It was Dr. Jalil’s expert opinion that the injuries observed were “seen more with non-consensual sexual activity than with consensual intercourse”. She made this opinion having conducted over 100 sexual assault examinations in the last decade as well as based on her familiarity with the literature. Defence counsel raised concerns with the reliability of the literature.

I understand counsel’s concern and have placed corresponding weight on this medical evidence. [ 75 ] Dr. Jalil was an outstanding witness. She was intelligent and knew her limitations when giving evidence. She testified that she could not determine the exact circumstances under which the injuries occurred nor could she accurately date the injuries. [ 76 ] Dr. Jalil testified that multiple sexual encounters can increase the likelihood of injuries. vi. Mr. Ibrahim [ 77 ] On the evening of February 8, 2015, Diggy was with two of friends, Vamba and Moussa. He had known Vamba and Moussa for approximately a year or so.

They were all at Moussa’s house playing a FIFA video game when SN called Vamba multiple times. [ 78 ] Vamba answered the phone and talked to SN. Diggy did not know what they were talking about because he and Moussa were busy playing the video game. After some time, Moussa left the room and later came back. Vamba was sitting in the corner of the room talking to SN on the phone. [ 79 ] Vamba told him and Moussa that they were going to pick up SN and her friend to go hang out. Diggy thought that they were going to “watch a movie or see the view or just hang out like normal teenagers”.

Vamba was Diggy’s ride home so he followed him into his red dodge charger and sat in the backseat. [ 80 ] When the men left Moussa’s home, Diggy did not know of any plan to have sex with the girls. [ 81 ] Diggy knew SN from before. When they picked the girls up from the gas station he thought that SA looked familiar, but he did not remember how he knew her. [ 82 ] Vamba drove them all to John Diefenbaker High School. The drive there was uneventful. Diggy testified that he did not know why Vamba drove to the High School parking lot. a.

John Diefenbaker High School Parking Lot [ 83 ] Once Vamba had parked at the High School, Diggy and SN were told to get out of the car. Diggy asked no questions. While he and SN stood outside the car, Vamba got out of the driver seat and went into the backseat of the car. Moussa and SA stayed in the car. [ 84 ] Diggy testified that he did not know what Vamba was doing when he moved to the backseat of the car. When asked whether he “had any idea that they might be going to have sex?”, Diggy answered “I – maybe. I don’t know”. Diggy testified that he could not hear whether people were talking inside the car.

It was dark and he could not see into the car. [ 85 ] Vamba then got out of the car and Moussa went into the backseat with SA. Diggy did not know what Moussa was doing. Vamba joined Diggy and SN outside the car. Diggy testified that Vamba said something to them about having sex with SA and then got back inside the car. [ 86 ] After Moussa got out of the car, Diggy went into the backseat. Vamba got of the car at that point and went to stand outside with Moussa and SN.

Diggy testified that he got into the car with SA because after he knew his other two friends had had sex with her, “I wanted to have sex with her, too. That’s why I went into the back of the car”. [ 87 ] Diggy testified that SA had her pants and underwear off. He asked SA if she would have sex with him too and she said yes. Diggy told SA that he did not have a condom and did not have sex without condoms. SA took a condom out of her purse. Diggy undid his belt and pulled his pants and underwear down.

As Diggy went to put the condom on, the police showed up. [ 88 ] Diggy knew that the police were there because someone opened the door and told him and SA. Both he and SA put their pants back on and stayed in the backseat of the car. Diggy turned to SA and told her that they were in trouble. He thought they were in trouble because they were having sex in a public place. SA said they were not in trouble. [ 89 ] Diggy testified that SA was not upset. She seemed normal and he never saw her cry. Two police officers knocked on the rear windows of the car and asked if they were okay.

Both Diggy and SA confirmed that they were fine. [ 90 ] The police then told them to leave the parking lot because it was private property. Vamba and Moussa got into the front seats of the car. Diggy stayed in the back with SA and SN joined them. b. Car Ride from John Diefenbaker School to the Whitehorn House [ 91 ] Vamba then drove them to the lookout on Nose Hill. During the drive, SN appeared to be upset because no one had had sex with her in the parking lot. [ 92 ] Diggy testified that as a joke he asked SN, “Why don’t you just give me head?”. SN said okay and opened his belt and zipper

and started giving him oral sex. SA sat in the backseat watching and eventually Diggy asked whether she wanted to give him head too. Diggy testified that SA said yes and then gave him oral sex. Even at this point she seemed normal. She was neither crying nor upset. SA stopped giving him oral sex by the time they arrived at the lookout. [ 93 ] They spent some time looking at the view. No one got out of the car. Vamba then drove them to his house. c. Whitehorn House [ 94 ] Everyone got out of the car, went inside the house and into Vamba’s bedroom. Diggy left to go to the washroom.

He was in the washroom for less than five minutes and when we went back to the bedroom he saw SA, Vamba and Moussa on the bed getting ready to have sex. SN was near the end of the bed. [ 95 ] The next sequence of events is unclear, however, according to Diggy, all five people were at some point watching a movie. During the movie, Diggy heard moaning coming from Vamba and SA who were having sex on the bed. Moussa was also on the bed. [ 96 ] Diggy and SN had consensual sex and then he left to use the washroom.

When Diggy returned to the bedroom, everyone was getting dressed. [ 97 ] Diggy did not attempt to have sex with SA at the house. He testified that any time he had sexual contact with either SN or SA he asked for consent first. d. End of the Night [ 98 ] Vamba then drove everyone to a gas station by SN’s house where the girls got out. Diggy asked SA for her number and she told him to put his number in her phone. He did. Vamba then dropped Diggy off at his house. [ 99 ] Diggy was interviewed by Detective Titsing on May 4, 2016.

When cross-examined about this interview, Diggy testified that he lied to the police about several things, both minor details and significant parts of his version of events. At trial, Diggy said “I wasn’t under oath at that time, so I don’t know if I had to tell him the truth or not, but I was scared, and I didn’t want to tell him the truth, that’s why”. [ 100 ] Because it will be important to my W(

D) analysis later in this judgment, I will briefly outline what Diggy admitted on cross- examination to having lied to Detective Titsing about. First, he told the Detective he was never with both Moussa and Vamba at the same time on February 9, 2015. Second, Diggy said he did not remember anyone calling and saying they needed a ride that night. Third, he said he had never met SA in his life. Fourth, Diggy told the Detective he had never been to Vamba’s house. Fifth, he said Moussa drove an old Chrysler. Sixth, he said he had never had sex with SN at Vamba’s house ever in his life.

Despite telling Detective Titsing all of this untrue information, when Diggy was asked at the time how truthful he was being with the Detective, he said “hundred percent”. III. Issue 1: Sexual Assault i. General Principles [ 101 ] “Consent is the foundational principal upon which Canada’s sexual assault laws are based. ...

As such, the contours of consent are carefully delineated and jealously guarded”: R v GF , 2021 SCC 20 at para 1 . [ 102 ] A conviction of sexual assault requires the Crown to prove, beyond a reasonable doubt, the actus reus of the offence and that the accused had the requisite mens rea . [ 103 ] The actus reus of sexual assault is established by the proof of three elements: (1) touching; (2) the sexual nature of the contact; and (3) the absence of consent: R v Ewanchuk , 1999 SCC 711 at para 25. The first two elements are determined objectively while the third is subjective.

The trial judge must determine the complainant’s state of mind towards the sexual activity when it occurred. The complainant’s testimony would provide direct evidence of this. The question at this stage is purely one of credibility and whether the totality of the complainant’s conduct is consistent with her claim of non-consent: Ewanchuk at para 30.

At this stage of the analysis it is irrelevant what the accused believed the complainant’s state of mind to be. [ 104 ] The mens rea of sexual assault contains two elements: (1) intention to touch; and (2) knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched: Ewanchuk at para 42. The second element of the mens rea analysis provides a basis for the accused to raise the defence of an honest but mistaken belief in consent.

The question then becomes whether, despite the complainant’s subjective lack of consent, the accused believed he had the complainant’s consent to engage in the sexual activity in question. The accused has no burden of proof in raising this defence. [ 105 ] Consent, in the context of sexual assault offences, is defined by s.273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”. [ 106 ] Over the years, case law has defined and refined the bounds of consent. Some of the most important principles from the jurisprudence include:

a) to be legally effective, consent must be freely given: Ewanchuk at para 26;

b) consent must be ongoing and exist at the time the sexual activity occurs: R v JA , 2011 SCC 28 at paras 31 and 34 ;

c) consent must be given contemporaneously with the sexual act: JA at para 46;

d) the complainant must have capacity to consent; she must have an operating mind: JA at paras 36 and 40;

e) consent can be revoked at any time: JA at paras 40 and 43;

f) the complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established: JA at para 37; and

g) to consent, the complainant must subjectively agree to the specific act, its sexual nature, and the specific identity of her partner(s): R v Barton , 2019 SCC 33 at para 38 , R v Hutchinson, 2014 SCC 19 at paras 55 and 57 . [ 107 ]

Section 273.1(2)(

a) is clear that for the purpose of subsection (1), no consent is obtained if: (

a) the agreement is expressed by the words or conduct of a person other than the complainant; ..... (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. ii. Findings [ 108 ] As with so many of these cases my decision turns on the reliability and credibility of witnesses. In this case, the key witnesses are the complainant SA, her friend SN and the accused. [ 109 ] The fact that the accused gave evidence means that I have to apply the principles set out in W(

D) and the principles of “beyond a reasonable doubt”, to credibility. It is not a question of whether I accept the version of events of the complainant or of the accused. It is not a credibility contest. The question is whether the accused’s testimony raises a reasonable doubt. Even if it does not, I must still be satisfied on all the evidence that I find the accused guilty beyond a reasonable doubt which, as Mr.

Ibrahim’s counsel says, is closer to a certainty than to a probability. [ 110 ] The evidence of the accused was clear that he specifically asked and obtained consent before any of the alleged sexual acts and accordingly the presumption of innocence ought to carry the day. The accused is never required to prove his innocence: R v Gray , 2012 ABCA 51 at para 42 . [ 111 ] I have considered the accused’s evidence in the context of all the evidence presented at the trial: R v Hoohing , 2007 ONCA 577 at para 15 .

I find that his evidence is largely unbelievable and irreconcilable with the other evidence before me. [ 112 ] Defence counsel raised the argument that all evidence of an accused who pleads not-guilty will inherently be self-serving. Neither the self-serving nature of the evidence nor a bare-denial of the allegations can be a basis on which to disbelieve the accused. That would be an unfair reversal of the burden of proof: R v CLS , 2021 ABCA 147 at para 42 . I appreciate this argument, however, I find that aside from being self-serving, the accused’s evidence was largely fabricated. [ 113 ] During Mr.

Ibrahim’s 2016 interview with Detective Titsing, he denied being with Vamba and Moussa on February 9, 2015. He refused to acknowledge that he had ever met SA and denied ever having been to Vamba’s house and having sex with SN there. Mr. Ibrahim’s statement to the Detective was entirely contrived and made in an effort to place himself as far away as possible from the events in question. At the trial before me, both SA and SN placed the accused at the scene. Mr. Ibrahim could no longer deny his presence and instead his evidence was that he did not know the men were planning to have sex with the girls.

When he realized that Vamba and Moussa had had sex with SA, only then did he realize that he too wanted to have sex with her. On two occasions, he asked and received SA’s consent before attempting to engage in vaginal sex and actually engaging in oral sex with her. [ 114 ] I reject the accused’s evidence as raising a reasonable doubt of his guilt. I do not believe that the accused had no knowledge of the plan to have sex with the girls, but went along with it anyway. I am satisfied that he went with Vamba and Moussa to pick the girls up because he wanted to have sex with them.

There is no air of reality to his evidence. [ 115 ] However, pursuant to the W(

D) principles, my analysis does not end here. I cannot convict the accused solely because his testimony does not raise a reasonable doubt as to his guilt. I still have to determine whether the Crown’s evidence convinces me of his guilt beyond a reasonable doubt. [ 116 ] On behalf of the accused, it is argued that SA’s evidence was mistaken in too many respects and, therefore, not reliable. For instance, she was mistaken about the gas station franchise, calling it an Esso until confronted with evidence it was a Shell. She changed her evidence when asked whether she knew Vamba from before.

Her testimony was inconsistent on how she knew Moussa had ejaculated. [ 117 ] Further, SA testified that the accused told her to take off her clothes at the Whitehorn house and only later on cross-examination, when confronted with a previous statement she had given, did she agree that it was Vamba who gave this direction. I agree with defence counsel that this is not a small mistake when the accused’s innocence is at stake. [ 118 ] SA’s evidence is not without its issues and these have required careful consideration on my part.

However, while the evidence of SA was in some respects not reliable, I accept that she gave evidence that she thought was true. She was only 16 years old at the time and on the fundamental issue of consent she was consistent and clear. Her frustration on cross-examination is consistent with her

proclamation that “I’ve been living through this every day”. [ 119 ] SA remembered details from the early morning hours of February 9, 2015, which for many would have been unimportant had the night truly been unremarkable. For instance, she recalled the specific car that Vamba was driving, that Vamba parked the car near a fence at the High School, that there was a McDonalds nearby and the layout of the Whitehorn bedroom.

SA and SN both recalled where each person sat in the car and which doors they entered and left the car through. [ 120 ] SA’s complaints of injuries to her pelvic vaginal region and to the back of her head were corroborated by Dr. Jalil’s evidence. While I do not take the doctor’s opinion that SA’s injuries were more consistent with non-consensual sex than with consensual intercourse to support my ultimate finding, I do use it to corroborate SA’s testimony of the events of February 9, 2015. [ 121 ] The evidence of SN was reasonably straightforward and I generally accept it.

SN and SA are no longer friends and SN had no reason to fabricate her evidence to support SA’s allegations. I found SN to be a credible witness and forthcoming with the court when she could not recall discussions that were had or what was said. It has been over six years since February 9, 2015, and it is normal, and expected, for witnesses to forget precise details and conversations. I find that this does not detract from her evidence. [ 122 ] I also find the evidence of all of the members of the Calgary Police Service to be credible and reliable.

The evidence of the two officers who attended John Diefenbaker High School on February 9, 2015, Constable Kennedy and Constable Nielson, corroborated details of SA and SN’s evidence such as where the car was parked at the High School, what kind of car it was and who was in the car when the police arrived. [ 123 ] Despite the fact that I reject the accused’s evidence and accept that of the Crown witnesses, I believe it is important for me to detail my findings that lead me to conclude that the accused is guilty beyond a reasonable doubt. [ 124 ] With reference solely to the accused, three separate instances of sexual encounters with SA must be explored.

The first is the allegation of sex in the car at the John Diefenbaker High School parking lot. The second is the allegation of oral sex in the car on the way to the Whitehorn house. The third is the allegation of attempted sex at the Whitehorn house. [ 125 ] The actus reus for sexual assault is established for both the vaginal sex in the John Diefenbaker High School parking lot and the oral sex in the car on the way to the Whitehorn house. I find that the accused had the mens rea necessary for a conviction of sexual assault in both instances. a.

John Diefenbaker High School Parking Lot [ 126 ] I find that the accused and SA had sex in the car at the John Diefenbaker High School parking lot. This was the first instance of SA being sexually assaulted by Mr. Ibrahim. [ 127 ] The accused’s evidence is that after Vamba and Moussa went into the car and had sex with SA, he then went into the backseat because, in his own words, he “wanted to have sex with her too”.

Regardless of whether the accused knew of a plan to have sex with SA, which I find he did, by the time he went into the car, his evidence was that he knew the other two men had had sex with her. [ 128 ] The accused testified that he specifically asked SA if she would have sex with him too and she said yes. His evidence was that they were going to have sex, but the police arrived and interrupted. I do not believe the accused’s evidence that he asked SA and she said yes.

I also do not believe the accused’s evidence that they were interrupted before they could have sex. [ 129 ] SA’s evidence is that when the accused came into the car she told him she did not want to do anything. She could not recall whether he replied to her; nevertheless, he persisted and they had sex. I believe SA’s evidence of her state of mind at that time. Specifically, that she did not want to have sex with the accused and that she told him as much. [ 130 ]

Section 273.1(2) (

d) of the Criminal Code is clear that there is no consent if “the complainant expresses, by words or conduct, a lack of agreement to engage in the activity”. SA verbally telling the accused she did not want to have sex with him established a clear lack of consent. I am satisfied that the accused knew that consent was not given, but persisted nonetheless. [ 131 ] While it is irrelevant how others perceived the complainant for a determination of whether she subjectively consented, I find that SN’s testimony lends credibility to SA’s evidence of her lack of consent.

SN, on numerous occasions, gave evidence that she knew SA was scared and did not want to have sex. SN was so scared for her friend that she did not look in the car to see what was happening. [ 132 ] While I accept the above evidence of SN, I prefer the evidence of both the accused and SA over that of SN regarding the accused being alone in the car with SA. Both the accused and SA testified that he joined SA in the car, alone, after Moussa left. Constable Kennedy also gave evidence that there were two people in the backseat of the car when he arrived – SA and an unidentified male.

Based on the totality of the evidence before me, I find that the accused was alone in the back of the car with SA and reject SN’s evidence that there was no third person who went into the car with SA. [ 133 ] While I find SA credible and rely on her evidence as to her state of mind at the time of the sexual activity, SN’s testimony is further support that SA did not consent to have sex with the accused in the car. The actus reus is established.

Further, SA’s evidence that she verbally told the accused that she did not want to have sex with him establishes the requisite mens rea for a conviction; the accused knew she did not consent, but had sex with her anyway. b. Car Ride from John Diefenbaker School to the Whitehorn House [ 134 ] I find that SA gave the accused oral sex in the car on the way to the Whitehorn house. This was the second instance of SA being sexually assaulted by Mr. Ibrahim.

[ 135 ] The accused’s evidence is that he jokingly asked SN if she wanted to give him oral sex in the car as they drove to the Whitehorn House. When she said yes and began to give him oral sex, he then asked SA who also agreed. SA then gave the accused oral sex in the car. The accused denied physically forcing or threatening SA in anyway. I disbelieve the accused and find that he did not ask SA whether she wanted to give him oral sex. [ 136 ] SA’s evidence is that the accused made her give him oral sex in the car in the presence of Vamba, Moussa and SN.

She testified that she told him she did not want to and was crying. However, the accused forced her. Again, under s.273.1(2)(d), SA’s verbal refusal established a lack of consent. [ 137 ] SN’s testimony about the car ride was the least straightforward part of her evidence. She herself said she only had “slight memory” of what happened in the car. She remembered giving the accused oral sex and SA also giving him oral sex. She did not recall the accused asking SA whether she wanted to give him oral sex.

However, given SN’s candid remark that she does not fully remember the events in the car, I put little weight on her evidence that she does not remember the accused asking for SA’s consent. [ 138 ] I find that SA did not subjectively consent to giving the accused oral sex and that the accused knew she did not consent. Both the actus reus and the mens rea of sexual assault are established. c. Whitehorn House [ 139 ] SA and the accused agree that no physical contact occurred between them at the Whitehorn house. Neither the actus reus nor mens rea for sexual assault have been established on the facts. iii.

Honest but Mistaken Belief in Consent [ 140 ] Once the Crown proves the actus reus of sexual assault beyond a reasonable doubt, the mens rea of the offence can be denied by the accused successfully raising the defence of an honest but mistaken belief in consent. Since engaging in sexual activity only becomes a crime in the absence of the complainant’s consent, the common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant: Ewanchuk at para 42.

This is the safety valve which Canadian law provides the morally innocent faced with an allegation(

s) of sexual assault: R v NB , 2018 ONCJ 527 at para 21 . [ 141 ] The trier of fact can only consider this defence if there is an air of reality.

Section 273.2 of the Criminal Code governs the defence. It reads as follows: It is not a defence to a charge under

section 271 , 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (

a) the accused’s belief arose from (

i) the accused’s self-induced intoxication, (ii) the accused’s recklessness or wilful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or (

c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. [emphasis added] [ 142 ] To successfully raise this defence, the accused must subjectively believe that the complainant “communicated consent to engage in the sexual activity in question”: Ewanchuk at para 45. The evidence must demonstrate that that complainant “affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused” Ewanchuk at para 49.

The subjective consent that the accused believed he had obtained from the complainant must be legally effective consent. [ 143 ] The legal principles and application of this defence are complex. The trial judge must first address whether the defence has an air of reality and then whether it succeeds to displace the accused’s mens rea for sexual assault. However, I do not need to engage with these complexities. [ 144 ] The only evidence before me that the complainant voluntarily agreed to engage in sexual activity with the accused is from the accused’s testimony.

Given my finding that I do not believe the accused’s evidence, there is nothing on the record from which the accused could have believed that SA said “yes” through her words or actions. SA’s credible evidence is that she told the accused, each time, that she did not want to engage in any sexual activity. No does not mean yes. [ 145 ] I am left with no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

On the contrary, I am satisfied beyond a reasonable doubt that SA did not consent to the sexual activity and made the accused aware of her lack of consent; I have little difficulty concluding, therefore, that the accused knew or was wilfully blind to the fact that the complainant was not consenting to the sexual activity: Barton at para 239 . [ 146 ]

Section 273.2(

c) governs in this situation to limit the ability of the accused to raise the defence of honest but mistaken belief in consent. I decline to find that Mr. Ibrahim’s actions can be cloaked in moral innocence: Ewanchuk at para 46.

[ 147 ] Given my finding that the accused cannot raise this defence, my analysis of this argument is concluded. Despite this, I wish to add that even if the accused had been able to bring this defence, it would not have succeeded. On the totality of the evidence, I find no air of reality to his assertion that he subjectively and honestly believed SA was consenting. Consent, to be legally effective, must be voluntary and freely given.

There is no credible evidence before me that suggests that the words or actions of SA were such that the accused could have reasonably believed she consented to the sexual activity. iv. Rape Myths [ 148 ] “Complainants should be able to rely on a system free from myths and stereotypes”: Ewanchuk at para 95. When approaching a sexual assault case, triers of fact must not harbour any assumptions of what a person who is being, or has been, sexually assaulted will do or say.

There is no typical victim, no typical situation and no typical reaction. [ 149 ] On cross-examination of SA, defence counsel made a point of having SA agree that there were various people whose paths crossed hers in the early morning of February 9, 2015, from whom she could have asked for help. These individuals included her ex- boyfriend, the gas station employee and the two Calgary police officers.

It would be incorrect for me to conclude that just because SA did not ask any of these people for help, and in fact told the police officer twice that she was okay, that she was actually okay. [ 150 ] As SA articulated during her testimony, at the time and in the circumstances, the options available to her did not subjectively seem like viable options.

Neither her ex-boyfriend nor the gas station employee were people who she felt she could turn to for help; she was dependant on SN for a place to stay and felt that she had to go along with the ride SN had arranged. [ 151 ] Further, she did not feel as though she could tell the police what had happened because she was scared; Diggy had just threatened her and she did not want the police to call her mom.

In her evidence, SA admitted that while in hindsight she did have other options available to her, at the time she did not realize this; “when you’re 16, you don’t really think that through”. [ 152 ] I would also like to add that while I accept SA’s evidence that she was crying throughout the encounter, this is largely irrelevant to my determination of whether she consented to the sexual activity.

The accused’s evidence was that SA seemed normal throughout their interaction and Constable Kennedy testified that it did not seem like SA had been crying. [ 153 ] It would be incorrect for me to assume that because she was crying it meant that she did not consent or, the alternative, that because she was not crying she did consent. No assumptions can be made about what emotion, or lack of, a victim of sexual assault would be displaying.

There is no inviolable rule on how people who are the victims of sexual assault will behave: R v DD , 2000 SCC 43 at para 65 . [ 154 ] I do not discount SA’s credibility because she did not ask for help at the time of the sexual assault nor because the evidence is unclear about whether she was crying throughout the events. “The supposed expected behaviour of the usual victim tells me nothing about this particular victim”: R v ARD , 2017 ABCA 237 (aff’d 2018 SCC 6 ) at para 52. IV. Issue 2: Parties i.

Section 21(1) [ 155 ] Section 21(1) of the Criminal Code , Parties to offence, reads as follows: Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it. [ 156 ] I do not believe the accused’s evidence that when the men went to pick SA and SN up from the gas station, that he had no idea that the plan was to have sex with the girls. I do not believe that the accused got into the car with Vamba and Moussa, went to pick the girls up and got out of the car at the John Diefenbaker High School parking lot, leaving Vamba in the car alone with SA, without knowing why they were there. These three young men exhibited large sexual appetites that night. At the time, they were friends and they hung out together.

It is not conceivable, in my view, that they did not discuss the prospect of having sex with these girls between the phone call which Vamba had with SN and their later arrival at the parking lot at the High School. Indeed, SN recalls that when they arrived at the parking lot there was discussion among all three men as to who was going to have sex with SA first. [ 157 ] I find that the three men formed a plan to each have sex with SA, irrespective of whether she consented.

They took advantage of the vulnerable position that SA and SN found themselves in in the early morning of February 9, 2015, stranded at a gas station in the middle of winter. Instead of taking the girls home, the men repeatedly sexually assaulted SA. [ 158 ] SN, despite knowing SA was uncomfortable with the idea, told Vamba on the phone that they would have sex with the men. The purported consent that SN conveyed to the men was, in the eyes of the law, ineffective for two reasons. First, s.273.1(2)(

a) of the Criminal Code specifically makes consent given by one person legally ineffective when attributed to a different person. Second, on the evidence before me I find that the ‘consent’ was not freely given as it was negotiated as a condition to a ride on a cold night. The accused never relied on this consent in his argument that SA consented to sexual activity with him. [ 159 ] I am satisfied on the evidence before me that the men cooperated with each other at the High School parking lot to sexually

assault SA. In an orderly fashion, each man got into the backseat with SA and engaged in non-consensual vaginal intercourse with her.Once each man had had his turn, they all got back into the car and without any discussion drove to the lookout on Nose Hill. Seeing thatit was busy, the men, again without any discussion between them, drove SA and SN to Vamba’s house. [160] After arriving at the house, the men then facilitated the further sexual assault of SA by Vamba and Moussa.

The evidencebefore me is that at the house all five individuals were in the same bedroom together; each man undoubtedly heard SA, yet again,express her lack of consent to further vaginal intercourse. Yet, nothing was said or done to stop the sexual assault. Each man stood byand encouraged the others in their unlawful pursuit. SA did not consent to any of the sexual activity that occurred with the men onFebruary 9, 2015. [161] I am satisfied on the evidence before me, specifically of the accused and SN, that the accused knew the plan was to have sexwith the girls.

As there was no legally effective consent, the plan among the accused, Vamba and Moussa was, in other words, tosexually assault the girls. During the early morning hours of February 9, 2015, the three men successfully carried out their plan andsexually assaulted SA. I am satisfied that this was a party offence. [162] The accused is guilty under s.21(1)(

a) as a party to the offence, specifically, as a co-participant. I am satisfied beyond areasonable doubt that the accused himself sexually assaulted SA. There is clear evidence before me of common participation among theaccused, Vamba and Moussa. As well, there is evidence that the accused had direct physical contact with SA in the commission of theoffence: R v Magoon, 2016 ABCA 412; R v Ball, 2011 BCCA 11 at para 25. [163] Further, the accused is guilty under s.21(1)(

c) of abetting Vamba and Moussa in sexually assaulting SA. “Mere presence at thescene of a crime is not sufficient to ground culpability. Something more is needed”: R v Dunlop, (SCC), [1979] 2 SCR881, 47 CCC (2d) 93 at para 106. “However, if the circumstances are such that the accused’s presence was non-accidental and amountedto a positive act of encouragement of the principal’s sexual assault of the complainant, then the actus reus of abetting is made out”: R vMarquaye, 2013 ONSC 1753 at para 390.

This is the case here and, therefore, the actus reus of the accused for this offence has beenproven beyond a reasonable doubt. Further, I am satisfied that the accused knew of Vamba and Moussa’s intention to sexually assault SAand acted with the purpose of encouraging them in their pursuit, the mens rea of the abetting offence is made out: Dunlop. [164] Given my finding that the accused is a party, under ss.21(1)(

a) and (c), to the repeated sexual assaults of SA, he is, therefore,liable for the acts of both of the other participants and the resulting consequences: Ball. ii. Section 21(2) [165] Party liability under s.21(2) of the Criminal Code first requires a finding that two or more persons formed an intention incommon to carry out an unlawful purpose and to assist each other therein.

Second, it requires a finding that in carrying out the unlawfulpurpose, one of the parties committed an offence, which the others knew or ought to have known was a probable consequence ofcarrying out the common purpose. [166] An unlawful purpose is one that is contrary to the Criminal Code. [167] Any unlawful purpose which the parties intended to carry out must be different from the offence ultimately committed: R vHarkes, 2017 ABCA 229 at para 28. [168] The first part of the s.21(2) offence has been established – the men had a common intention to carry out an unlawful purpose,namely, the sexual assault of SA.

I find, however, that a conviction for the accused premised in s.21(2) party liability fails at the secondstage of the analysis. The ultimate offence that occurred was the sexual assault of SA. The unlawful purpose and the offence ultimatelycommitted must be distinct from one other. Here, both are the same. [169] The evidence before me does not support a conviction for the accused under s.21(2). V. Conclusion [170] I find that SA, in her mind, did not consent to any of the sexual activity that took place with the accused in the early morninghours of February 9, 2015.

She did not, subjectively, want any of the sexual activity to take place.

I find her evidence credible andconclude on the totality of the evidence before me that the Crown established a lack of consent beyond a reasonable doubt. [171] In a circumstance such as this where the accused acknowledges that the encounter between him and the complainant unfoldedmore or less as she described it, but disputes that a crime took place, the accused can only assert as a defence that on the basis of SA’swords and conduct, he believed her to be consenting: R v Park, (SCC), [1995] 2 SCR 836 at p 851, 99 CCC (3d) 1;Ewanchuk at para 63.

The accused made this assertion at trial; however, I do not find that the accused honestly believed that SAconsented before he engaged in sexual activity with her. The totality of the evidence does not support his assertion. Rather, I find that hehad knowledge that she was not consenting but proceeded anyway. [172] Courts for years have recognized that “control over who touches one’s body, and how, lies at the core of human dignity andautonomy”: Ewanchuk at para 28.

I find the accused guilty beyond a reasonable doubt of sexually assaulting SA; first by having sexwith her and second by forcing her to give him oral sex. [173] I find the accused guilty under s.271 for the sexual assault of SA. I also find the accused guilty as a co-participant and anabettor, under ss. 21(1)(

a) and (

c) respectively.

Heard on the 17 th , 18, 19, 20, and 21 st days of May, 2021. Dated at the City of Calgary, Alberta this 1 st day of October, 2021. A.D. Macleod J.C.Q.B.A. Appearances: James D. Thomas for the Crown Michael G. Bates for the Defendant