R. v. K.R., 2020 ONCJ 91

CITATION: R. v. K.R., 2020 ONCJ 91 DATE: January 24, 2020 Information No. 18-Y882 Brampton ONTARIO COURT OF JUSTICE YOUTH CRIMINAL JUSTICE COURT HER MAJESTY THE QUEEN — AND — K .R. Before Justice Hafeez S. Amarshi January 24, 2020 A. Nigro..................................................................................................... counsel for the Crown M. Owoh.............................................................................................................. counsel for K.R.

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE H. S. AMARSHI, ONTARIO COURT OF JUSTICE

H.S. Amarshi J.: Delivered Orally A. Overview 1 . K.R. is charged with one count of sexual assault. He was a young person on July 23, 2018, the date of the alleged incident. The Crown proceeded by indictment and the trial proceeded over a four-day period. For the purposes of this oral decision I will refer to both parties by their names, but hereinafter initials will displace their names and any identifying information will be excised from this decision. 2 . From the outset Mr. Owoh acting for the young person made a number of reasonable and thoughtful concessions.

He acknowledged that sexual intercourse occurred between K.R. and the complainant – S.E. The only issue in this case therefore was whether the sexual activity was consensual. 3 . The Crown sought to tender video recorded evidence pursuant to s. 715.1 of the Criminal Code . S.E. made three video recorded statements at 22 Division in Brampton on July 27, 2018, September 3, 2018 and September 29, 2019. She responded to questions put to her by Detective Constable Eric Anderson, the Officer-in-Charge in this case.

In her series of statements, the complainant made a number of comments about her physical and mental wellbeing post incident. Both Crown and defence agreed those comments were not relevant nor probative to any of the issues in this trial and I have disregarded those portions of her statement. 4 . The defence did not oppose the Crown s. 715.1 application but sought a ruling on the admissibility of a third video statement made by S.E., just over 14 months after the incident in question.

In an oral ruling I made on October 9, 2019, I found that the prosecution had satisfied the statutory requirements of s. 715.1 and the September 29, 2019 video recorded statement was admitted into evidence. 5 . S.E. adopted the contents of all three video recorded statements and they comprised her evidence as examination-in-chief in this trial. 6 . The defence consented to the Crown application that the complainant be permitted to testify outside of the courtroom via a closed- circuit facility pursuant to s. 486.2. of the Criminal Code . S.E. testified with a support dog present. 7 .

In addition, medical records from Etobicoke General Hospital, and Chantel’s Place at Trillium Health Partners were admitted into evidence with the consent of the defence. A biology report and a toxicology report from the Centre for Forensic Science were also admitted into evidence on consent. 8 . It is alleged that the incident occurred at K.R.’s residence in Mississauga. On July 28, 2018 police executed a search warrant at the residence. A number of photos were taken by police, including the young person’s bedroom. Those photos from the bedroom were admitted into evidence in this trial. 9 .

A video recorded statement of K.R. was admitted into evidence. The young person made a statement to police in the company of his father on July 29, 2018 after being cautioned by a police officer. In the statement K.R. agrees that he had sexual intercourse with the complainant, but says it was consensual. B. Relevant Facts 10 . On Monday July 23, 2018, K.R. and S.E. decided to meet and hang out. They communicated over snapchat. S.E. knew the defendant from the same high school they attended. They also worked at a restaurant together.

Both the complainant and K.R. were 17 years old at the time of the alleged incident.

11 . At 3 p.m. that same day the young person picked up the complainant from her home in his car. They drove to his apartment building in Mississauga. According to S.E. she had no intention of having sexual relations with K.R. and described him as a brother figure and friend. 12 . The young person shares the apartment with his mother and older brother. When they arrived at the unit, the complainant says they went to K.R.’s bedroom and they watched TV. She was sitting on his bed. 13 . S.E. asked for a bottle of water.

According to the complainant it took a long time for the young person to come back with the water, which she found unusual. She also thought the bottle of water had been opened. She drank about a quarter of the water in the bottle. They then went to the balcony to smoke marijuana. On the way to the balcony the complainant saw K.R.’s older brother in the apartment. 14 . S.E. says she took a couple of puffs of the marijuana and gave the rest to the young person, who had supplied the marijuana. She started to feel high. At one point she said she was feeling woozy.

She says even though she smoked marijuana she was still aware of her surroundings. 15 . After leaving the balcony they returned to young person’s bedroom and sit on his bed. It is at this point that K.R. starts to touch the complainant’s body. She tells him to stop, but she says he continues. 16 . At one point the young person forces her head down to his crotch area. He takes her hand and rubs it on his penis. S.E. moves her hand away and says no. 17 . The complainant says she is then forcefully turned on to her stomach. She tries to push K.R. off of her.

The defendant starts to take her pants off, which she describes as zippered capri pants. It as this point, she slaps his face. Her shirt is still on. K.R. inserts his fingers into her vagina. She says she pushed his hands away, but that he persisted. He proceeds to insert his penis in her vagina, specifically that he held her by the hips and in her words was, “ramming his penis inside of my vagina.” 18 . At one point the young person wanted her to arch her back, so that the bottom half of her body was up, but she did not comply. She says K.R. used his body weight to force himself inside of her.

She describes the defendant as being frustrated when she refused to arch her back, kissing his teeth and becoming more aggressive. 19 . In her video-recorded statement on July 27, 2018 she stated, “I didn't know he was that strong, because he’s a slim guy and that evening he showed me he was much stronger than I was and he forced his fingers inside of me before he put his penis in and it was of course painful and I told him no.” 20 . During intercourse S.E. sees baby oil on the dresser beside the bed and asks the young person to retrieve it .

The purpose she says was to distract K.R., so that as he retrieved the bottle she could in her words, “escape” from the situation. She tried to leverage her pants up her body, so that she would not have to run out of the room naked, however when she attempted to leave or get off the bed K.R. forced himself back on her. The complainant was adamant that her request for baby oil was not related to a desire in continuing with the sexual act or for pleasure.

According to S.E., given the closeness of the dresser to the bed, the young person was able to retrieve the baby oil with one hand while still holding her down with his other hand. K.R. subsequently put baby oil on his penis using both hands and the intercourse continued against her will. 21 . The complainant testified that she begged the young person to stop – telling him that he was too rough and that he was hurting her. She says the intercourse took place over a five to ten-minute period until K.R. ejaculated.

During intercourse, S.E. told the young person not to ejaculate in her and that he ejaculated on her hip area. 22 . According to S.E. she was bleeding from her vagina. She describes it as a lot of blood and that K.R. took a shirt from a laundry basket and gave it to her. She used the shirt to wipe her blood. 23 . After the sex act, the complainant says she was crying, and that the defendant responded by hugging her and telling her she would be ok. She asked K.R. to drop her home. At the elevator, she recalls the young person asking her how she felt – she responded by saying, “I

feel like I’ve been raped.” K.R. did not respond. 24 . When S.E. got home, she called her cousin who counselled her to tell someone. The next day on July 24, she spoke to her mom about the incident, who took her to Etobicoke General Hospital, where she was examined by a doctor. She was transferred to Chantel’s Place at Trillium Health Partners, where she was examined by a nurse in the early morning hours of July 25. She shortly thereafter reported the incident to police. 25 .

In cross-examination S.E. denied touching the defendant in a seductive way when they were on the bed or responding in a sexual way to his touch. She maintained that the sexual activity that occurred was not consensual. 26 . She provided additional details about the encounter in the bedroom, saying that while on the bed K.R. pulled out his penis and told her to “make it wet.” She agreed that during the trial was the first time that she had mentioned this detail, which was not part of her video-recorded statement.

She said she remembered it for the first time while testifying, which I accept as a genuine explanation. 27 . When asked about her position on the bed when she says the defendant was holding her down, she described having her left arm pulled behind her back by the young person and her legs as being off the bed. Her right hand was free, which she used to strike the defendant. She says that while K.R. was on top of her, he pulled down her capri pants with one hand while holding her with his other hand.

Further, that she was shouting for the defendant to stop in the hopes that his brother would hear the commotion and intervene. She knew the brother’s bedroom was close by but when she left the apartment, she did not see K.R.’s brother. 28 . The complainant agreed that it was odd that the young person did not respond verbally when she told him to stop touching her despite saying it multiple times and actively resisting his actions.

She further testified that K.R. did not say much during the encounter in the bedroom, stating he probably “didn’t say a word.” She further agreed that it was a weird for the defendant to ask her how she was doing when they were at the elevator given S.E.’s allegation of forced intercourse in the apartment. K.R.’s testimony 29 . K.R. is currently 18 years old. He has no criminal record and currently attends a community college in his first year. In addition to school, he also works part-time. He lives with his mother and older brother in an apartment that has three bedrooms. 30 .

He described S.E. as a friend that he knows from school and from work. They would occasionally hang out. Prior to July 2018, the complainant had been to his home on two previous occasions. 31 . He confirmed that he had chatted with S.E. about hanging out while they were at work and later over snapchat – a social media application. On July 23 he picked up the complainant in his mother’s car and returned to his apartment. His mother was out of the country and his brother was at home. 32 . He says he accompanied the complainant to the balcony, where she smoked marijuana.

He believes his older brother was at home that day because he could hear him. 33 . After leaving the balcony he headed to his bedroom with the complainant and started watching Netflix. He was sitting against the headboard and S.E. was lying down on the bed. They watched TV for five to ten minutes and then he started touching the complainant. He described it at first as a gentle rubbing of her arms. He says she responded by touching his back, arms and legs.

After about five minutes of touching he described things as becoming more intense and that he took her pants off in his words, “with permission.” He proceeds to take her underwear off, which ends up on the bedroom floor and inserts his fingers into her vagina. 34 . He described the complainant as being aroused by his actions and that she never said anything that would suggest he should stop.

He says he realized that they may be having sex soon and he asked her if she was “okay with what’s going on?” When asked why he made that inquiry, he responded that the complainant was his friend and that he knew she was a virgin, so it was very important to him to make

sure she wanted to continue. 35 . He says at first S.E. said, “I’m not sure, I don’t know.” He asked her a second time and she responded, “I think.” It is only after he asks her a third time, does she say yes. During this time there was more touching, and he concluded that she was further aroused, which is why he believes she agreed to continue with the sexual activity. It is shortly after this point that that they had intercourse. The defendant had taken off his pants. 36 .

According to the young person the complainant’s back was on the bed and he proceeded to get on his knees and inserted his penis in her vagina. He could tell by looking at S.E.’s facial expressions that the sexual act was not as enjoyable as it should be. 37 . He recalled that the complainant asked that he use baby oil. There was a bottle on his dresser, and he got off the bed to retrieve it. He applied the lubricant both on himself and on S.E. to ensure in his words that there was “no more pain.” He describes the complainant as just lying there and not saying anything.

He reinserted his penis and continued to have sex. 38 . When asked how the intercourse ended, he said he stopped when he realized that S.E. was in pain and that the sex was hurting her more than it was enjoyable. He says he asked her whether he should stop, and she responded by saying yes. At that point they stopped having sex. He denied ejaculating. 39 . He says he was aware that the complainant was a virgin and knew that intercourse could possibly hurt. He testified that he did not see any blood on his sheets or on himself. 40 .

After they stopped having sex, he says she went to the bathroom and when she returned, she sat on his bed. They had a conversation where he recalls asking, “Are you ok, like do you want to talk” but that S.E. did not respond, which he found weird. He drove her home and he asked her again whether she wanted to talk, but she didn’t say anything. He recalls saying goodbye when he dropped her off and that the complainant just walked off. 41 . The defendant was away from the home when his mother called to tell him that police had entered their apartment.

He later attended 22 division with his father and gave a statement. 42 . In cross-examination, he agreed he went to get a bottle of water for S.E. but denies he was gone for a long period of time and says it was closer to two minutes. He says the water bottle was sealed when he gave it to complainant. 43 . He testified that the complainant brought marijuana to his house and that he could smell it on her. In the end he did not smoke any of the marijuana, because he was unsure where it came from. He did however roll a marijuana cigarette for the complainant.

He confirms that she did not smoke a lot – one or two puffs before she tossed the cigarette. He denies lacing the marijuana cigarette with any other substance. 44 . Although he said he was not interested in S.E. romantically he agreed he was attracted to her but was not planning for any intimacy when he invited her to his house. He felt it was safe place to smoke marijuana. 45 . When asked about the sexual activity the defendant said he took S.E.’s pants and underwear off with her permission. He thought she was aroused because she was moaning, and her vagina was moist and from her facial expressions.

Further before having intercourse he asked permission again. He remembers this because he got off the bed to fold his shorts and shirt and asked her if she was ready. 46 . According to K.R. the complainant did not talk during sex, but she did ask him to get the baby oil at which point they continued having sex. He was asked again whether he ejaculated and responded that he did not. 47 . He says he did not give S.E. a shirt to wipe herself, but instead she may have used one of his shirts in his room, but he wasn’t sure because he was in the kitchen after they had sex. He says he was not aware if she was bleeding.

48. He disputes that either through her words or actions or both that she indicated that she didn’t want to have sex or to be touched.Further, he denies that the complainant was on her stomach when they had sex and that she tried to wriggle free when he retrieved thebaby oil. Medical Records 49. On July 24, 2018 S.E. attended Etobicoke General Hospital. A number of observations were made by the attending medicalpersonnel which are reflected in the medical records.

Just after midnight on July 25 she was transferred to Chantel’s Place at TrilliumHealth Partners in Mississauga in order to complete a sexual assault evidence kit. Several swabs were taken including from theunderwear of the complainant, specifically a cut-out of semen from the underwear located on the front right waistband was tested. 50.

Although the report from Trillium entitled “Forensic Evidence Form” is somewhat confusing in that it was unclear whether theunderwear S.E. was wearing on July 23 was sent for testing, upon closer examination it is apparent that her clothing from that date wassent for that purpose. That information is contained on page one under the category Step 1 – “Clothing and Drop Sheet” and indicatesthat the underwear worn before and immediately after the alleged incident was seized as evidence. 51. Semen was detected on the underwear and a DNA test conducted.

The result indicated DNA from S.E. plus at least two individualsincluding at least one male. A DNA sample is never taken from the defendant. C. Applicable Legal Principles 52. The onus is on the Crown to prove beyond a reasonable doubt that the complainant did not consent to the sexual activity that isagreed to have taken place between the young person and the complainant. As Justice Horkins in R. v.

Ghomeshi, 2016 ONCJ 155,succinctly wrote in explanation of the standard of proof in a criminal trial – to secure a conviction the Crown must establish eachessential element of the charge against an accused to a point of “proof beyond a reasonable doubt,” this standard of proof is veryexacting. It is a standard far beyond the civil threshold of proof on a balance of probability. The court notes it is not a standard ofabsolute or scientific certainty, but it a standard that certainly approaches that.

Anything less entitles an accused to the full benefit of thepresumption of innocence and a dismissal of the charge. 53. Credibility and reliability are the central issues in this case. The framework in R. v. W.(D.), 1991 SCR 742, applies in this case andrequires me to find K.R. not guilty if I accept or I am left with a reasonable doubt by his evidence or any evidence inconsistent with hisguilt. In other words, I need not believe the defendant to find him not guilty.

Further even if this Court rejects such exculpatory evidence,I must still be satisfied beyond a reasonable doubt by the Crown's evidence that I do accept that the defendant is guilty. 54. There is no burden on this young person to prove anything in this case and I cannot find him guilty unless I am sure he is guilty of theoffence as charged. 55. In this case there are only two witnesses – K.R. and the complainant. The evidence is contradictory on a material and defining issue,that is, whether the sexual activity that occurred was consensual.

In a criminal case, a court cannot find an accused person guilty becauseit prefers the complainant’s evidence to that of the accused. In other words, criminal trials are not credibility contests and it would be anerror to arrive at a conclusion on culpability based on which witnesses’ evidence I preferred. 56. The case of R. v. J.R.R.D., (ON CA), 218 O.A.C. 37, has application in this case. In J.R.R.D. the Ontario Courtof Appeal reviewed the adequacy of a trial judges’ reasons in convicting an accused.

The Court concluded at paragraph 53: An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth ofconflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problemidentified with the way the accused testified or the substance of the accused’s evidence. 57. The Court noted in J.R.R.D. that the complainant’s diary which provided relatively contemporaneous details about the sexual contactwith the accused had a credibility enhancing effect.

That diary in addition to a finding that the complainant was a credible witness was

sufficient to satisfy the trial judge of the accused’s guilt despite his denial of the charges under oath. The conviction was upheld by the Court of Appeal. 58 . The analysis in R. v. J.R.R.D. , was confirmed by the Ontario Court of Appeal in R. v. D.T., 2014 ONCA 44 . See also R. v. R.E.M ., 2008 SCC 51 . D. Analysis 59 . There are aspects of the evidence in this trial that are confirmed by both parties. That they there were friends, who knew each other from work and school. They communicated by snapchat and made a plan to smoke marijuana. They decided to go to the defendant’s apartment in Mississauga.

K.R. picked up the complainant in his mother’s car. That the young person provided the complainant with a bottle of water. There is disagreement on how long the defendant took to retrieve that bottle of water from the kitchen. They were on the balcony when they smoked marijuana, although there is disagreement as to whether K.R. consumed any marijuana and who supplied the marijuana. They were on the bed together watching TV and both parties concluded that K.R.’s older brother was in the apartment at one point. What occurs next is where the evidence begins to conflict.

S.E. says she was clear with both her words and actions that she did not want to engage in sexual activity. The defendant says that he obtained her consent and that the complainant was a willing participant in the sexual intercourse and the sexual activity that proceeded it. Credibility Findings 60 . I found the complainant to be a credible witness and I believed her evidence. Further I found her evidence to be reliable. She testified in a manner that was detailed, forthright and persuasive. I accept her evidence that she did not consent to the sexual activity in the defendant’s bedroom. 61 .

S.E. was careful in her evidence. She asked counsel to restate and clarify questions or re-ask them, so she understood before responding. When Mr. Owoh for example suggested that the defendant’s bed was five feet from the door, she responded she did not know how long five feet was and instead used steps to describe the distance. On another occasion when counsel suggested she slapped K.R. with a backward motion, she responded no, and clarified that given her position on the bed, the motion was front facing. She further demonstrated with the sweep of her hand.

The positioning of S.E.’s hand when she struck the defendant is not a material issue in this case, but her explanation is reflective of the complainant’s desire to ensure the accuracy of her evidence. 62 . There were multiple instances when S.E. demonstrated this attention to detail. For example, she described with some precision during the assault that her legs were positioned off the bed, as well as the relative position of her hands. That her right hand was free, and her left hand locked behind her back.

She demonstrated her body position in relation to the defendant, making a genuine effort to ensure her evidence was understood. 63 . In another instance she provided detailed testimony as to the positioning of the defendant’s hand at the outset of the sexual activity, that he used one hand to touch her breast, which she pushed aside and that K.R. used his other hand to grab her head and push it down. Her evidence was internally consistent. 64 . The complainant readily admitted to facts that portrayed her in a negative light or had the potential to undermine her version of events.

It demonstrated a desire to be frank and forthcoming with the court. She conceded for example she was woozy from smoking marijuana that afternoon. On another occasion testifying she was high. She referred to the defendant as “magga” – Jamaican slang for someone who is very small and skinny, which would seemingly undermine her position that K.R. was able to physically control her. She was careful not to exaggerate her evidence, explaining that it was she who struck K.R. and that the defendant did not strike her. She did not seek to embellish or minimize the level of violence. 65 .

Her evidence was corroborated by credible external evidence. Several medical tests were taken on July 24 and 25. Her urine confirmed THC in her urine, the active ingredient in marijuana. 66 . Semen was found on her underwear. S.E. reported that the defendant ejaculated on her hip – on an area consistent with the placement of her underwear after the sex act. I accept that the semen from the underwear comes from the young person, who denied ejaculating. Although not specially argued by the defence, I do not accept that the semen came from another source in the relatively short time period

of time between the alleged assault and when S.E. completed the sexual assault evidence kit. 67 . This type of confirmatory evidence of the complainant’s testimony is capable, as Justice Hill describes in R. v. N.S., [2001] O.J. No. 3944 (S.J.C.) , in restoring the trier's faith and belief in the complainant's account of events, even if it does not directly implicate the accused or confirm the complainant's evidence in every respect. 68 . In addition to the semen, there is further extrinsic evidence, specifically the evidence derived from K.R.’s t-shirt that confirms the complainant’s version of events.

S.E. described bleeding as a result of the sexual intercourse and that the defendant gave her a shirt from his laundry basket to wipe herself. She described it as white short-sleeved shirt with writing on the front. She further described a thick black collar on the shirt. The shirt she says already had red stains on it before she used it. When police execute the search warrant, they photograph a white short sleeved shirt with writing on the front. A closeup photograph clearly shows blood stains on the back of the shirt. The front of the shirt also has stains as she described, but not blood.

I note however, that the shirt is not collared, but does have a black patterned material that rings the bottom of the shirt. Despite this mistaken detail, the description of the shirt is accurate, and I accept this is the shirt she used to wipe herself after the sex act. 69 . The young person denied seeing any blood from the complainant, although he agreed she could have been bleeding and he was not there to witness it, since he was in the kitchen in the period of time after sex.

What is unusual about his explanation is that K.R. testified that he took considerable care of his clothes and that just prior to sex he got off his bed and folded the shirt and shorts he was wearing. It is difficult to accept that given this level of care and attention that he would miss the clearly visible blood stains on a t-shirt of his left in his bedroom. 70 . Even if I find that S.E.’s evidence of what happened to her is credible, I must be satisfied that it is also reliable.

A witness's testimony may be unreliable if the witness is unable to recall events accurately or demonstrates an inability to observe. 71 . In this case, reliability concerns arise from the complainant’s testimony that she was high as a result of smoking marijuana. That the marijuana was strong, and she felt woozy. Although I readily agree substance abuse can negatively impact a witnesses’ recollection, in this case I did not have reliability concerns. S.E. testified that despite the potency of the marijuana she was aware of what was happening, saying that she had control and could function properly.

I accept that evidence. The level of detail in which she gave her evidence further confirms her ability to observe and recollect. K.R.’s Credibility 72 . As I noted earlier in this decision, I had difficulty accepting K.R.’s evidence that he did not observe or was unaware that S.E. was bleeding, despite the blood stains on his shirt, which was found by police in his bedroom. I accept the complainant’s evidence that it was the defendant that gave her his shirt for the specific purpose of wiping herself after sex. His evidence is further contradicted by the semen located on K.R.’s underwear.

The young person denied on three occasions over the course of the trial that he did not ejaculate during sexual activity with the complainant. The semen, which I concluded belonged to the defendant undermines this assertion. 73 . Although the defendant did testify in a way that could generally be described as direct and often concise, there were times when his evidence was confusing. For example, he was asked on multiple occasions how many times he had “hung out” with the complainant before the day of the incident, and he gave unclear and muddled responses to what is a straightforward question. 74 .

Further I had difficulty accepting his evidence that he did not smoke marijuana that afternoon and I concluded he was not being truthful in that regard. Both parties agree they made an explicit plan before they met that day to smoke marijuana. They chose to go to K.R.’s apartment specially because it was a place they could smoke in private. He had supplied marijuana on the last occasion. It was his suggestion. He rolled the marijuana cigarette, but says he declined to take any puffs because he did not know the source or origin of the marijuana and was concerned it could be laced or cut with another substance.

I did not believe that explanation and I accepted S.E.’s evidence on this point, that K.R. not only supplied the marijuana but that he joined her in smoking the marijuana cigarette. 75 . In the end, despite these misgivings I just identified, it is the extrinsic evidence that had the greatest impact in undermining the defendant’s credibility in this case. It revealed obvious flaws in his evidence. 76 . Similar to the complainant, the young person maintained his version of events in cross-examination. He was not shaken in his

position that the sex that day was consensual and that there was no indication verbal or otherwise from the complainant that she did not want to have sex with him. K.R. came across as an intelligent and articulate young man. He did not seek to embellish his evidence. For example, he was frank about the nature of his relationship with S.E. – that they were just friends and he did not try and cast it by any other terms. He readily agreed he was attracted to the complainant and wanted to have sex. That he initiated the sexual contact. Evidence that was given no weight in this trial 77 .

The Crown argued that a 1.5 centimetre tear in the complainant’s vagina observed during the examination at Trillium Health Partners was indicative of forced intercourse. There is no expert or medical evidence before me to support such a conclusion. The tear could have also been caused by consensual sex and I have disregarded that medical evidence as being probative of the main issue in this case. 78 . Further I did not accept the Crown’s submission that the bottle of water given to S.E. may have contained a noxious or mind-altering substance. The complainant was unsure herself.

There is no evidence before me to support suggest a claim. 79 . Similarly, there is no evidence to support a suggestion that the marijuana cigarette was laced with another substance. The toxicology report indicates only THC as being present in the complainant’s urine. Defence Submissions on Credibility 80 . S.E. was subject to a skillful and comprehensive cross-examination. Mr. Owoh points to a number of areas in her evidence, especially during cross-examination that should cause this Court to be concerned about the complainant’s credibility. I will address the most significant defence arguments. 81 .

Counsel submits there were multiple aspects of S.E.’s version of events that were implausible. He queries why the complainant did not yell out for the defendant’s brother, whose bedroom was just next door, given the aggressive nature of the sexual assault. The apartment was small, and he would have likely heard the complainant’s cries for help. Further according to S.E., she wanted to exit the situation with the defendant, yet she makes no attempt to flee the bedroom Mr. Owoh points out. 82 . The complainant did testify however, that she was shouting in an effort to alert K.R.’s brother.

I accept that was her intention. Both parties testified that they did not see the brother when they were leaving, and it is plausible that by the time of the incident in the bedroom, he had already left the apartment. 83 . Further the complainant also testified that she tried to get off the bed at the point when the defendant reached for the baby oil. Indeed, S.E. testified at length that her request for the lubricant was a planned distraction in order for her to get out from under the defendant. She was unable to do so because K.R. pinned her down when she tried to wiggle free.

She testified that she would have tried to escape if she could. In other words, she did make an attempt to flee from the situation and I accept her evidence. That said, courts must be cautious on relying on presumptions of normative behavior about sexual assault complainants which can amount to impermissible stereotypical reasoning – although I appreciate there are rare instances when this type of evidence may be deemed relevant. 84 .

Counsel also argues that given the defendant’s slight stature, it would have been physically implausible for the young person to physically turn the complainant on to her stomach and digitally penetrate her. Further it would not have been possible for the defendant to apply baby oil to his penis while still managing to pin the complainant to the bed. He described S.E. as not being a petite girl, who if she is to be believed, would have been actively resisting, thereby making it even more difficult for the defendant to physically control her. 85 .

I do not however accept the defence contention that the forced intercourse was not physically possible. K.R. is a slim individual, although I note the complainant, although not petite, is not particularly large and there is a not significant size differential between them. I cannot conclude in the circumstances that the defendant did not have the physical strength to overpower the complainant. On multiple occasions, S.E. remarked she was surprised by his strength and concluded that the defendant was very strong. 86 . Mr. Owoh also submits that her explanation of events just doesn’t accord with common sense.

According to the complainant the defendant was largely silent during the sexual assault. That he does not respond – as counsel put it to the “adamant rejections” from S.E. It does not make sense that the defendant would have no reaction in the circumstances.

87 . Although K.R. was silent, there is evidence that he reacted to the complainant’s rejection of his sexual advances. Specially S.E. testified that the defendant wanted her to arch her back, but she refused. In response, she described the defendant as kissing his teeth and becoming more aggressive. That he was acting frustrated. In other words, a non-verbal reaction to S.E.’s resistance to him. E. Conclusion 88 . The ultimate question in this type of analysis is not simply whether the complainant was credible, but whether the allegations are proved beyond a reasonable doubt – see R. v.

Martin, 2017 ONCA 322 at paragraph 18 . 89 . Accordingly, I have assessed K.R.’s evidence in light of all of the evidence, including the testimony of the complainant and the corroborative evidence I have referred to in this decision. I have carefully considered the issues of credibility and reliability raised by the defence and conclude that the complainant was a credible witness and I believe her account of what occurred that afternoon. In the end I reject the defendant’s denial that the sexual activity was consensual.

I find his testimony does not leave a doubt either alone or in combination with any other evidence. A conviction is to be entered on the count of sexual assault.