R. v. O.(R.), 2011 ONCJ 464

Y100053 Citation: R. v. O.(R.) , 2011 ONCJ 464 IN THE ONTARIO COURT OF JUSTICE IN THE MATTER OF: THE YOUTH CRIMINAL JUSTICE ACT, S.C. 2002, C.1 AND IN THE MATTER OF: R.O. AND L.T. Young Persons REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE E. DELUZIO AT BELLEVILLE, ONTARIO ON THURSDAY, JULY 21, 2011 APPEARANCES: Ms. J. Whyte Counsel for the Crown Ms. P. Bhachu Ms. M. Edwardh Counsel for R.O. Ms J. Orkin Mr. S. Ellsworth Counsel for L.T.

PROTECTED FROM PUBLICATION BY S. 110 OF THE YOUTH CRIMINAL JUSTICE ACT REASONS FOR JUDGMENT [ 1 ] The Defendants, R.O., dob […] September 1992, and L.T., dob. […] April 1992, are young persons and are each charged with two counts of sexual assault and one count of forcible confinement, relating to events alleged to have occurred on July 22, 2009. There are two complainants, S.S. and K.W.

At the time of the incident, S.S., born January […], 1994, was 15, and K.W., born October […], 1994, was 14. [ 2 ] S.S. and K.W. were best friends in July 2009 and they remain best friends today. [ 3 ] A third youth, K.S., was initially charged on the same information as a party to the sexual assault of S.S. but this charge was withdrawn, on February 23, 2011 on the basis that the Crown had no reasonable prospect of obtaining a conviction. [ 4 ] K.S. testified for the defence. [ 5 ] The complainants, and the two accused and K.S. met in person for the first time during a planned gathering at R.O.’s residence on July 22, 2009.

The only other person present in the home at the time was R.O.’s older brother L.O.

Before the incident, K.S. and S.S. had been communicating over social networking sites, including Facebook, MSN and text messaging, for about a month. [ 6 ] In addition to the two complainants, and K.S. the court heard from A.S. (the mother of S.S.); C.B. (the mother of K.W.); J.B (K.W.’s boyfriend); L.O. (R.O.’s older brother); and William Sikkema, an architectural technologist who testified about the floor plans and physical layout of the R.O. residence. [ 7 ] The trial was held over eight days, July 4-8, 2011, July 11, 2011, July 12, 2011 and July 13, 2011.

Relationship between S.S. and K.S. [ 8 ] S.S. testified that she first had contact with K.S. through a “fake” Facebook site that the two complainants, S.S. and K.W., had created for the purpose of catching K.W.’s boyfriend, J.B., cheating. S.S. and K.W. created a fictitious girl named “Abby” and developed an entire personal history for her as a girl who had recently moved to this area, had experienced the death of one of her parents, was lonely and looking for a sexual encounter.

To make “Abby” seem real the complainants “added” or invited as Facebook friends a number of students from the local high school Abby was planning to attend. This was not the same high school attended by the complainants and the young people they added to their site were previously unknown to them. The girls were successful in “catching” K.W.’s boyfriend who agreed to hook up with the fake “Abby”. [ 9 ] S.S. testified that K.S. was one of the young people they “randomly added” to the site. After making contact with K.S. as “Abby”, S.S. went onto her own Facebook site and added K.S.

Within a few days of their first contacts through Facebook, S.S. and K.S. began communicating privately over their computers via MSN and by cell phone through text messaging. Their conversations quickly became sexually explicit. 2 [ 10 ] MSN records saved on K.S.’s computer, and detailing all the MSN conversations between K.S. and S.S. between May 31, 2009 and July 22, 2009 were filed as an exhibit at trial.

Text message records for both complainants covering the period from July 1, 2009 and August 1, 2009 were also filed as exhibits, as were the cell phone roaming call records of S.S. and her mother A.S. for the period July 1, 2009 to August 1, 2009. [ 11 ] The MSN and text records record the sexually explicit conversations between K.S. and S.S. and their plans to meet for a sexual encounter. K.S. masturbated on webcam for S.S. and S.S. showed him her buttocks on webcam. She also sent him pictures of her breasts and her thong underwear.

They planned to meet at least twice before July 22, 2009 but these plans didn’t materialize. [ 12 ] K.S. was called as a witness for the defence. He testified that he and L.T. and R.O. were close friends in July 2009 and they hung out every day. He says he first met S.S. over the internet in April or May 2009, and did not meet her personally until the night of the incident. He was first introduced to S.S on the fake face book site of “Abby” and after that he and S.S. began talking on MSN and texting.

They mostly talked and texted about sex and sexual acts, including discussions about their favourite positions during sex, former sexual partners, and “basically everything leading up to having sex”. They both used webcams from time to time and they would tease each other over webcam, by masturbating for each other and exposing their private parts. S.S. would show him her breasts, underwear, buttocks. He said that he and S.S. knew they wanted to have sex as soon as they started talking, but it just never happened before July 22, 2009.

The Plan for July 22, 2009 [ 13 ] K.S. testified that the original plan for the night of July 22, 2009 was for him and the accused, L.T., to drive out to S.S.’s home to pick up the girls. This evidence was corroborated by the evidence of S.S.’s mother, A.S., who testified that she did not approve of the girls being picked up and that’s why she offered to drive the girls into town to meet the boys.

She said she wanted to know where they were going, and she felt they would be safer if she dropped them off and picked them up. [ 14 ] K.S. testified that he asked S.S. if her friend K.W. would hook up with his friend L.T. and she said K.W. would. He said that then R.O. was with them so the five of them planned to hang out and he and S.S. would hook up and K.W. would have sex with R.O. and L.T.

He said that before they met S.S. told him that if K.W. backed out she would satisfy all three boys. [ 15 ] Both complainants went to the residence of R.O. the night of July 22, 2009, intending to participate in sexual activity.

This is established by the evidence of both S.S. and K.W. and from the MSN and text message records filed as exhibits, which provide a written verbatim record of what was discussed and agreed upon by the two complainants, before they physically met K.S. and the two co- accused for the first time at R.O.’s home on July 22, 2009. 3 [ 16 ] Both complainants were extensively cross-examined about text messages and telephone calls they made while they were in the R.O. residence, and in the days and hours leading up to and following the incident.

The text messages they sent and received were recorded verbatim and are contained in text records obtained and produced by the Crown, and filed as exhibits at trial. The text message records of both S.S. and K.W. cover the period between July 1, 2009 and August 1, 2009. Crown and Defence counsel agree that these records capture almost all of the text messages of the complainants during that time and can be relied on by the Court as accurately reflecting the content of the messages sent, and the times the various messages were sent and received.

Both complainants adopted the records as accurate depictions of the messages they sent and received. [ 17 ] These phone records establish that the plan between S.S. and K.S. to meet and have sex expanded over the course of July 21, 2009 and July 22, 2009 to include K.W. and K.S’s two friends, the co-accused. There are dozens of MSN and text communications between K.S. and S.S. leading up to their actual meeting at approximately 10:15 p.m. on July 22, 2009.

The records also establish, and both complainants agreed, that K.W. was present and approved of the MSN conversations where her involvement in the planned sexual activity is discussed. [ 18 ] Although S.S. and K.W. maintained in their statements to police and in their evidence-in-chief that they did not know R.O. would be there, I find, and it is reasonable to infer, on the basis of the phone and text record evidence and the testimony of both complainants, K.S. and A.S., that before the girls entered the residence that night, they knew that R.O. would be present and they had in fact both

agreed to participate in sexual activity with him. [ 19 ] During an MSN conversation that takes place just hours before the incident S.S. agrees to participate in sexual activity with L.T. and with K.S.’s “other friend”. She also tells K.S. that K.W. is willing participate in sexual activity with his two friends, including oral sex and sexual intercourse. During these discussions L.T. is identified by name, and R.O. is referred to by K.S. as his “other friend”.

There are earlier conversations between K.S. and S.S. during which R.O. is mentioned by name as one of K.S.’s friends, and S.S. testified that when K.S. referred to “me and the boys”, or his “other friend” she understood that he meant the co-accused L.T. and R.O. During the afternoon of July 22, 2009, S.S. tells K.S. she is also willing to give L.T. a “blow job” and she says that K.W. will also give L.T. a “blow job” and will have sex with him.

K.S. tells S.S. that he’s got another friend and asks “who wants to suck or fuck him?” and S.S. responds that S.S. will if K.W. is not there, but K.W. “definitely will if she’s there”. K.S. then asks whether K.W. will have sex with him too and S.S. responds that if K.S. has sex with K.W. then S.S. won’t have sex with him because the girls won’t have sex with the same guy. S.S. then asks K.S. if L.T. would “actually have sex with K.W. even though he has never talked to her before, she wants to know”.

K.S. answers “yeah as long as its kept on the dl” and S.S. says “yeah it will be”. (Both S.S. and K.S. testified that the term “dl” means “down low” or private.) [ 20 ] By 7:00 p.m. on July 22, 2009 the final arrangements are made to meet. K.S. sends a message to S.S. which reads: “the boys are down when are you and kels free?” At 7:30 p.m. S.S. texts K.S. to ask 4 “what are we are supposed to wear” and K.S. tells her to wear a thong under skirts.

K.W. also testified that K.S. told them what to wear that night and the girls complied. [ 21 ] At 9:47 p.m., S.S. receives a text from K.S. in which K.S. tells S.S. that they will be meeting at R.O.’s house, and he gives her R.O.’s address and directions. A few minutes after this text is received, at 9:56 p.m., S.S. texts K.S. to tell him they are on their way and will be there in 15 minutes. S.S.’s mother, A.S., testified that before she left her house and drove the girls to R.O.’s she knew the names of all three boys, and she knew she was dropping the girls off at R.O.’s residence.

A.S. had a clear memory of having insisted that the girls provide her with this information before she left her house with them that night. [ 22 ] Text messages exchanged between S.S. and K.W. while they are driving to R.O.’s residence confirm the girls’ plan to engage in sexual activity at R.O.’s residence. During an exchange that occurs between 9:56 p.m. and 10:03 p.m. K.W. tells S.S. “I think I’m starting to feel bad about it” and S.S. responds ”Me too. You don’t have to have sex with him if you don’t want to m’dear”. K.W. then says “I’m going to. I told them I would so I am”.

It is reasonable to infer that when K.W. uses the word “them” she is indicating her intention to have sex with more than one boy. [ 23 ] At 10:11 p.m. S.S. texts K.S. to let him know she and K.W. have been dropped off and are standing outside R.O.’s residence. Both S.S. and K.W. testified that it is R.O. who meets them outside, introduces himself, and brings them into his home.

Both girls said they stood in the kitchen area of the house for a few minutes, “were introduced to K.S. and L.T., and then introduced themselves to R.O.’s older brother L.O. who was playing computer games in the living room. [ 24 ] Both girls testified that when they met L.O. they understood that he was the supervisor/chaperone at the house and that R.O.’s parents were not home. They both estimated that it was about five minutes from the time they entered the house until they went down stairs. [ 25 ] At 10:15:12, S.S. texts her mother to let her know that she and K.W. are now inside the residence.

The girls continue to text each other after they enter the residence. At 10:15:18 K.W. texts S.S. and says “ha mines better than yours☺” and S.S. responds at 10:16 “Lmao shut up. So your doing it I take it?”. (S.S. testified that “Lmao” means “laugh my ass off”) K.W. then sends a text at 10:17 in which she says “R.O. is the cutest”. This text is sent to another friend K.W. was also in text communication with, but at trial K.W. testified that the text was sent to this friend by accident, and was meant for S.S.

K.W. testified that when she sent these texts saying “mine is better than yours” and “R.O. is the cutest” the girls were in the house and talking to the guys. She agreed that what she meant was that R.O. was hers and was better than the boy S.S. was with. She also agreed that she was interested in R.O. and was not disappointed that he was there. 5 K.W.’s Evidence about the Events at R.O.’s Residence [ 26 ] After they were introduced to R.O.’s brother, the young people went downstairs to the rec room. S.S. and K.S. started kissing and after a few minutes they left the rec room.

K.W. thinks they went into the downstairs bathroom. [ 27 ] K.W. testified that when S.S. and K.S. left the rec room, she was immediately jumped on by R.O. who started kissing her against her will, while L.T. held her by her upper arms to keep her still. She said they pulled down her underwear and skirt and then one of the boys fingered her vagina while R.O. continued to try to make out with her by kissing her. She says that from the beginning of this assault she kept saying she had a boyfriend and wanted them to stop and she said she was yelling and scared.

She testified that at 10:35:35 she received a text message from her boyfriend which she pretended was a phone call from her mother. She pretended to answer her phone and told the boys she had to leave because her mother was there to pick her up. She said R.O. walked her up the stairs and outside, down the driveway, and as far as the sidewalk, along the side entrance to R.O.’s home, which is located in a residential neighbourhood. In chief, K.W. testified that when R.O. discovered that her mother was not waiting outside, he grabbed K.W. and dragged her back inside the house, and down the stairs to the rec room.

Under cross-examination K.W. was unable to recall where R.O. grabbed her or how she was dragged down the stairs, stating that she couldn’t remember because she doesn’t want to think about it. She changed her description

from being dragged to being pushed or pulled by R.O. into the house and down the stairs. She said she never lost her footing. She says she was yelling and screaming the entire time she was being dragged back into the house and down the stairs. [ 28 ] According to floor plans of R.O.’s home that were entered as exhibits, K.W. would have been dragged or pushed or pulled, screaming and yelling, past the bathroom and study area and down the basement stairs which are located just off the living room area where L.O. had been sitting on his computer, just ten minutes earlier.

K.W. testified that that L.T. was waiting in the hallway downstairs and he then dragged her to a window seat. L.T. stayed with her and held her to prevent her from leaving while R.O. went upstairs for more alcohol. When he came back downstairs both boys kept forcing her to do stuff with them and she kept screaming and telling them to leave her alone. She was on her feet the entire time that she was being dragged or pushed or pulled down the stairs. She said that eventually the boys got up and allowed her to leave and she remembers fixing her clothes and going up the stairs.

She said when she was outside the house R.O. threw her cell phone at her. She heard the phone hit the ground beside her, picked it up and ran away. [ 29 ] There were numerous internal inconsistencies and contradictions in K.W.’s evidence. Both girls testified that when they first entered R.O.’s residence they removed their flip flop sandals and left them at the side door.

K.W. testified that when she left the first time she managed to retrieve her flip flops and she agreed that when she was dragged back into the house by R.O. she must have taken her flip flops off again and placed them near the door because the flip flops were there when she came back up and left the second time.

When it was suggested to K.W. that her story about being dragged, pushed, 6 and pulled back into the home was inconsistent with her taking the time to remove her shoes at the side door, K.W. offered that the shoes could have fallen off her feet. [ 30 ] It is improbable that the shoes would have fallen off her feet at the precise spot on the landing where the other shoes were deliberately placed.

K.W. told the investigating officer, in her statement dated July 29, 2009 that she retrieved her flip flops from the same place S.S.’s flip flops were located, and she had to take the time to make sure she took her own flip flops and not S.S.’s flip flops because she and S.S. have the same size feet and had “mixed and matched” their shoes. [ 31 ] It is also improbable that K.W. would be able to pretend to answer a phone call, which would require the use of her arms, while L.T. was holding both of her arms to hold her still while R.O. was forcibly kissing and sexually touching her.

When cross-examined about how she was able to do this, K.W. simply said that the accused allowed her to answer her phone. This also seems unlikely if in fact the accused were forcibly confining and sexually assaulting K.W. at that time. While K.W. maintained that L.T. held her by the arms throughout the assault, she was unable to say for certain which accused was fingering her. If in fact L.T. was holding both of her arms, he would have needed both of his hands to do this, and he would have been unable to touch her vagina. [ 32 ] K.W.’s description was vague and lacked detail.

She was unable to recall which boy touched her vaginal area and which boy removed her underwear. She could not say where the boys were sitting or standing while they were sexually assaulting and forcibly confining her. [ 33 ] K.W.’s description of the alleged sexual assault and forcible confinement is also difficult, and at times impossible, to reconcile with the content of the text messages and the timeline established by the text messages and roaming call records. According to the text message records the girls were in R.O.’s residence by 10:15 p.m.

Both girls testified that they spent at least five minutes upstairs before they went into the basement area of the house. It was at least a few minutes after that before K.S. and S.S. began kissing and left the rec room area for the bathroom. At 10:19, both complainants text S.S.’s mother to let her know that they are fine and in the house with the boys. [ 34 ] S.S. and K.W. both testified that when they were texting S.S.’s mother they were still standing together in the rec room. So by 10:19 p.m. S.S. and K.S. had not even left the rec room yet.

This leaves only twelve minutes before K.W. leaves the home, for the second and last time, according to her evidence, at 10:31 p.m. when she sends the text to S.S. saying “I left”.

If the girls spent 5 minutes upstairs before they even went down to the basement, as they said they did, and another five minutes standing or talking in the basement before K.W. goes to sit between R.O. and L.T. on the couch, and S.S. leaves with K.S. for the bathroom, this would mean that K.W. was only alone with R.O. and L.T. at the very most eight to ten minutes and more likely six or seven minutes. [ 35 ] After S.S. leaves the rec room with K.S., K.W. sends and receives several text messages from her boyfriend, J.B.

K.W. testified, and the text records confirm, that she lied to J.B. about her whereabouts that evening. She told J.B. that she was going to a bonfire in Kingston with S.S. and S.S.’s cousin. At 7 10:20 J.B. messages K.W. and tells her he is angry because she is in a different city with people she doesn’t know. K.W. sends J.B. a text at 10:21 which says “I’m answering you?” and at 10:25 she receives a text from J.B. in which J.B. tells her he is really angry and had better get to see her tomorrow.

K.W. identified this text from J.B. as the text she pretended was a phone call from her mother. [ 36 ] K.W. testified that she was being sexually assaulted and held down by the accused when she received this text. Not only is K.W. able to free her hands to pretend to answer a phone call, but four minutes earlier, at 10:21 p.m. when according to her account she was being sexually assaulted and held down by the two accused, she was able to send her boyfriend a text message.

Between 10:25 when K.W. pretends to receive a phone call from her mother, she says she frees herself from the two accused, dresses herself and R.O. offers to walk her to the door. K.W. testified that she wasn’t sure how to get to the door from the basement area. She says that R.O. in fact walks her outside to the sidewalk where he discovers her mother is not there, and then he pushes and pulls her back from the sidewalk, into the house, and down the stairs into the basement. She says from the moment R.O. starts to push or pull her back towards the house she is screaming and yelling the entire time.

She is pulled back into the rec room and onto the window seat, is forced by L.T. to remain on the window seat while R.O. goes upstairs for more alcohol, and then has her clothing forcibly removed, and is touched in her vaginal area again by one of the boys until the sexual assault ends with the two accused getting up and allowing her to fix her clothes, and leave the house, choosing the correct flip flops before she runs out of the house.

[ 37 ] K.W.’s evidence of her escape from the rec room out onto the street, following by being dragged back down the stairs screaming and yelling, and then being sexually assaulted again is impossible to accept. It is reasonable to infer, based on the testimony of L.O. and his probable location in the house, that had K.W. been screaming and yelling he would have heard her and he would have intervened. The other unbelievable testimony by K.W. is that when she is dragged back into the house she takes her flip flops off again and leaves them at the side door.

She remembers this because she has a clear memory that when she leaves the house the second time she stops to get her flip flops again. The evidence of K.W. being dragged back into the residence, which is central to the forcible confinement allegation, is not credible. [ 38 ] It is clear from the timing of the messages being sent and received that K.W. had the full use of her hands and a working cell phone during the time she says she was being sexually assaulted.

But K.W. told A.S., when A.S. asked her why she didn’t call for help or text, that she couldn’t call for help because her cell phone wasn’t working properly that night. In fact, the text message records reveal that K.W. sent and received dozens of text messages during the evening of July 22, 2009, including the 15 minute period she spent in R.O.’s residence. [ 39 ] After K.W. leaves R.O.’s house she remains in text and phone communication with S.S. She sends S.S. a text at 10:31 saying “I left” and at 10:33 she sent S.S. another text saying “I’m going to meet J.B. Don’t tell your mom I’m not with you”.

At 10:34 S.S. sends a text to K.W. which says “hun, where are 8 you R.O. said you peaced. Are you okay?” (S.S. testified that by “peaced” she meant “left”), and K.W. responds at 10:36 “Yeah I’ll meet you at 11:30 have fun☺”.

Within minutes of K.W.’s escape from the R.O. residence she texts her friend, who she knows is still is the residence with K.S. and the two accused, and she tells her to have fun and includes a happy face symbol. [ 40 ] It is improbable that K.W. would send a text like this, accentuated with a happy face symbol to her best friend, after she has just run from the house herself to escape a violent sexual assault.

It is inconceivable that K.W. would not have told S.S. what happened to her, or at least warned S.S. that she was in danger of being sexually harmed and that she should get out too. [ 41 ] Even when S.S. then texts back at 10:37 and asks “Omg are you okay?”, giving K.W. another opportunity to warn her, K.W. responds at 10:37 and 10:38 saying ”yeah. I’ll tell you about it after.

Don’t tell your mom okay?” K.W.’s Evidence about Events after she left R.O.’s Residence [ 42 ] K.W. testified that after running from the R.O. residence, she spoke with J.B. by phone and they arranged to meet at Queen Victoria school, several blocks from R.O.’s residence. They met at the school shortly before 11 p.m.

K.W. testified that she remained at the school with J.B. for over an hour, until she was picked up there by S.S. and her mother A.S. [ 43 ] The cell phone roaming call records of S.S. confirm that K.W. and S.S. spoke on the phone four times between the time K.W. left R.O.’s residence and the time the girls finally met up at the school. The first three calls were made by K.W. to S.S. with the first call at 11:09 p.m. lasting almost three minutes, the second call at 11:16 p.m. lasting 45 seconds; the third call at 11:36 for 35 seconds. At 11:48 p.m.

S.S. calls K.W. and that call lasts 53 seconds. [ 44 ] K.W. testified that she did not say anything to S.S. about having been sexually assaulted and S.S. did not say anything to her that caused her to be concerned about S.S. Both girls testified that during these telephone conversations they were talking about what they were going to say to S.S.’s mother about why they were separated and why K.W. was no longer at the R.O. residence.

This was because A.S. had instructed them to stay together and be ready to be picked up at the R.O. residence at 11:30 and they knew K.W. wouldn’t be there and she would be angry. [ 45 ] Neither girl said anything about having any difficulty hearing themselves or each other during these phone conversations. This evidence suggests that if there was music playing in the basement, the music wasn’t loud enough to interfere with these phone conversations.

Therefore it is reasonable to infer that the music would not have been loud enough to drown out the sounds of the girls screaming and yelling during the alleged assaults. 9 S.S.’s Evidence about Events at R.O.’s residence [ 46 ] S.S. testified that after she and K.W. entered R.O.’s residence they talked to the boys in the kitchen for a few minutes, met R.O.’s brother and then made their way to the basement. She estimated that the group moved downstairs within about five or ten minutes of the girls’ arrival.

She said they all went into the rec room where there was a pool table and a couch and the music was “really loud”. She and K.W. stood in front of a cabinet talking to each other and the boys were talking to each other. After a few minutes K.S. told K.W. to go sit on the couch with L.T. and R.O. and then he stood beside S.S. and they started kissing. Then she and K.S. left the rec room and went into the downstairs bathroom, which was just down a hallway from the rec room. [ 47 ] She and K.S. then had consensual sex. They tried several different sexual positions.

They started with K.S. sitting on the toilet and entering her from behind, and then K.S. lay down on the floor and she got on top of him. The light was off and the door was closed. She recalled receiving a text from K.W. at 10:31 saying “I left” and another text from K.W. telling her that she was going to meet J.B. A few minutes later R.O. knocked at the door and told them that K.W. had left and her mother had picked her up. S.S. testified that she was

confused by this information because K.W. had told her she had gone to meet J.B. [ 48 ] S.S. says that after R.O. knocked on the door to say K.W. had left, K.S. asked her “do you mind” and she responded by saying “what do you mean”. She says that K.S. didn’t answer her and then said “no she doesn’t mind” and then L.T. and R.O. entered the bathroom. She said at that time she and K.S. were still engaging in sexual activity and they were both naked.

She says that R.O. entered the bathroom, grabbed her from behind and held her and then L.T. came in and shut the door. [ 49 ] During her testimony in-chief, S.S. said that L.T. stood in front of her holding her arms while R.O. vaginally and anally raped her. She said that throughout the assault she was crying and telling them not to touch her. She said R.O. was sitting on the toilet and pulled her down on him while L.T. held her forearms. Throughout the assault she was screaming and crying and saying no. She said that K.S. continued to lie on the bathroom floor and did nothing to help her.

The only thing she remembers him saying is “don’t worry boys she wants it, she just doesn’t want the reputation”. She remembers R.O. saying he liked her tattoo but she can’t remember him saying anything else. She doesn’t remember L.T. saying anything at all. [ 50 ] She said after R.O. had vaginal and anal intercourse with her he pushed her up and started touching her vagina with his hand and that L.T. continued to hold her. Then L.T. turned on the light and she noticed blood on her legs and her back. She said the bleeding was from her vagina, and that it happened when she and K.S. were having consensual sex.

She knows this because she saw some blood on K.S.’s condom while they were having sex. She thinks that R.O. spread the blood onto her back when he touched her vagina and then touched her back. She said that R.O. got a paper towel and tried to wipe off her back but she told him not to touch her. She doesn’t remember whether she was still yelling and screaming but she thinks she was still crying. 10 [ 51 ] R.O. left the bathroom and then she pushed L.T. out and locked the door. She put her clothes back on and K.S. kept trying to kiss her but she told him no.

Then she picked up her sweater and cell phone and left the bathroom. When she opened the door L.T. was standing right outside the door and he pushed her down when she stepped out of the bathroom. Then he picked her up like a baby and carried her down a narrow hall way into the rec room where he dropped her on her back near the couch, got on top of her and tried to put his penis in her mouth. She says she bit his penis, and L.T. swore at her and called her a bitch. Then she got up, and ran out of the house. She texted her mother, “I’m coming!” on her way up the stairs.

As she was leaving K.S. said “aren’t you going to say bye” and she said bye. Then she got her shoes and went outside. [ 52 ] S.S.’s description of L.T. pushing her down, then picking her up, and carrying her down the hall back into the rec room where he drops her on the floor and further assaults her, is inconsistent with S.S.’s previous statements to police. At no time before the trial did she ever say L.T. carried her down the hall and then dropped her on her back.

During her first interview she said L.T. grabbed her arms and pushed her to the ground, and then he pulled her to her feet and pulled her towards the couch. [ 53 ] There are numerous inconsistencies in S.S.’s testimony, and parts of her story are difficult and at times impossible to reconcile with the text message and phone records. [ 54 ] S.S. testified that after Rob knocked on the door to say K.W. had left, S.S. sends K.W. a text at 10:34 saying “hun where are you?

Rob said you peaced are you okay?” This testimony is inconsistent with S.S.’s evidence that after Rob told them about K.W. leaving, less than a minute went by before K.S. opened the door and the two accused came in and rape her. [ 55 ] S.S. testified that she and K.W. were upstairs in the kitchen for between five and ten minutes before they went downstairs. She also said that there was some small talk downstairs before she and K.S. started kissing and left the rec room.

Since the girls first entered R.O.’s residence at approximately 10:15, it would have to have been between 10:23 and 10:25 when S.S. and K.S. began having consensual sex in the bathroom.

If S.S. sent the “Rob says you peaced....” text to K.W. at 10:34, and the accused entered the bathroom shortly after Rob knocked on the bathroom to tell S.S. that K.W. had left, then K.S. and S.S. would have been alone in the bathroom for only 11 or 12 minutes before S.S. was sexually assaulted and the sexual assault itself began at approximately 10:34 p.m. [ 56 ] According to the text message records, S.S. continued to send and receive texts during a time when, according to her testimony, she is being held down and seriously assaulted.

During cross–examination, when S.S. was asked how she was able to send another text to K.W. at 10:37, S.S. changed her story and said that the accused must not have rushed into the bathroom immediately after R.O. told her that K.W. had left. This evidence is inconsistent with S.S.’s evidence in-chief and with her previous statements to the investigating officer. [ 57 ] Cell phone records demonstrate that at 11:09 S.S. received a phone call from K.W. and the phone call lasted for almost three minutes.

S.S. agreed that since she was able to talk on the phone with K.W. 11 at this time, the sexual assault had ended and both R.O. and L.T. had exited the bathroom. S.S. testified that after the sexual assault she remained in the bathroom to get dressed and K.S. stayed in the bathroom with her.

S.S. was vague and provided few details about what was going on between her and K.S. while they stayed in the bathroom for almost 27 minutes, after K.S. simply laid on the floor, indifferent to a serious and violent assault going on. [ 58 ] The text records and the testimony of A.S. establishes that S.S. remained in the R.O. residence, after the alleged sexual assault, for approximately 40 minutes until 11:45 when she is first seen by her mother, A.S., as she crosses the street towards the van. [ 59 ] The cell phone roaming call records establish that K.W. called S.S. three times and S.S. acknowledged that she answered all three calls while she was still in the R.O. residence.

She was also in phone and text contact with her mother from approximately 11:30 p.m. until she finally leaves the residence at approximately 11:45 p.m. [ 60 ] S.S. testified that she was not crying during these calls and did not ask for help or say anything was wrong. Both K.W. and A.S. also

say that S.S. did not sound upset and did not say anything was wrong, when they talked to her. When asked in cross-examination why she did not say anything to K.W. or to her mother, and the only other person in the bathroom was K.S., S.S. testified that she was afraid “because K.S. let it happen”. S.S. did not explain why she didn’t send a silent text message asking for help to either her mother or to K.W. since she was in constant contact with them while she remained in the residence after the sexual assault allegedly occurred.

Evidence of A.S. [ 61 ] A.S. testified that when she dropped the girls off she told them she would meet them at 11:30 p.m. at the convenience store across the street from R.O.’s residence. She also told them she would text them to make sure they were where they were supposed to be, and that she didn’t want them to be late because she had to work at 7 a.m. the next day.

The text message records confirm that at the same time as the girls were speaking to each other, A.S. is texting both girls to confirm that she is picking them both up at 11:30 at the Super Duper convenience store, and to confirm that the girls are still together. K.W. does not respond to the texts she receives from A.S. but instead, calls S.S. For example, A.S. texts K.W. at 11:15 p.m. and instead of responding to A.S., K.W. makes a call to S.S. at 11:16 p.m.

And when A.S. texts K.W. at 11:35 p.m. to ask “ why am I still waiting”, K.W. calls S.S. at 11:36 p.m. [ 62 ] A.S. testified that according to their pre-arranged pick up time and place she arrived to pick up the girls at the convenience store across the street from the R.O. residence just before 11:30. At 11:29 A.S. called S.S. and talked to her for 46 seconds. She testified that she asked S.S. why she wasn’t already outside and told her to come outside now. A.S. said that S.S. sounded angry that A.S. was calling her and she also sounded like she wanted more time in the house.

A.S. testified that she was annoyed at 12 her daughter, and her daughter sounded annoyed at her. She clarified that her daughter did not sound upset, she sounded angry. At 11:36, A.S. texts her daughter again and asks why she is still waiting and S.S. texts her back immediately and says I’m saying good bye. At 11:37 A.S. sends two more texts telling her daughter to hurry and to think of others not herself. Finally at 11:42 A.S. calls S.S. and during that call S.S. tells her that the dog took her flip flop and she can’t find it.

A.S. tells her to leave the shoes and a few seconds later S.S. texts to say “I’m coming!” When cross-examined about how she was able to type out this text while running up the stairs to escape, S.S. acknowledged that the message ended with an exclamation mark, and that typing the exclamation mark required her to push the same button on her cell phone four times. [ 63 ] According to A.S.’s evidence and the cell phone and call records, the “I’m coming!” text is sent by S.S. at 11:42, three minutes before S.S. calls her mother as she is walking across the street towards the van.

S.S. was unable to explain the three minute time gap and agreed that it would not have taken her three minutes to get from the stairs to her mother. S.S. then calls her mother at 11:45 to say she is coming out and at that point A.S. says she sees her daughter crossing the street. [ 64 ] It is clear from the text messages that S.S. is making her mother wait.

The fact that she is making her mother wait, and the fact that she remains for almost half an hour inside the bathroom with K.S. after she says he has stood by and watched, indifferent, while S.S. is the victim of a violent sexual assault by his friends, is impossible to reconcile with S.S.’s description of what happened to her and is more consistent with K.S.’s description of consensual sexual activity. After S.S. receives the first text from her mother at 11:29 she knows that her mother is parked right outside the R.O. residence. For most of that time, she says she is in the bathroom with K.S.

There is no evidence that K.S. was interfering with her ability to use her phone, or was interacting at all with her. She could have sent her mother a silent text asking for help but she didn’t do that and she was unable to explain why she didn’t ask her mother for help. [ 65 ] At 12:07, just over fifteen minutes after she leaves the R.O. residence and while she is still in the van being driven home by her mother, S.S. sends the following text to K.S. “sorry for leaving in such a rush my mom was freaking out cause she has to work in the morning”.

Once again, this text message seems improbable in light of S.S.’s description of K.S. watching while she is violently sexually assaulted, and is more consistent with K.S.’s description of what occurred that night. When asked in cross- examination to explain why she would send such a text to K.S. in the circumstances she has described, S.S. agreed with defence counsel’s suggestion that she sent the text because she didn’t want K.S. to think she was rude and because she still liked him and still wanted to have a relationship with him.

It is difficult to understand how a person who was violently sexually assaulted would send such a text to a person who stood by and watched and did nothing to help her. [ 66 ] A.S. testified that her daughter was not out of breath and did not seem dishevelled. She said S.S. got into the back seat and closed the door hard. A.S. said she had been yelling and swearing at her daughter and her daughter knew she was angry. A.S. asked S.S. how her evening was and S.S. said it 13 was fine. S.S. told A.S where K.W. was and explained that K.W. had left early because J.B. was angry that she was hanging out with other guys.

When they arrived at Queen Victoria School, K.W. got into the van and S.S. got out and went to talk to J.B. for a few minutes. A.S. said that when K.W. got in the van she told A.S. that the boys had “tried to make her do stuff”. A.S. asked K.W. why she left S.S. there and K.W. told her that S.S. was fine. A.S. testified that the girls sat in the back seat together and “not a single word was spoken”.

S.S. testified that while she and K.W. were in the back seat they were telling each other what happened, through a “note book” feature on their cell phone which allowed them to write things to each other, which they read but did not send via text. They said they erased everything they wrote to each other while they were in the van. A.S. said the girls slept together at her home that night, and remained together almost every day until they went to the police station. L.O’s evidence [ 67 ] L.O. testified for the defence. He is 25 years old now and he was 23 at the time of this incident.

His brother R.O. was not charged

until January 2010, six months after the alleged incident, and by then he had no specific recollection of meeting the complainants or of the evening of July 22, 2009. Although he was identified by both complainants in their initial statements given to police within days of the alleged incident as being present in the home when the alleged sexual assaults occurred, he was not interviewed by police until February 2011. Although both girls and K.S. say he was there that night, he has no memory of meeting the complainants.

He testified that according to a family calendar his mother was due to return home late that evening from a trip to the United States with his sister, and his father, who is a physician, was on call that night. He said when his mother was returning from a trip, he usually stayed up to wait for her. [ 68 ] He said that when his parents were not home he was in charge, and he often acted as a supervisor/chaperone for his younger brother R.O. He said R.O. often entertained friends at the home and he said he has never heard any screaming or yelling coming from the basement.

He said if he had heard any sounds like that he would have intervened. Both complainants testified that the boys were playing loud music downstairs and the Crown suggested that it is reasonable for the Court to infer that the loud music would have prevented L.O. from hearing the girls scream.

However, K.W. testified that when R.O. dragged or pushed or pulled her back into the house, she was screaming the entire time, and according to the floor plan, she would have been pushed along a portion of the main floor, close to the living room where L.O. was playing on his computer, and even closer to the bathroom that is located on the same floor. Since K.W.’s departure the first time happens about 12 minutes after the girls are introduced to L.O. in the living room, it is likely he would still have been in the living room and on the computer.

Even if he had been in the bathroom he would have been in close proximity to where K.W. was when she says she was screaming and yelling while being pushed and pulled back down into the basement of the house. It is reasonable to infer that had L.O. heard screaming and yelling he would have done something, according to his own evidence. There is no evidence that there was any loud 14 music playing on the main floor and therefore no reason why L.O. would not have heard K.W. screaming.

Evidence about Injuries [ 69 ] K.W. testified that she was dragged and pushed around during the assault and suffered bruising on her knees and arms. She testified that she took cell phone pictures of her injuries but these photos were not tendered by the Crown. However, under cross-examination she said that even when she was being dragged or pushed or pulled back into the R.O. residence she never lost her footing and was not dragged on her knees. She testified that she already had a black eye caused by her sister two days earlier, but that she received a cut on the same eye during the sexual assault.

She says that L.T. held her arms tight enough to prevent her from moving but no one sees any injuries on her arms. A.S. testified that she saw some redness on K.W.‘s knees but she didn’t notice any bruises on K.W.’s arms. [ 70 ] S.S. testified that she had bruising on both forearms and that she first noticed these bruises the morning after the incident. She said the bruises on her arms were caused by L.T. holding her arms tightly. She said she also had a bruise on her leg, on left side of her left knee, and a cut on her urethra caused when she had consensual sex with K.S.

S.S. testified that all of these bruises were documented when she went to the Health Unit on July 27, 2009 and was physically examined. However, Health Unit records tendered at trial make no reference at all to any bruises or to any claim by S.S. that she received bruises. The absence of any reference to bruises on S.S.’s Health Unit records is significant and provides an evidentiary foundation from which the Court can draw a reasonable inference that there were in fact no injuries complained of by S.S. and no injuries seen on her.

In her first statement to the investigating officer, Officer Meeks, on July 29, 2009, S.S. tells her that during the assault she received scratches on her back that bled. At trial S.S. agreed that she did not have any scratches on her back that bled and that the only place she bled was from her vagina, and any blood on her back was transferred from her vagina. She said she was unable to explain why she would tell the officer her back was bleeding and said she must have been mistaken. [ 71 ] K.W.’s mother C.B. also testified and said she did not see any bruises on either girl.

The day after the incident, July 23, 2009, the girls hung out at a bonfire with other young people at K.W.’s home. That night S.S., played a punching game called “shot for shot” with J.B. S.S. testified that she did receive a few arm bruises from J.B. during this game. At trial, she said nothing about being punched or hit during the assault. K.S.’ Evidence about Events at R.O.’s Residence [ 72 ] K.S. testified that his memory of that night is clear because “it changed my life”. He said he was drinking beer when the girls arrived but that the girls did not drink any alcohol.

He said the girls stood 15 outside the kitchen and R.O. introduced them to his brother. Then all five of them went downstairs. He said the girls sat down on the window seat and the boys sat down on the couch across from them. He remembers that the girls had their cell phones out and were texting and one of the guys made a comment that “you guys text a lot”. Then S.S. approached him and he was sitting on the arm rest of the couch and they were holding hands and kissing. They decided to go leave the rec room and go into the bathroom where he closed and locked the door.

As they were leaving the rec room he could see K.W. and R.O. kissing. He said he could see that they were kissing each other. [ 73 ] K.S. said K.W. was sitting between L.T. and R.O. but he did not see L.T. holding K.W.’s arms while R.O. was kissing her. He did not see L.T. restraining K.W. and he did not see her protesting or screaming or crying. [ 74 ] In the bathroom, he and S.S. continued kissing and touching and then proceeded to have sexual intercourse. They tried different positions. At different times while they were having sex, he noticed that S.S. was texting. At times, S.S. used her phone for light. At

first he sat on the toilet and S.S. “backed down” on him and then he lay on the floor and she was on top of him. [ 75 ] He said that while they were on the floor there was a knock on the door. He panicked and put on his boxer shorts because he thought it might be R.O.’s mother. He opened the door and R.O. and L.T. were standing there and R.O. told S.S. that her friend left. He said there was a brief pause while the door was open. R.O. and L.T. looked at him and then he asked S.S. “do you mind” and then S.S. shook her head from side to side indicating “no she didn’t mind”, and R.O. and L.T. entered the bathroom.

He said he was still on the floor and he lay back down and S.S. got back on top of him and they continued having sex. While they were having sex he could hear the sounds of both R.O. and L.T. masturbating and then he heard sucking noises of S.S. performing oral sex on L.T. while she was still having sex with K.S. He said that L.T. ejaculated and cheered a bit, satisfied with himself, and then he went upstairs and that was the last time K.S. saw L.T. until S.S. left. [ 76 ] After L.T. left, R.O. stood up behind S.S. while she was still having sex with K.S.

He said R.O. asked if he could have a turn and then K.S. pulled out of S.S. and then S.S. elevated her buttocks towards R.O. R.O. tried to have sex with her from behind her. K.S. heard S.S. say “no not there”, and then he could hear R.O. fingering S.S. He did not see any thrusting movements or hear the sounds of R.O. and S.S. having sex. He said S.S. was enjoying herself and was moaning while R.O. was fingering her. He said R.O. left the bathroom shortly after L.T.

He noticed that there were a few drops of blood on the condom he had been using and some blood on his fingers but he didn’t see blood anywhere else and he denied that R.O. had tried to wipe blood from S.S.’s back. [ 77 ] After R.O. left the bathroom, K.S. and S.S. got dressed and exited the bathroom together just a few minutes later. He said that it was just he and S.S. in the rec room and he asked S.S. if she would perform fellatio on him so that he could “finish”. While S.S. was performing fellatio on him she received a call from her mother and she told her mother she would be right out.

She then continued to perform fellatio on him until he ejaculated. He said after they were done they cleaned up and he walked her 16 upstairs to the door, gave her a hug good bye and she left. He said that at no time that evening did S.S. ever say no, or scream or yell. He said she was enjoying herself. He said that at no time did he ever leave S.S. alone with his friends. [ 78 ] K.S. testified there was no doubt in his mind that S.S. was consenting to all of the sexual activity that night. He said if he had seen either of his friends trying to force S.S. to do things, he would have put a stop to it.

He also testified that before he left the rec room with S.S. he saw K.W. engaged in consensual kissing with R.O. [ 79 ] K.S. was a credible witness. He testified in a frank and forthright manner when describing very personal and embarrassing details about his sexually explicit conversations and activities with S.S. His evidence was detailed and internally consistent and it was consistent with the timeline established by the text messages and cell phone records.

For example, his evidence about S.S. being interrupted by a phone call from her mother while she was performing oral sex on him, telling her mother she was coming, and then resuming the fellatio after the phone call, sounded credible and had a ring of truth to it.

This evidence was also consistent with A.S.’s testimony about her daughter sounding annoyed during this phone call and then making her wait another ten minutes before she finally emerged from R.O.’s home. [ 80 ] Crown counsel suggested in her submissions that K.S. was simply helping his friends out with his testimony, but this suggestion was unfair since at no time during the cross-examination did the Crown suggest to K.S. that he was lying to help his friends and therefore he was not given an opportunity to respond to this suggestion.

K.S. was unshaken and his evidence was consistent throughout his examination-in-chief and his cross-examination. Reserved Ruling on S 276 Application heard June 1, 2011: [ 81 ] Prior to the commencement of the trial, a hearing was held pursuant to S 276.2 of the Criminal Code to determine whether certain evidence was admissible at trial under S 276(2).

The hearing was held on June 1, 2011 and my Ruling, released on June 14, 2011, permitted the defendants to cross-examine and lead independent evidence concerning specific instances of prior sexual activity of the complainants, including cross-examination of one of the complainants about two specific text communications referring to prior sexual activity with two identified individuals. I deferred my decision about whether the defendants could call rebuttal evidence until after the conclusion of the Crown’s case, but submissions on this issue were not made until after all of the trial evidence was heard.

The defendants now seek to have admitted as evidence at trial portions of the testimony of four witnesses who testified during the S 276 Application. This evidence is contained in transcripts of this testimony, and Crown and Defence counsel agreed that if this evidence is allowed, these transcripts may form part of the trial record. 17 [ 82 ] During the S. 276 application both K.F. and A.C. testified. K.F. testified that during the spring of 2009, he and S.S. planned through text messaging to meet at lunch and walk to house. They had never hung out before.

They walked to his house, kissed and touched and S.S. fondled his penis until he ejaculated. He said this touching was consensual, and that he and S.S. walked back to school together and agreed not to tell anybody. Later that same day he started to hear rumours that he had raped S.S. These rumours continued to fly around the school for weeks. He believed that the rumours were started by S.S.’s friend, and not by S.S. [ 83 ] A.C. also testified. His evidence was that during the summer of 2008, he arranged through MSN to meet S.S. at a park. He said they planned to kiss and touch, and agreed on this in advance.

He testified that they met at the park, and they engaged in kissing and hugging and that this was consensual. He testified that he and S.S. did talk about going to his house but they didn’t end up doing that. They only “hung out” the one time at the park; and that they remained friends afterwards and he thought “everything was cool” between them. He recalled that some time after he hung out with S.S. he heard from a friend of S.S. that S.S. was saying he forced himself on her. He was unable to recall whether he ever confronted S.S. about this.

[ 84 ] The Court also heard from two friends of S.S. H.P. described herself as a close friend of S.S. in 2009. They went to the same high school She testified that S.S. told her that K.F. had forced her to give him a hand job. H.P. described S.S. as appearing upset when she talked about what happened. H.P. also testified that S.S. also told her that A.C. had tried to touch her and when she tried to get away he grabbed her bra and ripped it and she ran out the door. [ 85 ] C.B. testified on the S 276 application. She was also a friend of S.S. and she attended the same high school as S.S. in 2009.

C.B. recalled that S.S. told her that K.F. had forced her into doing stuff with him, and that a rumour about this went around the school. C.B. also recalled that S.S. told her that A.C. also forced himself on her. She said that S.S. told her she was alone with A.C. at his house, and then A.C. forced himself on her, kissing her, and broke her bra strap and then she ran home crying.

C.B. said she was also a friend of A.C. so she told him about what S.S. was saying and when he didn’t believe her she copied and pasted what S.S. was saying on MSN so that he could see “with his own eyes” what S.S. was accusing him of. [ 86 ] The two previous sexual encounters involving the complainant, S.S., and two identified individuals, A.C. and K.F., form part of S.S.’s narrative to others, immediately after the incident, about what allegedly happened to her. There are at least two text communications involving S.S. in which S.

S. describes what happened to her by referring to her experiences with A.C. and K.F. In one text communication that takes place about a half hour after the incident, S.S. texts the second complainant, K.W. and in describing what happened to her she says “Let’s just say it was ten million times worse than A.C. was”. There is a second text communication between S.S. and H.P. the following day.

During this conversation H.P. asks: “Did they pull a Keegan or an Austin or worse?” and S.S. responds that she would “relive both of those a million times before I experience what happened last night again.” 18 [ 87 ] Pursuant to my earlier ruling, the complainant, S.S. was cross-examined about these text communications. She testified that both K.F. and A.C. were boys she with whom she agreed, through text messages and MSN communication, to meet with and engage in intimate kissing and touching.

She said that she and K.F. agreed through text messages and MSN to leave school and go to his house at lunch time when no one was there. In both cases, the boys made unwanted advances and she had to push them off and get away. She said that while she and K.F. were kissing K.F. “put my hand on his penis”, and then she pushed him off of her, left his house and walked back to school. She acknowledged that rumours went around her school about what happened with K.F.

She said she told her friend C.B. what happened and C.B. “blew it way out of proportion and told people that K.F. had raped her and she apologized to K.F. for this. She also testified that A.C. was another boy with whom she made plans, through texts and MSN to meet and engage in intimate touching and kissing. She said they went to his house and he tried to finger her so she pushed him off of her, left his house and walked home. She said that he didn’t grab her and she had no difficulty leaving the house.

She denied telling anyone he had grabbed her and ripped her bra strap when she tried to get away. [ 88 ] The Crown argues that the evidence about S.S.’s prior sexual activity with K.F. and A.C. and any statements she made about these incidents is collateral to the issues at trial and should not be admitted.

However, the two text communications referring to S.S.’s prior sexual activity with K.F. and A.C. are temporally linked to what is alleged to have occurred and are part of S.S’s narrative. [ 89 ] Those portions of the evidence of K.F., A.C. and H.P. and C.B., about how these incidents were arranged, what occurred, and how S.S. described these incidents to her friends at the time, are relevant and probative to the Court’s understanding of the narrative and context of these allegations.

The complainant herself referred to her encounters with K.F. and A.C, within hours of this incident, when describing to her friends what happened to her. [ 90 ] This evidence is proffered to support specific, legitimate inferences that are relevant to the issues at trial, namely a motive to fabricate and a pattern of false allegations by S.S. in similar circumstances.

While the nature of the allegations made by S.S. relating to both K.F. and A.C. are much less serious than the allegations in this trial, the circumstances surrounding the allegations are similar in that in both prior instances the planning was through text or MSN, S.S. did participate in that activity, and then she communicated through her social network that she was forced into participating in the sexual activity.

The fact that S.S.’s description at trial of her encounters with both K.F. and A.C. differed significantly than the accounts she gave to her friends, H.P. and C.B. at the time these incidents occurred, is relevant to the court’s assessment of S.S.’s credibility. When cross examined about her encounters with A.C. and K.F. she denied telling anyone that she had to fight to get away from A.C. or that he had ripped her bra strap. And she said that when K.F. put her hand on his penis she simply pulled her hand away and walked out of the house.

The accounts given by S.S. to her friends about these allegations differed significantly from the accounts she gave to the investigating officer and this Court. S.S.’s motive to fabricate and her credibility are live issues in this case, and the proposed evidence is relevant to her specific credibility in relation to these two specific prior sexual encounters. 19 [ 91 ] On two occasions shortly after the incident, S.S. described what happened to her by comparing how she was sexually assaulted and confined by these accused with what K.F. and A.C. did to her in the past.

Therefore, this evidence is temporally linked to the allegations in this trial, and forms part of the narrative. For all of the above reasons, I find that the probative value of this evidence outweighs its prejudicial effect and this evidence is admissible. Ruling on Similar Fact Application [ 92 ] The Crown seeks a ruling that the evidence about the conduct of the accused supporting the allegations involving one complainant should be admissible as similar fact evidence to support the allegations involving the second complainant, and vice versa.

The Crown argues that this evidence is more probative than prejudicial and would assist the court when assessing the defences raised and the credibility of the complainants. In particular the Crown seeks to have the evidence admissible as similar fact evidence for two purposes: 1. to support an inference of improbability that the two complainants would coincidentally concoct similar circumstances surrounding sexual abuse and ultimately to support the complainant’ credibility in regard to their description of the incidents; and

2. to rebut the defences of consent and reasonable belief in consent. [ 93 ] The Crown points out the in the present case the court is not concerned with past conduct of the accused, but consistent conduct over the course of one evening in a particular set of circumstance; and therefore, this evidence is not proffered to demonstrate the general bad character of the accused, but to demonstrate the bad conduct of the accused in the particular circumstances of this case on a specific day and time.

The Crown argues that in this case, although the details of the alleged sexual assaults differ in significant respects and in degree of seriousness, there are a number of key similarities. In particular, both girls testified that the two accused presumed sexual activity would occur with them, acted in concert to control both complainants, initiated sexual activity immediately and forcibly, and then attempted to prevent the girls from leaving the home when they wished to do so.

In addition, both girls describe the accused R.O. as the primary aggressor and L.T. as assisting R.O. by holding them. [ 94 ] The position of the defence is that because the primary purpose of the similar fact evidence is to support an inference of improbability that the two complainants would coincidentally concoct similar circumstances surrounding the sexual assaults, and ultimately support the complainants’ credibility, the threshold issue to be determined is whether there is an air of reality to allegations of collusion.

The defence burden is to establish that there is an air of reality to the allegations of collusion and once this burden is satisfied the Crown bears the burden of showing that there has been no actual tainting of the evidence. 20 [ 95 ] The Crown must also satisfy the Court that the Crown’s evidence can bear the inference that the accused young persons acted this way towards one of the complainants, and therefore would act the same way towards the second complainant.

The first step for the Court in making this determination is to find that the evidence of one complainant is reasonably capable of belief and sufficiently credible and reliable to support the second complainant’s evidence. [ 96 ] In this case, having heard all of the trial evidence, I find that the defence has satisfied its evidentiary burden and the Crown has failed to rebut the inference that collusion has tainted the evidence.

I am satisfied that in this case, the evidence goes beyond “air of reality” and beyond mere opportunity for collusion, and therefore, the evidence has no probative value that outweighs the significant prejudice of admitting this evidence. In this case there is evidence that the girls not only had the opportunity to collude, but did in fact “tailor” their stories for specific purposes. The evidence is that K.W. left the home at about 10:31 p.m. and S.S. left at 11:47. Although the girls were separated they continued to communicate by text and phone.

After K.W. left the home, she met up with her boyfriend J.B. and told J.B. that the boys “did stuff to her”. According to both K.W. and J.B. no further details are given to J.B. at that time and in particular she doesn’t tell J.B. that she went to R.O’s residence intending to cheat on him.

J.B. testified that he didn’t find out that this was K.W.’s plan, until after the “court stuff started” which would have been after the charges were laid, and certainly after K.W. was confronted with the text records in December 2009 and forced to acknowledge her plan, when she entered the residence, to engage in sexual activity. [ 97 ] There were in fact three phone calls between the girls before they reunited that night, during which the girls discussed what they would tell S.S.’s mother because they knew S.S.’s mother would be angry at them for separating that night.

The evidence also establishes that while the girls were being driven home that night, they sat together in the back seat of the van, and wrote to each other, on their cell phone “note books” what had happened to them.

Cell phone records demonstrate that the girls talked to K.W.’s boyfriend, J.B., during three separate phone calls, for over an hour and twenty minutes. [ 98 ] Both girls failed to tell the police, during their first two police interviews, that K.W. had planned, before the girls had arrived, to cheat on her boyfriend, by engaging in sexual activity with at least one and possibly both of the accused, and that K.W.’s purpose in engaging in this activity was to get back at her boyfriend who had cheated on her.

Neither girl told the investigating officer this significant information until they were confronted by the officer with S.S.’s text records. Both girls testified that they knew that K.W.’s boyfriend, who they described as controlling, possessive, volatile and violent, would become angry with K.W. if he knew that K.W. had planned to cheat on him. The evidence at trial establishes that from the time the girls reunited the night of the incident, they remained in each other’s company, on a continuous basis, until they gave their first statement to the police.

It is also significant that according to the testimony of S.S.’s mother and K.W.’s mother, it was K.W. who disclosed to S.S.’s mother; and it was S.S. who disclosed to K.W.’s mother, while the other girl remained silent. It is reasonable to infer from this evidence that the girls colluded to omit certain important and relevant 21 information from their narrative, in particular, the information that K.W. had also planned in advance to engage in sexual activity.

Credibility Issues and Evidence of Motive to Fabricate [ 99 ] Defence counsel argue that K.W.’s troubled relationship with her boyfriend J.B. and her concern about J.B. becoming angry with her, provides a more probable explanation for K.W.’s sudden departure from R.O.’s residence than K.W.’s explanation that she left to escape a violent sexual assault. In fact this is the explanation that S.S. gives to her mother to explain why K.W. isn’t with her at the end of the night.

A.S. testified that when she asked her daughter why K.W. left, S.S. told her that K.W. left because her boyfriend, J.B., was upset that K.W. was with two other guys. After K.W. leaves the R.O. residence, and before S.S. is picked up by her mother, K.W. and S.S. speak to each other by phone three times. They both testified that what they talked about during these phone calls was what they were going to tell S.S.’s mother.

It is reasonable to infer that during these calls K.W. told S.S. that she left because J.B. was angry. [ 100 ] It is clear from the evidence at trial, including K.W.’s testimony, J.B.’s testimony, the text message records and the testimony of both of the complainant’s mothers, that J.B. was a possessive, controlling and violent boyfriend and that K.W. and J.B. cheated on each other. K.W. testified that she was afraid of J.B. when he was angry; and J.B. became angry with her when she hung out with other boys.

She said that J.B. cheated on her and has hit her, and has threatened suicide when angry or upset with her for cheating on him. She said that J.B. has punched cars and walls, and has fought boys out of jealousy. K.W. admitted that she lied to J.B. and sometimes she would even lie to her friends who talked to J.B. so that they would provide misinformation to J.B. on her behalf. She acknowledged that she and S.S. set up the fake Facebook site so that she could “catch” J.B. cheating on her; and J.B. did agree to hook up with the fake “Abby”.

At the time of the incident K.W. thought she was pregnant and she agreed with defence counsel’s suggestion that she was confused at the time of the incident because she was worried about being pregnant, worried about her relationship with J.B. and still loved J.B. and felt she needed him. [ 101 ] K.W. also acknowledged that she planned to engage in sexual activity at the R.O. residence because she wanted to cheat on J.B. to punish him for cheating on her.

She also agreed that not only was she present and had input into the MSN conversations between S.S. and K.S. but she also dressed and acted on her intention by going to the R.O. residence that night. [ 102 ] K.W. testified that she lied to J.B. that night and told him she was going to a bonfire in Kingston with S.S. and S.S.’s cousin. She received several text messages from J.B. while she was at R.O.’s residence and it is clear from these messages that J.B. was angry with her because she wasn’t with him.

At 10:25 J.B. sends K.W. a text that reads “I better get to see you tomorrow cause I’m already mad and 22 upset right now and I want to see you”. K.W. identified this text as the text she read and pretended to receive from her mother and the text that precipitated her departure from the residence. K.W. leaves the residence at 10:31 and then talks to J.B. by phone at 10:34. By this time J.B. knows that K.W. has lied to him about being in Kingston and he admits that he was really angry with K.W.

When K.W. meets up with J.B. after leaving the residence, J.B. is still angry but K.W. starts to cry and tells him that the “boys did stuff to her” and that she needs him to comfort her, not be angry at her. After the girls returned to S.S.’s house that night, they talked to J.B. on the phone three times, and these phone calls last a total of over an hour and a half. K.W. testified that she needed to make sure that J.B. never learned that she went to the residence planning to have sex. While these phone conversations are going on, K.W. is also texting J.B.

In a text sent at 00:45 K.W. writes: “ you are supposed to comfort me... I’m sorry don’t hate me...” The third phone call starts at 1:24 a.m. and lasts 34 minutes. (After this phone call, K.W. sends a text message to S.S. that reads: LMFAO i love love love love life! ☺”. K.W. testified that the acronym “LMFAO” means “laugh my fucking ass off”. Under cross examination K.W. said the message was meant to be sarcastic, but a reasonable inference to be drawn from this text is that after three lengthy phone calls, K.W. and S.S. had successfully convinced J.B. not to be angry with K.W.

J.B. testified that he did not find out that K.W. went to the R.O. residence with the intention of cheating on him, until “after all this court stuff started”. [ 103 ] It is significant that neither complainant tells the investigating officer that K.W. went to the R.O. residence that night, planning to engage in sexual activity, until after the officer has obtained the text message records and confronts the girls about the messages that suggest this.

From the outset S.S. tells the officer that she planned to have sex with K.S. but she says nothing about K.W.’s plan to engage in sexual activity with one or both of the accused. K.W. also fails to tell the officer that she planned to engage in sexual activity that night and planned to cheat on her boyfriend. When asked under cross- examination why she didn’t tell the police about her plan until her third police interview, arranged by the officer after the officer had obtained S.S.’s text messages, K.W. gave several different and inconsistent responses.

She initially said she “didn’t think about it” but under further questioning, she said “I don’t know, I was scared” and finally agreed that she deliberately withheld this information and she didn’t want the officer to know about her plan to have sex. [ 104 ] K.W. admits that, when showing the officer her bruises during the first videotaped interview, she failed to tell the officer that she had been in a fight with her brother and sister just two days before the incident, during which she was punched in the eye, and pushed down the stairs.

This incident, occurring just two days before the allegations, could explain any of the bruising that K.W. later points to. [ 105 ] S.S. told the officer that she had bruises on her arms following the assault but that the bruises were gone by the time of the interview on July 29, 2009. She also told the officer that she had scratches on her back that bled.

At trial she said she was mistaken when she said this to the officer. [ 106 ] Not only do S.S. and K.W. admit that during their first sworn, videotaped statements they mislead the investigating officer about K.W.’s involvement in the planned sexual activity that night, they also 23 admit that, during text communications that occurred in the days following the incident, they exaggerated and lied to their friends about what happened to them. [ 107 ] S.S. tells her friends, in a number of text message conversations, that because of what happened to her she could not tolerate having any men touch her except J.B and one other boy.

But the text message records reveal that while she was telling her friends this, and in fact, just minutes before, and after her first police interview on July 29, 2009, S.S. was engaged in sexually explicit text communication which involved detailed planning to engage in sexual activity, with another boy named J.M. Some of S.S.’s messages were sent and received on her way to the police station. At trial S.S. was cross- examined about these messages and she denied recalling who she was communication with.

When defence suggested she was talking to “J.M.” she said it couldn’t have been that person because he was dating one of her girlfriends, and she would never “wheel” her friend’s boyfriend. She then said it was another boy with the same first name. It was not until Defence counsel subpoenaed J.M. the next day, and Crown counsel stood up to indicate on the record that the person S.S. was communicating with was in fact “J.M.” that S.S. said she had been mistaken.

S.S.’s ability to be casual with the truth was fully on display before the Court. [ 108 ] On July 24, 2009, S.S. has a long text conversation with her friend E.W. and during this conversation S.S. describes what happened to her. She says that L.T. turned the light on and R.O. grabbed her arms. She says she had blood on her back from L.T. and R.O. grabbing her and scratching her. Her description to E.W. about what happened to her bears little resemblance to her testimony before this

Court. [ 109 ] K.W.’s text message records also reveal that she told stories to her friends in the days following the incident that differ from the story she told the police and differed from her testimony in court. On July 23 she told one of her close girlfriends that she “went to this party thing and they made me do stuff and hit me and shoved a bottle down my throat”. She told other friends that the boys punched and hit her and performed oral sex on her. At trial she admitted that she was lying to her friends and that these statements were not true and not consistent with what she told the police or the court.

K.W. tells one of her male friends that she was raped and when she was cross- examined about this statement she said she didn’t think there was any difference between the term “sexual assault” and the term “rape”. However, during her second sworn videotaped interview with Officer Meeks, K.W. is questioned by the officer about whether she told anyone she was “raped” and K.W. tells the officer she never said she was raped, she said she was sexually assaulted.

It is reasonable to infer, from this exchange, that K.W. was fully aware in 2009 of the difference in meaning between these two terms and that she was misleading the Court. J.B. testified that K.W. told him that she was in a dark room with two boys and someone shoved an alcohol bottle in her mouth and both boys performed oral sex on her. She also told J.B. she was punched in the face. J.B. testified that S.S. told him that when all three boys were in the bathroom she was forced to give oral sex to all three of them, and that R.O. had vaginal sex with her and L.T. had anal sex with her.

This kind of exaggeration and admitted false statements to friends is important and relevant when assessing the credibility of the complainants. 24 [ 110 ] Even K.W.’s mother testified that at the time of these incidents her daughter frequently lied and she didn’t trust what her daughter was saying. She said there were times she couldn’t tell whether her daughter was lying or telling the truth and when S.S. first told her what happened on July 23, 2009, she didn’t believe the girls.

She said the girls didn’t tell her anything until she confronted them after receiving information from K.W.’s sister suggesting that the girls had lied to her about where they were the previous evening. She said that during that first conversation S.S. did all the talking and K.W. said very little. S.S. told her that she had been raped and something about the boys pulling K.W.’s pants down and K.W. managing to get out onto the street where J.B. came and rescued K.W. She said that neither girl claimed to have any injuries and she didn’t see any injuries or bruises.

She said she found it hard to believe that J.B. would have taken K.W. out of there without a fight and that she didn’t believe the girls for several days. She said she suggested the girls should go to the police if this had happened to them.

The girls didn’t go the police until four days later when they were staying at S.S.’s house. [ 111 ] S.S.’s mother testified that when K.W. first told her that the boys tried to get her to drink beer and tried to “make her do it” and even when K.W. showed her red marks on her arms and what looked like rug burns on her knees she didn’t believe her. [ 112 ] Defence counsel argue that S.S.’s motive to fabricate can be found in her desire to protect her reputation and manage the

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