R. v. Giscombe, 2021 ONCJ 710

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Giscombe , 2021 ONCJ 710 DATE: 2021·11·28 BETWEEN:

Her Majesty the Queen — and — Ronnice Giscombe Judgment (This judgment has been edited to comply with the applicable Publication Order(s)) J. Flaherty .............................................................................................. Counsel for the Crown R. Sansanwal.................................................................................... Counsel for the Defendant Felix J.: Table of Contents: R. v. Ronnice Giscombe I. Introduction 7 II. The Offences: Sexual Assault and Sexual Interference 8 A. Introduction 8 B. Sexual Assault 8 C. Sexual Interference 8 III. The Legal Framework 9 A.

Introduction 9 B. Burden of Proof 9 C. Credibility and Reliability of Witnesses 10 1. The Test in W.(D.) 10 2. Stereotypical Reasoning 11 3. Credibility and Reliability of Witnesses 11 4. Credibility and Sexual Offence Cases 12 5. Similar Fact 14 6. Adults Testifying about Historical Events 15 7. Credibility and Objective evidence 16 8. Reliability 16 9. Motive to Fabricate 16 10.

Summary of Credibility and Reliability Findings 17 IV. Sexual Interference 18 A. Introduction 18 V. The “First Incident” and the “Group Incident” - (Counts 2 & 3) 19 A. Introduction 19

B. Evidence – The “First Incident” 19 1. Complainant O.A. 19 2. The Defendant 21 C. Evidence -- The “Group Incident” 21 1. Evidence: Complainant O.A. 21 2. Evidence: Complainant R.A. 22 3. Evidence: Defendant 22 D. Analysis: The “First Incident” 23 1. Introduction 23 2. Credibility and Reliability of O.A. 24

a) Overall Demeanour and Presentation at Trial 24

b) Credibility 24

c) Reliability 24

d) Irrelevant Considerations 25

e) Motive to Fabricate 25

f) Collusion 25 3. Credibility and Reliability of the Defendant 28

a) Context 28

b) The Defendant’s Background 28

c) Employment as a Promoter 28

d) The Defendant’s Association with Club Haus 28

e) The Lie – Complainant O.A. 30

f) The Lie and Mistake of Age 31

g) The Conversation Prior to leaving Club Haus 32

h) The Rationale for Attending the Defendant’s Apartment – Dirty Shoes 33

i) The Rationale for Attending the Defendant’s Apartment – Clothing 33

j) The Defendant’s True Aim 33

k) After the Sexual Contact 34

l) Demeanour and Performance as a Witness 35

m) Browne & Dunn 36 4. Conclusion 36 E. Analysis: The “Group Incident” and the Mistake of Age Defence. 37 1. Introduction 37 2. Similar Fact 38 3. The Law – Mistake of Age Defence 38

a) Air of Reality 38

b) Reasonable Steps 39

c) Proof of the Offence: Knowledge, Wilful Blindness, and Recklessness 40

d) Proof of “Belief” 41

(1) Knowledge 42

(2) Wilful Blindness 42

(3) Recklessness 42 4. Analysis: Findings - Mistake of Age – Complainant O.A. 43

a) Introduction 43

b) The Relevance of the “First Incident” – Complainant O.A. 43

c) The Presentation of O.A. During the “First Incident” 43

d) Lifestyle 44

e) Air of Reality – Complainant O.A. – “Group Incident” 45

f) The Presentation of O.A. – “First Incident” 46

g) Failure to Gain Entry to Club Haus 48

h) Complainant O.A.’s Fake Identification 48

i) The Defendant’s Approach to the Issue of Age 49

(1) Age and Sexual Partners 49

(2) Indifference 49

(3) General Discussions with O.A. 50

(4) Age Gap Discussions with Complainant O.A. 50

j) Credibility and Reliability of Complainant O.A. 51

k) Credibility and Reliability of the Defendant 52

l) Conclusion – Mistake of Age Defence - O.A. 52 5. Proof of the Offence – Count Two – Complainant OA. 53 6. Analysis: Findings – Mistake of Age -- Complainant R.A. 53

a) Introduction 53

b) Air of Reality - Mistake of Age Defence – Complainant R.A. 54 7. Credibility and Reliability of Complainant R.A. 55

a) Overall presentation 55

b) Credibility 55

c) Reliability 55

d) Collusion 55

e) Motive to Fabricate 56 8. Credibility and Reliability of the Defendant 56 9. Proof of the Offence – Count Three – Complainant R.A. 56 VI. The “Series Incidents” and “After Disclosure” – Count Two 57 A. Introduction 57 B. Evidence – The “Series Incidents” and “After Disclosure” 57 1. Complainant O.A. 57 2. Evidence – Defendant 58

C. Analysis – “After Disclosure”, “The Series Incident” and the Mistake of Age Defence 59 1. The “Series Incidents” 59 2. “After Disclosure” -- Air of Reality 59 3. Conclusion 61 VII. “Slap Fest” – Count Three 62 A. Introduction 62 B. Evidence – “Slap Fest” 62 1. Complainant R.A. 62 2. Complainant O.A. 63 3. Defendant 63 C. Analysis: “Slap Fest” 64 1. Introduction 64 2. Reliability concerns 64 3. Absence of Evidence 65 4. Lack of Corroboration 65 5. The Defendant 65 6. Conclusion 65 VIII. “Bar Incidents” – Count Three 66 A. Introduction 66 A. Evidence – The “Bar Incidents” 66 1. Complainant R.A. 66 2.

Defendant’s Position 67 B. Analysis – “Bar Incidents” 67 1. Consent 67 2. Corroboration 67 3. Air of Reality – Mistake of Age Defence 67

a) Complainant R.A.’s Attendance at Clubs 67 4. Mistake of Age Defence 68

a) Introduction 68

b) Age Inquires 68

c) Facilitating Access to Clubs 69

d) Homework 70

e) Conclusion – Mistake of Age 71 5. Conclusion 71 IX. “Crawford Incident” – Count Three 72 A. Introduction 72 B. Evidence 72 1. Complainant R.A. 72

2. The Defendant 72 C. Analysis – “Crawford Incident” 72 1. The Prosecution Case 72 2. Conclusion 73 X. Sexual Assault – Count One 73 A. The Evidence 73 1. Complainant O.A. 73 2. Defendant 74 B. Analysis: Count One – Sexual Assault 76 1. The Case to Meet 76 2. The Invitation Incident 76 3. The Morning Incident 77 4. Honest But Mistaken Belief in Communicated Consent 78 5. Air of Reality – Honest But Mistaken Belief in Communicated Consent 79 6. Analysis: Honest But Mistaken Belief in Communicated Consent 80

a) Air of Reality 80

b) The Defence 81

c) Conclusion 81 7. Credibility and Reliability of O.A. 81 8. Credibility and Reliability of the Defendant 82 9. Conclusion 82 XI. Sexual Assault – Count Four 83 XII. Sexual Assault – Count Five 83 1. Complainant R.A. 83 2. Defendant 84 A. Analysis – Finding of Fact – Count Five 85 1. Honest but Mistaken Belief in Communicated Consent 85 2. Location of the Sexual Contact 86 3. The Debt 86 4. The Car Share 86 5. Credibility and Reliability of Complainant R.A. 88 6. Conclusion 88 XIII. Conclusion 89 I. Introduction [ 1 ] The defendant was employed as a concert and event promoter.

His employment included putting on events in nightclubs. [ 2 ] This criminal case involves his sexual contact with two complainants aged fourteen and fifteen years old. The sexual contact continued after each complainant turned sixteen years old.

[3] The Crown has packaged numerous allegations of sexual offences into five discrete criminal counts on the Information. As itconcerns sexual contact with the complainants prior to age sixteen, the prosecution alleges the defendant committed multiple offences ofsexual interference. As it concerns circumstances of sexual contact after the complainants turned sixteen, the prosecution alleges that thedefendant has committed crimes of sexual assault. [4] The defendant testified at trial. He denied some of the alleged sexual conduct grounding the sexual interference counts.

Withrespect to other sexual conduct captured by the sexual interference counts, he asserted the mistake of age defence. The defendant deniedthe allegations of sexual assault. He also relied upon the defence of honest but mistaken belief in communicated consent. [5] The central issue at trial revolved around the credibility of the three witnesses – the defendant, and each complainant, asevaluated through the lens of W.(D.) v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) [W.(D.)] [6] On Wednesday November 24th, 2021, I provided my decision a trial in a

summary fashion with supplementary written reasons to follow. On Saturday November 27th, 2021 the written reasons were released to Counsel. The defendant is found guilty of each count onthe Information. II. The Offences: Sexual Assault and Sexual Interference A. Introduction [7] Given the submissions of counsel, there is no controversy about the essential elements of the offences before the court. As such,a brief outline will suffice for these reasons. B. Sexual Assault [8] Sexual Assault is a general intent crime requiring the Crown to establish the following beyond a reasonable doubt: 1.

That the defendant intentionally applied force; 2. The complainant did not consent to the force that the defendant intentionally applied; 3. That the defendant knew that the complainant did not consent to the force that he intentionally applied; and, 4. That the application of force took place in circumstances of a sexual nature. (See R. v. Barton, 2019 SCC 33, at paras 87-89 [Barton].; J.A., at para. 23; R. v. Ewanchuk, [1999] 1 S.C.R. 33, at paras. 23-30[Ewanchuk].) [9] The Crown does not have to prove a sexual purpose for the touching: R. v. Trachy, 2019 ONCA 622, at paras. 70-74 [Trachy].

Iheed the guidance provided by the Supreme Court of Canada concerning how to evaluate circumstances of a sexual nature and therequisite elements of the offence: R. v. Chase, (SCC), [1987] 2 S.C.R. 293, at para. 11; R. v. Jarvis, 2019 SCC 10, atparas. 50,124-125. C. Sexual Interference [10] Sexual Interference requires the Crown to establish the following beyond a reasonable doubt: 1. That the complainant was under the age of sixteen at the time of the offence; 2. That the defendant intentionally touched the complainant whether directly or indirectly; and, 3.

That the touching was for a sexual purpose. [11] The purpose of this

section is to protect children from sexual contact with adults: R. v. E.C., 2019 ONCA 688, at para. 14. [12] Sexual interference is a crime of specific intent: R. v. B.J.T., 2019 ONCA 694, at para. 37 [B.J.T.]; R. v. Bone, (MB CA), [1993] M.J. No. 222 (C.A.). The Crown must prove that the touching was done for a sexual purpose: Trachy, at para70. While the defendant may have another reason for the touching, if there is also a sexual purpose, the offence is proven: B.J.T., atpara. 37. III. The Legal Framework A.

Introduction [13] There are several principles animating the approach to this criminal trial including the presumption of innocence, the criminalburden of proof, and the analysis of credibility and reliability.

[14] I have found the defendant guilty of each count on the Information. A trial judge has a duty to explain to the defendant howmaterial issues have been resolved and why there exists no reasonable doubt: R. v. Dinardo, 2008 SCC 24. The written judgment in thiscase is provided as the best means to explain my findings to the defendant, provide public accountability, and provide for appellatereview: (See the authorities cited in R. v. G.F., 2021 SCC 20, at para. 108 [ G.F.] [15] The central issue at trial was credibility and reliability as it concerned each witness.

The Supreme Court of Canada has recentlyemphasized strong deference to a trial court’s assessment of credibility, and the presumption that trial judges know and have properlyapplied the law: G.F., at para. 82. The Court also recognized that trial judges need not provided “detailed maps of well-trod paths”:G.F., at para. 75. Nevertheless, my duty to provide reasons mandates that I explain to the defendant how material issues were resolvedand why I found that the prosecution established his guilt beyond a reasonable doubt. B.

Burden of Proof [16] The central tenet in our criminal justice system animating the analysis of criminal liability provides that the defendant ispresumed innocent. This presumption does not shift. The presumption of innocence is only removed if the prosecution establishes thedefendant’s guilt beyond a reasonable doubt: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, at para. 27; R. v.

Starr, 2000SCC 40, at para. 242. [17] Reasonable doubt is based on “reason and common sense”, is not “imaginary or frivolous”, does not “involve proof to anabsolute certainty”, and must be “logically connected to the evidence or absence of evidence”: R. v. Villaroman, 2016 SCC 33, at paras.28, 36 [Villaroman]. [18] As it pertains to the evaluation of reasonable doubt, the defendant bears no burden to prove the foundational facts in support of aninference of innocence: Villaroman, at para. 35; R. v. Khela, 2009 SCC 4.

Reasonable doubt does not take on the character of aninference or a finding requiring foundational support in the evidence presented at trial: Villaroman, at para. 28. [19] A reasonable doubt may not be characterized as speculative, simply because there is no evidence on the issue: Villaroman, atpara. 36. The trial judge should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt:Villaroman, at para. 37-38; R. v. SB.1, 2018 ONCA 807, at para. 124 [SB.1]. C.

Credibility and Reliability of Witnesses [20] Criminal court trial judges assess the credibility and reliability of witnesses in virtually every trial. In so doing, trial judges applya mass of caselaw providing guidance and instruction concerning credibility and the criminal burden of proof. These considerations areinterwoven with several fundamental principles guiding the approach to a criminal case. 1. The Test in W.(D.) [21] The guidance provided by the Supreme Court of Canada in W.(D.) is clear: 1. First, if you believe the evidence of the accused, obviously you must acquit; 2.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit; and, 3. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [22] I favour an additional “fourth stage” consideration in the W.(D.) analysis. If a trial judge is unable to decide as between thetestimony of a complainant and the defendant, this state of mind would mandate an acquittal: R. v.

S. (J.H.), 2008 SCC 30, at para. 12 [S.(J.H.)]; R. v. Austin, (ON CA), [2006] O.J. No. 4660 (C.A.), at para. 20. [23] The three-step test in W.(D.) is well known and often repeated by trial judges. The Ontario Court of Appeal has recently providedan excellent refresher in R. v. Smith, 2020 ONCA 782 [Smith]. The Court emphasized the need for trial judges to consider the entirerecord at trial.

While trial judges need not resolve every single issue, material issues relevant to the credibility analysis can not beignored: Smith, at paras, 26, 30, 32. [24] The court must consider any exculpatory evidence and resolve material credibility conflicts using the W.(D.) analysis whetheremanating from the case for the defence, or the prosecution. (See the authorities cited in Smith, at para. 12; R. v.

M.P., 2018 ONCA 608,at para. 60.) [25] Where there are material credibility findings to address concerning conflicting evidence, the source of the record is immaterial,as is whether or not the defendant chose to testify. The concept of reasonable doubt must be addressed in light of the entire record attrial: R. v. Debassige, 2021 ONCA 484, at paras. 128-130; R. v. Marki, 2021 ONCA 83, at paras. 23,25; Smith, at para. 7; R. v. Charlton,2019 ONCA 400, at para. 45; R. v. Kirlew, 2017 ONCA 171, at para. 17; R. v. Dayes, 2013 ONCA 614, at para. 52; R. v.

B.D., 2011ONCA 51, at para. 114. [26] Finally, In addition to the oft-cited three stage consideration applicable to assessing credibility, the central consideration in W.(D.) is that the court remain resolutely focused on the criminal burden of proof when evaluating conflicting evidence, includingconflicting witness testimony: Smith, at para. 11. 2. Stereotypical Reasoning

[27] Trial judges must resist the lure of “common sense” reasoning sourced from outside of the record at trial. It is important toavoid stereotypes or assumptions at all times, particularly where these approaches are not sourced in the evidentiary record. (Seegenerally the guidance in R. v. J.C., 2021 ONCA 131, at paras. 58-70; R. v. Steele, 2021 ONCA 186, at paras. 18, 52- 59 [Steele]). 3. Credibility and Reliability of Witnesses [28] There is no such thing as a “credibility contest” in criminal law.

A trial judge is not permitted to determine guilt or innocence bysimply picking a preferred version of events amongst competing versions. This approach offends the criminal burden proof: R. v.Vuradin, 2013 SCC 38; S.(J.H.), at para. 9; W.(D.), at p. 409.

A trial judge can not permit the analysis of credibility to degenerate into amere choice between competing prosecution and defence witnesses (or competing evidence for that matter). [29] A trial judge must endeavour to fairly and evenly evaluate the defendant’s evidence and the complainant’s evidence: R. v.Bartholomew, 2019 ONCA 377, at paras. 30-31 [Bartholomew]; R. v. Radcliffe, 2017 ONCA 176; R. v. Gravesande, 2015 ONCA 774. [30] In assessing the testimony provided by the witnesses, a trial judge may believe all, none, or some of the witness evidence: R. v.C.P., 2021 SCC 19, at para. 35; R. v.

Le, 2019 SCC 34, at para. 266; R. v. W.H., 2013 SCC 22, at para. 32[W.H.]; R. v. Francois, (SCC), [1994] 2 S.C.R. 827, at para. 14. A trial judge is also free to make decisions as to the weight assigned to specific areasof evidence: W.H., at para 32; R. v. B.H.,2015 ONCA 642, at para 22; R. v. Howe, (ON CA), [2005] O.J. No. 39 (C.A.),at para. 44. [31] It is critical to note that acceptance of evidence presented by prosecution witnesses does not mandate automatic conviction. Atrial judge could conceivably accept prosecution witness testimony, but still harbour a reasonable doubt.

It is also an error to movedirectly from mere disbelief of the accused's evidence to a positive finding of guilt: R. v. Dore (2004), (ON CA), 189C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); R. v. H.(S.), [2001] O.J. No. 118 (C.A.), atparas. 4-6. 4. Credibility and Sexual Offence Cases [32] Over the past several years there has been tremendous public concern about the treatment of sexual assault cases in the criminaljustice system.

Parliament has even addressed mandatory training for judicial officers. [33] Criminal law has grappled with the analysis of sexual assault, the spectre of stereotypical thinking, and the proper application ofthe burden of proof and presumption of innocence. [34] As it concerns this particular genre of criminal litigation, the recent guidance of the Court of Appeal in Steele at paragraphs 53 to59 captures important considerations: [53] The point of departure is that evidence of the surrounding circumstances, including the complainant's conduct, leading up to, duringand after an alleged sexual assault can be relevant to the determination of whether or not a complainant consented.

Because consent,which is part of the actus reus of the offence, is subjective, the court must determine the complainant's state of mind at the time of thesexual activity. Although the complainant's testimony is typically the only direct evidence regarding her subjective state of mind,"credibility must still be assessed by the trial judge, or jury, in light of all of the evidence": see R. v. Ewanchuk, (SCC),[1999] 1 S.C.R. 330, [1999] S.C.J. No. 10, at para. 29.

As the majority of the Supreme Court observed, in defending a sexual assaultallegation, "[i]t is open to the accused to claim that the complainant's words and actions, before and during the incident, raise areasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place": at para. 29.

The trial judgewill consider "whether the totality of the complainant's conduct is consistent with her claim of non-consent": at para. 30. [54] Accordingly, it is appropriate and necessary for the trier of fact to consider the circumstances surrounding the alleged sexualassault, which may include an analysis of the nature of the interactions between the accused and the complainant leading up to andfollowing the incident.

Circumstantial evidence can assist the defence in raising a reasonable doubt on the issue of consent; it can alsoassist the Crown in proving non-consent: see Lisa Dufraimont, "Myth, Inference and Evidence in Sexual Assault Trials" (2019), 44:2Queen's L.J. 316, at pp. 328-29. [55] It is, however, an error for the trier of fact to rely on erroneous myths and stereotypes about how a sexual assault complainant isexpected to act. "It is impermissible to assess a complainant's credibility by looking at consistencies or inconsistencies grounded in asearch for 'expected' post-sexual assault behaviour": R. v.

D. (A.R.J.), [2017] A.J. No. 746, 2017 ABCA 237, 422 D.L.R. (4th) 471, atpara. 64, affd [2018] 1 S.C.R. 218, [2018] S.C.J. No. 6, 2018 SCC 6. Triers of fact may rely on "reason and common sense", "lifeexperience" and "logic" in making assessments of credibility; however, they fall into error if they rely on prejudicialor stereotypical reasoning in making such assessments: see R. v. Delmas, [2020] A.J. No. 471, 2020 ABCA 152, 452 D.L.R. (4th) 375, atpara. 31, affd [2020] S.C.J.

No. 39, 2020 SCC 39, 452 D.L.R. (4th) 371. [page735] [56] The concern arises when the trier of fact draws inferences based on generalizations about human behaviour; it is in this process thatdrawing a common sense inference may mask stereotypical or discriminatory reasoning: see D. (A.R.J.), at paras. 6-7; R. v. A.(A.B.) (2019), 145 O.R. (3d) 634, [2019] O.J. No. 833, 2019 ONCA 124, at para. 7; and R. v. Cepic, [2019] O.J. No. 3398, 2019 ONCA541, 376 C.C.C. (3d) 286, at para. 13. Stereotypical reasoning is a substitute for reasoning that is grounded in the evidence: see R. v.Mann, [2020] B.C.J.

No. 2024, 2020 BCCA 353, at paras. 64, 70-72. See also R. v. Quartey, [2018] A.J. No. 55, 2018 ABCA 12, 430D.L.R. (4th) 381, at para. 21, affd [2018] 3 S.C.R. 687, [2018] S.C.J. No. 59, 2018 SCC 59. [57] It is a fact-finder's reliance on myths and stereotypes as part of the credibility assessment that is objectionable, and not theconsideration of evidence of the complainant's conduct itself. A trial judge is entitled to draw reasonable inferences which are rooted inthe evidence to assess the complainant's conduct as part of the credibility analysis. In R. v. Roth, [2020] B.C.J.

No. 1333, 2020 BCCA240, 66 C.R. (7th) 107, after noting that it is an error for a judge to ground an adverse credibility finding in stereotypes or erroneous"common sense" assumptions about how a sexual assault complainant is expected to act, DeWitt-Van Oosten J.A. observed at para. 130:

The risk of myths and stereotypes distorting a judge's fact-finding or reasoning process does not prohibit use of a complainant's behaviourfor all analytical purposes (assuming the evidence surrounding that behaviour is properly before the court). Although a piece of evidencemay carry the potential for impermissible reasoning, it may also have a permissible role to play as a circumstance to consider inassessing the evidence as a whole, in the context of the case's particular "factual mosaic".

In my view, what A.R.D. and like cases warnagainst is the improper use of this type of evidence, not any use at all. (Emphasis added; citations omitted) [58] It can be difficult on appeal to determine whether a trial judge crossed the line from drawing legitimate inferences fromcircumstantial evidence to reliance on stereotypical reasoning. See, for example, the majority and dissenting reasons in theAlberta Court of Appeal and the Supreme Court in Delmas about whether the trial judge relied on myths and stereotypes in hisassessment of the evidence of the appellant who was convicted of sexual assault.

As Pepall J.A. observed in R. v. Lacombe, [2019] O.J.No. 6023, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 55, express identification by the trial judge of the impugned assumptions isunnecessary; a review of the trial judge's reasons may demonstrate that impermissible stereotypical sexual and myth-based reasoningwas employed in assessing a complainant's [page736] credibility and reliability. Trial judges may rely on stereotypical reasoning, evenwhere they have instructed themselves appropriately to avoid such reasoning: see, e.g., A. (A.B.), at para. 8.

In determining the issue, thetrial judge's reasoning must be taken as a whole and viewed in context: see Mann, at para. 72. [59] It is helpful in conducting the analysis of whether impermissible reasoning has occurred to specifically identify the myth orstereotype that the trial judge is said to have relied on. A non-exhaustive list of common myths and stereotypes about victims andperpetrators of sexual assault is set out in R. v. Seaboyer; R. v. Gayme (1991), (SCC), 4 O.R. (3d) 383, [1991] 2 S.C.R.577, [1991] S.C.J. No. 62, at pp. 651-54 S.C.R.

The central issue is to determine whether the trier of fact has drawn inferences that arerooted in the particular facts of the case and supported by the evidence or has drawn inferences based on generalizations about humanbehaviour that on closer examination reveal stereotypical reasoning. 5. Similar Fact [35] Similar fact evidence is presumptively inadmissible in a criminal trial. At the outset of submissions the Crown Attorney sought apreliminary ruling concerning the applicability of similar fact reasoning to the evidentiary record.

The Crown Attorney submitted thatgiven features of the defendant’s testimony, some resort to similar fact reasoning should be available. The Crown Attorney submittedthat at times the defendant testified in a general manner such that his position applied across several of the allegations at once. TheCrown Attorney submitted that similar fact analysis should be available to balance the defendant’s approach. [36] I invited submissions from Counsel and provided a

summary ruling immediately. I ruled that the Crown was not permitted toutilize similar fact reasoning at the submission stage. Brief supplementary reasons are in order. [37] The Court specifically canvassed the similar fact application issue at the outset of the trial given the multiple counts and twocomplainants. The Crown declined to bring an application. The issue was not raised during the defendant’s testimony or at the end ofevidence at trial.

The manner in which the defendant testified did not permit the Crown to re-open consideration of similar factreasoning. [38] The ordinary rules of criminal evidence must apply to this trial – even having regard to the breadth of the time frame concerningthe various counts, the number of counts, and the potential overlap of two complainants. In the absence of a successful similar factapplication, each count must be evaluated based only on the admissible evidence adduced in support of each count: R. v. MacCormack,2009 ONCA 72, at para. 48; R. v. Tsigirlash, 2019 ONCA 650, at para. 23; R. v.

A.W.B., 2015 ONCA, at paras. 34-35. [39] I must view each incident as a discrete criminal allegation applied to a particular count on the Information. While I may not usethe evidence on one count to assist with the determination of guilt or innocence on another count, I may consider the credibility andreliability of witnesses overall (i.e., spanning the counts): R. v. P.E.C., 2005 SCC 19; R. v. D.R., 2021 ONCA 460, at para. 25; R. v. T.C.,2019 ONCA 898, at para. 45.

Put another way, the assessment of credibility and reliability of a witness in relation to one count, mayinform the assessment of that witnesses’ testimony on other counts, but the substantive evidence on one count is not admissible tosupport guilt on other counts absent a successful similar fact application: R. v. M.R.S., 2020 ONCA at para. 64. 6. Adults Testifying about Historical Events [40] At the time of the allegations the complainants were aged 14,15 and 16. Both complainants were young adults at trial.

Eachtestified to historical events that occurred more than five years prior to trial. [41] When assessing the evidence of adults recounting historical events that allegedly occurred when they were children, it isimportant to recognize the contextual fact that an adult is articulating events that allegedly occurred as a child. In R. v. C.K., 2016ONCA 66, the Court set out the trial judges’ charge to a jury on this issue at paragraph 11: Next, in regard to the evidence of children.

The Supreme Court has provided some direction as to how evidence regarding events thathappened when a witness was a child should be assessed. Every person giving testimony in court of whatever age is an individual whosecredibility and evidence must be assessed by reference to criteria appropriate to his or her mental development, understanding and abilityto communicate. For example, as a general rule, when an adult is testifying as to events which occurred when she was a child, hercredibility should be assessed according to criteria applicable to her as an adult witness.

However, with regard to her evidence pertainingto events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time, location, andthe exact order of events, should be considered in the context of the age that she was at the time of the events to which she was testifying.In this case, A is now 17 years of age. She testified about events that occurred when she was 12 years of age. So in terms of her evidencepertaining to the events, it is the memory of a 12 year old that you are really considering.

Since children may experience the worlddifferently from adults, it is hardly surprising that details important to adults like time and place, may be missing from their recollection.For this reason, a flaw such as contradiction in a witnesses testimony regarding events that happened in childhood may not warrant the

same effect as a similar flaw in the testimony of an adult witness testifying about events that occurred in adulthood. The credibility ofevery witness who testifies before the courts, and reliability of their evidence must of course be carefully assessed but assessed usingcommon sense that takes into account the age of the witness when the alleged events occurred and the age of the witness whentestifying.

This does not change the onus on the Crown to prove all essential elements of an offence beyond a reasonable doubt. [42] A majority of the Ontario Court of Appeal held that this charge inappropriately conveyed to the jury that they should assess theadult complainant’s credibility on non-peripheral matters as if she were 12 years old: C.K., at paras. 21-26. The Supreme Court ofCanada overturned the Court of Appeal decision in a brief endorsement supporting the trial judges’ approach: R. v. C.K., 2016 SCC 41. [43] I instruct myself inline with the above noted charge in the C.K. decision.

I find that I must assess each complainant individuallybased on their adult presentation as young women in their early twenties by the time of trial. I am also aware that while it is important toassess the evidence of the two complainants with these nuanced considerations in mind, it is also important to remember that even whenassessing the evidence of children, the criminal burden of proof standard may not be diluted: R. v. W.R., (SCC), [1992]S.C.J. No. 56, at paras. 23-26; R. v. B.(G), (SCC), [1990] 2 S.C.R. 30, at paras. 47-48 [B.(G.)]; R. v. Markell, [2001]O.J. No 1813 (C.A.); R. v.

Stewart, (ON CA), [1994] O.J. No. 811 (C.A.); 7. Credibility and Objective evidence [44] This trial requires a primary focus is the evidence of three witnesses – O.A., R.A., and the defendant. My challenge is toarticulate the “complex intermingling of impressions” derived from listening to the witnesses in this case: G.F, at para. 81. At times,credibility findings are impacted by objective evidence.

At other times, there may be little more than the competing versions providedby the witnesses: G.F., at para. 81. [45] It is worth noting that a significant piece of evidence – photos of O.A. from the day when she first met the defendant – wasadmitted at trial. I will explain the significance of this objective evidence in this decision. 8. Reliability [46] In R. v. C. (H.), 2009 ONCA 56, at paragraph 41, Watt J. explained the difference between credibility and reliability: 41 Credibility and reliability are different.

Credibility has to do with a witness's veracity, reliability with the accuracy of the witness'stestimony. Accuracy engages consideration of the witness's ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v.

Morrissey (1995), (ON CA), 22 O.R. (3d) 514, at 526 (C.A.). [47] Throughout this judgment I will explain my conclusion that both the defendant and O.A. were generally reliable witnesses whenconsidered in the context of historical allegations. I will also explain my finding that R.A. exhibited moderate to significant reliabilityconcerns. 9. Motive to Fabricate [48] Defence counsel submits that both A.O. and R.A. possessed a motive to fabricate the allegations. Defence counsel did not allegerecent fabrication. The submission involved a general concern applicable to the credibility of each complainant.

The submission wasnot limited to any particular count or counts. [49] The phrase motive to fabricate, is a nicer way to convey that there exists a reason for why a witness might lie: R. v. K.C., 2021ONCA 401, at para. 129. The defendant has no onus to establish a motive to fabricate: R. v. L.L., 2009 ONCA 413, at para. 53 [ L.L.]. The defendant is not required to establish that either complainant had a motive to fabricate, that they were consumed by animus, or thatthey were biased against him: R v. T.M., 2014 ONCA 854, at paras. 38-43; R. v. Lebrocq, 2011 ONCA 405, at paras. 18-21; R. v.

M.J.,2011 ONCA 278, at para. 8. [50] As a matter of common sense and life experience, a motive to fabricate is an important credibility factor: R. v. Batte, (ON CA), [2000] O.J. No 2184, (C.A.) at para. 120. Where a motive to fabricate exists, or is proven not to exist, thiscredibility factor may be considered: R. v.

S.S.S., 2021 ONCA 552, at paras. 25-31. [51] Where there is no apparent motive to fabricate, but the prosecution fails to prove that that there is no motive to fabricate, it isimpermissible to move from the apparent lack of motive to a conclusion that a complainant must be telling the truth: Bartholomew, atparas. 19 – 25. There is a difference between the absence of a proved motive and proved absence of a motive: L.L., at para. 53. [52] Each complainant interacted with the defendant for an extended period of time. I am alive to the fact that motives may behidden.

I have no otherworldly skill to discern hidden motives. I note that the Crown Attorney did not submit that the prosecution hadproven the absence of motive. I agree. I find that the Crown has not reached the high bar test for proving the absence of motive: R. v.Ignacio, 2021 ONCA 69, at para. 31.

Summary of Credibility and Reliability Findings [ 53 ] By way of high level

summary as it concerns my overall credibility findings: 1. I found O.A. to be a credible witness with mild reliability issues; 2. I found R.A. to be a credible witness with moderate to high level reliability issues; 3. I found the defendant to be incredible on several material issues at trial, credible in other areas; and, 4. I found the defendant to exhibit mild reliability issues. [ 54 ] Throughout this judgment I will address the broader credibility findings concerning each witness. I will also denote specific credibility issues as they arise during the analysis of the evidence on each count.

I have addressed a number of considerations around the issue of credibility and reliability. It is one thing to simply list these principles. The greater challenge is to actually apply the principles properly. This judgment contains my best effort to apply these principles and explain the reasons for my findings. IV. Sexual Interference A.

Introduction [ 55 ] The Information contains two counts of sexual interference – count two in relation to O.A., and count three in relation to R.A. [ 56 ] Count two alleges that the defendant committed the offence of sexual interference in relation to O.A. between March 1, 2014 and August 18, 2014.

The Crown Attorney articulates the following four circumstances captured by this count: [1] • In March 2014, the first time O.A. met the defendant outside of the club [I term this the “First Incident”]; • A second circumstance where the defendant had sexual intercourse with both O.A. and R.A. [I term this the “Group Incident”]; • A series of four or five incidents where the defendant engaged in kissing and vaginal intercourse with O.A. when she was fifteen years old; [I term this the “Series Incidents”]; and, • Incidents of sexual intercourse after O.A. disclosed her age (fifteen) to the defendant but prior to her sixteenth birthday on […], 2014. [I term this “After Disclosure”]. [ 57 ] Count three alleges that the defendant committed the offence of sexual interference in relation to R.A. between March 1, 2014 and June 7 th , 2015.

The Crown Attorney articulates the following four circumstances captured by this count: • In March or April 2014 (before R.A.’s 15 th birthday on […], 2014) the defendant engaged in kissing, sexual touching, and vaginal intercourse; [2] • A second circumstance where the defendant engaged in kissing and vaginal intercourse with R.A. at a sexual-themed party when she was 15 years old [ I term this “Slap Fest”]; • A series of incidents that occurred in bars involving sexual contact including the defendant performing oral sex on R.A. in a bar washroom [I term this “Bar Incidents”]; and, • An incident, after the “Slap Fest” incident, when R.A. was 15 years old, at the defendant’s Crawford Street address where the defendant performed oral sex on her [I term this the “Crawford Incident”]. [ 58 ] There was no motion for particulars or other challenge to the Information at the commencement of the trial.

As such, there was no bar to the Crown’s organization of the case in this manner. [ 59 ] At the conclusion of the trial, I directed the Crown Attorney to furnish the Defence with the prosecution theory in relation to the counts on the Information. I directed the Crown Attorney in this manner given the multitude of allegations and the complexity of the record. I also wished Defence counsel to be aware of the prosecution theory of liability well in advance of submissions. [3] V. The “First Incident” and the “Group Incident” - (Counts 2 & 3) A.

Introduction [ 60 ] I will address the “First Incident” and the “Group Incident” together as circumstances that occurred close in time. This provides important context to the defendant’s evidence and the mistake of age defence asserted by the defendant in relation to the “Group Incident”. I will address the evidentiary record pertaining to the “First Incident” and the “Group Incident”. Then, I will analyse the central defence asserted by the defendant – mistake of age in the context of the required W.(D.) considerations.

B. Evidence – The “First Incident” 1. Complainant O.A. [ 61 ] Complainant O.A. testified about the day she first met the defendant. She and a female friend (J.E.) went shopping on Queen Street after school one day in March 2014. At a particular retail store, the pair encountered an internationally known and famous rap artist and took pictures with him (later filed as Exhibit 2A and 2B at trial). [ 62 ] After shopping, the pair were in an alleyway near Peter Street proximate to a club. They saw a man wearing a shirt depicting the same famous rap artist they had just met. The pair called out to this person.

This person came to them. It was the defendant. The defendant introduced himself as “Ron” and told them that he was throwing a party inside of the club for the same famous rap artist they had just encountered while shopping. Complainant O.A. testified that she had no prior knowledge of an event being held at the club until so advised by the defendant. [ 63 ] The girls were interested in attending the party for the famous rap artist. Complainant O.A. testified that both she and J.E. lied to the defendant. Each represented that they were eighteen years old to the defendant for the purpose of getting into the club.

Complainant O.A. was actually fifteen years old at this time. [ 64 ] Complainant O.A. testified that the defendant opined that J.E. looked old enough to get into the club (the age limit was 19) but that she, O.A., did not appear old enough. Complainant O.A. testified that the defendant invited her to attend his residence for the purpose of acquiring clothes to make her look older and potentially assist with gaining entry to the club. At the time these events occurred, O.A. did not consider the potential risks associated with going back to a stranger’s apartment.

She explained that she was enamoured by meeting the famous rap artist. She associated the defendant with the famous rap artist. She wanted to meet the rap artist again. She wanted to get into the party and have fun. At the time, she did not perceive anything “weird” about the defendant’s offer. As a result, she voluntarily entered the cab and went with the defendant to his apartment. [ 65 ] Complainant O.A. testified that the entire timeframe from the conversation with the defendant in front of the club, to their arrival at his apartment, was somewhere between twenty and thirty minutes.

The cab ride took only 10 to 15 minutes. She did not recall much conversation during the ride to the defendant apartment. There was no discussion about her background, age, or school. [ 66 ] When they arrived inside of his apartment, the defendant began to kiss her. There was no conversation prior to this commencing. Shortly thereafter, kissing evolved into vaginal sexual intercourse. There was no discussion about contraception.

She did not know if the defendant used contraception. [ 67 ] After the sexual intercourse was complete, the defendant gave her a long-sleeve shirt and a pair of women’s flats in order to make her look older for the purpose of gaining entry to the club. She put on the clothing. [ 68 ] The defendant arranged for a cab. He told her that he was going to get dropped off at the club and she was going to be dropped off at a hotel. She understood from the defendant that this was for the purpose of meeting the famous rap artist again. She also understood that a particular DJ would be present as well.

When she arrived at the hotel room, only the rap artist DJ was present. Ultimately, she did in fact meet the famous rap artist again in the lobby of the hotel. She was permitted to join his entourage heading to the party at Club Haus. She attempted to enter the club with the famous rap artist’s entourage but was stopped by security. She did not have her fake ID with her. It was then that she remembered that she left her fake ID at the defendant’s apartment. [ 69 ] Complainant O.A. testified that the defendant came out of the club and told her that he would try to get her in. He was not successful.

She tried to walk into the club with the defendant, but once again, security stopped her entry. Ultimately, she simply went home. 2. The Defendant [ 70 ] The defendant testified that he met O.A. on the occasion of an after-party he was throwing for a famous international rap artist at Club Haus in the summer of 2014. [4] He explained that he was responsible for promoting the after-party. As such, he and many others were busy setting up the club in the afternoon. At one point he was heading out to catch a cab and encountered O.A. and her female friend J.E.. The two approached him and asked him what was going on.

He explained that there was an event involving a famous rap artist and admission was $20. The girls explained that they could not afford the cost. The defendant told them he would put them on the guest list. He asked them if they possessed identification necessary to enter the club. Both girls assured him they did. [ 71 ] The defendant explained that during the conversation he noticed that O.A. did not have appropriate shoes – they appeared dirty to him. He advised O.A. that he had promotional shoes back at his apartment.

He mentioned that he was heading to his apartment to obtain some things that he needed for the event. According to the defendant, O.A. told him she was going “west” to visit with some friends and requested that she go with him in his cab back to his apartment. She then entered his cab voluntarily. [ 72 ] The defendant testified that the cab ride back to his apartment was perhaps 5 to 10 minutes. During the cab ride there was no discussion as the defendant was on his cellphone. When they arrived at his apartment, O.A. went through his available shoes and selected a pair.

She also asked if she could take a second pair. He agreed. According to the defendant, the complainant was in his apartment for five to seven minutes. They left together. He told her “see you later” and rode his bike to his office to continue preparations for the evening. Complainant O.A. told him she was visiting friends in “the west”, and she went on her way. C. Evidence -- The “Group Incident” 1. Evidence: Complainant O.A.

[73] Complainant O.A. testified that she introduced R.A. to the defendant after the “First Incident”. While she could not specify thedate, she testified that she was fifteen years old, and R.A. was fourteen years old. [74] Complainant O.A. testified that she was walking with R.A. on Queen Street when she invited R.A. to come with her to visit thedefendant at his residence. The defendant greeted them and invited them inside. Complainant O.A. testified that after approximately tenminutes, the defendant began kissing her. He then began kissing R.A..

She described the defendant engaging in vaginal sexualintercourse with her, while R.A. was lying beside them. Thereafter, the defendant went back and both between O.A. and R.A.performing sexual intercourse with each. Ultimately the defendant ejaculated, and the sexual contact ceased. [75] Complainant O.A. testified that there was no discussion about her age prior to sexual contact. She could not recall any discussionbetween the defendant and R.A. about age either. 2. Evidence: Complainant R.A. [76] Complainant R.A. testified that she was invited by O.A. to attend the defendant’s apartment.

She had never met the defendantbefore. At some point she observed O.A. and the defendant begin to “make out” and engage in sexual foreplay. Thereafter she wasinvited by both O.A. and the defendant to engage in mutual sexual acts. [77] Complainant R.A. testified that it was hard to remember the exact sequence of specific sexual acts. Nevertheless, she specifiedthat the defendant engaged in vaginal intercourse with her and ultimately ejaculated.

She also observed the defendant perform vaginalintercourse with O.A. and place his penis in her mouth. [78] Complainant R.A. testified that she estimated that they spent perhaps one hour at the defendant’s residence. Prior to sexualcontact there was no discussion with the defendant. She could not recall any questions posed by the defendant as to her age, grade inschool, or family.

She could not recall O.A. and the defendant discussing her age either. [79] During cross-examination, R.A. testified that there was a possibility that the defendant spoke to her directly, but she could notrecall the details of any conversation nor could she recall the extent of any conversation. She also agreed with the cross-examinationsuggestion that the defendant did not “force” or “pressure” her to engage in sexual intercourse. She also agreed with the cross-examination suggestion that it was at least possible that O.A. and the defendant discussed her age when she was not present. 3.

Evidence: Defendant [80] The defendant testified that approximately two weeks after he first met O.A., she contacted him by text in search of her purse andsome identification she had lost. He testified that he had provided his text contact to both O.A. and her friend the first day they metoutside the club. When he received the text from O.A., he searched his residence and found a small wallet with ID. He looked at itbriefly. He testified that he believed it was purple, but it was not a driver’s licence. He remembered seeing the numbers 95.

Based uponthis examination, he was satisfied that O.A. was either 19 or 20 years old. [81] Both complainants attended his residence at sunset. He met R.A. for the first time. Complainant O.A. introduced R.A. as herbest friend. They began playing video games on Nintendo game system. They ate a few snacks. They engaged in some “quick banter”when the game finished. [82] The defendant testified that all of a sudden, O.A. grabbed his face and began to kiss him. He was surprised by this action. Butalso testified that it “happens normally” because he generally “does not make the first move”.

Thereafter, O.A. invited R.A. to join inintimate contact. He observed O.A. and R.A. begin to kiss each other in front of him. While this was occurring, O.A. pulled his face intoa mutual kiss with R.A. Thereafter, O.A. unzipped his pants, performed a hand job, and performed oral sex on him. All the while R.A.was kissing him. Then the girls switched. Ultimately O.A. guided his penis into her vagina and guided his penis into R.A.’s vagina. [83] The defendant testified that he is the same age as his best friend, so he assumed that R.A. would be the same age as her bestfriend – O.A..

He just assumed that they were both “19 plus”. D. Analysis: The “First Incident” 1. Introduction [84] This trial concerns a number of alleged incidents spanning many months. Earlier in this judgment I addressed the issue of broadcredibility findings concerning each witness. [5] I also explained that credibility findings could span the counts on the Information evenin the absence of a similar fact application. [85] The “First Incident” and the “Group Incident” provide the first opportunity to address credibility issues as it concerns the threewitnesses at trial – O.A., R.A., and the defendant.

As such, I will provide a through analysis of credibility including the broadercredibility issues at this juncture. Throughout the remainder of this judgment I will explain particular findings on each count withoutnecessarily repeating the entire analysis. [86] As it concerns the “First Incident”, O.A. describes sexual contact that establishes the actus reus for sexual interference. Thedefendant testified that no sexual contact occurred. Given the defendant’s testimonial position, the mistake of age defence is notavailable.

The assertion of the mistake of age defence contemplates that the act occurred, but the mens rea was negated by the mistake:R. v. Davis, (SCC), [1999] S.C.J. No. 67, at paras. 80-81[Davis]; Ewanchuk, at para. 44. [87] This allegation housed under count two is resolved by the proper application of W.(D.) and consideration of the criminal burdenof proof.

[88] For the reasons that follow, I believe O.A.’s evidence that sexual intercourse occurred. I reject the defendant’s denial of thatsexual contact. I am not in a state of doubt having applied step two in W.(D.). Having regard to the third step in W.(D.), I am satisfiedthat the prosecution has proven beyond a reasonable doubt that an offence contrary to

section 151 of the Criminal Code occurred. 2. Credibility and Reliability of O.A.

a) Overall Demeanour and Presentation at Trial [89] I found O.A. to be a careful and measured witness overall. She did not exaggerate the details of her sexual contact with thedefendant. Complainant O.A. was cautious with speculative detail and self-regulated her evidence by identifying areas that she could notbe sure about given the historical nature of the allegations.

b) Credibility [90] Cross-examination did not expose any significant material problem with O.A.’s evidence in support of the criminal allegations attrial. That being said, I accept Defence counsel’s cross-examination challenge to O.A.’s position that she was not positioned outside ofthe club for the purpose of trying to engage persons associated with the famous rap artist’s after-party. Complainant O.A.’s credibilitywas impacted by her refusal to admit that she and J.E. were positioned outside the club intentionally.

I agree with Defence counsel’ssubmission that it was no mere coincidence that O.A. took a photograph with a famous rap artist, and within the hour, just happened to beproximate to the location where the after-party was to be held.[6] [91] But this was not a significant or material credibility issue and was not relevant to the finding that there was sexual contact at thedefendant’s residence. Ultimately, I still accept O.A.’s evidence that sexual intercourse occurred.

c) Reliability [92] Complainant O.A. provided a detailed recount of her first meeting with the defendant and the circumstances surrounding herattendance at his residence. I found her recount to be thorough and reliable notwithstanding the historical context. [93] I note that the chronology of the incident as described by both O.A. and the defendant is materially the same. While there areminor differences in their respective recounts, the defendant’s testimony corroborates O.A.’s testimony on all material aspects. Only thefact of sexual contact is denied.

d) Irrelevant Considerations [94] Defence counsel submits that the simple fact that O.A. was so willing to attend the apartment of a stranger was supportive of thedefendant’s subjective perception of the complainant’s age. While there is no mistake of age defence asserted in relation to the “FirstIncident”, I find that this is an available consideration in relation to the “Group Incident”. That being said, this factor, as a supposedindicia of adulthood, merits little weight.

The notion that a teenager would go willingly into a stranger’s residence is not an actionablefactor supportive of a mistake of age defence on these facts. In any event, this narrow submission misses the overall context that I haveset out in this judgment. [95] The cross-examination theme around whether or not O.A. told the police that the sex was “fun” is also irrelevant. ComplainantO.A. disputed the use of the word “fun”.

In any event, the suggestion that an underage person thought sex with an adult was “fun” isirrelevant to the essential elements of a sexual interference offence. [96] The meagre basis for these cross-examination themes was made even more apparent when the defendant testified, denying thatany sexual contact occurred.

e) Motive to Fabricate [97] I accept Defence counsel’s submission that caution is in order given the circumstances. While there is no apparent motive tofabricate, I must nonetheless consider the allegations carefully. As I have indicated earlier in this judgment, the Crown has not proventhe absence of a motive to fabricate.

f) Collusion [98] Defence counsel generally submitted that O.A. and R.A. colluded. Issues of collusion and corroboration often arise in the contextof accomplices and Vetrovec considerations. Even though there is no similar fact application in this case, I prefer the conservativeguidance provided by the law of similar fact as it treats the issue of collusion. [99] The criminal law conception of collusion[7] may encompass inadvertent, innocent, and unintentional contact: R. v. Wilkinson,2017 ONCA 756, at paras. 36-40; R. v. Dorsey, 2012 ONCA 185 [Dorsey].

It is also clear that collusion may be sourced in externalinfluences on the witnesses including pre-trial publicity: Dorsey; R. v. A.(H.), 2007 ONCA 530. Hearing other experiences may colourone’s

interpretation of personal experience and reinforce perceptions, doubts, and concerns: R. v. J. F., (ON CA),[2003] O.J. No 3241 (C.A.), at para. 77. [100] On the other hand, that there is evidence of an opportunity for witnesses to have colluded, communicated, or consulted, does notnecessarily mean that prosecution attempts to rebut collusion must fail: R. v. Shearing, (2002), 2002 SCC 58 , 165 C.C.C. (3d)225 (S.C.C.) at paras. 43-44 [Shearing]; R. v. W. (J.), 2013 ONCA 89. Simple awareness that others have made allegations does notnecessarily establish collusion. The simple fact that one complainant knows that others have come forward with allegations, without

knowledge of the details of the allegations, does not establish collusion: R. v. M. (R.), 2015 ONCA 9. Where the evidence supports mereopportunity to collude, the issue should be left to the trier of fact: Shearing, at para. 44; Dorsey, at paras. 29-31. Finally, I note that inthe similar fact application context, the Defence is not required to prove collusion: R. v.

Handy, 2002 SCC 56 at para. 113. [101] The record at trial supports the following findings: • The two complainants were aware of each other and communicated as they came forward with their allegations. • There is no evidence that the complainants spoke about the details of their respective allegations. • Complainant R.A. testified that: i. At the time of the incidents she was good friends with O.A.; ii. If she and O.A. were upset by a particular incident at the time it occurred there may have been discussionabout the circumstance at the time it occurred; iii.

They are no longer in touch, and she has not spoken to O.A.; iv. She was aware that O.A. came forward to the police and made a statement; and, v.

Complainant O.A. asked her for her permission to give her details to the police so that they might contacther. • Complainant O.A. testified that she and R.A. had wished each other good luck before testifying and expressed support for eachother going through the court process. [102] While I endorse Defence counsel’s submission that caution is in order, I arrive at several conclusions. [103] First, collusion can arise from a deliberate agreement, communication amongst witnesses that consciously or unconsciouslycolours their description of events and need not have sinister origins: R. v.

E.M.M. 2021 ONCA 436, at paras. 17-19; R. v. Clause, 2016ONCA 859, at para. 81; R. v. B.(C.), (ON CA), [2003] O.J. No 11 (C.A.) at para. 40. I accept that there is at least therisk of unconscious collusion where the complainants have potentially discussed events that troubled them at the time of the incident.

The record at trial did not reveal that the complainants had engaged in detailed discussions of their respective allegations. [104] Second, I found the complainants to be credible witnesses overall. [105] Third, as it pertains to the issue of collusion, I note in particular that R.A. volunteered the testimony about the possibility ofdiscussion if one or the other complainant was upset at the time of an incident. I emphasize that this evidence was volunteered, ratherthan extracted, on cross-examination. [106] Fourth, there is no similar fact application in this case.

As such, I am considering the evidentiary record on each countindependently without the corroborative force of similar fact reasoning. [107] Fifth, the central opportunity for collusive corroborative testimony would be on the “Group Incident”. As it concerns thatallegation, O.A. and R.A. did not testify to mirrored experiences, neatly corroborative of each other. Their respective accounts were notcompletely complementary. In any event, the defendant corroborated the accounts provided by the complainants as I will explainbelow.

All three witnesses at trial testified to sexual contact sufficient to satisfy the actus reus for sexual interference concerning the“Group Incident”. The granular particulars of the acts are less important. [108] As it concerns other potential areas where O.A. and R.A. could have corroborated each other (e.g. “Slap Fest”), they did not. Suspected collusion did not provide supportive corroboration. [109] As I turn my mind to each count, I can not discern any particular circumstance where collusive circumstances could providecorroborative support for the prosecution witnesses.

Thus, while I admit that general vigilance is important, it appears that theopportunity for collusion, whether innocent, unconscious, or conscious, is a minor issue. 3. Credibility and Reliability of the Defendant

a) Context [110] Context is an important consideration when assessing the defendant’s perception of the circumstances. There are severalbackground factors providing necessary context to the mental intent of the defendant and his interaction with O.A. (and R.A. on theother counts). These factors are also important to subjective contextual circumstances relied upon by the defendant to assert the mistakeof age defence in relation to other sexual interference allegations as well.

b) The Defendant’s Background [111] The defendant’s general background is an important contextual factor as it concerns his testimony, perceptions, and his assertionof defences to the criminal allegations. The defendant grew up in the greater Toronto area. He is an English-speaking adult person whois familiar with the social mores, the culture, and the general character of life in Toronto. Byway of contrasting example, he is not arecent arrival to Toronto, lacking familiarity with the language, region, or social environment.

c) Employment as a Promoter [ 112 ] The defendant testified as to his employment experience as a club or event promoter including his associated with clubs. For example, the defendant boasted that at a particular club on a particular night he might know six hundred of the seven hundred persons in the club. The defendant presented himself as someone who was readily familiar with the club life.

The defendant also testified that he was familiar with liquor licencing and age requirements at clubs. [ 113 ] The defendant’s employment provided him with a peculiar insight into the club and entertainment business, liquor licence establishments, and the clientele. A simple truth about the industry is that promoters assist clubs with obtaining profits from charging admission to access an event and liquor sales. Alcohol sales must be regulated by licenced establishments. Cross-examination in this area was excruciating.

The defendant was reluctant to accept the most basic cross-examination conclusion based on his direct examination in these areas. Ultimately, he grudgingly accepted some of these basis conclusions.

d) The Defendant’s Association with Club Haus [ 114 ] Against the backdrop of the defendant’s involvement in the promotion industry associated with clubs generally, I find that he must have also enjoyed a close relationship with Club Haus. The defendant was inconsistent about his relationship with this particular club and would not readily accept this premise. [ 115 ] On the afternoon of the “First Incident” , the defendant described how busy he was with his responsibility to prepare the club for the after-party. He described having to direct persons assisting him with the preparations.

The defendant also testified that separate and apart from the after-party that night, he was generally responsible for promoting and running a weekly club event. He described how his events catered to university crowds and skewed toward a younger audience. [ 116 ] During cross-examination, the defendant’s demeanour and evidence changed dramatically. [ 117 ] At first the defendant resisted any suggestion that he worked closely with the club and club security. He would not acknowledge that his employment as a promoter implied that he had a duty to the club.

The defendant had difficulty with the notion that as a promoter, he was trying to attract people to attend the club, to pay the cover charge and promote liquor sales. The defendant also had great difficulty with the suggestion that he streamlined access for some individuals by way of the club guest list. [ 118 ] The defendant quarrelled with the Crown Attorney’s suggestion that the success of his business involved promoting events and attracting crowds to purchase liqueur in the club and pay the cover charge.

The defendant suggested that he was involved in this work because it was his passion (I do not disbelieve that he was passionate about his work) but studiously ignored the financial considerations until thoroughly and minutely confronted during a close cross-examination. [ 119 ] The Crown Attorney cross-examined the defendant about his promotion of music artists and the connection to parties both at the club and outside of the club. The defendant maintained that he had no idea about parties outside of the club including the concept of “after-parties”.

He testified that he was not promoting “after-parties” and it never been to one. Once again, ultimately, he acknowledged that such events existed, and he was aware of their existence. In fact, at a different portion of his evidence, he specifically acknowledged that he was promoting an “after-party” at Club Haus for the famous rap artist when he met O.A. and her friend J.E.. [ 120 ] At times the defendant tried to distance himself from the club and the management of the club including security arrangements. He expressed that he was totally unconcerned with matters of security.

But, on all of the evidence at trial, it is patently obvious that he enjoyed an intimate understanding of the club, its management, and the approach of security. He volunteered that the management group was like this in all clubs they own, and the security was “Fort Knox”. [ 121 ] On these broad themes, the defendant’s credibility was negatively impacted. The defendant was highly sensitive to these seemingly obvious connections. He bristled at these suggested linkages. He was uncooperative and argumentative when responding to these themes.

Ultimately, the cross-examiner reached a point with the defendant where these themes were reluctantly acknowledged. [ 122 ] The simple suggestions presented by the cross-examination in this area were reasonably founded upon the content of the defendant’s direct examination. The notion that a club promoter is interested in attracting clients who will spend money at the club should have been uncontroversial. The suggestion that the defendant worked closely with the club and enjoyed access was readily apparent. [ 123 ] Clearly, the defendant was trying to create distance between Club Haus and his employment.

He perceived some advantage to conveying that a solid wall of security could not be influenced by him. He appeared focused on shoring up the club’s security protocols. All of this, perhaps, in aide of his evidence that he perceived O.A. to be “19 plus”. The defendant clearly wanted to distance himself from an intimate connection with Club Haus and emphasize the “Fort Knox” security protocols as foundational to his asserted mistake of age defence.

e) The Lie – Complainant O.A. [ 124 ] The defendant testified that when he first met O.A. and J.E. outside of Club Haus they told him that they possessed the necessary identification required to gain entry to the club. Complainant O.A. testified that she in fact told the defendant that she was eighteen, and that she possessed identification to get into the club. [ 125 ] I find that O.A. told the defendant that she was eighteen years old and possessed identification needed to enter Club Haus. In fact, it is clear that both O.A. and her friend J.E. lied to the defendant.

I make this finding even in the face of the defendant’s testimony that he did not recall O.A. disclosing her age. [ 126 ] Defence counsel cross-examined O.A. suggesting that if she was prepared to lie about her age to the defendant, she could be a liar

at large. This goes too far. I did not find O.A.’s willingness to lie about her age to present a significant credibility issue. She explainedthat she was enamoured of the club life and the excitement such experiences would provide. She perceived the defendant as someonewho could facilitate access. She did not try to justify her lie when she testified in court. [127] Further, as an adult testifying in court, O.A. must have been aware of the potential ramifications of admitting that she lied abouther age.

She endorsed the fact that she falsely told the defendant she was eighteen, on a trial where she would be aware that he is beingprosecuted for having sexual contact with persons under the age of sixteen. I believe that O.A. was being forthright on this issue despitethe potential impact on the prosecution of the case. It was akin to an “admission against interest” on a central issue on a sexualinterference allegation – the defendant’s perception of age. [128] I presume that O.A. could not know, that ultimately the defendant would testify that no sexual contact occurred.

f) The Lie and Mistake of Age [129] The defendant denies any sexual contact with O.A. the night they met. As I have outlined above, the mistake of age defence isnot available as it concerns the “First Incident” given the defendant’s position. But the circumstances surrounding the defendant’sinteraction with O.A. that first night are still relevant to his assertion of the defence in relation to the “Group Incident”. [130] The finding that O.A. lied about her age does not end the analysis. This fact must be analyzed in the context of the defendant’sbackground and experience outlined in this judgment.

When I overlay the defendant’s background and experience, I find that O.A.’sadmitted lie provides meagre support for the mistake of age defence. [131] The Supreme Court of Canada highlighted the notorious truth that underage persons may misrepresent their age in R. v. George,2017 SCC 38, at paragraph 9 [ George]: Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’s age in every case, given thecommonly recognized motivation for young people to misrepresent their age (R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481, atparas. 17, 26, 45 and 51 (“Dragos”); L.

Vandervort, “‘Too Young to Sell Me Sex?!’ Mens Rea, Mistake of Fact, Reckless Exploitation,and the Underage Sex Worker” (2012) 58 Crim. L.Q., 355 at pp. 360 and 375; J. Benedet, 2015 SKCA 61 , 21 C.R. (7th) 166, atp. 168 (“Benedet”); Stewart, at p. 4-26.1). [132] The defendant was a promoter of clubs and bars. He understood this environment. He knew that bars and clubs are subject toprovincial liquor licence law and municipal regulation.

He knew that the industry expended resources to regulate entry to clubs and barsto prevent underage drinking and potential licence violations. [133] I impute to the defendant the common knowledge that young persons could lie about age and use fake identification to facilitateaccess to movies, cigarettes, alcohol, clubs, and nightclubs. If this is not notorious and accessible byway of the doctrine of judicialnotice, it is at least common knowledge to the objectively reasonable adult in our society, let alone the defendant, an adult working in theclub promotion industry.

The defendant was well positioned to understand this reality. [134] In this unique environment, with the defendant’s peculiar background, the simple assertion of age or credentials is not enough. Complainant O.A.’s simple assertion that she was eighteen and possessed ID has to be considered in the context of the circumstances. Ifind it objectively unreasonable to rely upon the mere assertion of age by O.A..

But this is even more unreasonable when I consider thesubjective circumstances of the defendant’s employment and experience in the club promotion industry. [135] In addition, I accept O.A.’s testimony that the defendant stated that J.E. looked old enough to get into the club, but O.A. did not.As I will address later in this decision, I also find that the defendant provided O.A. with a shirt and shoes when she attended hisapartment. In arriving at this findings, I am keenly focused on the defendant’s actions as well as his words. [136] It is important not to miss the nuance in the question posed by the defendant.

He did not ask the girls their age. He did not ask ifthey were old enough to get into the club. The defendant simply asked if they possessed identification that would permit them entry intothe club. He was prepared to put O.A. and J.E. on the guest list, streamlining their potential entry into the club, in circumstances wherehe knew their asserted age of eighteen would not permit entry.

g) The Conversation Prior to leaving Club Haus [137] The defendant testified that O.A. was wearing all white air force Nike shoes that were dirty and would not permit her entry intothe club. He defendant described a conversation with O.A. where she advised that she had no opportunity to change her shoes as she wasnot going home, she was going west. He told her that he had sponsorship shoes at his residence and asked her what size she took.

Thereafter she basically invited herself to go west, not only to acquire the clothing but also to meet with friends. [138] Complainant O.A. testified that the defendant said her friend J.E. looked old enough to get into the club but she did not. Shedescribed a conversation where the defendant told her that she needed some clothes so that she could look older and get into the club. Complainant O.A. explained that at the time, she was young and naïve. She did not perceive anything “weird” about going back to thedefendant’s apartment to get clothes.

She agreed to go with him because she wanted to gain entry to the club. At his apartment, thedefendant ultimately gave her a long-sleeved shirt and some flat shoes. [139] I accept the evidence of O.A. and reject the defendant’s version of events where it conflicts with hers. In arriving at this finding, Ireject the defendant’s evidence that O.A. basically invited herself into his taxi. Even on his testimony, O.A. had just met him. Shewould not have known where he lived much less that he lived west of the club.

So, it is highly unlikely that she spontaneously suggestedshe was going west, invited herself into his cab, and this just happened to coincide with the direction of his apartment. However, I acceptthe defendant’s testimony that O.A. went in the cab willingly and attended his apartment without any coercion on his part.

[ 140 ] While I also find that the defendant described O.A. as appearing too young, I must take that evidence in context. The defendant said she appeared too young to get into the club. This does not mandate a finding that he perceived her as being under the age of sixteen where nineteen is the age limit to get into clubs.

h) The Rationale for Attending the Defendant’s Apartment – Dirty Shoes [ 141 ] The defendant testified that O.A.’s shoes were too dirty to get into the club. I do not believe his testimony in this regard. [ 142 ] First of all, O.A. was not wearing white Nike shoes as described by the defendant in his testimony. In the photo taken shortly before their meeting in front of Club Haus, O.A. is clearly wearing blue, red, and brown Nike sneakers. It is J.E. who is wearing white Nike shoes. Not O.A.

This is a very basic fact to get wrong. [ 143 ] Second, I am able to zoom in on the PDF photo 2A and see the sneakers clearly. Not only are ’s O.A. sneakers not white, they do not appear any more worn or dirty than her friend’s shoes.

i) The Rationale for Attending the Defendant’s Apartment – Clothing [ 144 ] Complainant O.A. testified that the defendant told her she needed some clothes to make her look older so she could get into Club Haus. I accept the testimony of O.A. that the defendant distinguished her in this manner as compared to her friend J.E.. The defendant said that J.E. look old enough to get into Club Haus. [ 145 ] I note that during cross-examination of O.A., Defence counsel suggested to her that the defendant gave her a long-sleeved shirt and shoes back at his apartment.

She confirmed that this occurred. [ 146 ] When the defendant testified, at first, he only referenced the provision of shoes. He testified to a most specific description of the colour, brand, and description of shoes O.A. selected. Yet later on in his direct examination he acknowledged that the complainant received a shirt as well. He described her “taking” another “sponsorship shirt”. So, ultimately, even on his evidence, O.A. did receive a shirt and shoes.

j) The Defendant’s True Aim [ 147 ] As outlined above, I do not believe the defendant’s evidence that O.A.’s dirty shoes needed changing. He could not even identify her shoes correctly when he testified. Further, her blue, red, and brown shoes did not look dirty in Exhibit 2 [ 148 ] The defendant described his work that night and his responsibilities associated with preparing for the event that night. The idea that he would divert from his employment in aid of a perfect stranger with

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