Her Majesty the Queen - v. -, 2021 SKPC 63

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 63 Date: December 13, 2021 Information: 991064394 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mohammed Abdular Abdallah Appearing: T. Denluck For the Crown J. Nahachewsky For the Accused Warning: Pursuant to s. 486.4 of the Criminal Code , no information that could identify the victim may be published in any document or broadcast or transmitted in any way. JUDGMENT M.L.

GRAY , J [ 1 ] The accused was charged that on the 18 th day of May 2017, he committed a sexual assault on A.S. contrary to s. 271 of the Criminal Code . The trial was conducted with the assistance of an interpreter, as Mr. Abdallah’s first language is Masalit. As he also speaks Arabic, the Crown evidence was initially translated into Arabic. When the interpreter raised concerns that the accused did not understand the form of Arabic being spoken, the trial adjourned in order to consider whether a non-suit was necessary or if the trial could continue.

Rather than have the complainant and other Crown witnesses testify again, counsel agreed that the trial could proceed after the transcript of the Crown evidence was verbally translated to the accused. [ 2 ] The complainant testified that she met the accused online and they messaged back and forth for a few weeks before deciding to meet in person. On May 18, 2017, she was in Saskatoon when she received a message from the accused asking to meet. It was shortly

before 10:00 p.m. when she arrived at the restaurant as arranged. As the restaurant was closed, she got into the accused’s vehicle, which she described as a crossover SUV, and they went to a near-by fast food restaurant instead. Afterward, they talked about going for a walk by the river; she said that she was surprised when the accused drove to a hotel instead of going toward the river. [ 3 ] The complainant said that she was upset that the accused drove to the hotel and told him that she would not sleep with him.

The complainant asked to be taken back to her car but instead the accused drove toward the river and parked in a secluded parking lot. For about 20 minutes, they had conversation; the accused was apologetic. The complainant testified: But I was explaining to him, like, when you date somebody, you can’t just expect things out of them like that. You can’t just all of a sudden go, we’re going to a hotel and we’re going to do this. That’s not the way things work here. And we talked a lot about, like, how— okay. I did the talking; he basically did the listening and that. But he participated in the conversation.

And he kept saying I’m sorry, and I respect you.” [1] [ 4 ] In cross-examination, she further described her displeasure with the accused driving to a hotel: And I was saying, like, what are you doing? Like I’m not sleeping with you, like, that—I—no, this is not going to be happening, you just can’t do this to people. Like, I’m not looking for anything sexual. I was just looking for a friend and we went over that. And he was like, yeah, yeah, no.

Just going to be friends, and—like, he said he was just joking. [2] [ 5 ] After this conversation, she testified, the accused kissed her; she was caught off guard but did kiss him back. She stopped the kiss and the accused apologized saying again that he respected her. She got out of his vehicle but dropped her phone. She leaned over to pick it up and when she turned, the accused was there. She said: And then I turned and he was there. Like, he kind of startled me in a way, ‘cause I didn’t hear him. I didn’t know he was there.

And I kind of started to stumble because at the time, I was going through a really bad MS attack, where I was having trouble walking. So I grabbed the—I grabbed the door and I kind of grabbed on to him ‘cause I really didn’t want to fall down. [3] [ 6 ] The complainant continued that once she regained her balance, the accused shoved her backward onto the rear seat of his vehicle where he removed her shoe and one leg of her pants. She was positioned on her back; the accused was over her. He penetrated her vagina with his penis but did not ejaculate. Throughout this, she was yelling and screaming at him to stop.

He did stop and she was able to get out of the vehicle. She did not recall the accused getting into the driver’s seat but remembered him speeding off. She was able to take a photo of the rear of his vehicle as he drove away. [ 7 ] Her evidence was that she then began walking, feeling dazed, and was approached by a couple who ultimately drove her back to her truck on 33 rd Street. The police were notified and she gave the photo that she had taken to them. [ 8 ] She was asked to provide more detail of what transpired when she left the car.

Her evidence was that she bent over to pick up her phone and had her right hand on the car door as she did so. When she stood, she let go of the door, stumbled and grabbed hold of the accused. When confronted by her statement to the police that: “You stumbled forward. Your left hand was on the car door and your right hand had your phone and you were holding onto Mr.

Abdullah.” She said that she could not have done all three things at the same time, saying that she turned, started to stumble and “kind of grabbed a hold of him.” [4] [ 9 ] When asked how she came to be in the position that enabled the accused to push her back onto the rear seat of the vehicle, she responded: I was not paying enough attention to my surroundings in that manner.

Like because I was actually more focused on not falling over and literally hitting the ground. [5] [ 10 ] When it was pointed out that the open back door would have been in the way, she responded, “..when I first turned around, he was right there, and that’s when I grabbed onto him because I started to stumble. But then I tried to go like, around him, like to get out of there. And I don’t know, I really don’t know how exactly I ended up being pushed into the back.

I just know it happened. [6] [ 11 ] Ultimately, she acknowledged that she was not sure exactly how she came to be in the back seat apart from a push. [ 12 ] She admitted that the officer asked her to get a sexual assault exam done at the hospital and that the officer explained that “they” would take a swab and her underwear. The officer said that they would also take her bra.

She admitted telling the police that she feared getting a sexually transmitted disease and that would be a good reason to be examined by a doctor but she was just not prepared to give up the expensive bra that she was wearing. [ 13 ] She identified an email that she sent to the accused’s employer on May 24, 2017, asking to confirm that the accused worked for the company, reporting that the accused raped her and advising that the matter was in the hands of the police. She did not receive a reply so she went to the accused’s place of employment and met with the managers.

She explained that she did so in order to confront the accused and hold him accountable. [ 14 ] She denied that she ever wanted to date the accused and maintained that she joined the Plenty of Fish platform because she was looking for a best friend. [ 15 ] Cst. Clarke testified that on May 19, 2017 at about midnight, she was dispatched to a complaint of a sexual assault. She met the complainant and spoke with her for about 50 minutes. She noted that A.S. seemed nervous, embarrassed and at the end of the interview, began to cry.

A.S., throughout the interview, was vague on details as to what had transpired and had a great deal of difficulty

explaining what had occurred during the sexual assault incident. She was asked to go to the hospital for a sexual assault examination but refused, saying that she just wanted to go home. In attempting to persuade A.S. to go to the hospital, Cst. Clarke said that she would like the best evidence possible to go forward with the investigation but the complainant again refused to go. Cst. Clarke did not recall the complainant expressing concern about losing her bra. [ 16 ] On June 14, 2017, Sgt. Ly also spoke to the complainant who turned over the panties that she was wearing on the date of the alleged assault.

These were sent to a lab for analysis; the results were inconclusive. [ 17 ] The accused testified with the assistance of a Masalit interpreter who was present by video. Mr. Abdullah emigrated to Canada from Sudan when he was 25 years old; he is now 39. His first language is Masalit but he does have a rudimentary understanding of English. He met the complainant online on an app called Plenty of Fish. He met her in person on three occasions. On May 18, 2017, they met at a Pizzeria and Donair restaurant. As it was closed, they went to a fast food restaurant instead.

From there they went to a hotel as requested by the complainant. Although he had paid for the food, he did not have money for a hotel room and apologized to her. When this did not work out, they drove to a parking lot so they could go for a walk and get to know each other. While they were in the car, the complainant put her hands on his shoulders and kissed him; he returned the kiss. After this, he unlocked the doors and she moved to the back seat where she removed her own clothes. She asked him to have sex with her.

They had sex for about half a minute when she asked him to stop, which he did “right away.” They each put on their clothes and the complainant refused to get back into the car. He drove a short distance away, waited and when she still did not get in, he drove away and left her there. [ 18 ] In cross-examination, he agreed that he had worked for a construction company for 8 years and had studied English for two years before. He confirmed that he met the complainant on Plenty of Fish and that she told him that she was married and had a son.

On May 18, 2017, she messaged him and said that she was in town and would like to meet. He agreed that he parked in front of the restaurant where they were meeting and she parked in the back. He used his debit card to pay for their meal but did not have enough money for a hotel. He did not know why the complainant asked him to go to the hotel but as she asked several times, he obliged. He did not plan to have sex with the complainant. When neither of them had money for a hotel room, they left and went to the parking lot by the river.

The complainant did not ask to return to her truck. [ 19 ] They did not go for a walk but sat in his vehicle and talked. He agreed that he told the complainant that he respected her. He denied that she was upset, saying that she had a happy face, not an angry one. After they kissed, he unlocked the doors and she opened the back door, got in the back seat and took off her clothes. He did not leave the driver’s seat until she was in the back. She removed her own pants and underwear then she said that she was “ready to go.” He admitted that he penetrated her vagina with his penis but did not ejaculate.

She asked him to stop so he did; she did not scream or yell. [ 20 ] He agreed that they both left the vehicle once dressed and the complainant refused to get back into the car. He waited near-by for about 15 minutes to see if she could get a taxi or would take a ride as he did not feel good about just leaving her there. [ 21 ] When asked what type of vehicle he was driving he said it was a JEEP Compass, a 4x4 SUV. [ 22 ] Both the complainant and the accused provided very similar versions of events. They agree that they met on-line, and that they met in person at least twice, both times at a local restaurant.

Further, on May 18, 2017, they agree that they met at the restaurant, which was closed, that A.S. got into the accused’s SUV, that they went to a fast food restaurant for some food, and then drove to a hotel but never went inside. They also agree that they parked in a parking lot near the river and that they kissed. The evidence diverges at this point. The complainant says that she made it clear that she did not want sexual contact; the accused says that it was her idea to have sex. Indeed, wherever the evidence differs, it is in relation to the issue of consent.

For example, the complainant testified that the accused drove to a hotel without discussion; that he initiated the kiss, that he pushed her into the back of the car, that he removed her shoe and one leg of her pants, that he penetrated her vagina, and that she was screaming for him to stop. The accused testified that the complainant wanted to go to a hotel, that she initiated the kiss, that she voluntarily got into the back seat of his vehicle, that she removed her own clothes, and that she did not scream or yell.

In short, there is consensus that sexual activity occurred and disagreement as to whether there was consent to that activity. [ 23 ] Given the diametrically opposed evidence on this latter element, it is incumbent on the court to engage in an analysis in relation to the credibility and reliability of the evidence surrounding consent. First, if, after considering the whole of the evidence, the court believes the accused, there must be an acquittal. Second, if, after careful consideration of all the evidence, the court is unable to decide who to believe, there must be an acquittal.

Third, even if the court does not believe the evidence of the accused but is left with a reasonable doubt by it, there must be an acquittal. Finally, even if the court is not left in doubt by the testimony of the accused, the court must decide, on the basis of the evidence that it does accept whether it is convinced beyond a reasonable doubt by that evidence of the guilt of the accused. The burden of proof is one of beyond a reasonable doubt and remains with the Crown throughout the trial; it never shifts.

Although this standard does not require proof beyond all doubt or proof to a certainty, it is a high onus to be met. [ 24 ] Since the conclusion of the trial, I have taken an opportunity to review and consider the transcripts as well as my notes of the evidence and the arguments. I am satisfied that the Crown has proven beyond a reasonable doubt that on May 18, 2017, this accused met the complainant in Saskatoon, Saskatchewan and that sexual contact between them occurred.

The only issue is whether the Crown has proven, beyond a reasonable doubt, that the complainant did not consent to that contact. [ 25 ] In reviewing the evidence, I find that the evidence of the complainant and the accused on the question of consent is irreconcilable; I am also mindful that certain nuances in the evidence can be lost through the process of translation from one language to another.

In considering the credibility and reliability of the evidence, I note that the testimony of the accused and the complainant remained relatively consistent throughout their testimony. [ 26 ] I also noted that the accused attributed actions that might touch on the issue of consent to the complainant and seemed anxious to paint himself as an innocent. For example: he testified that she contacted him that evening, that she wanted to go to the hotel, that she kissed him, she asked to have sex, she got into the back of the car and she took off her own clothes.

He admits that he penetrated the complainant but only at her request and that he stopped when she withdrew her consent. He portrayed himself as a passive player

simply doing as he was directed. [ 27 ] However, I also observed that the complainant was vague in her description of crucial aspects of her evidence and that Cst. Clarke made the same observation in her initial dealing with A.S. [7] Of significant note is A.S.’s complete inability to describe how she came to be in the back seat of the SUV. When confronted by the fact that the open rear door would have been between her and access to the back seat, she speculated that she must have tried to go around the accused.

When asked how she ended up on her back on the back seat, she said that the accused pushed her on her chest and that was how she came to be in that position. Although the height of the complainant was not put into evidence, the observation of the Court was that A.S. is a woman of very short stature. Common sense would dictate that it would be physically impossible for her to simply fall on her back into a cross-over sports utility vehicle which is somewhat higher off the ground than a sedan or compact vehicle.

Ultimately, she admitted that she was not sure how she came to be in the back seat and only remembered a push. [8] [ 28 ] Further, her version of events was not internally consistent. Several times in her testimony, she referred to being in the throes of an MS attack and explained that was why she lost her balance while picking up her phone.

When describing how she left the vehicle after the kiss, she said, “And I kind of started to stumble because at the time, I was going through a really bad MS attack, where I was having trouble walking”. [9] Later, in cross-examination, she stated: “At the time, I was having a little MS relapse and I was having difficulty walking and I didn’t want to walk if I didn’t have to”. [10] Nonetheless, her evidence was that she was shopping in Canadian Tire when arrangements were made to meet the accused; that she chose to park at the rear of the restaurant and walk around it to the accused’s vehicle at the front and that she was agreeable to a walk by the river.

Further, she says that she was asking the accused to take her back to her vehicle from the time that he turned toward the river but nonetheless spent a significant time talking with him once the vehicle was parked. It is inconsistent that she would be demanding to return to her vehicle and then spend 20 minutes educating the accused on dating etiquette. [ 29 ] In conclusion, having considered all the evidence, I find that I do not accept the evidence of the accused in its entirety but nor do I find a basis on which to outrightly reject his evidence.

When considering his evidence along with the testimony of the complainant, who was not particularly compelling or coherent, I am left unable to determine who to believe. Thus, the benefit of any doubt must favour the accused and I find him not guilty. ____________________________ M.L. Gray, J